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Alan Calnan

2011

Law and Society

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What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan Feb 2011

What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan

Alan Calnan

In Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory of tort law. A purely descriptive account, civil recourse theory has both positive and negative components. The positive side holds that tort law is a scheme of private rights for the redress of legal wrongs, while the negative side says the law eschews strict liability and forbids instrumentalism. The present paper challenges both prongs of this theory, identifying three problems which undermine its credibility. First, Goldberg and Zipursky do not objectively observe tort law and uncritically …