Wednesday, August 22, 2012
I have posted to SSRN a draft of my article from last January's AALS Torts & Compensation Systems Section panel on John Goldberg & Ben Zipursky's elegant civil recourse theory. Entitled Two Roads Diverge for Civil Recourse Theory, the abstract provides:
John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments.
The symposium will be published by the Indiana Law Journal in the spring and contain articles from Judges Calabresi and Posner, Martha Chamallas, me, and a detailed introduction from Mike Rustad. John and Ben are in the unenviable position of responding to the 5 papers in 3 weeks!