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The Distorted Reality Of Civil Recourse Theory, Alan Calnan
The Distorted Reality Of Civil Recourse Theory, Alan Calnan
Alan Calnan
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 …
What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan
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 …