Evaluating Goldberg and Zipursky's civil recourse theory

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1529-1562

  Stapleton, Jane ^a,b  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 33846574209     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (171)

1. John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 Fordham L. Rev. 1563, 1590 (2006) (claiming that their theory captures the "distinctive role" of tort law).
2. See John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 Md. L. Rev. 364, 402-03 (2005);
3. see also Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 Geo. L.J. 695 (2003) [hereinafter Zipursky, Civil Recourse];
4. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1 (1998) [hereinafter Zipursky, Rights, Wrongs].
5. In contrast to John Goldberg and Benjamin Zipursky, I use this term neutrally to mean, for example, the rule about defamation, the rule about public nuisance, and so on. I do not accept that the fact that we use this term in the law of torts mandates that we accept Goldberg and Zipursky's prospective guidance claim.
6. John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1744-45 (1998) (arguing that duty in negligence law must be understood in terms of genuine concepts of obligatory conduct, not just in terms of liability);
7. Goldberg & Zipursky, supra note 2, at 386 n.56;
8. Zipursky, Rights, Wrongs, supra note 2, at 58.
9. Goldberg and Zipursky have argued that duties in tort law should be understood, at least in part, as having "a sort of normative content not identical to moral duties, but nevertheless similar in the injunctive force that they carry with them." Goldberg & Zipursky, supra note 2, at 386 n.56.
10. Goldberg & Zipursky, supra note 4, at 1744 (arguing that a satisfactory descriptive and prescriptive account of the tort of negligence "must conceive of duty as relational" (emphasis omitted));
11. see also Zipursky, Rights, Wrongs, supra note 2.
12. See generally Oliver Wendell Holmes, The Common Law (1881);
13. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
14. William L. Prosser, Handbook of the Law of Torts §§ 29-31, at 172-82 (1941).
15. Goldberg & Zipursky, supra note 1.
16. 162 N.E. 99 (N.Y. 1928).
17. Goldberg & Zipursky, supra note 4, at 1820;
18. Zipursky, Rights, Wrongs, supra note 2, at 8.
19. Goldberg & Zipursky, supra note 4, at 1826.
20. Restatement (Third) of Employment Law §§ 4.01-.02 (Discussion Draft Apr. 27, 2006).
21. John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other "Quaint" Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. Cal. L. Rev. 329 (2006) (abstract).
22. This choice is also profoundly influenced by one's stance on the political question of institutional competition between judge and jury. See W. Jonathan Cardi, Reconstructing Foreseeability, 46 B.C. L. Rev. 921 (2005);
23. William Powers, Jr., Judge and Jury in the Texas Supreme Court, 75 Tex. L. Rev. 1699 (1997);
24. Jane Stapleton, Controlling the Future of the Common Law by Restatement, in Exploring Tort Law 262 (M. Stuart Madden ed., 2005).
25. Peter Cane, The Anatomy of Tort Law (1997).
26. Jane Stapleton, Cause-in-Fact and the Scope of Liability for Consequences, 119 L.Q. Rev. 388 (2003);
27. Jane Stapleton, Comparative Economic Loss: Lessons from Case-Law-Focused "Middle Theory," 50 UCLA L. Rev. 531 (2002) [hereinafter Stapleton, Comparative Economic Loss];
28. Jane Stapleton, Duty of Care Factors: A Selection from the Judicial Menus, in The Law Of Obligations: Essays in Celebration of John Fleming 59 (Peter Cane & Jane Stapleton eds., 1998) [hereinafter Stapleton, Duty of Care];
29. Jane Stapleton, Good Faith in Private Law, 52 Current Legal Probs. 1, 20 n.41, 28-30, 33-35 (1999);
30. Jane Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences, 54 Vand. L. Rev. 941 (2001) [hereinafter Stapleton, Legal Cause].
31. Stapleton, Legal Cause, supra note 17, at 984 n.106.
32. See Stephen R. Perry, The Impossibility of General Strict Liability, 1 Can. J.L. & Jurisprudence 147 (1988);
33. see also Ernest J. Weinrib, Causation and Wrongdoing, 63 Chi.-Kent L. Rev. 407, 419 (1987) ("The need for artificial limitation confirms that strict liability is not theoretically viable."). Note that it is highly misleading to describe the tort of negligence as "accident law." One may breach the duty of care non-accidentally. Similarly, since a person can breach a strict liability norm, it is wrong to describe strict liability as "liability without fault": It should be "liability regardless of fault."
34. Jane Stapleton, The Gist of Negligence, Part II: The Relationship Between "Damage" and Causation, 104 L.Q. Rev. 389 (1988).
35. Finally, we could note that the same applies to conduct such as honesty; it is only mandated by law in pockets defined by specific incidence rules. Dishonesty per se is not illegal; for example, plagiarism of ideas is not per se illegal.
36. The characterization may be interchangeable. For example, the concern about indeterminacy of liability might be framed as an instrumental concern or, alternatively, as a fairness-to-defendants concern. Note that the insurability of the parties is not a legitimate concern. Jane Stapleton, Tort, Insurance and Ideology, 58 Mod. L. Rev. 820 (1995).
37. Stapleton, Duty of Care, supra note 17.
38. J.G. Fleming, Remoteness and Duty: The Control Devices in Liability for Negligence, 31 Can. B. Rev. 471 (1953).
39. See Stapleton, supra note 15.
40. Contra Powers, supra note 15.
41. See Stapleton, supra note 15.
42. Goldberg & Zipursky, supra note 4, at 1824.
43. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 599 (2005).
44. Goldberg & Zipursky, supra note 4, at 1826 (emphasis omitted).
45. Benjamin C. Zipursky, The Many Faces of Foreseeability, 10 Kan. J.L. & Pub. Pol'y 156, 158 (2000).
46. Zipursky, Rights, Wrongs, supra note 2, at 8.
47. Id. at 10.
48. Id. at 8.
49. Peter Cane, Corrective Justice and Correlativity in Private Law, 16 Oxford J. Legal Stud. 471 (1996);
50. Robert L. Rabin, Law For Law's Sake, 105 Yale L.J. 2261 (1996) (reviewing Ernest J. Weinrib, The Idea of Private Law (1995)).
51. The theory does not cleanly accommodate vicarious liability because it rests on a status constructed by society (e.g., employer); nor does it accommodate affirmative duties because such duties depend on expectations/concerns/values external to the parties to the suit. In general, it is noteworthy that corrective justice would provide little understanding of those cultures where the law recognizes group responsibility much more widely.
52. See, e.g., McFarlane v. Tayside Health Bd., [2000] 2 A.C. 59, 83 (H.L. 1999) (appeal taken from Scot.) (U.K.) (Lord Steyn) ("In my view, it is legitimate in the present case to take into account considerations of distributive justice. That does not mean that I would decide the case on grounds of public policy. On the contrary, I would avoid those quicksands. Relying on principles of distributive justice I am persuaded that our tort law does not permit parents of a healthy unwanted child to claim the costs of bringing up the child from a health authority or a doctor. If it were necessary to do so I would say that the claim does not satisfy the requirement of being fair, just and reasonable.");
53. White v. Chief Constable of S. Yorkshire Police, [1999] 2 A.C. 455, 510 (H.L. 1998) (appeal taken from Eng.) (U.K.) (Lord Hoffmann) ("[S]uch an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.").
54. Bernard Rudden, Torticles, 6 & 7 Tul. Civ. L.F. 105 (1991-92).
55. See Ernest J. Weinrib, Does Tort Law Have a Future?, 34 Val. U. L. Rev. 561, 561 (2000) (concerning "the internal corruption of tort law's conceptual structure").
56. Stapleton, Duty of Care, supra note 17. Unlike statutes, we cannot definitively state what a certain area of common law is for.
57. Similarly, one effect of vicarious liability in practice is to shield the employee-tortfeasor, something that could not coherently be a goal of tort law.
58. The patterns of formal availability and actual issuance of injunctive relief are complex. See, e.g., Douglas Laycock, The Death of the Irreparable Injury Rule (1991).
59. This means that many of the references made to it by Goldberg and Zipursky are highly misleading. For example, Professor Zipursky states that the substantial standing rule provides the "doctrinal key," Zipursky, Rights, Wrongs, supra note 2, at 6;
60. that the substantial standing rule provides, rather than is, the "limitation on when one person is entitled to recourse against another," id. at 7;
61. that "three prominent problem areas of negligence law present striking illustrations of the substantive standing rule at work," id. at 27;
62. and that "the substantive standing rule dictates denial of recovery even where there is foreseeability," id. at 77.
63. Id. at 32 (emphasis added);
64. see also id. at 55 (noting "the contours of liability produced by the substantive standing rule").
65. Other examples include why the stranger who suffers emotional harm cannot claim, why the person who, though she did not rely on it, suffers economic loss in consequence of a fraudulent statement cannot sue in deceit, etc.
66. Zipursky, Rights, Wrongs, supra note 2, at 53.
67. Zipursky, Civil Recourse, supra note 2, at 748-49 (emphasizing the importance of distinguishing the question of whether a claimant is entitled to an avenue of recourse against a defendant from the question of the nature of the remedy to which a plaintiff is entitled).
68. Zipursky, Rights, Wrongs, supra note 2, at 5 ("A private right of action against another person . . . exists only where the defendant has committed a legal wrong against the plaintiff and thus violated her legal right.").
69. Rudden, supra note 38.
70. H.L.A. Hart, The Concept of Law (2d ed. 1994).
71. Zipursky, Civil Recourse, supra note 2, at 721.
72. Benjamin C. Zipursky, Legal Obligations and the Internal Aspect of Rules, 75 Fordham L. Rev. 1229, 1239 (2006).
73. Id. (emphasis omitted).
74. Id. at 1239, 1247-48.
75. In the tort of negligence, the plaintiffs "right" to be treated with care by the defendant is not bolstered by access to injunctive relief. Why is it that injunctive relief is formally available in nuisance though not in negligence is certainly an important question, but there is no evidence yet that its answer will reveal something profound, universal, or distinct about the law of torts?
76. Id. at 1241.
77. I believe that Goldberg and Zipursky's theory needs to accommodate laws that are not "obligations" in the sense that "ought" implies "can," though I do acknowledge that a strict liability norm can affect the conduct of repeat players via second-order avenues. These include where the imposition of strict liability on repeat players gives them an incentive to develop techniques for identifying risks that are not reasonably foreseeable and/or controllable given existing technology ("technology forcing"), and where imposition of strict liability prompts such players to reduce their level of the relevant activity.
78. Goldberg & Zipursky, supra note 4, at 1841;
79. see also id. at 1832-39.
80. See infra Part V.
81. Goldberg & Zipursky, supra note 1, at 1592.
82. Zipursky, Rights, Wrongs, supra note 2, at 60.
83. Id. at 59-66.
84. Aspects of this include the following: "the of and concerning" element in the tort of defamation; the interest in land requirement for private nuisance; the special damage requirement in public nuisance; the temporal/spatial/relationship duty requirements in relation to negligently inflicted emotional harm.
85. Goldberg & Zipursky, supra note 4, at 1841.
86. Goldberg & Zipursky, supra note 1.
87. Zipursky, Rights, Wrongs, supra note 2, at 59.
88. Goldberg & Zipursky, supra note 4, at 1828.
89. "[D]uty [identifies] who is entitled to bring an action based on the defendant's negligent conduct." Id. at 1828.
90. See supra Part I.
91. Consider, for example, keepers of animals or the commercial supplier of a defective product.
92. Consider, for example, the torts of trespass and conversion.
93. Consider, for example, a landowner in private nuisance or a chattel owner in the tort of conversion.
94. Similarly, as we have seen in the context of defamation, Zipursky concedes that "each person has a relational legal duty to every other person to refrain from defaming that person." Zipursky, Rights, Wrongs, supra note 2, at 63.
95. A few rare status-based immunities are exceptions. In other words, on a few rare occasions a particular status is, for policy reasons, allowed to trump all other concerns.
96. 111 N.E. 1050 (N.Y. 1916).
97. Goldberg & Zipursky, supra note 4, at 1830.
98. These are also sometimes called "running down" cases. See generally Stapleton, Legal Cause, supra note 17, at 944.
99. Goldberg & Zipursky, supra note 4, at 1820, 1838-39.
100. Contrast, for example, W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005);
101. Cardi, supra note 15.
102. This is how Goldberg and Zipursky explain Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).
103. Goldberg & Zipursky, supra note 4, at 1839.
104. See Goldberg & Zipursky, supra note 4, at 1818.
105. Contrast what the authors claim is "the logic of duty" in id. at 1821.
106. Stapleton, Comparative Economic Loss, supra note 17, at 538, 543;
107. Stapleton, Legal Cause, supra note 17, at 950-53.
108. See, e.g., Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 543 N.E.2d 769 (Ohio 1989).
109. This bar, under the incidence rule rationale, can be presented as generated by a complex mix of concerns that do not discriminate in a prospective way between potential victims of any carelessness in which the defendant might indulge.
110. 162 N.E. 99, 101 (N.Y. 1928).
111. Stapleton, Legal Cause, supra note 17, at 954 n.33.
112. Note that this does not hold true for rare cases of status-based immunities. The incidence of liability in negligence might be represented by a continent (corresponding to duty in traditional cases) and islands (corresponding to duty in some nontraditional cases) in a sea of freedom from liability.
113. Stapleton, supra note 15. A borderline case for the law might be as follows: A defendant is lawfully sitting on a park bench with his picnic utensils set out on the bench next to him. He consciously fails to prevent a toddler-stranger from picking up one of his sharp fruit knives with which the toddler then injures her playmate.
114. 162 N.E. 99.
115. Goldberg & Zipursky, supra note 4, at 1820.
116. Id. at 1818.
117. John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 685-86 (2001);
118. see also Zipursky, Rights, Wrongs, supra note 2, at 8.
119. Goldberg & Zipursky, supra note 4, at 1837.
120. Contrast, however, their problematic account of strict liability torts. It would be incoherent, suggest Goldberg and Zipursky, for the law of negligence to lay down a behavioral standard to which it was beyond the capacity of people to conform, and it would even be a bad idea if compliance to a standard would require "extravagant" vigilance. But there is an inescapable problem for them when they attempt to assert the guidance directive claim in the context of strict liability torts such as conversion, where compliance cannot even be secured by "extravagant" vigilance. Zipursky, Civil Recourse, supra note 2, at 727.
121. H.L.A. Hart & Tony Honoré, Causation in the Law 260-61, 286-87 (2d ed. 1984).
122. One application of such a discredited approach was the "privity fallacy" demolished inMacPherson v. BuickMotor Co., 111 N.E. 1050 (N.Y. 1916).
123. See, e.g., Zipursky, Rights, Wrongs, supra note 2, at 61 ("In the context of relational wrongs . . . it makes sense to ask whether the wrong was committed relative to a particular person.").
124. This would be the case if my suggestion (that we see the guidance as a simple non-relational directive to follow the standard of behavior that is mandated) is adopted.
125. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 105 (N.Y. 1928) (Andrews, J., dissenting) ("[G]iven such an explosion as here, it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff.").
126. Zipursky, Rights, Wrongs, supra note 2, at 14 (emphasis added).
127. In re Polemis v. Furness, Withy & Co., (1921) 3 K.B. 560 (U.K.). It is revealing that Goldberg and Zipursky rarely cite this important case despite its great significance in the context of Palsgraf.
128. Palsgraf, 162 N.E. at 101.
129. See Overseas Tankship (U.K.), Ltd. v. Morts Dock & Eng'g Co. (The Wagon Mound), [1961] A.C. 388 (P.C.).
130. Zipursky, Rights, Wrongs, supra note 2, at 41-42.
131. David W. Robertson, The Vocabulary of Negligence Law: Continuing Causation Confusion, 58 La. L. Rev. 1, 18 n.72 (1997).
132. Under this approach, a plaintiff need merely show she was a member of a class to whom a duty was owed.
133. Under this approach, the plaintiff can claim a breach was done to her by virtue of her membership in the duty class in relation to which the conduct was a breach.
134. See Goldberg & Zipursky, supra note 4, at 1828;
135. see also id. at 1831-32 n.378, 1842 n.418.
136. See supra claim 2 set forth in Part II.
137. Goldberg & Zipursky, supra note 4, at 1847.
138. No. A89-0095-CV, 1994 WL 182856 (D. Alaska Mar. 23, 1994).
139. Stapleton, Comparative Economic Loss, supra note 17, at 564.
140. Restatement of the Law (Third) of Employment Law §§ 4.01-.02 (Discussion Draft Apr. 27, 2006).
141. See Stapleton, supra note 15;
142. see also Jane Stapleton, The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable, in Centenary Essays for the High Court of Australia 242 (Peter Cane ed., 2004).
143. See Stapleton, supra note 15.
144. Indeed, this insight alone justifies lawyers taking the law and economics perspective seriously. A study of judicial reasoning would not be complete without reflection on the redistributive effects of legal change: For example, the landmark decision in MacPherson enriched consumers as a class. Macro law and economics provides an invaluable tool for exposing the politically sensitive issue of wealth redistribution beneath issues of legal change.
145. On possible reasons why there is far less interest in high theory in non-U.S. common law systems, see Stapleton, supra note 15;
146. see also Stapleton, Comparative Economic Loss, supra note 17.
147. Goldberg & Zipursky, supra note 4, at 1767.
148. Id. at 1741;
149. see also id. at 1840-42.
150. Id. at 1842.
151. Id. at 1847.
152. Id. at 1764;
153. see also Goldberg & Zipursky, supra note 14, at 334 (decrying the judicial practice of "treating the duty element as but an occasion for judges to ask the open ended, policy driven, question of whether there are any reasons to deny juries the ability to imposed liability").
154. Goldberg & Zipursky, supra note 4, at 1816.
155. Id. at 1824.
156. Id. at 1815.
157. Id. at 1847.
158. Id. at 1815.
159. Zipursky, Rights, Wrongs, supra note 2, at 57.
160. 111 N.E. 1050 (N.Y. 1916).
161. Lord Reid, The Judge As Law Maker, 12 J. Soc'y Pub. Tchrs. L. 22, 22 (1973) ("There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's Cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. . . . But we do not believe in fairy tales any more.").
162. For example: why some torts are strict; why some require proof of an actionable form of damage while others are actionable per se. Given the existence of these latter torts, note the highly misleading assertion by Professor Zipursky that "the norms of tort law . . . impose . . . 'duties of non-injury,' not simply duties of non-injuriousness; their violation requires that the violator actually injure another in a certain manner, not simply that he acted in a way that could ripen or normally ripens into such an injury." Zipursky, Civil Recourse, supra note 2, at 743.
163. The procedural and structural features of a specific jurisdiction affect the formation and presentation of tort doctrine. See, for example, the much greater use of "gatekeeping" rules of law in U.S. jurisdictions compared to jury-free common law systems.
164. See supra claim 7 set forth in Part II.
165. Jane Stapleton, A New Seascape for Obligations: Reclassification on the Basis of Measure of Damages, in Classification of Obligations 193 (Peter Birks ed., 1997).
166. Contrast punitive damages and levels of damages for torts that are actionable per se.
167. See generally Jane Stapleton, The Normal Expectancies Measure in Tort Damages, 113 L.Q. Rev. 257 (1997). In contrast, what is distinctive about contract law is that you can gamble on being better off on the occurrence of events (such as the performance of the co-contractor or on other events) over which you have no control. In tort law, there are no entitled results so the tort measure is fundamentally different from that applying to strict contractual obligations as to result, which is to reposition the contractual plaintiff to where she would have been had there been performance achieving the result promised (a measure I call "the entitled result" measure).
168. Id. at 267.
169. See Stapleton, supra note 15.
170. This is particularly true if we were to adopt Goldberg and Zipursky's assertion that we must see tort law as prospective relational directives.
171. Zipursky, Civil Recourse, supra note 2, at 735.