Category Archives: Civil Recourse

Ahson Azmat, ‘Joint-Carving in Deontic Tort’

Abstract Many legal theorists refuse to reduce the rules, rights, and wrongs of tort into the policy-based prices, sanctions, and tolls of Holmesian instrumentalism. This refusal is not merely an interpretive position within tort law, or private law more generally. Properly construed, deontic views of tort amount to some form of metaethical non-naturalism. And while […]

Ahson Azmat, ‘The Grounds of Tort, Part I: Private Wrongs and Practical Reasoning’

Abstract Tort theory is widely thought to split cleanly into two seams. Some trace tort’s foundations to a deontic form of morality; others to an instrumental, policy-oriented system of loss allocation. Civil Recourse Theory (CRT) resists this binary. It argues that torts comprise a basic legal category, and that this category constitutes an autonomous domain […]

‘Expressivism, Corrective Justice, and Civil Recourse’

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 Journal of Tort Law 1 (2017), available at SSRN. With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like […]

Alexander Lemann, ‘Coercive Insurance and the Soul of Tort Law’

Abstract: Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases […]

Avihay Dorfman, ‘Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments from Bipolarity and Civil Recourse’

Abstract: Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and […]

Avihay Dorfman, ‘Private Law Exceptionalism? Part I: A Basic Difficulty with the Structural Arguments from Bipolarity and Civil Recourse’

Abstract: Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law (and its various departments, namely, property, contract, torts, and […]

‘Does Tort Law Empower?’

Ori J Herstein, How Tort Law Empowers, 64 University of Toronto Law Journal (2014) (forthcoming), available at SSRN. Ori Herstein’s How Tort Law Empowers takes on the question of whether and how tort law empowers victims. Herstein presents himself as a friendly critic of civil recourse theory, and offers an amendment that he claims makes […]

John Goldberg, ‘Inexcusable Wrongs’

Abstract: Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and […]

Erik Encarnacion, ‘Corrective Justice as Making Amends’

Introduction: … This paper outlines a new conception of corrective justice capable of responding to these attacks. To see what motivates the conception, we will begin with some background. Part I explains the three main objections to traditional corrective justice theories advanced by civil recourse theorists. Part II sets out a recent attempt by Scott […]

Benjamin Zipursky, ‘Civil Recourse and the Plurality of Wrongs: Why Torts are Different’

Abstract: The project of depicting torts as legal wrongs invites the question of how the wrongs of tort law differ from other sorts of legal wrongs, both within private law and beyond. The wrongs of tort law are different from those of criminal law principally for two reasons: torts are, by their very nature, relational […]