TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Sunday, August 5, 2007

Some Sunday Reading: Stapleton on Goldberg and Zipursky - Thoughts on a Unified Theory of Torts

On Legal Theory Blog, Larry Solum notes that Jane Stapleton has just posted an article to SSRN:  "Evaluating Goldberg and Zipursky's Civil Recourse Theory." 

From the abstract:

Professors John Goldberg and Benjamin Zipursky claim that they have formulated (the beginnings of) a descriptive theory that captures the distinctive character of tort law. In this article I critically evaluate their theory and find it fundamentally flawed. . . . The[ir] final claim is that civil recourse theory provides an account of what is distinct about the law of torts. Yet there is nothing in that theory that might not also be claimed about other areas of the private law of obligations. As I demonstrate, distinctive features of tort law can be stated but these cannot be reduced to some unitary theory.

In the article, Professor Stapleton states: "We can see what is distinctive about a tree, but we cannot reduce this to a unitary notion.  Indeed, why would we want to?  The common law of torts is like a distinctive sculptured garden that is being built up by usually incremental contributions from generations of cases.  It cannot be reduced to a unitary idea; but this should not prevent us capturing its distinctiveness with a nuanced plural account."  (pp. 1560-61).   

Professor Stapleton's rejection of a unitary theory of tort law reminded me of an article by Chris Robinette: "Can There Be a Unified Theory of Torts?  A Pluralist Suggestion From History and Doctrine."  From the abstract:

In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes' focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. . . I argue that both history and doctrine suggest that the attempt to unify all of torts is futile.


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I agree that deterrence, corrective justice and compensation/or civil remedy is not the unified rationale of tort law separately.

I belive that the direct goal of all legal rules is to repair the infringed social relationships. The methods of repairing includes: money for economic loss, other things for non-ecomonic loss. For example, criminal penalty on bribery. Repairing is the same thing of corrective justice, and methods of repairing surely includes compensation and other remedies.

If the infringed is well repaired, the indirect goal of legal rules of deterrence is achieved as well.

I believe that “strict liability”, “non-fault liability” is actually not tort liability. They are actually first-order duties, as liability is surely not first-order duties. “Strict liability/non-fault libility” is a kind of first-order duty which rises only when some accident occurs. This is actually duty of mutual aid .

So, maybe the unified rationale for tort law is private wrong, and the unified rationale for all liability law(tort law, criminal law) is wrong(including private wrong and public wrong, such as forgery of government’s seal.)

Posted by: lutong | Jun 2, 2011 12:02:36 AM

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