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dc.contributor.authorGoldberg, John C.P.
dc.contributor.authorZipursky, Benjamin
dc.date.accessioned2013-11-26T15:38:36Z
dc.date.issued2010
dc.identifier.citationJohn C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917 (2010).en_US
dc.identifier.issn0040-4411en_US
dc.identifier.urihttp://nrs.harvard.edu/urn-3:HUL.InstRepos:11339422
dc.description.abstractTorts 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.en_US
dc.language.isoen_USen_US
dc.publisherThe University of Texasen_US
dc.relation.hasversionhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1576644en_US
dash.licenseMETA_ONLY
dc.titleTorts as Wrongsen_US
dc.typeJournal Articleen_US
dc.description.versionVersion of Recorden_US
dc.relation.journalTexas Law Reviewen_US
dash.depositing.authorGoldberg, John C.P.
dash.embargo.until10000-01-01
workflow.legacycommentsArticle not archived online on the journal site.en_US
dash.contributor.affiliatedGoldberg, John


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