Academic

Calnan on Goldberg & Zipursky on Tort Theory

By Lawrence Solum

Alan Calnan (Southwestern Law School) has posted What's Wrong With Torts as Wrongs (or Redirecting Civil Recourse Theory) on SSRN.  Here is the abstract:

In their recent article "Torts as Wrongs," Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of civil recourse theory. A purely descriptive account, civil recourse theory holds that tort law is a scheme of rights permitting victims to sue for the redress of legal wrongs. The present paper challenges this theory, identifying three problems which undermine its accuracy. First, Goldberg and Zipursky generally do not follow the neutral principles of a truth-seeking discipline; and even when they do, they mistakenly apply the wrong approach, choosing the inapposite taxonomic analysis of the natural sciences instead of the imaginative methodology required by the human sciences. Second, because of their skewed perspective, Goldberg and Zipursky erroneously downplay the existence in tort of strict liability concepts, completely ignoring their current nonwrongs-based characterization, and grossly underestimating their pervasiveness, embeddedness, and practical and structural significance. Third, and for similar reasons, the authors casually overlook or readily dismiss the prodigious incursion of instrumental considerations into the core wrongs-based action of negligence, viewing them as marked departures from tort law rather than accretive adaptations to its evolving content. When these flaws are corrected and all the facts are revealed and examined, a far different image of tort law emerges. Tort is not, as Goldberg and Zipursky assert, a cohesive, unitary system of civil wrongs and private justice, but is more of a disjointed patchwork of moral and instrumental canons haphazardly interwoven into a decidedly diverse institution serving both public and private objectives. This does not mean that civil recourse theory lacks value. It means the theory?s value remains unrealized because its mission is misconceived. By converting civil recourse theory into a normative undertaking, Goldberg and Zipursky can finally stop struggling to explain the chaos that tort law has become, and can openly join the fight to fix it.

Full post as published by Legal Theory Blog on August 12, 2010 (boomark / email).