Part I of my review of John Goldberg and Benjamin Zipursky’s (GZ), Recognizing Wrongs (Harvard University Press 2020) reframes the book as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the ‘wrongs and redress’ account of tort law. ‘Cheapest cost avoider’ tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of ‘cheapest cost avoider’ as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics deterrence-based theory holds the most promise for judges facing two primary challenges of modern torts: (1) containing modern risks at the cutting edge of the regulatory state; and (2) addressing widespread harms.
Sharkey, Catherine M, Modern Tort Law: Preventing Harms, Not Recognizing Wrongs (September 4, 2020). 134 Harvard Law Review, forthcoming 2021.