In French, “tort” means “wrong.” Simply put, the body of tort law is concerned with wrongs and wrongdoing. However, according to Professor Benjamin Zipursky, James H. Quinn ’49 Chair in Legal Ethics and one of the most cited tort scholars in the country, “legal scholars over the past century have tried their best to deny the patently wrongs-based character of tort law because saying ‘torts are wrongs’ does not sound rigorous enough.” In Zipursky’s view, hiding the wrongs-based nature of tort law is a big mistake. We spoke with Professor Zipursky about his recent book, Recognizing Wrongs.
Why is the book called Recognizing Wrongs? You are a tort scholar, but it sounds more like a book about morality. In fact, it does not even mention “torts” in the title.
You are right to point out our decision to use the word “wrongs” in the title of our book about tort theory. Since Oliver Wendell Holmes, Jr., American legal scholars have thought the way to begin understanding tort law was to abstract away from any moral ideas and to knock the idea of right and wrong out of one’s mind. The basic claim of this book is that Holmes led us down the wrong path. The word “tort” means “wrong.” We need to acknowledge that torts are a special kind of legal wrong if we are to have any chance of grasping how this whole area of law hangs together and how it could possibly make sense. One area where we agree with Holmes is we should aim to understand the subject before we figure out what parts of it are worth keeping and what parts need to be revised or rejected.
But, why should judges—or readers more generally—think that you and your co-author, Professor John Goldberg, are in a position to say what is right and wrong? You are experts in tort law, not prophets.
Ah. I can see that I am already falling into the trap that law professors sometimes unwittingly set for themselves. We have our views about what is right and wrong, of course, but, as you point out, this book neither provides a theory of morality nor even suggests that judges should decide tort cases by consulting their moral intuitions. Instead, we think that judges in tort cases are being asked to say what the common law of their jurisdiction considers to be a legally wrongful way of treating another person. In this sense, the enterprise of applying and adjusting tort doctrine is an enterprise of recognizing wrongs that are already “out there” in prior legal decisions and in social norms. Hence, the title of the book.
You and Professor Goldberg have been associated with a theoretical viewpoint called “civil recourse theory.” What is it, and how does it relate to the idea of “recognizing wrongs”?
Civil recourse theory is the view that the most basic principle of the common law of torts is that a person who has been legally wronged by another is entitled to an avenue of recourse against the wrongdoer. In other words, our legal system believes in empowering people to hold others accountable for wronging them. And that tells you the connection with wrongs. When an injured person comes to court and wants to hold someone responsible for her injury, the question is “Did that defendant really do something to you that our legal system counts as a wrong?”
So far what you’re saying sounds very intuitive, and even very basic. Is this really any different from what other scholars say about tort law? How does it advance our understanding of tort law?
Well, I kind of agree and yet also disagree. We mean our account to be intuitive—even obviously true. And, yet, for the past 100 years, it has been considered the essence of wisdom to get “past appearances” and identify something else that is “really” going on. Many scholars believe that tort law is the government’s way of getting wealthy companies to provide a bit of monetary relief to the injured—wrongs do not really have anything to do with it. Others believe that the genius of the tort system is that it encourages safety without forcing the state to employ a battalion of regulatory enforcers or incur massive administrative costs. The incentive for safer conduct is instead provided by the threat of people injured by unsafe conduct suing for damages. In this view, the state is not empowering private plaintiffs because it believes they are entitled to be compensated, but simply because it is convenient to let private parties do indirect regulation, and private plaintiffs will be incentivized because they get to keep the proceeds of the sanction that is liability. We think neither of these general views captures what the common law of torts is about.
Aren’t you just saying, “Hey, it really is about what plaintiff’s lawyers say: It’s about justice”?
Not exactly. There is a whole theoretical approach called “corrective justice theory,” and it takes roughly that view. We do not. In our view, it is about the norms of how people are to be treated—that is why we say it is about wrongs. And even if you are talking about what courts do after a tort has been committed, we think “corrective justice” is still not quite the right idea. Lawsuits that promise damages or injunctions to the injured are more about finding a civil means of empowering private people to obtain redress for the wrong done to them, if they choose to sue. A successful suit by the victim of a negligently caused injury will not necessarily make the world more just. But, in our legal system, it is the victim’s choice whether to seek redress. Tort law is more about empowerment than about ensuring that justice is done, or making the world more closely conform to an independent notion of justice.
Can you give an example of where your theoretical approach would be practically valuable?
Here are two examples. Both have drawn politically motivated activists and law professors to make striking proposals about tort law. In one case, activists believe that tort suits against the oil industry can and should be used to help cut carbon emissions, in turn helping to solve the problem of climate change. Arguing that these companies are partially responsible for global warming and its harmful effects, they contend that tort liability would be both effective as an incentive to limit carbon emissions and just as an outcome.
A very different example involves scholars and activists who believe that websites that encourage revenge porn and individuals who engage in circulating demeaning images of women online should be able to recover damages against those websites or individuals when the circulated images traumatize them, damage their reputations, and invade their privacy.
In both cases, courts are being asked by litigants to recognize conduct as wrongful, but they are not just asking judges to say whether they morally approve or disapprove of this conduct. They are being asked to think through a fair-minded application of common law principles and to say whether a legal wrong was done to the plaintiffs. And, they are being asked whether it is the sort of legal wrong that we have common law courts there to allow individuals to redress in our civil law system.
We view the two cases as starkly different. It seems to us that however grave the problems of climate change—and we believe them to be very serious indeed—the plaintiffs who are enlisting tort law to help in this particular worthy cause are trying to fit a square peg into a round hole. Our tort system does not empower individuals to get courts to make policy proclamations because legislators and regulators have not made them yet—at least it does not do so unless those individuals have themselves been legally wronged. Tort law is not simply a tool for deterring corporate conduct that should be deterred. We say this not as an abstract or formalistic point. There is an institutional power grab by courts who would use their capacity to decide tort cases to conduct policy initiatives that belong to other branches. But, saying this persuasively turns on having a theory about what tort law really is.
Our view is the opposite with respect to online defamation and revenge porn. Not in every case, but in a great range of cases, the wrongs that plaintiffs are asking judges to recognize are already there in the common law–libel, slander, invasion of privacy, as nominate torts, to be sure, but beyond that a web of ideas and principles that have salience in our whole legal system. Moreover, and more to the point, providing individuals with the ability to enlist the courts in an effort to redress wrongs is exactly what tort law is well suited to doing. Tort law is not just about compensating losses or shifting costs, and it is not in the end clear whether allowing such plaintiffs to hold the wrongdoers accountable will count as “doing justice.” But, a system that gives them a right to sue is a system that empowers them, that recognizes in principle when someone has been wronged, and that announces that we have not given up on the idea that people who wrongfully injure others can be held accountable.