This article provides an alternative critique of civil recourse theory, which describes Torts as a scheme of private rights for the redress of legal wrongs and rejects as insignificant ‘pure’ strict liability and all doctrines and concepts shaped solely by instrumental concerns. Previous detractors have challenged the theory’s conception of duty or questioned its completeness or effects. I argue that civil recourse theory suffers from more fundamental deficiencies, including a biased and myopic perspective, an inapt methodology, and a strained or selective interpretation of the facts. These errors produce skewed observations and flawed conclusions. Once these mistakes are corrected, Torts’ true nature quickly emerges. It is not a cohesive, unitary system of civil wrongs and private justice, as civil recourse theory suggests, but rather is a disjointed patchwork of moral and instrumental canons expediently interwoven into a decidedly diverse institution serving both public and private objectives. Once civil recourse theory embraces this reality, it can be more usefully recast as a normative enterprise — one which prescribes a treatment for unprincipled instrumentalism and a plan for restoring rights and wrongs to tort law.
Calnan, Alan, The Distorted Reality of Civil Recourse Theory (June 17, 2012). Cleveland State Law Review, Vol. 60, No. 159, 2012.