Category Archives: Civil Recourse

Andrew Gold, ‘A Theory of Redressive Justice’

Abstract: This article proposes a new category of justice between individuals, in light of recent developments in corrective justice theory and civil recourse theory. This category – redressive justice – governs the enforcement of rights by a wronged party against the party who committed the wrong. More precisely, it governs the undoing of a transaction […]

Ori Herstein, ‘How Tort Law Empowers’

Abstract: The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of […]

Andrew Gold, ‘Expressive Remedies in Private Law’

Abstract: Private law remedies are clearly expressive. It is a separate question whether the expressive features of these remedies are part of the legal point of view. Several leading private law theorists have recently provided expressive accounts of private law remedies, and this perspective is now represented among both corrective justice and civil recourse theorists. […]

John Goldberg, ‘Did You Get The Message’

“Scott Hershovitz, ‘Tort as a Substitute for Revenge’, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN. Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could […]

Just published: Alan Calnan, The Right to Civil Defense in Torts

“According to conventional wisdom, the tort system is a hallowed place where injured victims receive their venerable day in court so they can right the wrongs committed against them. Unfortunately, this assumption is not necessarily true. When first filed, every tort action actually begins as an aggressive, state-assisted assault upon the liberty of the accused. […]

Andrew Gold, ‘On Selling Civil Recourse’

Abstract: This Essay is a contribution to the 19th Annual Clifford Symposium on Tort Law and Social Policy. The focus of the Essay is on the alienability of legal claims. Debates over alienability often emphasize questions of commodification or efficiency, yet there are also interesting remedial implications. Drawing on insights from civil recourse theory, I […]

Alan Calnan, ‘Defenseless Self-Defense: An Essay on Goldberg and Zipursky’s “Civil Recourse Defended”‘

Abstract: In a recent symposium held by the Indiana Law Journal, Professors John CP Goldberg and Benjamin C Zipursky provide a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in two related […]

Civil Recourse Symposium papers – Indiana Law Journal

Now on open access at the Indiana Law Journal are papers from the AALS Torts and Compensation Systems Panel on Civil Recourse, some of which have already been published on the net. The full list of papers is: Twenty-First Century Tort Theories: The Internalist/Externalist Debate Michael L. Rustad Civil Recourse Theory’s Reductionism Guido Calabresi Instrumental […]

Goldberg and Zipursky, ‘Tort Law and Responsibility’

Abstract: It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories. In […]

Goldberg and Zipursky, ‘Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette’

Abstract: As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers […]