Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
explanation of why a law of civil wrongs would require compensation from the shipowner to the
dockowner?
3. The paradigm of reciprocity. Perhaps the wrong that corrective justice theorists believe is
present in Vincent can be cashed out in terms of fairness. This is George Fletcher’s view—
namely, that an unexcused nonreciprocity of risk is what makes sense of Vincent.
The critical feature of [Vincent] is that the defendant created a risk of harm to the
plaintiff that was of an order different from the risks that the plaintiff imposed on
the defendant. [S]uppose that two sailors secured their ships in rough weather to a
single buoy. [E]ach party would subject the other to a risk of . . . abrasion. [This]
manifestation . . . of the paradigm of reciprocity . . . express[es] the same principle
of fairness: all individuals in society have the right to roughly the same degree of
security from risk. By analogy to John Rawls’ first principle of justice, the principle
might read: we all have the right to the maximum amount of security compatible
with a like security for everyone else. This means that we are subject to harm,
without compensation, from background risks, but that no one may suffer harm
from additional risks without recourse for damages against the risk-creator.
Compensation is a surrogate for the individual’s right to the same security as
enjoyed by others. But the violation of the right to equal security does not mean
that one should be able to enjoin the risk-creating activity or impose criminal
penalties against the risk-creator. The interests of society may often require a
disproportionate distribution of risk. Yet, according to the paradigm of reciprocity,
the interests of the individual require us to grant compensation whenever this
disproportionate distribution of risk injures someone subject to more than his fair
share of risk.
George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972). Does
Fletcher’s view of Vincent do a better job than Coleman’s view of explaining the outcome of the
case? The question for any view based on reciprocity is how to identify the appropriate baseline
from which reciprocity may be measured. Fletcher’s conception of reciprocal risks in the case of
two sailors and a single buoy presupposes that the law vests each sailor with a protectable
entitlement in their respective vessels. But whether any such entitlements exist is what we are
trying to decide. To take the Vincent example, can we identify the risks as nonreciprocal without
assuming that the plaintiff has a protectable entitlement in the dock? But isn’t that what we are
trying to decide?
4. A civil recourse approach? More recently, Professors John Goldberg and Benjamin
Zipursky have attempted to establish a civil recourse theory of tort as an alternative to both the
economic-utilitarian and corrective justice approaches. The basic idea that animates civil recourse
theory is that a tort is a wrong that empowers the victim to seek satisfaction from the wrongdoer
through special means of redress provided by the government. Tort (in this view) is therefore not
about loss-spreading, risk allocation, or even compensation, but rather about vindicating the right
of the victim of wrong to recourse from the tortfeasor. Goldberg and Zipursky believe that their
view of tort generates an explanation of Vincent:
Our own view of Vincent is that . . . it deserves attention because it vividly
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