In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they see; instead, they employ a partial perspective to interpret the facts and rely on their own predilections to support their subjective conclusions. Constrained by this biased outlook, Goldberg and Zipursky misinterpret the concept of strict liability, grossly underestimating its pervasiveness, embeddedness, and practical and structural significance. For similar reasons, the authors simply ignore the prodigious presence of instrumental considerations in the core wrongs-based action of negligence, viewing them as marked departures from tort law rather than accretive adaptations to its evolving content. Having exposed the distorted reality of CRT, the paper encourages the authors to recast that theory as a normative enterprise-one which prescribes a treatment for unprincipled instrumentalism and a plan for restoring rights and wrongs to tort law.
The Distorted Reality of Civil Recourse Theory ,
60 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol60/iss1/6