Michael Wells, ‘Civil Recourse, Damages-as-Redress, and Constitutional Torts’

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between “tortious wrongdoing” and “civil recourse.” Their civil recourse theory “sees tort law as a means for empowering individuals to seek redress against those who have wronged them.” Goldberg and Zipursky show that modern tort theory is dominated by “loss allocation,” which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation – that is, to make the plaintiff whole. The core component of damages, though not the only one, is out-of-pocket expenses. Under civil recourse, by contrast, the aim is to redress the wrong through fair compensation, “requir[ing] of the fact-finder an overtly normative determination based on consideration not only of the losses suffered by the victim, but also of the character of the defendant’s conduct, . . .  and the power dynamic between the parties.” This Article examines the implications of these distinctions between loss allocation and civil recourse and between damages-as-indemnification (i.e., full compensation) and damages-as-redress (i.e., fair compensation) in the context of constitutional torts …


Michael L Wells, CIVIL RECOURSE, DAMAGES-AS-REDRESS, AND CONSTITUTIONAL TORTS. 46 Georgia Law Review 1003. Summer, 2012. 22751 words.

First posted 2012-07-30 10:05:02

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