Volume 13, Issue 1 -

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically changed beginning in the 1960s and 1970s, with the recognition of the constitutional rights to contraception and abortion. I provide an exhaustive survey of an underappreciated yet robust arena of public policy at the intersection of reproductive rights and tort law, emphasizing the reciprocal relationship between these torts and reproductive rights. State courts and legislatures continue to debate into the present about whether to ban, permit, or restrict damages in these torts, debates that have been perennial since the early 1970s. Using several timelines created in Stata to plot the annual frequency of the above cases from the late 1800s into the present, as well as several maps providing a 50-state overview, I highlight a specific arena in which reproductive rights are forged, one revealing problematic aspects of a “post-Roe era” of public policy regarding the benefits and harms of unexpected children.