John C. P. Goldberg (Harvard Law School) has posted Inexcusable Wrongs (California Law Review, Vol. 103, 2015) on SSRN. Here is the abstract:
Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why — or in what sense — are torts inexcusable wrongs?
This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.
Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.