December 21, 2011
Calnan: Four Quandaries for Civil Recourse Theory
Alan Calnan (Southwestern) offers the following post on civil recourse theory:
At the upcoming AALS conference, the Torts and Compensation Section will host a panel discussion on civil recourse theory entitled: Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory. In short, civil recourse theory holds that Torts is a system of constitutionally mandated (due process) rights permitting victims to sue for remedies to rectify legal wrongs. Although the proponents of this theory have elaborated its features in copious detail, they have yet to address several questions essential to its sustainability. Four questions, in particular, create especially troublesome quandaries. I pose these quandaries below in the hope of stimulating thought and discussion at January’s conference.
- How can civil recourse theory be viewed as an accurate, complete, and unified description of tort law when it ignores both the numerous instrumental (nonwrongs-based) theories of strict liability, and the pervasive instrumental (nonwrongs-based) considerations actively shaping and transforming wrongs-based theories like negligence?
- How can the right to sue (take recourse) in tort be premised on the existence of a legal wrong if (1) the determination of a legal wrong typically is not made until long after the action is filed, and (2) often (in at least 50% of tried cases) results in a finding that no wrong in fact was done?
- How can tort law best be understood as empowering victims to rectify civil wrongs (as stated in the panel summary) when the very purpose of both the law’s substance (which specifies things the plaintiff MUST prove to rectify a wrong) and its procedure (which specifies things the plaintiff MUST do to pursue such rectification) is to create impediments for the party seeking recourse and protections for the party being sued?
- How does the “constitutional” right to civil recourse square with the historic due process right to protect citizens from arbitrary state action, including presumably the state’s action of taking sides in a private dispute by hosting and facilitating one party’s unproven, liberty-infringing (civil) attack against another?
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