Some Sunday Reading: Stapleton on Goldberg and Zipursky – Thoughts on a Unified Theory of Torts
On Legal Theory Blog, Larry Solum notes that Jane Stapleton has just posted an article to SSRN: “Evaluating Goldberg and Zipursky’s Civil Recourse Theory.”
From the abstract:
Professors John Goldberg and Benjamin Zipursky claim that they have formulated (the beginnings of) a descriptive theory that captures the distinctive character of tort law. In this article I critically evaluate their theory and find it fundamentally flawed. . . . The[ir] final claim is that civil recourse theory provides an account of what is distinct about the law of torts. Yet there is nothing in that theory that might not also be claimed about other areas of the private law of obligations. As I demonstrate, distinctive features of tort law can be stated but these cannot be reduced to some unitary theory.
In the article, Professor Stapleton states: “We can see what is distinctive about a tree, but we cannot reduce this to a unitary notion. Indeed, why would we want to? The common law of torts is like a distinctive sculptured garden that is being built up by usually incremental contributions from generations of cases. It cannot be reduced to a unitary idea; but this should not prevent us capturing its distinctiveness with a nuanced plural account.” (pp. 1560-61).
Professor Stapleton’s rejection of a unitary theory of tort law reminded me of an article by Chris Robinette: “Can There Be a Unified Theory of Torts? A Pluralist Suggestion From History and Doctrine.” From the abstract:
In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes’ focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. . . I argue that both history and doctrine suggest that the attempt to unify all of torts is futile.
– SBS