Mark Geistfeld, ‘Tort Law and Civil Recourse’

In Recognizing Wrongs (Harvard University Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of tort law is to implement the principle of civil recourse, which ‘can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her’ (p 3). To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that ‘the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them’ (p. 266) …

Geistfeld, Mark, Tort Law and Civil Recourse (November 13, 2020). NYU School of Law, Public Law Research Paper forthcoming, 119 Michigan Law Review forthcoming 2021.

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