Abstract
With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.
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Notes
Tom Dougherty & Johann Frick, Morality and Institutional Detail in the Law of Torts: Reflections on Goldberg’s and Zipursky’s Recognizing Wrongs, ___ Law & Phil. __ (2021).
Id. at [9–17].
Id. at [18–23].
See Andrew Gold, The Right of Redress (2020); Scott Hershovitz, Corrective Justice for Civil Recourse Theorists, 39 Fla. St. L. Rev. 107 (2011). The position Dougherty and Frick sketch also resembles the one articulated by John Gardner in one of his important later works. See John Gardner, From Personal Life to Private Law (2018). Gardner, like Dougherty and Frick, argues that private law’s rights of action turn out to provide a relatively efficacious means of holding wrongdoers to their moral duties of repair while avoiding various problems that might arise if some other enforcement system were adopted. See John C. P. Goldberg, Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law, 14 J. Tort Law 3 (2021).
We are open to the possibility that it would be better, all things considered, to address some or all of the behavior that has been addressed through the wrongs-and-redress framework of tort law by law that operates on some other principle. Conversely, if it turns out that there is a stronger justification for tort law than the qualified defense we have offered, so much the better for tort law.
John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs 189–198, 205–208 (2020); John C. P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 Cornell L. Rev. 1123 (2007).
Rebecca Stone, The Circumstances of Civil Recourse, __ Law & Phil. __ (2021). In this article, Stone is concerned to determine the conditions under which our theory does a better job than competitors (corrective justice theory and reductive instrumentalism) of explaining why a polity would be justified in adopting a body of tort law that operates on the terms that we claim Anglo-American law operates. While this normative question is appropriate and important, we reiterate here that Recognizing Wrongs primarily aims to make sense of tort law (not to establish conclusively its all-things-considered justifiability), and that, on this interpretive dimension our wrongs-and-redress account surpasses its main rivals.
Id. at [13].
Id. at [15].
Id. at [16–23].
In this context, to say that the right ‘cover[s]’ these cases is to say that the use of defensive force based on a reasonable but mistaken belief as to the threat is not merely excused but justified.
Id. at [23].
Id. at [17].
Benjamin C. Zipursky, Rights, Wrongs and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 86 & n. 285 (1998); Goldberg & Zipursky, supra note 6, at 14–15, 116–120.
Veronica Rodriguez-Blanco, The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law, __ Law & Phil. (2021).
Id. at [7], [11].
Goldberg & Zipursky, supra note 6, at 183–188.
Stephen A. Smith, Are Tort Remedies ‘Civil Recourse’?, _ L & Phil. _ (2021).
Hence our book’s discussion of the Declaration of Independence and Marbury v. Madison. Goldberg & Zipursky, supra note 6, at 30–37.
Id. at 170–174.
Id. at 190–191, 204–205.
Id. at 56–58.
Id. at 56–61.
Andrew Gold, The Taxonomy of Civil Recourse, 39 Fla. St. L. Rev. 65, 68–73 (2011).
Smith, supra note 18, at [19].
Which is not to say that all tort cases involving harm to property fit comfortably with the make-whole remedy. One who offers to board my cat while I am on vacation and then deliberately kills it would face damages beyond the market value or replacement value of the cat.
Goldberg & Zipursky, supra note 6, at 160–163.
United States v. Reliable Transfer Co., 421 U.S. 397, 401–402 (1975) (discussing the history of admiralty law’s divided damages rule, which applied to a ship collision caused by carelessness on the part of both ships).
See generally Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts §§ 230–231 (2021 update) (describing the operation of the rule).
Id. § 482 (describing the operation of the rule).
Erin I. Kelly, Redress and Reparations for Injurious Wrongs, __Law & Phil. _ (2021).
Id. at [21] (discussing the proposal of William A. Darity and A. Kirsten Mullen).
Id. at [12–13].
Gardner, supra note 4, at 91–100.
Compare Anthony J. Sebok, Two Concepts of Injustice in Restitution for Slavery, 84 Boston U. L. Rev. 1405 (2004) (questioning this analogy) with Dennis Klimchuk, Unust Enrichment and Reparations for Slavery, 84 Boston U. L. Rev. 1257 (2004) (defending the analogy).
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We are most grateful to Kimberly Kessler Ferzan and John Oberdiek for suggesting and organizing this symposium issue of Law and Philosophy: it is truly an honor.
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Goldberg, J.C.P., Zipursky, B.C. Replies to Commentators. Law and Philos 41, 127–166 (2022). https://doi.org/10.1007/s10982-021-09429-3
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DOI: https://doi.org/10.1007/s10982-021-09429-3