The work of tort law: Why nonconsensual access to the workplace matters?
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Avihay Dorfman
Abstract
Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers.
© 2023 by Theoretical Inquiries in Law
Articles in the same Issue
- Frontmatter
- Private Law Theory Meets the Law of Work
- Introduction
- Nondomination and the ambitions of employment law
- Relational and associational justice in work
- Can contract emancipate? contract theory and the law of work
- The work of tort law: Why nonconsensual access to the workplace matters?
- The classical liberal version of labor law: Beware of coercion dressed up as liberty
- Is labor law internal or external to private law? The view from Cedar point
- The history of job (in)security: Why private law theory may not save work law
- Managerial prerogative, property rights, and labor control in employment status disputes
- Good faith in employment
Articles in the same Issue
- Frontmatter
- Private Law Theory Meets the Law of Work
- Introduction
- Nondomination and the ambitions of employment law
- Relational and associational justice in work
- Can contract emancipate? contract theory and the law of work
- The work of tort law: Why nonconsensual access to the workplace matters?
- The classical liberal version of labor law: Beware of coercion dressed up as liberty
- Is labor law internal or external to private law? The view from Cedar point
- The history of job (in)security: Why private law theory may not save work law
- Managerial prerogative, property rights, and labor control in employment status disputes
- Good faith in employment
