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Benjamin C. Zipursky & John C. P. Goldberg, Getting the Law Right: An Essay in Honor of Aaron Twerski, 18 Brook. J. Corp., Fin. & Com. L. 181 (2023).

Abstract: Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current regime, which purports to grant municipalities immunity not only for most instances of police nonfeasance but also for most instances of misfeasance, is indefensible. That decisions from New York’s high court have reached this untenable position largely reflects, in our view, both its misapplication of basic rules of negligence law and a failure to take seriously the principle of civil recourse that animates tort law and private law more generally. As such, they serve as a stark reminder of how important it is for courts and scholars to combine doctrinal expertise with sound judgment—precisely the salutary combination embodied in Professor Twerski’s torts scholarship.