This essay is largely a response to John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 918 (2010). I propose a refinement of Goldberg and Zipursky’s vision. In my view, tort is better seen, not as recourse for “wrongs,” but rather as sanction for “fouls.” In other words, tort merely forces the rule-breaker to consider the consequences of his conduct rather than prohibiting the conduct altogether by a punitive sanction. I believe this refinement solves some of the problems presented by Goldberg and Zipursky’s approach.
I first started thinking about the distinction between providing recourse against a wrongdoer and sanctioning a rule breaker while I was a participant and spectator in the intramural sports program at a fundamentalist Christian university where the intentional foul (e.g., to stop the clock while time was running out in a basketball game) was not allowed. This approach seemed generally consistent with the overarching philosophy of the school – all conduct was either right or wrong. Violating rules was wrong. Intentionally violating rules, even with a willingness to accept the sanction provided by the rules of the game, was wrong. The intentional foul was an implicit rejection of moral absolutes and acceptance of moral pragmatism. I never quite came to fully accept that view of the intentional foul. I believe that it is possible to violate the rules of the game, even intentionally, without necessarily running afoul of fundamental morality. I feel the same way about torts. I believe that tort sanctions behavior, not because that behavior necessarily is “wrong,” but simply because recourse is necessary to re-level the playing field, so to speak. With regard to torts, anyway, Goldberg and Zipursky appear to agree with the administrators at my fundamentalist Christian school – torts are not merely fouls, they are actually “wrongs.”
This essay is divided into three parts; the first part briefly describes Goldberg and Zipursky’s vision of torts as “wrongs.” The second part of this essay spells out my contrasting vision of torts as “fouls.” Finally, part three explains why viewing torts as “fouls” is superior to seeing torts as “wrongs.”
Hensler, Louis W., Torts as Fouls: What Sports at a Fundamentalist Christian University Taught Me About the Nature of Tort Law (March 30, 2012).