TORT LAW AND CIVIL RECOURSE.

• Author: Geistfeld, Mark A.
• Position: Annual Michigan Law Review Book Review Edition

RECOGNIZING WRONGS. By John C.P. Goldberg and Benjamin C. Zipursky. Cambridge, MA: The Belknap Press of Harvard University Press. 2020. Pp. 380. $45.

INTRODUCTION

For decades, Professors John Goldberg (1) and Benjamin Zipursky (2) have been developing the thesis that the primary purpose of tort law is to implement the principle of civil recourse. (3) In Recognizing Wrongs, they "aim" to provide "a systematic statement" of this position (p. 52).

As they forthrightly recognize, civil recourse embodies "an apparently obvious truth about its subject" (p. 83). Tort law is a civilized form of dispute resolution that uses liability to redress a defendant's violation of the plaintiff s tort right, with redress typically taking the form of compensatory damages for the harm caused by the wrongdoing. Tort liability, therefore, patently satisfies "the principle of civil recourse," which "can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her" (p. 3).

To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing and identify the reasons why the legal system redresses the violation of the associated rights through the tort system. In taking up this challenge, Goldberg and Zipursky emphasize how civil recourse relies upon common-law processes and empowers victims to seek redress through the legal system and not through self-help. Civil recourse, they conclude, is a "[c]onstitutional [principle" (p. 30). Consequently, tort law "is a readily justifiable feature of a liberal-democratic regime, akin in many respects to law that provides individuals with the right and the power to vote" (p. 341).

These wide-ranging claims--along with a host of other interesting ideas--are insightfully developed in the book, but one can reject many of them while still finding that Goldberg and Zipursky have developed the principle of civil recourse in a manner that helpfully illuminates the substantive nature of tort law. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior. By engaging in such prohibited behavior, the defendant mistreated the plaintiff, even if the defendant's conduct was entirely blameless. Tort law accordingly gives victims a right to redress from those who have mistreated them, leading Goldberg and Zipursky to conclude that "the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them" (p. 266).

This conception of tort law is highly contestable. As this Review shows, civil recourse readily accommodates an alternative interpretation of tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern tort law. Although undoubtedly important, the redressive structure of tort liability does not supply the "point of tort law."

Goldberg and Zipursky depict tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stems from the customary norms that governed behavior in the state of nature. Lacking protection of centralized government, individuals needed to defend their honor in order to ward off future attacks. Suffering injury at the hands of another necessarily involved a form of mistreatment that entitled the victim to obtain redress from the injurer. By enforcing these norms, the early common law was fully animated by the principle of civil recourse. (4)

Over time, social conditions have changed. Physical security no longer depends on one's honor. To protect individuals from physical harm, modern tort law focuses on the prevention and compensation of injury. (5) Mistreatment matters only insofar as it involves highly culpable wrongdoing--a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment is not relevant to tort liability in cases of accidental physical harm. Tort liability still formally satisfies the principle of civil recourse--plaintiffs receive redress from defendants who violated their tort rights and thereby wronged them--but the primary purpose of modern tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.

Nevertheless, the principle of civil recourse sharpens our understanding of how tort law responds to the mistreatment of one individual by another. This aspect of tort liability has been masked by the long-running debates over tort reform and the like. By focusing on the structural features of tort liability, Goldberg and Zipursky identify valuable attributes of the tort system within a liberal democracy, an important contribution that has shaped and will continue to influence how we think about tort law.

1. A RIGHT IMPLIES A REMEDY

   [I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.

   --William Blackstone (6)

   The rule identified by Blackstone, embodied in the maxim ubi jus ibi remedium, captures the core meaning of civil recourse according to Goldberg and Zipursky because it "expresses our legal system's commitment" to that "important substantive principle" (p. 15). The logic behind this conclusion drives their interpretation of tort law.

   Tort law is largely state law in the United States. As Judge Thomas Phillips has helpfully catalogued, the "most widespread and important" of the individual rights contained in state constitutions "is probably the guarantee of a right of access to the courts to obtain a remedy for injury. It is one of the oldest of Anglo-American rights, rooted in Magna Carta and nourished in the English struggle for individual liberty and conscience rights." (7) This right "expressly or implicitly appears in forty state constitutions." (8) The ubi jus maxim is firmly entrenched within our legal culture in many other ways that Goldberg and Zipursky identify, beginning with the Declaration of Independence (pp. 35-36).

   The meaning of the ubi jus maxim is contestable, however, as illustrated by the range of interpretations that state courts have given to the right when deciding whether legislative limitations of tort liability are constitutional. (9) Of the state constitutions that recognize the right, twenty-seven require that an individual "shall" have a remedy for "injury done him in his person" or "property," with another eleven pronouncing that individuals "ought" to have such a remedy. (10) Regardless of the exact formulation, these provisions all expressly declare that an injury creates a right to a remedy, which is one way of formulating the ubi jus maxim: an individual has a right not to be injured by another, and so the occurrence of injury entitles him to a remedy from the wrongdoer. This formulation of the maxim is literally satisfied by a rule of strict liability that entitles one to the remedy of monetary damages for "injury done him" by another, (11) but no state court has concluded that strict liability is constitutionally required in all cases of injury. The substantive implications of the right to a remedy are unclear.

   For reasons further illustrated by strict liability, the substantive importance of the ubi jus maxim is also unclear. Strict liability entitles the right-holder to receive compensatory damages from a duty-bearer who caused her injury, turning the ubi jus maxim into a tautology--the right is nothing other than an entitlement to the compensatory damages remedy, so there can be no such right if it has no remedy. Strict liability straightforwardly satisfies the ubi jus maxim while rendering it substantively unimportant: all the interesting action resides in the reasons that justify the compensatory liability rule, not in the abstract right to a remedy.

   According to Goldberg and Zipursky, tort rules do not have this property. Relying on doctrinal analysis, they conclude that tort rules obligate duty-bearers to avoid specified behaviors that cause injury to right-holders, thereby instantiating the "conduct-rule theory of legal rights" (p. 97). One who acts in a manner prohibited by a duty of noninjury mistreats the right-holder, who is then empowered to seek interpersonal redress for the wrongdoing through the courts (pp. 162-63). Consequently, "[a] tort is a violation of a relational legal directive enjoining one person from mistreating another in a certain manner" (p. 181). A tort right, on their account, is not just an entitlement to compensatory damages; it also prohibits the duty-bearer from acting in certain ways that cause injury--the mistreatment that merits redress through the tort system.

   For this type of tort system, civil recourse is especially valuable because it provides an interpersonal remedy for instances in which one person has mistreated another, explaining why Goldberg and Zipursky insist that tort rules enjoin specified forms of injury-causing behavior. Absent such prohibition, wrongdoing lacks the element of mistreatment that motivates their account of civil recourse.

   No other theory of tort law places such a fundamental emphasis on mistreatment, which is both a strength and a weakness. The framework is original and shows that a persuasive interpretation of tort law ought to account for interpersonal relations of mistreatment. The importance of this behavior, however, depends on how it is defined. Goldberg and Zipursky conceptualize mistreatment...