Beneath the Surface of Civil Recourse Theory

Abstract

This essay offers a progressive critique of civil recourse theory, arguing that Goldberg and Zipursky present too rosy a picture of contemporary tort law that misses the built-in bias embedded in many prevailing doctrines. A fundamental limitation of G and Z’s theory is that it takes no account of the importance of group identity in tort law’s historical construction of wrongs and injuries and fails to detect the skewing of interests that currently receive protection under the law. As classical legal theorists whose primary aim is to reveal the inner logic of tort law, G and Z make little attempt to theorize the impact of cultural polarization and differing perspectives on the complex body of U.S. tort law, suffer from a status quo bias, and are largely oblivious to the theoretical contributions of feminist and critical scholars. The main protagonist of civil recourse theory – the “empowered” individual who seeks vindication of his rights – is a fictional, privatized character who bears little resemblance to the many disempowered injured persons for whom tort law has yet to deliver on its promise of redress for harms suffered. The essay focuses on harms of subordination (domestic violence and sexual harassment), reproductive injury and relational injury as specific examples where civil recourse theory falls short of its goal of describing and explaining the contours of torts.