Richard A. Epstein

88 Texas L. Rev. See Also 105

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In response to Professors Goldberg and Zipursky’s article, Professor Richard Epstein offers an instrumentalist response.  Although instrumentalism distances itself from notions of individual wrongs—focusing instead on tort law as a tool of social control with loss prevention at its heart—Prof. Epstein argues that there are good instrumental reasons for directing attention to the doer–victim relationship.  In addition, he argues that Goldberg and Zipursky have offered a theory short on facts: they speak of negligence, strict liability, and legal and moral wrongs, but they do not give any instances of the particular conduct to which these norms apply.

Their lack of fact density explains why they are unable to come up with a single account of tort law that covers all of the diverse elements that fall within its scope.  Prof. Epstein disaggregates the various elements of different torts from one another in order to retell the entire story in a coherent fashion.