Jane Stapleton (University of Texas at Austin Law School) has posted “Evaluating Goldberg and Zipursky's Civil Recourse Theory” (Fordham Law Review Vol. 75, No. 3) on SSRN. Here is the abstract:
Professors John Goldberg and Benjamin Zipursky claim that they have formulated (the beginnings of) a descriptive theory that captures the distinctive character of tort law. In this article I critically evaluate their theory and find it fundamentally flawed. Civil recourse theory can be reduced to 7 main claims, two of which are merely uncontroversial truisms about tort law: that a plaintiff must establish all elements of a cause of action before she can ask for a remedy; and that, once these elements are established, tort law has separate doctrines that determine which remedy will be afforded her. First of the remaining claims is the “guidance directives” claim that we must see tort obligations as prospective mandatory directives that enjoin and guide conduct. This is mere assertion: nothing in tort law mandates this perspective. Moreover, among other flaws it leads to major inconvenience in strict torts as well as requiring a callous interpretation of much doctrine. Among the flaws in the second claim, that we must see tort law as “relational” in analytical structure, is that it is unnecessarily awkward in the traditional case where the defendant's own breach of obligation directly caused physical injury to the plaintiff, as for example where a speeding motorist runs over a stranger on a sidewalk. Moreover, in those areas where only certain victims can sue such as negligently caused emotional harm and pure economic loss, this relational claim in combination with the guidance directives claim requires us to see tort law as sending actors the distasteful prospective message that they need only show care to these “first-class” citizens.A third claim is that failure to conform to a tort standard is judged “relationally”. Not only is there no inexorable doctrinal logic that requires this perspective of “relational breach” (e.g. that Mrs. Palsgraf rightly lost because no carelessness in relation to her was proved), it too leads us to interpret tort law as discriminating between citizens in a way that is objectionable. A fourth claim, that we must “reject a reductive-instrumentalist account of ‘duty' in terms of the pros and cons of liability rules, and [take] seriously the idea that duty refers to a kind of obligation”, ignores explicit swaths of instrumental judicial reasoning and the critically distinct functions of trial and appellate courts while failing to suggest how the pattern of obligations Goldberg and Zipursky see “embedded” in the law came to exist. The final claim is that civil recourse theory provides an account of what is distinct about the law of torts. Yet there is nothing in that theory that might not also be claimed about other areas of the private law of obligations. As I demonstrate, distinctive features of tort law can be stated but these cannot be reduced to some unitary theory.