Tuesday, August 17, 2010
I have posted to SSRN Why Civil Recourse Theory Is Incomplete. The abstract provides:
The latest prominent theory of torts is the rich “civil recourse” theory of Professors John C. P. Goldberg and Benjamin C. Zipursky. Pursuant to civil recourse, tort is a law of wrongs. Specifically, tort law’s purpose is “providing victims with an avenue of civil recourse against those who have wrongfully injured them.” As such, Goldberg & Zipursky, with certain de minimis exceptions, deny that tort’s purpose is to serve as an instrument to achieve social and public policy goals.
Although I agree with Goldberg & Zipursky that wrongs are an essential component of tort law, their exclusion of instrumentalist concerns, such as deterrence, loss spreading, and administrative efficiency, is overly broad.
Using tort reform as a perspective by which to examine torts, I chronicle the growth of instrumentalism in tort law. All of the major tort reforms over the last century were based in instrumentalism. Moreover, when the reforms are viewed chronologically, a pattern develops: In each successive reform, instrumentalism made increasing inroads into tort.
Thus, as a positive account of tort law, civil recourse is incomplete. Tort law, as a positive matter, is about wrongs, but not exclusively wrongs. It is pluralist, including elements of instrumentalism as well.
Although I am ultimately critical, the process of writing the article only deepened my respect for John & Ben.
Comments are welcome: [email protected].