John C. P. Goldberg and Benjamin C. Zipursky, Recognizing Wrongs, Cambridge, MA: Harvard University Press, 2020, 380 pp, hb £36.95.
| Published date | 01 September 2020 |
| Author | Nicholas J McBride |
| DOI | http://doi.org/10.1111/1468-2230.12541 |
| Date | 01 September 2020 |
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John C. P. Goldberg and Benjamin C. Zipursky,Recognizing Wrongs,Cambridge,
MA: Harvard University Press, 2020, 380 pp, hb £36.95.
In the Preface to the first edition of his Unjust Enrichment (Oxford: Clarendon
Press, 2003), Peter Birks observed that the book represented such a dramatic
volte face that ‘Almost everything of mine now needs calling back for burning’
(xiv). John Goldberg and Benjamin Zipursky could have made the same call
in Recognizing Wrongs (RW), but for the much happier reason that they have
produced in RW such a wonderfully readableand detailed account of their view
of tort law that it renders all their earlier writings on the subject redundant.
RW is a fitting capstone on over 20 years’ worth of intellectual inquiry into the
nature of tort law, conducted by the most enduring and br illiant double act in
the history of writing about pr ivate law. While the focus of RW is exclusively
on American law (and North American theor ising about private law), there is
no doubt that RW will be of compelling interest to private lawyers world-wide.
While not using his terminology, Goldberg and Zipursky defend what Peter
Birks would have called a ‘two-tiered’ view of tort law. The first tier is made
up of ‘Relational legal directives [that] enjoin persons to treat or refrain from
treating other persons in a particular way’ (92). As Goldberg and Zipursky
explain in Chapter 3 of RW, the recipient of one of these directives (A) has
a legal duty to act in the way directed, and the person (B) that A is required
to treat in a certain way has a legal right that A act in that way. Not all
relational legal directives belong to the first tier of tort law. Those that do
typically impose on people ‘duties to refrain from wrongfully injuring certain
others’ (83) in various ways. The use of the word ‘wrongfully’ here will raise
eyebrows: a duty not to act wrongfully seems to be hopelessly redundant, as
it amounts to a duty not to breach a duty. However, in Chapter 8 of RW ,
Goldberg and Zipursky go some way towards clear ing up the confusion they
have created. In that chapter they attempt to explain why the first tier of tort
law is stocked with the particular directives, and consequent duties and r ights,
that make up that first tier. They argue that these first-tier directives identify
and proscribe certain forms of conduct that involve A’s mistreating B in such a
serious and unacceptable way that such conduct ‘warrants some form of censure
or disapproval’ (239). All of that, it seems, is what Goldberg and Zipursky were
trying to express when they used the phrase ‘refrain from wrongfully injuring’
to explain what a first-tier tort law directive typically directs A to do in relation
to B.
The second tier is made up of the liabilities that A will incur to B if A
breaches a first tier directive in relation to B. These liabilities empower B to
seek civil redress for the legal wrong that A has done her in breaching that
first-tier directive – typically by allowing B to sue A for fair compensation in
respect of the losses she has suffered as a result of A’s breach; though in cases
of very serious mistreatment punitive damages may be awarded. Goldberg and
Zipursky argue that B is empowered to seek civil redress for A’s wrong under
a ‘principle of civil recourse’ which dictates that where B has a right against
A, B ‘is entitled to enlist the state’s aid in enforcing that r ight, or to make
C2020 The Author. The Modern Law Review published by JohnWiley & Sons Ltd on behalf of Moder n LawReview Limited.
(2020) 83(5) MLR 1124–1127
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