Why Civil Recourse Theory is Incomplete

Abstract

The latest prominent theory of torts is the rich “civil recourse” theory of Professors John C. P. Goldberg and Benjamin C. Zipursky. Pursuant to civil recourse, tort is a law of wrongs. Specifically, tort law’s purpose is “providing victims with an avenue of civil recourse against those who have wrongfully injured them.” As such, Goldberg & Zipursky, with certain de minimis exceptions, deny that tort’s purpose is to serve as an instrument to achieve social and public policy goals. Although I agree with Goldberg & Zipursky that wrongs are an essential component of tort law, their exclusion of instrumentalist concerns, such as deterrence, loss spreading, and administrative efficiency, is overly broad. Using tort reform as a perspective by which to examine torts, I chronicle the growth of instrumentalism in tort law. All of the major tort reforms over the last century were based in instrumentalism. Moreover, when the reforms are viewed chronologically, a pattern develops, In each successive reform, instrumentalism made increasing inroads into tort. Thus, as a positive account of tort law, civil recourse is incomplete. Tort law, as a positive matter, is about wrongs, but not exclusively wrongs. It is pluralist, including elements of instrumentalism as well.