In Recognizing Wrongs, Goldberg and Zipursky provide what is, effectively, a highly readable conspectus of roughly two decades’ worth of first rate tort theory. The breadth and depth of learning on offer in this book is as impressive as it is skilfully deployed. The sources upon which the authors draw traverse American constitutional legal history, English legal history, moral philosophy, political philosophy, analytical jurisprudence as well as, predictably enough, various schools of late twentieth- and early twenty-first-century tort theory. Their obvious comfort within each of these fields, while by no means over-played, comes through loud and clear as the theses they advance are frequently fortified by recourse to this diverse range of material. And yet, for all of the sophistication and (in places) subtlety of their arguments, the text of this book remains somehow admirably accessible: readers will find here nothing dense or impenetrably recondite. This counts for a lot, for I suspect there will be many readers, besides myself, who will not be especially well-versed in matters of American constitutional law, or law and economics, or legal history or political theory. Nor is there a danger of getting lost in the thickets of voluminous footnotes that so often characterise American legal scholarship and which not infrequently push to the extreme one's powers of understanding and patience. Indeed, one of the most striking features of this book is the paucity of footnotes. The result is something that comes as close to being a “page-turner” as a work of legal theory is ever likely to get.

As to its substance, the book contains not just one theory, but two. The authors are, of course, synonymous with (indeed best known as the architects of) civil recourse theory; and Part I of the book is devoted to this. Part II, by contrast, sets out a theory of torts: that is, a theory concerning “the type of wrong that triggers the civil recourse principle” (p. 341). Of course, the two theories fit tightly together. Indeed, the authors in fact regard them as forming a single, integrated “constitutive justice theory of tort law” (p. 354). But the fact remains that their civil recourse theory is “a theory of tort law's structure and the place of private rights of action within it” (p. 230), while their theory of torts concentrates on the particular wrongs of tort law and conceives of torts as “legally recognized, injury-inclusive, and relational wrongs” (p. 4). To my mind, it is more helpful to think of a theory about the type of redress available as being separate from a theory concerning the types of wrongs that trigger the power to pursue such redress. Indeed, by the authors’ own admission, “the civil recourse principle does not itself provide an account of tort law's wrongs” (p. 230). Accordingly, the elaboration of the two theories in separate parts of the book appears to have more going for it than the interesting, but not (in my view) very helpful suggestion that they combine to form a single, amalgamated, “constitutive justice theory”. But already I am getting ahead of myself, drifting into the discussion of material that does not appear until the closing pages of this book. I shall therefore backtrack to Part I, for there are several observations that I should like to make about their civil recourse theory.

To begin with, two huge compliments are in order. Although the authors have written very extensively about various aspects of civil recourse over the last 20 years, there is (despite this being a fairly common phenomenon) no mere, lazy recycling of material here. Naturally, to anyone familiar with the authors’ considerable back catalogue of work, the arguments are for the most part familiar. But they have been conspicuously abridged in this book; and they have been presented in such a way that even the newcomer to their work will acquire a clear sense of their distinctive voice in the field of tort theory. Second, there is clear evidence – though not always fully signposted – of carefully crafted rejoinders having been introduced to various powerful criticisms that others have made of their work in the past. Thus, although they remain largely unmoved in relation to positions they have adopted previously on certain matters, this book undoubtedly presents the most mature and refined iteration of their thinking.

To be more specific, the authors stick steadfastly to their claims that the principle of civil recourse is not just an idea that is embedded in America's legal and political traditions (Chapter 1), but that it is also reflective of cherished ideals of equality, fairness and individual sovereignty (Chapter 4). Similarly, they remain committed to the idea (that they have defended for years), that the structure and mechanics of tort law are best understood in terms of a series of legal rights, corresponding duties and civil rights of action against wrongdoers (Chapter 3).

Chapter 2, however, is different and particularly worthy of note. For, although the authors remain fundamentally unmoved in connection with certain previously expressed views about the distinctiveness of tort law, they now defend their position in a way that is clearly intended as a response to certain hard-hitting complaints made over the years by a number of distinguished critics. To a large extent, their responses to these criticisms are persuasive, but I think reasonable doubts can be expressed about the way in which they seek to portray the dividing line between tort and contract. For Goldberg and Zipursky, one important distinction is the fact that “[w]hat is wrong, in this domain [i.e. contract] … is by and large determined by the agreement [of the parties]”, whereas “the wrongs of tort … are ‘in the law’” (p. 57). There is, of course, nothing especially novel in this view. Yet its enduring popularity does not make it true. There are a great many contracts made in which statutory implied terms play a part. Think, for example, of the countless consumer contracts made daily in which the purchaser will have the benefit of implied terms regarding merchantability or fitness for purpose and so on. Breach of any such terms, it seems to me, are equally aptly described as wrongs “in the law”.

The authors also argue that, whereas “contract law often (and perhaps prototypically) empowers the plaintiff to secure that which the contract entitles her to receive… [t]ort law hardly ever empowers a plaintiff to secure performance of a duty of conduct that the defendant owed her” (p. 58). But is this correct? If what the authors mean by “that which the contract entitles her to receive” is performance of the primary contractual obligations, then their claim is clearly blind to the rarity with which an order for specific performance will in practice be granted. If, however, what they mean is no more than that contract law entitles a successful claimant to damages based upon expectation loss, then there is a profound contradiction with a central claim within their civil recourse theory. To see this clearly, it perhaps helps to proceed in stages. The idea that a contract claimant has the right to damages based on an expectation loss has at least two important elements. The first of these concerns the measure of damages. That is not where the problem lies. The second by contrast is the suggestion that the claimant has a right to such damages: after all, what else could be implied by the phrase “entitles her to receive”? And herein lies the rub; for the suggestion that those who are on the receiving end of a breach of contract have a right to damages clashes fundamentally with their theory of civil recourse insofar as it posits that victims of wrongs – be they breaches of contract, torts or equitable wrongs – are not entitled to a remedy until a court has pronounced judgment to that effect (pp. 162–63). The only right they have is the relevant right of action, the right to pursue such a remedy.

The authors’ contention that there is no immediate right to damages upon the commission of a tort receives elaboration in Chapter 6, the last in Part I of the book. That elaboration occurs in the context of the authors’ engagement with both Weinrib's and Gardner's versions of the continuity thesis according to which, roughly, there is a continuity between (1) a conduct duty to do X (or refrain from doing Y); and (2) a duty of repair that arises as and when the duty to do X (or refrain from doing Y) is broken (pp. 158–63). Though this engagement with (essentially) corrective-justice-based understandings of tort damages is interesting in its own right, the more fascinating discussion follows in its wake. For the authors contend, boldly, that “make-whole” damages are not the default setting in tort law. Rather, they argue, “the prevailing legal rule calls upon the fact-finder (usually juries) to award compensatory damages in an amount that is fair and reasonable in light of what the defendant did to the plaintiff” (p. 166). Here there is an apparent change in tone from earlier work – for example, in “Torts as Wrongs” (2010) 88 Tex.L.Rev. 917, Goldberg and Zipursky were clear that “‘make-whole’ is the default measure for monetary damages”. But now, it seems, “‘making whole’ must have a subsidiary rather than a primary role” (p. 155). Indeed, they also maintain, “[o]ur emphasis on fair and reasonable compensation cuts against the scholarly grain insofar as it declines to afford foundational status in tort law to the idea of ‘make-whole’ damages” (p. 167).

At best, the authors are fuzzy in relation to compensatory damages in tort; and I suspect the fuzziness is attributable to two main things. First, they seem (now) to be uncommitted to the restitutio in integrum principle because such a position makes explaining the availability of punitive damages in tort a good deal easier than it otherwise would be. Second, however, I think that their highlighting the fact that juries (in the US) are directed to think in terms of a fair and reasonable sum is due to their keenness to emphasise the gap between their own theory of tort law and those proffered by leading corrective-justice scholars. Yet, on my reading of this book, their being somewhat woolly in relation to compensatory damages was unnecessary if this was their aim. This is because they already achieve this objective in several other ways. For example, in Part III of the book, the authors assiduously anchor their theory to the law as it presents itself – real life cases, in other words – rather than to philosophical abstractions taken from Kant. Equally their recognition (already mentioned) that there is no such thing as a right to repair in tort law highlights yet more clear blue water between themselves and the major corrective-justice scholars. Third, and no less significantly, Goldberg and Zipursky are perfectly at ease with strict liability torts. By contrast with those who favour a corrective-justice-based explanation of tort law, the authors are content to recognise that tortious wrongs need not also be moral wrongs (Chapter 6). (Their willingness to recognise such wrongs, however, does prompt – en passant – a question about the idea that their overall theory may be seen as one of “constitutive justice”. Justice, of whatever variety, is an ineluctably moral idea; so the notion that a sizeable chunk of tort law can be justified and explained according to their theory even though it involves no moral wrongdoing seems unlikely.)

Turning to their second major theory in this book, it is notable that the authors, in the course of elaborating their account of torts – and in particular of how courts come to recognise certain forms of conduct as torts – go to great lengths to show how instrumentalists of various stripes have erred in their respective theories. They lock antlers with most of the “usual suspects” and their engagement with Posner and Calabresi is reminiscent of the treatment these scholars received at the hands of Weinrib. But their arguments also add considerably to these well-known doubts about whether tort law can plausibly be understood in terms of its deterrent capacity, or its effectiveness as a system of loss shifting. On the other hand, there is one matter that I think is significantly downplayed in the book: the fact that lawyer economists are not always (in fact, relatively seldom) in the business of explaining or interpreting the law as it presents itself. True: there is, buried deep within a 13-line footnote an admission that “Of course, Calabresi does not assert that his is a positive account of the law … [he instead supplies] a framework for thinking about why tort law is able to accomplish certain goals” (p. 227). But this, I suspect, might easily be missed; and the less assiduous reader might take away a view of Calabresi's work that is not a true representation of the normative nature of his project.

Chapter 8 is a veritable tour de force. It offers what the authors label a “dual constructivist” account of the way that courts recognise, extend and refine the range of wrongs that should be treated as torts. The duality in this label is intended to reflect the two-sidedness of torts, the notion that they are not just wrongs in thin air, but relational wrongs (i.e. wrongs to particular claimants). The idea of constructivism, by contrast, is intended to capture the fact that when the courts move the law forwards, they do not slavishly adhere to ancient precedents with no attention to prevailing ideologies or social conditions. Rather, as the authors put it: “the adjudication of tort claims consists of, and calls for, a mix of reasoning about history, precedent, social mores, and principles of justice” (p. 252). There is more than just of whiff of Dworkin's influence here – I understand he taught both of them – but the prose feels fresh, and it is certainly engaging.

I try always to resist the temptation, when reviewing books, to say that the book would have been better if only the authors had done X, Y and Z. More often than not, such comments reflect merely the very different book that might have been written by the reviewer him- or herself, had they had the inclination and time to write it. On this occasion, however, I shall venture one such thought. As noted at the outset, this book provides not merely an account of why we have the torts that we do, but also an account of the phenomenon of civil recourse. Anyone reading it will learn a great deal about why tort claimants have a right of action against those who have wronged them. But, as a matter of everyday tort law, there is an equally interesting question that goes in the other direction: What explains the phenomenon of vicarious liability, the doctrine that allows certain persons to be sued in the wake of a tort's commission, even though they did not themselves commit that tort? Hardly at all is vicarious liability mentioned in this volume. And yet one could very well argue that vicarious liability comprises a central feature of “Civil Recourse in the Modern World” (the title of Chapter 10). Why, then, no account of it?

But is the absence of an explanation (or defence) of vicarious liability a major shortcoming in this book? Probably not. The book hangs together superbly well as it is; and it is certainly not short at 365 pages. Maybe my flagging up this “omission” is best seen as a compliment: a remark prompted by my willingness – aye, even eagerness – to read even more. I found it, after all, just about the best book on tort theory for many, many years.