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Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, January 27, 2020

Azmat on Civil Recourse Theory

Ahson Azmat has posted to SSRN Tort's Indifference:  Conformity, Compliance, and Civil Recourse.  The abstract provides:

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

The piece is forthcoming in the Journal of Tort Law and was Larry Solum's Download of the Week.

https://lawprofessors.typepad.com/tortsprof/2020/01/azmat-on-civil-recourse-theory.html

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