I contrast two models of tort law: a cost-allocation model, and the ‘civil recourse’ model offered by Goldberg and Zipursky. The former makes it possible to draw a clear distinction between tort law and criminal law, and explains some of the differentiating features. The latter deals plausibly with kinds of cases that the cost-allocation model cannot accommodate: but it does so by bringing tort law much closer to criminal law, and thus raises several questions about the proper relationship between them.
Duff, R. A., Repairing Harms and Answering for Wrongs (January 29, 2014). Philosophical Foundations of Tort Law, John Oberdiek, ed., Oxford University Press, 2014, Forthcoming ; Minnesota Legal Studies Research Paper No. 14-06.