Category Archives: Civil Recourse
Evan Fox-Decent, ‘Unseating Unilateralism’
Abstract: Two sets of literature dominate academic discussion of the rule of law. The first is the Fuller/Hart/Raz literature of legal philosophy that focuses on Fuller’s internal morality of law and the framework it supplies for the exercise of agency. The second is the public law literature descended from A.V. Dicey that celebrates the rule […]
Alan Calnan, ‘Civil Defense against Civil Recourse’
Abstract: According to the popular civil recourse theory of torts, the purpose of the tort system is to offer victims a civilized means of redressing their wrongs. This view is based on three key assumptions: (1) civil recourse is a “just” right that empowers deserving people, (2) the right to civil recourse is triggered by […]
Christopher Robinette, ‘Two Roads Diverge for Civil Recourse Theory’
Abstract: John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue […]
Alan Calnan, ‘Due Process and Civil Defense (Chapter 3)’
Abstract: The ability to redress one’s wrongs has gone through four phases. In the premodern “personal” phase, an aggrieved party enjoyed unlimited power to exact revenge against a suspected offender who stood completely vulnerable to such aggression. In the ensuing “social” phase, the avenger’s response was loosely regulated by community customs and local tribunals, which […]
Michael Wells, ‘Civil Recourse, Damages-as-Redress, and Constitutional Torts’
Introduction: 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,” […]
Podcast of 2012 AALS Panel on Civil Recourse Theory
“I posted this earlier, but it was not directly accessible. I tried again yesterday, but the time to upload the file was far too long. I think I have fixed the problem. In order, the speakers are Mike Rustad, John Goldberg, Ben Zipursky, Guido Calabresi, Martha Chamallas, and me.” (podcast) [Christopher J Robinette, TortsProf Blog, […]
Alan Calnan, ‘The Right to Civil Defense in Torts: Chapter 1 – The Incivility of Civil Litigation’
Abstract: According to conventional wisdom, the tort system is a hallowed place where injured victims receive their venerable day in court so they can right the wrongs committed against them. Despite the poignancy of this account, it is merely an idyllic assumption. The indisputable truth is, every tort claim begins as an unproven accusation of […]
Goldberg and Zipursky, ‘Rights and Responsibility in the Law of Torts’
Abstract: An adequate understanding of tort law requires distinguishing four senses in which ‘rights’ figure in tort. First and most obviously, tort law imposes duties on actors to refrain from injuring others that are correlative to rights not to be injured in the ways proscribed by tort law. Second, tort law confers on one who […]
Alan Calnan, ‘The Distorted Reality of Civil Recourse Theory’
Abstract: This article provides an alternative critique of civil recourse theory, which describes Torts as a scheme of private rights for the redress of legal wrongs and rejects as insignificant ‘pure’ strict liability and all doctrines and concepts shaped solely by instrumental concerns. Previous detractors have challenged the theory’s conception of duty or questioned its […]
Sean Williams, ‘Lost Life and Life Projects’
Abstract: This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others […]