Skip to main content
Unpublished Paper
Tort Law as a Law of Civil Recourse
ExpressO (2009)
  • John Goldberg, Harvard Law School
Abstract
Tort Law as a Law of Civil Recourse Abstract Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficient deterrence, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of these loss-based frameworks. It is wrongs, not losses, that lie at the foundation of tort law. Tort law affords victims of wrongs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the idea of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of these kinds of wrongs with a power to obtain recourse. A view of torts as wrongs, and tort law as civil recourse law, is not only available but interpretively superior to loss-based views. For the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; claims giving rise to remedies that do not involve the shifting of a loss; claims for which recovery turns on whether the plaintiff’s loss is parasitic on a predicate injury; and claims for which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based tort theory can easily account for all of these basic aspects of tort doctrine. Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law provides recourse for wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims with an avenue by which to proceed against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy. Freed from the confusions wrought by loss-based theories, and equipped with an understanding of tort law as wrongs-and-recourse law, torts scholars can approach fundamental and pressing questions of doctrine, policy, and theory from a fresh and illuminating perspective.
Keywords
  • Torts,
  • Tort Theory,
  • Loss,
  • Wrongs,
  • Austin,
  • Hart,
  • Recourse
Disciplines
Publication Date
September 1, 2009
Citation Information
John Goldberg. "Tort Law as a Law of Civil Recourse" ExpressO (2009)
Available at: http://works.bepress.com/john_goldberg/1/