Tuesday, July 23, 2013
Alan Calnan (Southwestern) has posted to SSRN Defenseless Self-Defense: An Essay on Goldberg & Zipursky's Civil Recourse Defended. The abstract provides:In a recent symposium issue published by the Indiana Law Journal, Professors John C. P. Goldberg and Benjamin C. Zipursky provide a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in two related respects. First and most obviously, civil recourse theory lacks any meaningful explanation of the defensive rights at play within the tort system. Second and more importantly, Goldberg & Zipursky’s theory is inescapably indefensible because it cannot cure this omission without simultaneously self-destructing. When recourse meets defense, it is transformed into competition. This competitive framework precludes the antithetical enablement interpretation of civil recourse. By counterbalancing rights, tort does not take sides. It mediates and moderates the parties’ polar positions.
Goldberg & Zipursky misunderstand this unique human institution because they completely disregard human nature. People possess a conflicted mix of instinct and rationality mediated by a constant yearning for reconciliation and balance. This triune nature permeates our cultural artifacts, including our laws. Indeed, as this essay will show, it accounts for much of the history, substance, and structure of the tort system. Though broadly drawn, this extraordinary consonance bears further investigation. But to discover tort’s inner truth, we cannot continue searching with blinkered perspectives like civil recourse theory. Instead, we must open our eyes to the law’s deepest foundations.