Tuesday, August 14, 2012
Ben Zipursky (Fordham) has posted to SSRN Substantive Standing, Civil Recourse, and Corrective Justice. The abstract provides:
Substantive standing and relational wrongs are the core legal concepts with which civil recourse theory was commenced fourteen years ago. A plaintiff has substantive standing to bring a tort claim if the wrong committed by the tortfeasor was wrongful in the relevant respects in relation to the plaintiff: if the defendant defrauded the plaintiff (for a fraud claim), breached a duty of care owed to the plaintiff (for a negligence claim), trespassed upon her land (for a trespass claim), and so on. After tracing the development of civil recourse theory and its analytical roots in the ideas of substantive standing and relational wrongs, this article turns to: (A) criticizing corrective justice theory and distinguishing civil recourse theory from corrective justice theory; (B) criticizing retributive or vengeance-based theories of tort law and distinguishing civil recourse theory from such theories; (C) explaining the distinctive moral ideas at the core of civil recourse theory. The article develops the view – extant in positive morality and elaborated by reference to work by contemporary moral philosophers -- that a person who has been morally wronged has a moral right to demand an ameliorative response of the wrongdoer, and depicts this idea as the backward-looking mirror image of a moral right to self-defense. In empowering tort victims with a right of action against tortfeasors, the state is giving legal embodiment to this moral principle. It is recognizing, in a victim of a legal wrong, a right to demand ameliorative conduct of the one who legally wronged him or her. The article concludes by observing that there is a familiar moral notion of standing to demand a response to having been wronged that parallels the legal notions of substantive standing pervasive in the law of torts.