Category Archives: Civil Recourse
Kimberly Kessler Ferzan, ‘NDAs: A Study in Rights, Wrongs, and Civil Recourse’
ABSTRACT According to John Goldberg and Ben Zipursky (‘Goldursky’), there are two central pillars to tort law, pillars that are best explicated by civil recourse theory. Torts are legally recognized wrongs, and the power to seek redress is part of the Lockean bargain. Using the recent question of whether nondisclosure agreements (NDAs) should be permitted, […]
João Marinotti, ‘The Private Law of Self-Help’
ABSTRACT Individuals regularly take steps to protect themselves, their property, and their broader legal interests. They carry pepper spray, have guard dogs, and install fences. Such measures are colloquially deemed methods of self-help. Yet, despite its ubiquity, self-help as a legal concept has been chronically understudied. Consequently, American private law is missing a doctrinally coherent […]
Matthew Shapiro, ‘Recourse, Litigation, and the Rule of Law’
ABSTRACT Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule […]
Symposium on ‘Practical Reason and Private Law’ (American Journal of Jurisprudence)
Practical Reason and Private Law: Some Sketches (John Finnis) Revising the Puzzle of Negligence: Transforming the Citizen towards Civic Maturity (Verónica Rodríguez-Blanco) Public-Private Drift and the Shattering Polity (Marc O DeGirolami) The Weakness of Relationality as a Unifying Concept in Tort (Timothy Borgerson) Specifying Interpersonal Responsibilities in Private Law: Property Perspectives (Rachael Walsh) Standing and […]
Anthony Sebok, ‘The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance’
ABSTRACT Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective […]
Calabresi and Smith, ‘On Tort Law’s Dualisms’
“We read with interest Professors John Goldberg and Benjamin Zipursky’s new book, Recognizing Wrongs; Professor Catherine Sharkey’s Book Review; and Goldberg and Zipursky’s Response. Their exchange demonstrates that the field of tort law is alive. But is it well? Goldberg and Zipursky (hereinafter GZ) and Sharkey put forward what are, at first glance, very different […]
Special Issue of Law and Philosophy: Goldberg and Zipursky’s Recognizing Wrongs
Morality and Institutional Detail in the Law of Torts: Reflections on Goldberg’s and Zipursky’s Recognizing Wrongs (Tom Dougherty and Johann Frick) The Circumstances of Civil Recourse (Rebecca Stone) The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law (Veronica Rodriguez-Blanco) Are Tort Remedies […]
Louis Hensler, ‘Civil Reconciliation Tort Theory: Making Torts Private Again’
ABSTRACT This article is largely a reaction to civil recourse tort theory and an attempt to recapture a tort theory that is more thoroughly private. The competing civil recourse and corrective justice conceptions of tort law as private are near the heart of this article, hence its title. While corrective justice and civil recourse theories […]
Anthony Sebok, ‘The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance’
ABSTRACT Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective […]
Veronica Rodriguez-Blanco, ‘The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law’
ABSTRACT In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the […]