Vanderbilt Law Review, Vol. 60, No. 6 (November 2007), pp. 1749-1808

Abstract

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral theorists: Why do we judge plaintiffs--their conduct, state of mind and other factors--to determine liability in tort law? This Article attempts to answer that question, and in doing so, shed light on contemporary theoretical, doctrinal, and practical debates about tort law.

To do so, I first recast a variety of disparate doctrines in tort law as instances of a singular phenomenon--"judging-plaintiffs law"--and argue that existing explanations of this phenomenon fall short. Next, I suggest that judging-plaintiffs law can be explained and unified through a principle of self-help. Then, I argue that a new moral theory of tort law, civil recourse theory, is uniquely well positioned to explain why plaintiff's capacity for self-help ought to lead to a judgment of no liability.

Finally, I suggest that my interpretation of judging-plaintiffs law lends support to a more robust "right of action" concept in civil recourse theory, and I describe the doctrinal and practical payoff of such an analytic move. I aim to help move the debate over tort theory and doctrine forward by placing civil recourse theory at the center of the discussion.