Taking tort seriously

Abstract:In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what 'it looks to be' – and that what it looks to be is a law of wrongs and recourse. It is not necessary, in their view, to turn to economics, sociology, philosophy, or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, Goldberg and Zipursky seek to distinguish themselves from two influential camps in contemporary tort theory: (a) theories that argue that tort law's rights are 'rights' in only a nominal sense and (b) theories that accept that tort law's rights are genuine but defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The qualifications that I explore are twofold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law's appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory); it is also complex, multilayered, and skeletal in its account of tort law's primary duties and, thus, arguably less of a 'theory of tort law' than those offered by their competitors (though I argue that this feature is a virtue of their account).