Thursday, November 20, 2008
Jason Solomon (Georgia) has posted on SSRN Equal Accountability Through Tort Law. Here's the abstract:
The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.
Larry Solum has more from the text and a recommendation at Legal Theory Blog.