Recognizing Wrongs

Two preeminent legal scholars explain what tort law is all about and why it matters, and describe their own view of tort's philosophical basis: civil recourse theory.

Tort law is badly misunderstood. In the popular imagination, it is "Robin Hood" law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.

Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their "civil recourse" conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.

Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law--corrective justice theory--and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

"Recognizing Wrongs is about tort law, also commonly known as "personal injury law." The book's central thesis is that tort law fulfills a basic obligation that government owes to each of us: to provide law that defines and proscribes a special class of wrongs - wrongs that involve one person mistreating another - and to provide a means for victims of such wrongs to obtain redress from those who have wronged them. This book aims to recover the traditional understanding of tort law by helping readers to recognize what it is all about. It does so by offering a systematic statement of a theory now known in academic circles as "civil recourse theory." In providing a comprehensive statement of that theory, the book aims to unseat both the leading philosophical theory of tort law - corrective justice theory, as put forward by Jules Coleman, John Gardner, Arthur Ripstein, Ernest Weinrib, and others - as well as the economic approach favored by scholars such as Guido Calabresi and Richard Posner"--
Benjamin C. Zipursky is Professor of Law at Fordham Law School, where he holds the James H. Quinn '49 Chair in Legal Ethics.
Recognizing Wrongs is powerful and elegant. It proposes that civil recourse simultaneously best explains actual tort practice and presents this practice in its best light, as part of what free and equal citizens demand from their government as a condition of recognizing its legitimacy. Goldberg and Zipursky combine a subtle appreciation for doctrine with powerful theoretical arguments. A major achievement.--Daniel Markovits, Guido Calabresi Professor of Law, Yale Law School
Recognizing Wrongs will be of interest to everyone who studies tort law and to many who practice it. Goldberg and Zipursky are the best in the business. This book is historically rich, theoretically sophisticated, and is bound to be a touchstone for tort theory for decades to come.--Scott Hershovitz, Thomas G. and Mabel Long Professor of Law, and Professor of Philosophy, University of Michigan
The most important work in tort theory in the contemporary period. If you teach or write on tort law, you really must read this book.-- (07/06/2020)