Miller and Pojanowski, ‘Torts Against the State’

ABSTRACT
The state provides the forum in which private parties can seek recourse for tortious wrongs other private parties cause. The state can also be liable for torts it commits. These observations are commonplaces. The state can also be a tort plaintiff, however, and that phenomenon has important implications for tort theory. Natural persons and artificial persons like the state have different kinds of interests, and these interests, in turn, implicate different sets of values. Accommodating torts against personified entities like the state will require tort theorists to significantly amend leading models, which presume wrongs against individual, natural persons. Some of these changes may be difficult for some scholars to stomach given their other theoretical commitments, including, especially, their normative priors. Nevertheless, a more complete theory must account for torts against the state.

Miller, Paul B and Pojanowski, Jeffrey A, Torts Against the State (February 11, 2019). Civil Wrongs and Justice in Private Law, Paul B Miller and John FK Oberdiek, eds, Oxford University Press (2020, forthcoming); Notre Dame Legal Studies Paper No 1921.

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