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 to the difficult questions that courts face when applying Tort Law. We show with several examples, both old and new, that the glibness is all on their side. From duty to causation to punitive damages, from products liability to fraud to privacy, our scholarship has had a great deal to say on pressing questions in tort. Posner and Calabresi seem to assume that, because our work engages rather than deconstructs concepts such as ‘duty’, it cannot address the ‘practical’ issues raised by tort cases. They have things exactly backwards. Civil Recourse Theory engages Tort Law’s concepts precisely in order to address those issues; that is, to a great extent, the point of the enterprise.
In a similar vein, Professors Chamallas, Rustad, and Robinette allege that Civil Recourse Theory is blind to various ‘realities’; including that Tort Law’s value resides in part in its furtherance of certain policies, that it sometimes operates as an agent of injustice, and that it departs in practice from theory. Of course we have never denied any of these obvious truths. Rather, we have argued that, if Tort Law’s instrumental value is to be appreciated and enhanced, its content as a body of common law cannot be treated in a facile manner. If its discriminatory impact is to be grasped and eliminated, the particular way in which it empowers injury victims must be made clear. If the behavior of legal actors in the shadow of the law is be understood and evaluated, the structure and content of Tort Law’s rules must be rendered more transparent.
Goldberg, John C. P. and Zipursky, Benjamin C., Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette (May 22, 2013). Indiana Law Journal, Vol. 88, No. 569, 2013.