The Work of Tort Law: Why Non-Consensual Access to the Workplace Matters?

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 the ways we should 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 that of identifying the value of the conflict to which it responds (or shapes). In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts. 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 non-consensual access to the workplace by organizers and by workers.