Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.
Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.
Recognizing Wrongs aims to unseat both the leading philosophical theory of tort lawcorrective justice theoryand the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.
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About the Author
Benjamin C. Zipursky is Professor of Law at Fordham Law School, where he holds the James H. Quinn ’49 Chair in Legal Ethics.
Table of Contents
I Civil Recourse
1 Civil Wrongs and Civil Rights 25
2 Against the Grain 52
3 Rules, Duties, Rights, and Rights of Action 82
4 The Principle of Civil Recourse: A Defense 111
5 Damages as Redress 147
II The Wrongs of Tort Law
6 Moral Luck, Strict Liability, and Victim Standing: Three Features of Tortious Wrongdoing 181
7 Dual Instrumentalism 209
8 Dual Constructivism 232
III Wrongs and Recourse in Context
9 Civil Recourse in the Modern World 263
10 Applications: The Duty of Care, Design Defects, and Internet Libel 293
Conclusion: Recognizing Wrongs 341