In Defense of a Liberal Justice Theory of Torts: A Reply to Professors Goldberg and Zipursky
For years, instrumentalist theorists—representing a loose confederation of pragmatists, realists, and economics—have dismissed the corrective justice theory of tort law as anachronistic. While they concede that tort law may once have righted private wrongs, they submit that it no longer serves this purpose. Today’s tort litigation is brought mostly against large organizations of corporate entities, not private individuals. When tort judgements are rendered, liability is often based on important public policy considerations like compensation and deterrence, not personal fault. Even when fault is determined, faulty parties frequently escape punishment by shifting their losses to insurance companies, employees, customers, and stockholders. Thus, liability is not so much as issue of moral responsibility, as it is a question of political and social expediency.