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Recognizing One More Wrong
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Critical Notice: Recognizing Wrongs by John C.P. Goldberg and Benjamin C. Zipursky*
Published online by Cambridge University Press: 26 May 2021
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- Critical Notice
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- © The Author(s), 2021
Footnotes
*
John CP Goldberg & Benjamin C Zipursky, Recognizing Wrongs (The Belknap Press of Harvard University Press, 2020) pp 392, ISBN 978-0674241703.
Many thanks to Andrew Botterell for his very helpful comments on an earlier draft of this article.
References
1. See John CP Goldberg & Benjamin C Zipursky, The Oxford Introductions to U.S. Law: Torts (Oxford University Press, 2010).
2. It is erroneous because the vast majority of Commonwealth jurisdictions are ignored in our investigations.
3. John CP Goldberg & Benjamin C Zipursky, Recognizing Wrongs (The Belknap Press of Harvard University Press, 2020) at 31.
4. For the record, my claim is not that corrective justice theory is widely accepted in the Commonwealth. Some have suggested that this is the case, but if my own experience is any indication, outside certain hallowed halls and gatherings most Commonwealth tort lawyers (especially outside Canada) continue to operate without any theoretical understanding of the law whatsoever. Rather, my claim is that most would accept that remedies in tort law are the law’s responses to violations of rights, and that the issue is whether civil recourse or corrective justice theory (or some other account) provides the better theoretical explanation of this.
5. At least this is true of private law academia. It may or may not be true of legal academia in general.
6. They refer to these theories as cousins: See Goldberg & Zipursky, supra note 3 at 17.
7. See Jules Coleman, Risks and Wrongs (Cambridge University Press, 1992) and Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford University Press, 2001).
8. I say this because, as we will see, a significant portion of Commonwealth scholarship in this area has not been focussed on the Commonwealth, but has instead been focussed on the US.
9. Or, at least, it is generally accepted that the ones who do not can be ignored, perhaps because they do not inhabit the well-ranked law schools.
10. Legal reform is, of course, another matter; though I still think it true that it has made relatively little impact.
11. William M Landes & Richard A Posner, The Economic Structure of Tort Law (Harvard University Press, 1987) at 229.
12. I once had an article rejected on the basis that the theorists considered in it were German and that this was inappropriate as the subject matter of the article was English law. The reviewer helpfully suggested alternative theorists, though I never got the chance to remind him or her that John Stuart Mill belongs to another jurisdiction. This happened in 2000. For reasons discussed below, I doubt that it would happen now, though when it comes to reviewing, anything is possible.
13. Cf John Fleming, The Law of Torts, 9th ed (LBC Information Services, 1998) at 8-15.
14. Thus, I was once asked by a leading commentator whether, if I had to choose, I would rather be coherent or right. I confess to having been flummoxed by this question. I still am. How could one be right without being coherent?
15. Goldberg & Zipursky, supra note 3 at 209-31.
16. I am of course referring especially to Ernest J Weinrib and his seminal work, Ernest J Weinrib, The Idea of Private Law (Harvard University Press, 1995) which has had an enormous, and yet still underappreciated, impact on legal understanding.
17. See especially Fleming, supra note 13.
18. E.g. “the principle concern of the law of torts nowadays is with the casualties of accidents, that is, of unintended harm. In this wider field, the law is concerned chiefly with distributing losses which are an inevitable by-product of modern living, and, in allocating the risk, makes less and less allowance to ideas of punishment, admonition and deterrence.” Ibid at 4. See also ibid at 8-15.
19. Unsurprisingly, this is especially true for academic lawyers, but the influence is not so confined. See e.g., Deloitte & Touche v Livent Inc, 2017 SCC 63 and 1688782 Ontario Inc v Maple Leaf Foods Inc, 2020 SCC 35.
20. Goldberg & Zipursky, supra note 3 at 233 and Ernest J Weinrib, “Civil Recourse and Corrective Justice” (2011) 39:1 Fla St UL Rev 273.
21. Goldberg & Zipursky, supra note 3 at 162.
22. Ibid at 162-63 [emphasis in original]. See also Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019).
23. Goldberg & Zipursky, supra note 3 at 162.
24. Ibid .
25. Ibid at 162-63.
26. One might respond to this by noting that before the violation of the right to her body, P had nothing to complain about and that is the reason she could not take D to court. That, of course, is correct. But the point is that we still want to say that P had the right, and yet it is not a right that can be enforced without going to court. Hence, its existence is inconsistent with the hidden premise.
27. This is part of the reason that tort theorists have had a hard time convincing others of the merits of their approaches to economic loss in the law of negligence: tort scholars were used to thinking in terms of secondary but not primary rights.
28. E.g., A owes B a contractual obligation to do x, but B’s ability to sue is time barred or is unenforceable for lack of formality, e.g. that the contract was not in writing where that is required by statute.
29. It is very likely that a source of the problem is the influence of certain jurisprudential theories on the authors of Recognizing Wrongs. For an analysis of these theories, see Allan Beever, Law’s Reality: A Philosophy of Law (Edward Elgar, forthcoming) at ch 15.
30. Goldberg & Zipursky, supra note 3 at 154-68.
31. Christian Witting, “What are We Doing Here? The Relationship Between Negligence in General and Misstatements in English Law” in Kit Barker, Ross Grantham & Warren Swain, eds, The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart, 2015) 225.
32. See James Gordley, The Jurists: A Critical History (Oxford University Press, 2013). See also Izhak Englard, Corrective & Distributive Justice: From Aristotle to Modern Times (Oxford University Press, 2009).
33. See especially, Weinrib, supra note 16 at chs 3-4, 8.
34. Goldberg & Zipursky, supra note 3 at 358.
35. The point here is not one about the psychology of academic life—e.g., that we would have nicer careers if we wrote more kindly about each other—though I would also not wish to dismiss the significance of this. The point is rather one about accuracy. If the truth is that there is little that divides two theories, then it is not truthful for the theorists to present the theories otherwise. Also, if one’s aim is to convince people that something like these theories must be correct, presenting them as miles apart is not likely to be a successful strategy.
36. Goldberg & Zipursky, supra note 3 at 358.
37. See also Allan Beever, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (Oxford University Press, 2013) at 67-69.
38. For a more detailed analysis of this terminology, see ibid at 63-80. One reason it would have been a better option is that it would probably have eliminated the error, so frequently made, of thinking that this form of justice by definition cannot account for the rights protected by tort law. For an example of this mistake, see Goldberg & Zipursky, supra note 3 at 231.
39. Goldberg & Zipursky, supra note 3 at 30.
40. Ibid at 35.
41. Ibid at 32 [footnotes omitted].
42. By this, I mean that law is a phenomenon created, maintained, and utilised through human intentionality. For an analysis of intentionality, see especially John R Searle, Intentionality: An Essay in the Philosophy of Mind (Cambridge University Press, 1983). For an application of this theory to law, see Beever, supra note 29.
43. Goldberg & Zipursky, supra note 3 at 120.
44. Ibid at 233.
45. Ibid at 237-38.
46. Ibid at 233-34.
47. Ibid at 231, denying that civil recourse theory can account for the rights to which tort law responds.
48. E.g., Arthur Ripstein, Private Wrongs (Harvard University Press, 2016) at ch 2 and Allan Beever, A Theory of Tort Liability (Hart Publishing, 2016) at ch 4.
49. 162 NE 99 (NY CA 1928) [Palsgraf].
50. Ibid at 101.
51. Goldberg & Zipursky, supra note 3 at 201 [emphasis in original].
52. Palsgraf, supra note 49 at 103.
53. Goldberg & Zipursky, supra note 3 at 201.
54. For commutative justice accounts of Palsgraf, and of the duty of care generally, see e.g., Ernest J Weinrib, “The Passing of Palsgraf?” (2001) 54:3 Vand L Rev 803 and Allan Beever, Rediscovering the Law of Negligence (Hart Publishing, 2007) at 123-28.
55. Rylands v Fletcher (1865), 3 H & C 774, 159 ER 737.
56. Goldberg & Zipursky, supra note 3 at 302-19.
57. E.g., ibid at 307-08.
58. 111 NE 1050 (NY CA 1916).
59. Goldberg & Zipursky, supra note 3 at 309-10.
60. Ibid at 307.
61. Ibid at 310.
62. Ibid at 311.
63. Ibid at 9.
64. Ibid at 17 [emphasis in original].
65. Ibid at 274.
66. Ibid at 9.
67. Ibid at 17 [emphasis in original].
68. See Richard Lewis & Annette Morris, “Tort Law Culture: Image and Reality” (2012) 39:4 JL & Soc’y 562.
69. Tom Baker, “Blood Money, New Money, and the Moral Economy of Tort Law in Action” (2001) 35:2 Law & Soc’y Rev 275. I have discussed these issues in Allan Beever, “Tort Law and the Tort System: From Vindictiveness to Vindication” in Roger Halson & David Campbell, eds, Research Handbook on Remedies in Private Law (Edward Elgar, 2019).
70. Beever, supra note 69.
71. Goldberg & Zipursky, supra note 3 at 120.
72. Beever, supra note 69.