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Goldberg, John

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Goldberg, John
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    Trying and Succeeding
    (Bloomsbury Press, 2024-08-08) Goldberg, John; Zipursky, Benjamin C.
    In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries. Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.
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    War for the Wrong Reasons: Lessons from Law
    (2014) Blum, Gabriella; Goldberg, John
    In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is mor-ally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.
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    Inexcusable Wrongs
    (California Law Review Inc., 2015) Goldberg, John
    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.
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    Tort in Three Dimensions
    (2011) Goldberg, John
    Should our tort law serve as a model for other nations? The answer depends in part on what one understands it to be. Since the mid-Twentieth Century, progressives have favored 'thin' accounts that treat tort law as having but two dimensions: forum and function. Tort, they say, provides a general forum for grievances and, by doing so, performs certain governmental functions, such as deterrence of anti-social conduct, compensation of injury victims, and the bringing to light of abuses of power. Progressives have favored thin accounts mainly because those accounts emphasize the extent to which tort law enables courts to achieve social goods. Unfortunately, the very thinness of progressive accounts has left tort law highly vulnerable to the conservative criticism that tort is an irrational and illegitimate mode of regulation. As a result, tort law today tends to comes off as an unstable, unprincipled combination of certain plaintiff-friendly features that are said to serve salutary regulatory objectives and certain defendant-friendly features that are said to be necessary to ward off undesirable regulation. In fact, tort law’s "bipolar" appearance is an unfortunate byproduct of the inadequacies of two-dimensional accounts, whether progressive or conservative. Simply put, tort will inevitably appear arbitrary and mysterious until one appreciates its third dimension – its fill, or substance. Seen in "3D," tort law emerges as a relatively coherent body of law, yet still one that progressives have reason to embrace. Indeed, with tort law in full view, one might even believe that it can profitably be emulated elsewhere.
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    Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties
    (Fordham Law Review, 2006) Goldberg, John; Zipursky, Benjamin
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    Judging Responsibility, Responsible Judging
    (2015) Goldberg, John
    I am honored to have this opportunity to pay public tribute to Judge Weinstein. The most important things to say about him are the most obvious. He is superhuman—learned and wise beyond measure, eternally curious, impossibly energetic, deeply compassionate, fiercely determined, and completely charming. He has also been, and still is, an extraordinary public servant. As a lawyer, government official, judge, and legal scholar, he has devoted his life to the well-being of others, especially the vulnerable. Simply put, there are precious few who can claim to have done as much, and lived as well, as Jack Weinstein. I will take this occasion to sketch out two ways in which Judge Weinstein’s performance as a district judge raises issues of responsibility. First, I will consider how he has understood and applied concepts of responsibility central to tort law. Unsurprisingly, I will claim that, in his efforts to do “equity” through mass tort litigation,1 he has sometimes stretched these concepts quite far. This claim in turn raises a second set of questions about responsibility—namely, questions about the role responsibilities of a federal district court judge. Responding to those who criticize Judge Weinstein for being an “activist” whose decisions exceed the bounds of his office, I will contend that, notwithstanding his creativity, he has acted in a manner faithful to his official responsibilities. Indeed, I will show that, in important respects, he has acted more responsibly than other judges, including some who take pride in being “restrained.”
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    Torts and Estates: Remedying Wrongful Interference with Inheritance
    (Stanford Law School, 2013) Goldberg, John; Sitkoff, Robert
    This Article examines the nature, origin, and policy soundness of the tort of interference with inheritance. We argue that the tort should be repudiated because it is conceptually and practically unsound. Endorsed by the Second Restatement of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by courts in nearly half the states. But it is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better-fitting causes of action for equitable relief.
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    Do Promises Distinguish Contract from Tort?
    (Suffolk University Law School, 2012) Bridgeman, C.; Goldberg, John
    Contract as Promise, Charles Fried’s modern classic, famously argued that contract law stands apart from tort law because it is grounded on the moral principle that promises must be kept. In this contribution to a symposium marking the 30th anniversary of the book’s publication, we argue that Fried’s argument is impaired by an unresolved tension between its libertarian and its moralistic aspects. Insofar as he emphasizes the voluntaristic nature of promissory obligations, Fried succeeds in generating a sharp distinction between contract and tort. And yet, by doing so, he undermines the notion that contract law is grounded in the moral principle that a promise must be kept. This tension, we argue, is best appreciated by considering a special kind of agreement, namely, one in which the parties agree that their agreement shall be morally binding only, not legally binding. The voluntarist side of Fried’s argument suggests that courts should honor the term that renders the agreement legally unenforceable. Yet the moralist side of Fried’s argument suggests that courts should ignore that aspect of the agreement, since otherwise contract law would not be upholding the moral obligations that attend the promises in the agreement. Having offered this critique, we conclude on a more constructive note. For Fried was quite right to perceive important links between contract and promise; links that had been missed or downplayed by the death-of-contract theorists to whom he was responding. Contract may not be grounded in the morality of promising, as Fried maintained, but contracts routinely incorporate promissory morality, a social fact reflected in contract doctrine. Contractual obligations are distinct from tort obligations because the former, like promissory obligations, are defined by agreement. Moreover, contracts tend to create genuine obligations of the sort incurred when promises are made, as opposed to merely creating options. Finally, contractual obligations, like promissory obligations, carry with them a modest internal morality — the morality of good faith — and thus contractual arrangements ordinarily should be interpreted in light of that morality.
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    Civil Recourse Revisited
    (Florida State University, College of Law, 2011) Goldberg, John; Zipursky, Benjamin C.
    This essay responds to the extensive and thoughtful commentary on civil recourse theory provided by Curtis Bridgeman, Julian and Stephen Darwall, John Gardner, Andrew Gold, Scott Hershovitz, Gabe Mendlow, Nathan Oman, Arthur Ripstein, Anthony Sebok, Emily Sherwin, Jason Solomon, and Ernest Weinrib, all of whom participated in a 2011 symposium at Florida State University School of Law that was devoted to the subject. In it, we defend civil recourse theory against corrective justice theory and (following our own, independent contributions to the symposium) further develop our critiques of that theory. Against methodological criticisms, we maintain that civil recourse theory is an interpretive theory that has both explanatory and normative power. Finally, we briefly tease out some of the implications of civil recourse theory for private law beyond torts (contract law, in particular), and for the philosophical analysis of concepts such as accountability and responsibility.
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    Torts as Wrongs
    (The University of Texas, 2010) Goldberg, John; Zipursky, Benjamin
    Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them. A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine. Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.