Torts as Wrongs
Goldberg, John C. P., Zipursky, Benjamin C., Texas Law Review
All of the standard substantive first-year law courses seem to address a basic legal category. All, that is, save one. Property is about the relationship of persons to things that can be owned and alienated - land, chattels, and patents, for example. Criminal Law, at its core, concerns rules so important that their violation elicits from the state its harshest action: punishment. Contract Law introduces students to the ways in which law can empower individuals to enter into mutually advantageous transactions. Civil Procedure provides students with an overview of the litigation process. Constitutional Law is about guarding the guardians. Each of these subjects stands out for being ancestral, essential, or both.
The odd man out, it seems, is Torts. As it tends to be taught today, Torts is "accident-law-plus." Its most noted chestnuts involve claims for negligence or strict liability.1 Accidents - in the sense of unintended outcomes - are even at the center of the most commonly taught intentional tort cases.2 The "plus" comes from decisions that serve as a platform for discussions of economic or moral theory.3 In sum, Torts seems often to be conceived as a course that teaches students how common law allocates the costs of accidents, while also providing some instruction on law and economics, or law and philosophy. So defined, the course seems ad hoc and esoteric, not basic. Somehow law professors have lost their grip on its subject matter.
The goal of this Article is to put us back on track, not just pedagogically but theoretically. Tort is indeed a basic category of law. To see this, however, one must abandon the notion, now deeply entrenched, that tort law is law for allocating the costs of accidents. As its name indicates, tort law is about wrongs.4 The law of torts is a law of wrongs and recourse - what Blackstone called "private wrongs."5
Of course tort law is in many ways public. It sets generally applicable standards of conduct.6 It is developed and applied by officials who may have in mind various policy concerns as they render judgments in particular cases. And its operation can advance or interfere with the operation of other public institutions. But tort is private in two basic senses. It defines duties to refrain from injuring (or to protect from injury) that are owed by certain persons to others: duties that, when breached, constitute wrongs to those others, as opposed to wrongs to the world.7 Second, precisely because torts are private wrongs, they provide the basis for a private response.8 For a wrong to be a tort it must in principle generate for its victim a private right of action: a right to seek recourse through official channels against the wrongdoer.
As the law of private and privately redressable wrongs, tort law is rightly treated as a cornerstone of legal education along with criminal law (the law of public and publicly redressable wrongs) and contract law (the law of consensually defined duties). Looked at through the lens of litigation, Torts is about the wrongs that a private litigant must establish to entitle her to a court's assistance in obtaining a remedy and the remedies that will be made available to her. Looked at through the lens of daily life, Torts is about which duties of noninjury owed to others are counted as legal duties and what sorts of remedial obligations one will incur for failing to conduct oneself in accordance with those duties.9 In turn, the places to look for contemporary extensions of tort law are not the compensation systems with which tort law is frequently coupled.10 Rather, they are found in the rules governing 10b-5 suits, civil RICO actions, Title VII claims for workplace discrimination, constitutional tort claims, and intellectual-propertyinfringement actions. To study torts is to learn what sort of conduct our legal system defines as wrongfully injurious toward another such that, when committed, the victim is entitled to exact something from the wrongdoer. …