Monday, February 15, 2021
Stephen Smith has posted to SSRN Taking Torts Seriously, his review of Recognizing Wrongs by John Goldberg and Ben Zipursky. The abstract provides:
In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what ‘it looks to be’—and that what it looks to be is a law of wrongs and recourse. According to Goldberg and Zipursky, it is not necessary to turn to economics, sociology, philosophy or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, the authors seek to distinguish themselves from two influential camps in contemporary tort theory: (1) theories that argue that tort law’s rights are ‘rights’ in only a nominal sense; and (2) theories that regard tort law’s rights as genuine but that defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The reservations that I explore are two-fold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law’s appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory). It is also complex, multi-layered, and skeletal in its account of tort law’s primary duties—and so, for some scholars, it may appear to be less of a ‘theory of tort law’ than those offered by their competitors (though I argue that this feature is a virtue of their account).