TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, January 12, 2012

Goldberg & Zipursky Respond to the Quandaries Facing Civil Recourse Theory

In December, Alan Calnan offered four quandaries facing John Goldberg's and Ben Zipursky's civil recourse theory.  John and Ben have responded:

It should be said in advance that Alan Calnan has been a consistent and thoughtful critic of civil recourse theory over the past several years.   Like John Finnis, Jane Stapleton, Ernest Weinrib, and many others, Profesor Calnan is among those to whom we have delayed too long in responding.  But better late than never.  

What follows is each of Alan's points, followed by John's and Ben's response.

1.  How can civil recourse theory be viewed as an accurate, complete, and unified description of tort law when it ignores both the numerous instrumental (nonwrongs-based) theories of strict liability, and the pervasive instrumental (nonwrongs-based) considerations actively shaping and transforming wrongs-based theories like negligence?

 For Rylands and abnormally dangerous activities, we accept that there is strict liability of a form that can only be categorized as “wrongs-based” if one relaxes the meaning of “wrongs” so greatly as to deprive it of meaning; as to these torts, we accept that a wrongs-based framework is incomplete.   However, we have argued that: (a) all of the other putative areas of strict liability – products, vicarious liability, trespass torts, etcetera -- are actually wrongs-based in a significant sense; (b) the Rylands et al constitute only a very small fragment of all of tort law; (c) even as to Rylands et al., they fall into a hybrid category something like promissory estoppels in contract or strict liability in criminal law, such that there were good reasons for courts to take a position that essentially abandoned a critical feature of the law in a narrowly limited area, while still counting cases as being part of that area.  

 As to instrumental considerations actively shaping the nature of what the courts or legislatures are willing to count as “wrongs,” there is no reason to treat this important phenomenon as inconsistent with a wrongs-based account.  

2.  How can the right to sue (take recourse) in tort be premised on the existence of a legal wrong if (1) the determination of a legal wrong typically is not made until long after the action is filed, and (2) often (in at least 50% of tried cases) results in a finding that no wrong in fact was done?

The right to sue does not come from having been wronged.  The right to exact a remedy is premised on having been legally wronged.  The right to sue is a procedural right afforded to those who have a good faith belief (for which they can supply some articulate basis) that they have a right to exact a remedy. 

3.  How can tort law best be understood as empowering victims to rectify civil wrongs (as stated in the panel summary) when the very purpose of both the law’s substance (which specifies things the plaintiff MUST prove to rectify a wrong) and its procedure (which specifies things the plaintiff MUST do to pursue such rectification) is to create impediments for the party seeking recourse and protections for the party being sued?

Challenge 3 is largely responded to by Response 2, above.  We must add, however, that the legal system recognizes procedural rights to defend oneself against those asserting a right to exact a remedy.  There is no inconsistency in recognizing both sorts of rights.  The state does not generally mean to put impediments there for those who have a right to exact a remedy.  It means to put protections there for those who are subject to demands by those alleging they have such a right.  Obviously, our system aims to design the procedural rights to sue and the procedural protections from liability in such a way that they facilitate the provision of remedies for those who were in fact wronged and only for those.   Affirmative defenses like statutes of limitation and immunities and assumption of risk will require a variety of other explanations, which we (and others, such as Jason Solomon) have undertaken to provide.

4.  How does the “constitutional” right to civil recourse square with the historic due process right to protect citizens from arbitrary state action, including presumably the state’s action of taking sides in a private dispute by hosting and facilitating one party’s unproven, liberty-infringing (civil) attack against another?

The state is only supposed to take sides in tort suits in the way that courts take sides in adjudication generally.  It is – at least at a general level -- part and parcel of thinking someone has legal rights not to be mistreated in various ways that the legal system will not typically remain indifferent to a proven claim that such a legal right by one person was infringed by another, but will entertain a demand for recourse by one whose legal right so infringed against the infringer.  So long as the state continues to prohibit non-civil responsive conduct by those who have been wronged or mistreated or whose rights have been infringed, the state’s being willing to act responsively, in civil litigation, to such a demand strikes me as more consistent with the state maintaining a stance of non-arbitrariness or neutrality as between private persons than: (A) prohibiting non-civil  responsive conduct by victims, and: (B) remaining passive in the face of civil demands for redress (assuming that many tortuous wrongs are not actionable except for civil tort actions).   The latter stance strikes me as arbitrarily favoring injurers over victims.


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This exchange was just brought to my attention. I find the Goldberg/Zipursky responses almost entirely convincing. I do want to press a point that is at the heart of my disagreement with them. I agree that the conclusion of a successful suit is the conferral of a power to impose a liability (in the typical case) and again in the typical case the ground for this is in part a wrong having been done that exhibits the right kind of causal structure: the wrong having been done by the party who is vulnerable to liability imposed and the victim of it being the person who seeks the power to impose the liability. This insight is the great achievement of the Recourse View. The issue is what explains this relationship in tort law that is not just a description of the relationship? Now what I find inadequate is the view offered that the Recourse Theory explains as opposed to merely characterizes or describes this relationship. To the extent there is an explanation that is supposed to be a reason of the right kind, it is the view that legal wrongs are appropriately responded to by a normative power to impose a liability on the wrongdoer. And this strikes me as an inadequate argument on several fronts. I would like to see the discussion of this point become more of the focus of the discussion. If enough people are interested I will be happy to articulate on the blog the range of objections I have to this view. ON the other hand, I have suggested that corrective justice provides the better explanation, but I have doubts about the strength of my own arguments for that claim. I hope to develop a better argument in due course and I think it is fair for others to suspend judgment on my view of tort law until I do.

Posted by: Jules Coleman | Jan 13, 2012 6:36:13 AM

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