How Tort Law Empowers

Electronic copy available at: http://ssrn.com/abstract=2374677 Electronic copy available at: http://ssrn.com/abstract=2374677

How Tort Law Empowers

Ori J. Herstein*

UNIVERSITY OF TORONTO LAW JOURNAL (forthcoming in Vol. 64:4, 2014)

ABSTRACT

The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of the leading theorists of tort law – often writing under the banner of ‘civil recourse theory’ – to suggest that tort law empowers tort victims to pursue and even to obtain redress from tortfeasors. This view has even been expanded to describe private law in general. Yet, close scrutiny reveals that tort law mostly does not vest in tort victims a legal power over the rights of tortfeasors. The same is most likely true for private law more broadly. For the sake of both descriptive accuracy and of realizing its prescriptive potential, civil recourse theory is best amended to view the legal rights and powers of tort victims, as well as the realities of civil litigation, more soberly, and with more conceptual accuracy. This article endorses and grounds the more modest and I think orthodox view on how tort law and private law more broadly empower victims of civil wrongs.

Introduction

The idea that a central feature of tort law, and of private law more broadly, is to vest in victims a power to pursue and even to obtain redress has gained significant traction in the past decade. The main champions of this view, which is a cornerstone in their influential theory of tort law as a law of “civil recourse,”1 are John C.P. Goldberg and Benjamin C. Zipursky. Moreover, other leading

* Lecturer (Assistant Professor), King’s College London Dickson Poon School of Law. For their comments on previous drafts, I am grateful to Irit Samet, Anna Finkelstern, Gregory C. Keating, Sandy Steel, the participants of the Second Conference on Moral Values and Private Law at King’s College London (2013) and to the referees for the University of Toronto Law Journal for exceptionally helpful and detailed comments. 1 See e.g. Interview with Benjamin Zipursky, “Rethinking Tort Law” (Spring 2012) Fordham Lawyer 12 at 14 [“the core idea of civil recourse theory is that tort law is about empowering people who have been wrongly injured to obtain some sort of redress against the injurers”]; John C.P. Goldberg and Benjamin C. Zipursky, “Civil Recourse Revisited” (2011) 39 FL S U L R 342, 343 [“It [tort law] is also a law of recourse, in that it empowers victims of these wrongs to demand of the wrongdoer responsive action as redress for the wrong”].

Electronic copy available at: http://ssrn.com/abstract=2374677 Electronic copy available at: http://ssrn.com/abstract=2374677

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theorists, such as Jules Coleman,2 Nate Oman,3 and Jason Solomon4 have – in one way or another and not necessarily in the same way as Goldberg & Zipursky – endorsed the basic view of tort law as empowering tort victims. My aim here is to clarify the nature of this empowering feature of tort law which, in the past decade, has become so central in the recent scholarly literature. The question I aim to answer is: how exactly does tort law empower? My answer will be deflationary, demonstrating that describing tort law in terms of empowerment has been exaggerated. For all their appeal, civil recourse theorists have often mischaracterized how tort law, and private law more broadly, empowers victims of civil wrongs. In reality, the practical powers that the private law provides are often ineffective and the legal powers the private law vests in potential litigants are far less robust than some believe.

One preliminary comment: as already suggested, civil recourse theory seems at least potentially applicable not only to tort law but to private law more generally.5 Accordingly, on occasion I will refer to ‘civil wrongs’ more broadly, and not only to ‘torts.’ Moreover, I assume that the lessons learned here are, mutatis mutandis, applicable not only to tort theory but also to the theory of the private law in general. Yet, because I am concerned with ideas that primarily evolved out of reflections on the law of tort, I will mostly focus on the tort context.

Empowering as Aspiration

On its face at least, the view of tort law as empowering victims is appealing. Until relatively recently, tort theory has focused more on the functions6 and on the normative structure7 of defendant-liability, neglecting the active role that tort law affords victims. Realizing how tort law empowers tort victims and incorporates

2 In article not yet available for citation. 3 See e.g. Nate Oman, “A Theory of Civil Liability” [forthcoming].

4 See e.g. Jason M. Solomon, “Judging Plaintiffs” (2007) 60 Vand L Rev 1747; Jason M. Solomon, “Equal Accountability Through Law” (2009) 1766, 1770. 5 John Gardner, “Torts and Other Wrongs” (2011) 39 FL S U L R 43; Goldberg and Zipursky, supra note 1 at 347-56.

6 For a summary of various functionalist theories of tort law, such as deterrence-compensation theories or loss spreading theories, see John Goldberg, “Twentieth-Century Tort Theory” (2003) 91 Geo LJ 514. 7 See e.g. Jules Coleman, The Practice of Principle (Oxford, UK: Oxford University Press, 2001) [for a corrective justice based account of the normative structure of tort law]; Richard A. Posner and William M. Landes, The Economic Structure of Tort Law, (Cambridge, Mass: Harvard University Press, 1987) [for an economic account of the normative structure of tort law].

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victims’ agency into the legal processes of private law, shines a more positive light on tort law. For instance, advocates of restorative justice, who have argued for more inclusion of victims in the criminal justice system,8 would presumably welcome the observation that a core feature of tort law, and of the private law more broadly, is to empower victims to control the legal process for the vindication of their rights.

A second appealing effect of empowering tort victims is pacifying social unrest and violence.9 Tort law gives victims of civil wrongs a rational, controlled, and tempered form of recourse through which to channel their aggression and demand for rectification; emotions that would otherwise potentially manifest in uncoordinated, socially destructive, and disproportionate manners.

Perhaps the most appealing feature of conceiving of private law in terms of empowerment is that it presents the law as a vehicle for victims to respond or take action against those who wronged them. The law mostly protects peoples’ property and bodily interests, thereby curtailing the liberty of victims to take action against those who wrong them. According to civil recourse theory, tort law as well as other branches of the private law, opens legal avenues to victims to respond and to act – through the courts and the state – against those that wronged them: to obtain satisfaction, hold accountable, enforce an agreement or other right, exercise vengeance, or some other form of remedy.10 In this sense, the private law empowers private actors.

There are further possible benefits to the empowerment of victims.11 A recent theory focuses on the benefits the empowering of victims of private wrongs has for markets. Nate Oman points out that allowing repeat actors to hold each other liable for wrongdoings facilitates cooperation in social and economic interaction.12 A more obvious benefit of empowering tort victims is assisting them with obtaining redress for the wrongs that they suffer. Goldberg has pointed

8 See e.g, Zvi Gabbay, “Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices” (2005) 2 J Dis Resol 349.

9 John C.P. Goldberg, “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs” (2005) 115 Yale LJ 524 at 602-03. 10 For a discussion of the types of ends litigants may obtain through the recourse of private law see Andrew S. Gold, “The Taxonomy of Civil Recourse” (2011) FL S U L R 65.

11 See e.g., Solomon (2009), supra note 4.

12 Oman, supra note 3.

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out that by empowering plaintiffs, tort law is actually empowering tort victims politically, thereby instantiating notions of equality in civil society.13

All this notwithstanding, the view of tort law (or of private law generally) in terms of empowerment is overly rosy, and to a large extent aspirational. The reality of tort law, and of private law in general, in terms of the recourse it actually offers victims is often somewhat bleak. While empowering tort victims may bring various benefits such as those just enumerated, in actual practice tort law often falls short of providing such empowerment. For many tort victims the path that the law of tort charts for obtaining a remedy is long, discouraging, expensive, confusing, daunting, and emotionally and financially taxing. Moreover, at times there is little point to suing considering that many tortfeasors are uninsured, insolvent, or shrewd in shielding their assets. In fact, it is safe to assume that most tort victims do not even bother with suing. In other words, in many ways tort law seems rather dysfunctional, especially if viewed as a tool for the practical or ‘real’ empowerment of tort victims. Moreover, one need not read Charles Dickens’ classic novel Bleak House to know that at times private litigation may do more to debilitate, cripple, and deplete the energies and resources of victims that it does to empower them.

Thus, if tort law is truly designed to empower tort victims to obtain redress for legally wrongful harms (and to thereby achieve goods such as those listed above), then the law is only partially successful in fulfilling this end; which is why a theory aimed at highlighting how tort law empowers victims is a welcomed development, especially if such a theory were to contain a prescription for how tort law could do better to effectively empower victims.

The academic focus on the practical empowerment of victims of civil wrongs, therefore, best understood, at least partially, as an aspirational project. Laying out ways in which private law could – if it functioned well – empower victims. Accordingly, such an endeavor must focus not only on how tort law practically empowers tort victims, but also on how to reform tort law so that it better empowers victims. But that is not the project I set for my self here. At least when it comes to the matter of how private law practically empowers victims of civil wrongs, civil recourse theory is, therefore, better viewed as a normative prescriptive theory.

13 Goldberg, supra note 9, at 625.

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Legal Empowerment

My primary concern in this paper is to clarify the logic and structure of the legal powers that tort law supposedly vests in tort victims. As explained in the outset, I am less concerned with how these legal powers serve to actually or practically empower tort victims. As just suggested, I believe that the forms and procedures of tort law – that is the procedural and institutional framework and the legal rights and powers that tort law vests in tort victims – often prove less than ideally designed to realize the (practically) empowering aspirations some have ascribed to tort law. Yet, obtaining a sober and conceptually tight understanding of the forms of the law and the legal powers that it offers tort victims is essential for reforming the law. That is, understanding the legal powers that tort law affords victims is a first step towards reflecting on how this body of law can better empower victims in ways that are practically meaningful.

The aim of this paper is to scrutinize the notion that tort law legally empowers tort victims, and to offer an alternative and more modest conception of the rights of tort victims for civil recourse theory.

Goldberg & Zipursky are the ideal interlocutors for such a conceptually driven exploration. Because their descriptive theory of tort law as a law of civil recourse positions the empowering of tort victims at the center of tort law. Moreover, Goldberg & Zipursky’s conception of tort law as empowering victims is concerned with the structural and logical features of the legal power that tort law vests in tort victims and less, I think, with the realities of exercising that power. Finally, I also offer my reflections on how tort law legally empowers as a friendly amendment to civil recourse theory.

So how does tort law empower? There are, at least, two views on the legal power of tort victims (or on the legal powers of civil litigants more broadly). In fact, both views are actually found in the work of Goldberg & Zipursky themselves. At times, Goldberg & Zipursky describe the power of tort victims primarily as a power to initiate judicial proceedings against tortfeasors for the purpose of obtaining redress. This view, I think, is uncontroversial. For example:

Tort law is thus plainly private law in the sense that it is about empowering private parties to initiate proceedings designed to hold tortfeasors accountable.14

14 John C.P. Goldberg and Benjamin C. Zipursky, “Torts as Wrongs” (2010) 88 Tex L Rev 917 at 946-947 [emphasis added].

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Tort law is a government-sponsored system for responding to wrongdoing by arming putative victims with private rights of action – legal powers for bringing claims, at their discretion, for damages and other relief based on wrongs done to them.15

… tort law is a law of civil recourse – law that empowers a person . . . to bring suit against a wrongdoer and, if she prevails, to obtain recourse against the wrongdoer. . .16

… a system of rules empowers those who have been treated in the ways the law prohibits to seek redress, through the state, against those who have mistreated them.17

These formulations of the power of tort victims cohere with another primary feature of Goldberg & Zipursky’s theory of tort law as a law of civil recourse, which is to stress the discretionary or privileged nature of the power that victims of tortious conduct hold to determine whether or not to pursue recourse. A constituent feature of the structure of tort law is not, as corrective justice theories tend to claim, to obligate or to hold tortfeasors liable for the correction of the results and outcomes of their wrongdoing, but rather to legally empower victims to choose whether or not to initiate proceedings oriented towards obtaining redress from tortfeasors.18 Accordingly, tort law does not simply impose corrective justice, but rather gives victims the discretionary choice to pursue a remedy which, if the litigation is successful, may (and often does) accord with corrective justice. In other words, tort victims are empowered with a legal capacity to sue for a remedy, as well as with the privilege to choose whether or not to exercise this power and make use of the recourse that the private law affords them. This description of tort law and, mutatis mutandis, of private law generally, is the most important insight of civil recourse theory for the theory of the private law.

Notice that it is this discretionary feature of tort law that is the key to understanding the aspirational features of conceiving of tort law in terms of empowering victims: the law grants victims a legal power to decide to pursue litigation against those who wronged them; thereby engaging the agency of victims and incorporating them into the justice system; such incorporation serves to practically empower tort victims, as well as to thereby achieve certain social

15 John C.P. Goldberg and Benjamin Zipursky, “Tort Law and Moral Luck” (2007) 92 Cornell L Rev 1123 at 1136 [emphasis added]. 16 John C.P. Goldberg, “Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs” (2008) 61 Van L Rev 9 at 13 [emphasis added]. 17 Benjamin Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, (1998) 51 Vand L Rev 1 at 100. 18 See e,g. Benjamin C. Zipursky, “Civil Recourse, Not Corrective Justice” (2003) 91 Geo LJ 695 at 720-21 [emphasis added].

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ends. As pointed out above, however, given the realities of civil litigation, and specifically of tort litigation, this story about how the law practically empowers victims is to a large degree aspirational. Yet the kernel for this aspirational story about practical empowerment is found in Goldberg and Zipusrky’s insight on how the law grants victims the legal power and discretion to pursue litigation.

In other passages, however, Goldberg & Zipursky (especially Zipursky whom Goldberg endorses) describe the power that tort law vests in tort victims in more robust terms; viewing this power as more akin to a power to engage in institutionalized self-help, to take from the tortfeasors, to render torfeasors liable, and to impose, obtain, force, and extract a remedy. This view, which I call the ‘expansive view,’ does not necessarily contradict the former ‘thinner’ and more modest view of the legal power of tort victims, but it certainly adds to it. In addition to the privilege to choose to sue for redress, here the legal power of tort victims also incorporates a legal power over the legal rights and relations of tortfeasors; it is a legal power not only to petition the court for redress but also to actually take or obtain redress and to thereby alter the legal rights and entitlements of tortfeasors. For example:

[T]ort is best understood as law that empowers the victim of a wrong to obtain a fair measure of satisfaction by extracting something from the wrongdoer. 19

[P]laintiffs are entitled to act against defendants through the coercive machinery of the state . . . [A] power in the person whose rights were violated to act against the rights-violator through the authority of the state. . .20

…the plaintiff is privileged to have the state coerce the defendant into paying him if he chooses to proceed.21

What we in fact have is a system in which the power to bring a tort action belongs to the one who has been wronged. It is literally a legal power to force defendant to pay plaintiff, a legal power to take from the defendant. This legal power is a right of action.22

… the rule that a property owner who is able to prove a nuisance is entitled to have an injunction against the nuisance entered against a defendant is a rule that confers upon property owners the power to put the defendant under an injunction against engaging in certain activity. The rule that a tort plaintiff who obtains a damages verdict is entitled to

19 Goldberg, supra note 16 at 13 [emphasis added]. 20 Zipursky, supra note 17 at 81, 85 [emphasis added]. 21 Ibid at 83 [emphasis added]. 22 Benjamin Zipusrky, “A Theory of Punitive Damages” (2005) 84 Tex L Rev 105 at 150 [emphasis added].

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a judgment against the defendant confers upon persons a power to render a defendant legally in debt to them.23

According to Zipursky,

[a]n individual who brings a tort or contract suit, if successful in obtaining a judgment, will alter the legal relations between herself and the defendant. The ability to alter legal relations is a form of legal power.24

In these formulations, Goldberg & Zipursky appear to believe that the legal power of tort victims goes beyond the mere and obvious legal power to file suit, but extends to some form of actual legal power over tortfeasors. Is this more robust characterization of the legal power with which tort law arms victims accurate? Do tort victims really hold a legal power to alter tortfeasors’ legal rights and relations? Is it the plaintiffs, as Goldberg & Zipursky at times seem to contend, or rather is it the state that holds that power? Another way to frame the issue is to simply ask what legal power does tort law vest in victims of tortious conduct? It is important to note that Goldberg & Zipursky are not naïve thinkers. They are of course aware that courts, and more broadly the state, play a role in altering the rights of defendants in favor of claimants. And, as explained below, their view of the power of tort victims attempts to take this feature into account.

In what follows, I argue in favor of the more modest of the two approaches to the legal powers of victims of civil wrongs. It is, in other words, an argument for amending the leading version of civil recourse theory and a vindication of what seems to me the more orthodox picture of the power of private litigants. The structure of the argument is as follows: I begin with a definition of ‘legal power.’ The definition, which shows fidelity to aspects of Goldberg & Zipursky’s (especially the latter’s) expressed conception of ‘power,’ is Hohfeldian. Upon laying out a definition of ‘legal power,’ the paper goes on to explore which legal powers tort law really does vest in tort victims. In addressing this question, it is helpful to distinguish between two periods: one preceding judicial judgment in a tort suit; and a second, which I call the ‘post-judgment period,’ following a judgment in favor of the tort claimant but preceding the satisfaction of that judgment. This bifurcation facilitates assessing the two competing views on the powers of tort victims in relation to the realities of civil litigation.

23 Benjamin Zipusrky, “Philosophy of Private Law” in Jules Coleman & Scott Shapiro, ed, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, UK: Oxford University Press, 2002) 623 at 632 [emphasis added]. 24 Ibid at 632 [emphasis added].

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What is Legal Power?

Briefly, it is the ability to change and create law. That is, a capacity to modify, annul, and create legal relations, rights, immunities, obligations, statuses, powers, and entitlements. A power is a second-order normative category. As such, powers govern first-order normative categories. First-order normative categories – such as rights, obligations, privileges, and duties – govern actions. Accordingly, second-order normative categories – such as powers and immunities – govern the creation, annulment, and change of, for instance, rights, obligations, privileges, and duties. For example, a property owner holds a power-right that is reflected in a capacity to transfer her property rights to others, thereby altering her own entitlements and creating new entitlements for others.25

Unless indicated otherwise, my use of the term ‘power’ throughout most of this essay follows this precise Hohfeldian concept. This use of the term ‘power’ is in-line with the concept that Zipursky expressly purports (at least in some places) to employ in his own work on the empowering feature of tort law. 26

A concept closely related to ‘power’ is ‘liability.’ Under the Hohfeldian scheme, ‘liability’ is the correlative normative category to ‘power.’ That is, liability is the state of exposure to the exercise of power. Person X is legally liable to person Y if Y holds the legal power to alter or annul X’s legal relations, rights, and entitlements.27

As explained, my concern here is with the scope and nature of the legal power that tort law vests in victims of tortious conduct to pursue civil recourse. As

25 It is also possible for a power to function as a third-order normative category. That is as a power to change, annul, and create second-order normative categories. For example, one may hold a (third-order) power to govern (second-order) powers to govern first-order normative categories. An instance of a third-order power is the power to amend constitutional arrangements of legislative (second-order) powers to create, change, and annul (first-order) laws that regulate conduct. 26 Zipursky explicitly purports to use the term ‘power’ in its rigorous and technical Hohfeldian sense. This is certainly what Zipursky is doing in his essay on the philosophy of private law, published in the widely read Oxford Handbook of Jurisprudence & Legal Philosophy, supra note 23 at 632; See also Zipursky, supra note 18 at 720-21, which is one of the accounts Goldberg relies on as determinative of how tort law “empowers victims under civil recourse theory.” Goldberg, supra note 13 at 601 ft. 389. 27 On the Hohfeldian conception of ‘liability’ see William A. Edmundson, An Introduction to Rights, (Cambridge, UK: Cambridge University Press, 2004) at 90; Alon Harel, “Theories of Rights” in Martin P. Golding & William A. Edmundson, ed, The Blackwell Guide to Philosophy of Law and Legal Theory, (Blackwell Publishing, 2005) 191 at 193.

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reflected in the two sets of quotations offered above, there are at least two views on the matter. I labeled one the ‘thin view’ and the second the ‘expansive view.’

The Legal Power of Tort Victims in the Period Preceding Judgment

The ‘Thin View’

I begin with the view I think right. On the face of things, victims of tortious conduct do not possess a legal power to extract redress from tortfeasors. Even if in principle tort law directs or determines that a victim of tortious conduct holds a right to pursue redress or even a right to receive a remedy, tort victims normally cannot lawfully unilaterally take, seize, force, or obtain a remedy or satisfaction from the tortfeasor. Tort law is not a doctrine of self-help,28 for it does not empower victims to directly annul or alter the legal relations, or the property or liberty rights of tortfeasors. In other words, tortfeasors are not liable to the power of tort victims to alter their legal relations, rights, and entitlements, even if it were in the furtherance of tort victims’ rights. A tort victim cannot simply snap her fingers or whisper an incantation that would constitute or result in a change in the legal rights and entitlements of tortfeasors in favor of the victim. For example, tort victims lack the legal power to impose binding injunctions or debts on tortfeasors. It seems mostly the exclusive role of the court to rule on a claimant’s suit for redress. A role that includes the power to change, annul, or alter the legal rights and relations of the claimants. All this, I believe, is almost orthodoxy.29

In certain circumstances, tort victims may turn to authorities other than courts to obtain redress. This does not alter the reality that in the context of tort litigation it is the authority and not the plaintiffs that holds the power to alter the rights, relations, and entitlements of torfeasors. Arbitration is one such example. Another available avenue for achieving a change in the rights and entitlements of tortfeasors in favor and in accordance with the rights of tort victims is through a settlement agreement between the parties. Here the parties that hold and exercise the legal power to alter the rights and entitlements of tortfeasors are the tortfeasors themselves, via their legal power to undertake contractual obligations.

28 One exception is the shop owner privilege to detain shoplifters as a defense against false imprisonment claims. For a brief discussion see Robert L. Rabin & Michael D. Green, Tort Law and Alternatives, 9th ed (Foundation Press, 2011) at 917. 29 See e.g. Henry M. Hart Jr & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, (Foundation Press, 1994) at 137 (prepared for publication from the 1958 Tentative Edition and containing an introductory essay by William N. Eskridge, Jr. & Philip P. Frickey).

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I do not claim that tort law does not vest any powers in victims. The act of suing is an exercise of a legal power over tortfeasors in that it exposes defendants to the power of the court to alter and annul the plaintiffs’ legal rights and entitlements through judicial creation of, for example, remedial norms.30 This ‘exposure’ or liability to the court’s power, which victim-plaintiffs impose on tortfeasor-defendants, does not exist prior to the victims’ initiation of the litigation. Outside of litigation, a court obviously does not hold the power to change, annul, or otherwise rule on the rights of tortfeasors. Torfeasors are, therefore, liable to the power of their victims to expose or make liable the torfeasors to the power of courts. Unlike the ‘expansive view,’ however, this power of tort victims does not include a power to further alter the legal rights and relations of torfeasors, even in the pursuit of lawful redress. Tort victims do not have, in other words, the power to create remedial obligations in tortfeasors; they only hold the power to expose tortfeasors to the power of courts to create such obligations. This power to expose others to the power of courts is, of course, a general feature of civil litigation, which is not restrictive to the context of tort victims and tortfeasors, but mostly available to all would be plaintiffs.

Moreover, it is at least not implausible that victims’ power to sue includes the power to create an obligation in the court to adjudicate the litigants’ matter in light of the claimants’ rights; an obligation that the court does not have – in the particular case and in relation to those particular litigants – prior to the filing of the lawsuit. In this respect, courts are liable to the power of private litigants to initiate court proceedings, because such proceedings create new obligations for the court. Obligations that plaintiffs can (to an extent) enforce through appeal. One indication that courts indeed have such an obligation is the doctrine of judicial immunity from (even malicious) erroneous judicial rulings.31 Simply put, if there was no duty there would be no need for immunity.32

However, perhaps grounding the judicial obligation to faithfully apply the law in the litigants’ power to sue is confused. It is possible to understand this judicial obligation as deriving from a broader obligation of courts to faithfully apply the law. Thus, perhaps courts are not liable to the power of potential claimants to obligate them in this way.

30 See Joseph Raz, Practical Reasons and Norms, 2 ed (Oxford, UK: Oxford University Press, 1990) at 132; Hans Kelsen, Introduction to the Problems of Legal Philosophy (Oxford, UK: Clarendon Press, 1992) (Bonnie Litchewski Paulson and Stanley Paulson trans). 31 Dan B Dobbs, The Law of Torts (St. Paul, Min: West Group, 2000) at 1214. 32 For more on how and when immunities assume duties see [redacted].

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Nevertheless, even if tort victims’ power to initiate litigation does not include a legal power to create an obligation in the court, the power of victims does include the practical capacity to trigger or effectuate such an obligation. The exercise of the power to sue, which is a power that tort victims do hold, triggers or effectuates the judicial obligation in specific instances. The fact of the existence of a specific litigation – created by litigants’ legal power to sue – is the triggering condition for the judicial obligation to arise in that specific case.

But orthodoxy and modesty alone are not, of course, reasons to adopt the ‘thin view.’ Therefore, before turning to assessing the expansive account of the power of tort victims, I demonstrate that the power to change the legal rights and entitlements of torfeasors, which Goldberg & Zipursky claims is held in some way by tort victims, is in fact held by the court. After which I explore whether the expansive view gives reason to think otherwise; concluding that it does not.

The Power of Courts: The Error Test of Normative Power

Courts are not only norm applying, but also norm creating institutions.33 Norm creating is a function of an exercise of legal power. It constitutes a change in the legal landscape by creating and annulling litigants’ legal obligations, liabilities, powers, statuses, etc. Normally, courts exercise their norm creating power to cohere with their norm applying role. That is, usually courts apply the law to particular cases by creating new legal norms that individualize, concretize, and enforce broader or more general norms to the specific case and litigants.34 For example, in ruling that a defendant is obligated to compensate the plaintiff, the court in effect attempts to make the general corresponding rules of tort law concrete and individualized, by creating a new and specific remedial obligation in the specific defendant towards the specific plaintiff. In addition, in so ruling the court exposes the defendants to certain enforcement mechanisms, should the defendants fail to comply.

For some, at this juncture it may be tempting to ask whether courts indeed create remedial obligations – thereby changing the rights and entitlements of litigants – or whether courts merely announce or affirm rights and obligations that exist regardless of judicial action. If the latter is true, it may seem that my position stated above – that courts are norm-creating – is flawed, at least in the case of private law courts. Because it would appear that as wrongdoers violate their primary obligations under private law, a secondary remedial obligation arises ipso facto out of the violation. For example, if D violates her duty of care towards P by

33 Raz, supra note 30 at 132-37. 34 Kelsen, supra note 30 at 68.

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negligently causing P harm, then D must – as a matter of law – compensate P for his injuries. If D fails, for whatever reason, to fulfill her remedial obligations, P may sue D and petition the courts to vindicate or affirm his rights to compensation and enforce D’s obligation to provide such a remedy. Under this view, P’s remedial rights exist prior to and independently of the court's intervention. All that courts do, therefore, is to declare or affirm already existing remedial rights and obligations. Under this view, courts do not create remedial rights and obligations, and thus do not hold a legal power over the rights of litigants.

Appearances notwithstanding, this line of reasoning does little to affect my position that courts are norm-creating institutions that hold a power to alter the rights of litigants. This is true whether or not remedial obligations are court-created or merely court-affirmed. If the former is true, as some believe,35 then obviously no issue arises. But even if remedial obligations for civil wrongs do exist in some sense prior to judicial intervention,36 courts remain, to a significant degree, norm-creating institutions when ruling on matters of private law, and therefore still hold legal powers to alter the rights of litigants. First, unless one is willing to depart from positivism, one must accept that the law is often under-determined, containing no clear single position prior to judicial ruling. When filling in the gaps of under-determinacy in the law, courts create norms and alter the rights of litigants. Second, courts make general legal norms concrete and specific or, to use John Gardner’s term, ‘crystalized’.37 For example, even if D legally must compensate P regardless of judicial ruling on the matter, the fact that D must – as a matter of law – pay P 30,340$ is only the case once a courts rules it so. There are of course many other such instances of concretizing general norms to specific cases that involve judicial norm creating. Finally, as will become apparent later in this paper, court rulings make litigants liable to the power of the state's judgment-enforcing mechanisms, which is a type of liability that mostly does not obtain prior to judicial ruling. Concluding, courts appear to hold a legal power over the rights and obligations of litigants in ways that do not depend on whether or not remedial rights and obligations exist prior to judicial ruling.

35 See e.g. Stephen A. Smith, “Duties, Liabilities, and Damages” (2012) 125 Harv L Rev 1728.

36 See e.g., Gardner, supra note 5 at 58 n 56; Robert Stevens, “Rights and Other Things” in Donal Nolan & Andrew Robertson, eds, Rights and Private Law (Oxford: Hart Publishing, 2011) 115 at 133-34.

37 Gardner, supra note 5 at 56.

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Yet, courts as norm creators are fallible as norm appliers.38 That is, courts hold the power to change the legal rights and relations of litigants even in contradiction to the law and to the litigants’ valid and controlling rights,39 which the courts are obligated to apply. What happens when courts, exercising their power as norm-creators to alter the legal rights and relations of litigants, rule in contradiction to the applicable laws? There is little doubt that even in such cases courts still exercise a power to create new legal norms, altering the legal rights and relations of litigants. Yet, the contradiction notwithstanding, the court’s misapplication of the law does not negate the fact that the court’s ruling still binds the parties and alters their legal rights. When such judicial misapplication or deviation from the law occurs, the legal system comes to contain two contradictory legal norms, and until such erroneous rulings are overruled or their applicability suspended by the court, the litigants are bound to the specific judicially created norm that is individually directed at them.

The fallibility of courts as norm-appliers demonstrates that the legal power over the rights of litigants is indeed the courts’ and not the litigants,’ as the ‘expansive view’ assumes. If courts were purely a norm applying and not a norm creating institution, courts would be incapable (normatively) of generating or producing binding yet contradictory and, in a sense, invalid legal norms. The capacity to create binding legal norms that nevertheless misapply higher binding law demonstrates that courts hold the legal power over the rights of litigants. If courts were merely charged with figuring out what the legal rights of litigants already are, then courts would have lacked the capacity to generate binding norms that contradict those rights. It is the capacity to create erroneous norms that nevertheless still bind the parties, which demonstrates that the courts hold the legal power over the rights of litigants.

Accordingly, the view that victims of private wrongs (i.e., potential plaintiffs with meritorious tort claims) hold a power over the rights of litigants to obtain redress seems mistaken. Were the power truly the plaintiffs’, courts would not have the normative capacity to rule against the genuine rights of claimants. At least not once the claimants fulfilled all the conditions of evidence and procedure. Yet, as just explained, in reality courts do hold a power over the rights of litigants that is beyond the reach and control of the legal powers of claimants. And when a court happens to exercise this power, even those claimants with meritorious claims whose suit meets all the conditions of procedure and evidence, are still powerless to effectuate the vindication of their rights. The question then becomes, can

38 HLA Hart, The Concept of Law, 2nd ed (Oxford, UK: Oxford University Press, 1994) at 141-47. 39 Raz, supra note 30 at 137-38.

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Goldberg & Zipursky’s description of the legal power of tort victims overcome the ‘error test of power’?

The Expansive View

As the quotes above demonstrate, Goldberg & Zipursky depart from what I labeled the ‘thin view.’ According to them, tort victims hold a legal power over tortfeasors to alter tortfeasors’ legal rights and relations in pursuant to victim’s rights under tort law. For example, Zipursky characterizes the power of tort victims as “legal power to act so as to alter a third party’s legal statuses so that it becomes obligated to pay a certain person or to act for the benefit of a certain person…”40

Zipursky recognizes of course that the power that tort victims hold to pursue redress and to accordingly alter the legal rights of tortfeasors involves courts. Victims of tortious conduct obviously lack the power to directly alter or annul the legal rights, statuses, or relations of tortfeasors, even if such an alternative were in line with the victims’ legal rights under tort law.41

Nevertheless, Zipursky still maintains the position that it is the victims that hold the power to alter the rights of tortfeasors. Zipursky explains that the power that tort victims hold over torfeasors is not direct but is ‘conditioned,’ as well as ‘mediated.’42 Understanding these qualifications is key to assessing the expansive view and whether it can overcome the “error test.”

Conditioned legal powers are common. One example involves formality requirements, as they are called in the U.K., or statutes of fraud, as they are known in the U.S., which condition the exercise of the power of landowners to transfer their property rights in their land. Without satisfying these writing requirements, owners of land simply cannot exercise their power to transfer or alter their real-property rights. According to the ‘expansive view,’ the legal power to alter the legal rights and relations of tortfeasors is the plaintiffs’, but its exercise is conditioned on satisfying the rules of civil procedure and on passing certain evidentiary hurdles. The picture of civil litigation that Zipursky draws is of a litigant attempting – by meeting the requirements of evidence and procedure – to satisfy conditions for the exercise of her legal power over tortfeasors; departing from the orthodox picture of a litigant attempting to satisfy the hurdles of evidence and procedure in order to allow and convince the court to exercise the

40 Zipurksy, supra note 23 at 636 [emphasis added]. 41 Zipursky, supra note 18 at 734; Zipursky, supra note 17 at 83; Zipursky, Ibid at 632-33, 636. 42 Zipurksy, supra note 23 at 632-33.

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court’s own power to enforce the litigant’s rights. The primary challenge that Zipursky must meet is to explain why this conditioned power really is the claimant’s and not the state’s or, more specifically, the court’s.

Zipursky claims that the power of victims to impose a remedy or to somehow extract satisfaction is, as he puts it, ‘mediated’ and not direct. It is the court and not the plaintiff that enters the judgment that directly results in altering the legal rights and relations of the defendant in favor of the plaintiff. But this fact notwithstanding, Zipursky still maintains that it is private litigants that hold the power to alter the legal rights and relations of tortfeasors. Under this view, in enforcing the rights of tort victims the court, in effect, acts as a kind of medium or conductor for the plaintiff’s legal power.43

As claimed above, on the face of things and in contradiction to Zipursky’s notion of ‘mediated power,’ it is mostly the court (not the claimants) that holds the legal power to alter the legal rights, relations, and entitlements of litigants. For example, in their classic The Legal Process, Henry Hart and Albert Sacks take the position that ‘remedial powers’ arising in victims of civil wrongs constitute a “capacity to invoke the judgment of a tribunal of authoritative application upon a disputed question . . . and to secure, if the claim proves well-founded an appropriate official remedy.”44 This view conflicts with Goldberg & Zipursky’s. In fact, Zipursky explicitly states that his view on the power of victims departs from Hart & Sacks.’45 Zipursky’s position is, therefore, that the power of tort victims is not a power simply to go before a tribunal and present one’s case, but rather an actual legal power to obtain redress by meeting the requisite procedural and evidentiary requirements.46

I confess that in this context the notion of a ‘mediated power’ is not entirely clear to me. By way of explanation, Zipursky says that “… it is almost as if the state acts as an agent of the plaintiff...”47 Analogizing the court to the plaintiff’s agent suggests that the court’s capacity to alter the legal rights and relations of torfeasors to obtain redress is somehow derived from the plaintiff who is – following the analogy – the court’s ‘principal.’ That is, although the court is the

43 Zipurksy, ibid at 633. 44 Hart & Sacks, supra note 29 at 137. I read the term ‘invoke’ to mean ‘to make an earnest request for, or to solicit,’ which is also Zipursky’s reading of Hart & Sacks. See Zipursky supra note 17 at 80 ft. 279. 45 Zipursky, ibid at 80 ft. 279. 46 Ibid. 47 Supra note 23 at 633 [emphasis added].

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entity that in practice exercises the power to alter the legal statuses and rights of defendants, the power to do so really is the tort victims’/plaintiffs’. Yet the analogy to agency does little more, to my mind, than to frame the revisionary view in slightly different terms. After all, clearly there are no actual agency relations between the court and the plaintiff. Perhaps the analogy to agency is intended to evoke the sense that although the court – the presumed ‘agent’ – is not subject to or controlled by the victim – the presumed ‘principal’ – the court still acts to fulfill the will or in the interest of the claimant. But even were that true, and I am not sure it is, acting in the interest of another does not entail that the ‘fiduciary’s’ powers are controlled, held, or derived from the ‘beneficiary’. The question remains, therefore, why should we view a power that logically and intuitively seems to be the courts’ as the (mediated) power of plaintiffs?

In what follows, I construct two possible accounts of the position that tort victims hold a mediated power over torfeasors. I call the first the “vending-machine view” and the second the “vertical view.” I do not ascribe these views to Goldberg & Zipursky, and freely concede that my efforts are interpretive. My conclusion is that, at least in the period preceding judicial judgment, both accounts fail to capture the nature of the relation between the powers of private law claimants and the power of courts over the rights of defendants. Thus, the notion of a ‘mediated’ power does not succeed, to my mind, in explaining or vindicating the revisionary position in which tort victims have a legal power over the rights of tort victims. Tort law does empower tort victims, but not in the expansive way Goldberg & Zipursky have argued.

Mediated Power: The Vending-‐Machine View of Courts

According to Zipursky, tort victims are vested with a power to “have the state alter the legal relations between the parties.”48 As already explained, this power is only exercisable if a plaintiff satisfies certain evidentiary and procedural conditions. According to Zipursky, once such conditions are satisfied “the court will enter a judgment or grant an injunction.”49 Seemingly, therefore, as long as plaintiffs with genuine claims follow the rules of procedure and present the court with sufficient evidence to support their claim, the court will invariably produce a judgment in the plaintiffs’ favor, in accordance with what the law mandates.

Following this line of reasoning, perhaps what matters for assessing the powers of litigants is not which entity holds the de jure power (which as we saw is the court) but rather which party holds what may called the de facto power to bring about a

48 Ibid at 633 [emphasis added]. 49 Ibid at 633 [emphasis redacted and added].

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change in the legal rights and relations of tortfeasors. Thus, even if there is a theoretical possibility of court error in applying the law and even if that possibility demonstrates that strictly speaking the power over the legal rights and relations of torfeasors is the court’s and not the litigant’s, what matters is not who technically holds this legal power but rather who has the effective ability or the de facto power to unleash that power.

And as it happens, in reality, courts presumably follow the law. The judicial imposition of remedial obligations on torfeasors in favor of their victims is, therefore, the natural result of the decision of genuine tort victims to exercise their legal power to pursue litigation. That is, in the real world, the legal power that effectively matters for changing the legal rights of tortfeasors in favor of their victims is the latter’s power to pursue recourse through the courts. Accordingly, although it is the court that technically holds and exercises the power over the rights of defendants, that power is effectively or practically in the hands of the plaintiffs. Once a plaintiff with a meritorious claim exercises her power to initiate litigation, and assuming she litigates and proves her case properly and convincingly, what will result is a change in the legal rights and relations of tortfeasors that is in accordance with the plaintiff’s rights under tort law. Because once a tort victim exercises her legal power to sue, the court will follow the law and exercise its own legal power to provide the victims-plaintiffs with the ruling they are entitled to. Therefore, while it is formally the court that rules to alter the legal rights of defendants in pursuant to plaintiffs’ right to redress, in practice such eventuality is merely the natural result of the tort victim’s decision to exercise her power to sue.

This picture of the workings of courts is highly mechanistic. The exercise of court power works here almost like a vending-machine: as long as one inserts the correct amount in the appropriate slot the machine will produce the requested product. The court is reduced here to a near perfect discretionless and infallible applier of the law, appearing almost like a tool, mechanism, row of falling dominos, or process which litigants can, within certain parameters and conditions, control and activate at their discretion. Under the vending-machine view, a court exercising its own power is the almost inevitable effect of a tort victim – that is someone with a meritorious tort claim – suing and meeting the conditions of procedure and evidence.

The shortcomings of the “vending-machine view” begin to become apparent once attention is turned to the fact that in reality, at least on occasion, courts fail to rule as the law requires. Courts not only can misapply the law in principle, as already pointed out above, but they actually do so in practice. Therefore, even when a litigant is in the right as a matter of law, and has fulfilled all procedural and

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evidentiary requirements, that litigant is not assured a ruling in her favor by the mere exercise of her legal power to sue.

Thus, even were we to adhere to the realist stance of discounting the significance of analytical categories in favor of ‘what really matters practically,’ it does not follow that the question of who holds the power over the rights of tortfeasors is trivial, or that all that matters for effectuating the vindication of the rights of tort victims is the victims’ decision to sue. The simple fact is that court error or misapplication of law is not merely a possibility in logical space, but part of the reality of any real world judiciary. Even the surest of litigants hold their breath just before the judge gives her ruling. And appeals courts, after all, exist for a reason. For better or worse, the vending-machine view does not capture the realities of real world legal systems.

A second shortcoming of the vending-machine view is its inability to account for judicial agency. The mechanistic description of the judicial process fails to capture the many instances of judicial judgment that characterize a trial. Judges make numerous decisions, both big and small, which require interpretation and judgment. In exercising judicial judgment, judges are often guided by the law, yet the law of course often does not provide precise prescriptions to all matters. The law is often vague, general, under determined, and filled with principles and standards requiring interpretation. The judicial craft is not analogous to the duties of a clerk required to check boxes on a presubscribed checklist. It is certainly not analogous to a formalistic mechanistic process or to a machine in which the output – remedial rights in the favor of victims and at the expense of the rights of defendants – is fully determined by the input – a well-proven and procedurally proper claim by a genuine victim. In applying its judicial power over litigants, the court is not merely a mediator or a conductor for the power of claimants, but rather an autonomous agent making decisions on how to exercise its own power to apply the law.

It is true that the more technical the matter, the more technical the judicial activity tends to become. Accordingly, the vending machine view may ring truer in certain cases than in others. But even then, the vending machine view by no means captures the rule. Moreover, even the most technical cases are obviously not immune to judicial error, and thus the power in such cases is analytically still the court’s.

Notice that I am doubtful whether the vending machine view is what Goldberg & Zipursky have in mind when talking about the empowering feature of tort law. Because the realist argument proves, at most, that given the realities of private law litigation, the question of who normatively holds the power to alter the rights of

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tortfeasors is a trivial one. For the realist, the important question is not who normatively holds the power over the rights of tortfeasors, but rather who has the ability or capacity to actually unleash and wield that power. Thus, even if this ability or capacity was in some sense ‘really’ the claimant’s, it would not strictly speaking vindicate Goldberg & Zipursky’s position that the power over the rights of tortfeasors is the victims’ and not the court’s. If I read them correctly, Goldberg & Zipursky do not want to say that tort victims are de facto empowered to bring about a change in the rights of tortfeasors, but rather that tort victims are legally empowered – in some mediated way – to do so. Goldberg & Zipursky’s is an argument about the normative structure of tort law and not about the realities of the court system. But even if I am wrong, and the vending-machine view does capture what Goldberg & Zipursky mean by “mediated power,” that view simply does not correspond to the nature and reality of the judiciary.

Mediated Power: The Vertical View

An alternative account to the idea of a ‘mediated power’ is available. Yet I fear this approach is also unsuccessful. Under civil recourse theory, private law both rejects and replaces the non-legally sanctioned aggression of victims with a tempered state-controlled avenue for victims to respond to civil wrongs. The law achieves this end by empowering tort victims “to act against the rights-violator through the authority of the state,”50 that is “by the empowerment of private parties to alter the legal status of wrongdoers, through a civil process that includes the state.”51 The idea of empowering tort victims to act or to alter the rights of tortfeasors “through the authority of the state” may suggest another relation of ‘mediation’ between the powers of courts and the powers of tort plaintiffs.

Accordingly, perhaps the idea of a ‘mediated power’ is that plaintiffs hold a power over the court’s exercise of the court’s own power over the rights of defendants. This vertical view remains true to Goldberg & Zipursky’s picture of civil litigation: the court here is subject to the power of tort victims as to how to exercise the court’s power over defendants, so that the ultimate power over torfeasors in a sense still belongs to their victims; even though that power passes ‘through’ or is ‘mediated’ by the court’s power.

I see two possible versions to the vertical view. One is that tort victims hold a legal power to effectuate the court’s exercise of its own power. But this view fails

50 Zipursky, supra note 17 at 81, 85 [emphasis added]. 51 Zipursky, supra note 23 at 643 [emphasis added].

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on conceptual grounds. As detailed above, powers are to change normative relations, rights, and statuses. A legal power is the ability to alter legal categories such as legal powers, rights, duties, obligations, liberties, liability etc. Accordingly, powers regulate the realm of normativity. That said, it is important to notice that legal powers are exercised through actions. For example, when a court rules to impose an injunction, the court’s act of ruling constitutes an exercise of its legal power to impose new obligations on the litigants. The notion that tort victims hold a legal power over the court’s exercise of its own power assumes, therefore, a power over action. It is a power to make the court take action that is constitutive of an exercise of court power.

Such a power entails a conceptual contradiction. It is a conceptual truth that powers regulate norms, not actions. And, therefore, the concept of ‘legal power’ simply does not cohere with the category of ‘power over or to regulate action.’ The prospect, threat, or promise of the exercise of power may of course function to pressure, deter, or allure others to act to exercise their own powers. But a normative power cannot effectuate or result in any action or other change in the physical world. The notion that tort victims hold a power over how courts exercise their own powers is, therefore, conceptually muddled. As I explain in the following section, the normative relation between claimants and the court’s legal power over the rights of defendants is not a power but rather a claim-right.

The second possible version of the vertical view is equally unsuccessful. One could claim that tort victims hold the power to direct the court to exercise its own power to alter the rights of torfeasors. If this were the case, some sense could perhaps be made of Goldberg & Zipurskyipursky’s position. Because, even given that the power over the rights of tortfeasors is the court’s, tort victims would still hold legal control or authority over how that power is wielded. That is, holding the power to obligate or command the court, victims could be said to act against tortfeasors through the court. But this line of argumentation is, I fear, a nonstarter. Simply put, litigants do not order courts how to rule in their matters.52

Claim-‐Right Not Power

Having demonstrated that courts and not claimants hold the power over the rights of litigants, and having tried and failed to redeem the notion of a ‘mediated power,’ it is time to chart a course for a different account.

52 Notice that this does not conflict with my claims above that claimants hold a power to create obligations in the court to apply the law or, in the alternative, have the capacity to trigger such an obligation. An obligation to apply the applicable law is not the same as an obligation to rule in favor of the claimant, even if at times former may entail the latter.

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The better conception, I believe, of the rights that litigants hold in relation to the power of courts to alter the legal rights and relations of wrongdoers (such as tortfeasors) is not in terms of a (mediated) power-right (as Goldberg & Zipursky contend) but rather of a claim-right. Civil recourse theory should be amended accordingly: rejecting the idea that victims of civil wrongs have a power (mediated or otherwise) over the rights of those that wronged them; in favor of the position that meritorious claimants hold a claim against the court to exercise its own power over defendant-tortfeasors in favor of their victims.

A ‘claim-right,’ like ‘power,’ is an Hohfeldian category.53 A holder of a claim-right has a claim against others for a certain action (or omission). Correlating to claim-rights are duties of others to so act (or omit). So that if X holds a claim-right against Y to φ, X has a claim against Y that she φ and Y owes a duty to X to φ.

As I already claimed above, it seems that prior to judicial judgment tort victims have at least two primary powers. Both are aspects of the power to sue. One is the privileged capacity to hold torfeasors liable to the power of courts. The second is a power to create an obligation in the court towards the litigants for the lawful adjudication of their matters. I also considered the possibility that even if claimants do not have the power to create obligations in courts, claimants do have the practical capacity to trigger such obligations through the exercise of their power to initiate litigation.

This power to obligate the court, or, in the alternative, the capacity to trigger an obligation in the court, explains the nature of the relation between the rights of tort victims and the court’s power to change the rights of defendant-tortfeasors. The correlative Hohfeldian right to the obligation that claimants create or trigger in the court is the plaintiff’s claim-right – not power – against the court to comply with its obligation. This obligation, and its correlative claim-right, arises at the discretion of plaintiffs who (as Goldberg & Zipursky explain) are privileged to decide whether or not to exercise their legal power to initiate court proceedings. The main mechanism for enforcing the court’s obligation and the claimants’ correlative claim-right is the litigants’ power to appeal. As already suggested above, another indication that such a claim-right obtains is the doctrine of judicial immunity. Judges enjoy an almost complete immunity for harms they cause –

53 Wesley Hohfeld, Fundamental Legal Conceptions (New Haven, CT: Yale University Press, 1923). See also Joel Feinberg, Social Philosophy (Pearson, 1973) at 56-67; Harel, supra note 27 at 192-93.

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negligently or even intentionally – in their professional capacity.54 As already explained, immunity is suggestive of duty.

While obviously not in line with his expressed position, there is language in Zipursky’s work to support my alternative explanation of the rights of tort victims in terms of claim-rights. As Zipurksy puts it, what he calls the ‘power’ of victims is encapsulated in the tort right-of-action, which “involves an assertion of an entitlement against the state;”55 or, includes a “claim, against the state to its assistance in changing the legal relations of the defendant.”56 Elsewhere Zipurksy says that “the state accedes to, and enforces, a plaintiff’s demand that the state compel defendant to pay her a certain amount;”57 and that “… in light of the rules, norms, and principles of our tort system, a person is legally entitled to prevail in litigation and win judgment…”58 Although, as the many quotes in this paper demonstrate, when describing the rights that tort law vests in tort victims Goldberg & Zipursky insist on talking about a ‘power,’ the passages just quoted suggest that perhaps the category that better captures the relation Goldberg & Zipursky have in mind (at least on occasion) between the rights of claimants’ and the courts’ power over torfeasors is actually ‘claim-right.’

Regardless of whether we can ascribe such hidden meaning to Goldberg & Zipursky, we should amend civil recourse to incorporate these insights: tort victims do not hold a legal power, mediated or not, over torfeasors to extract redress from them; rather, victims hold a claim against the court to exercise its own legal power over torfeasors in accordance with the victims’ rights for redress.

Notice that the legal power or practical capacity to obligate the court is not negligible. Although I deny Goldberg & Zipursky’s position that tort law vests in victims a legal power (mediated or otherwise) to alter the legal relations, rights, and entitlements of tortfeasors, it does not follow that tort victims are practically powerless. The legal power to create or the practical capacity to trigger obligations in the court – with a corresponding claim-right in claimants – is often quite significant, considering that courts mostly attempt and succeed in adhering to their obligation to apply the law. Thus, litigants with a genuine cause of action, who manage to overcome the often-considerable practical hurdles standing in the

54 In the UK see Houlden v. Smith [1850] 14 QB 841; John Murphy, “Rethinking Tortuous Immunity for Judicial Acts” (2012) Legal Studies. In the US see Dobbs, supra note 31 at 1214.

55 Zipursky, supra note 23 at 635 [emphasis added]. 56 Ibid [emphasis added]. 57 Zipursky, supra note 17 at 80 [emphasis added]. 58 Zipursky, supra note 18 at 739 [emphasis added].

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way of successfully pursuing civil litigation, have a good chance at vindicating their rights.

The Legal Power of Tort Victims: Post-‐Judgment

Given that the ‘thin view’ decisively prevails in the pre-judgment area, we turn to the period following the court’s ruling in favor of the claimant. How does the law empower private law litigants once the court has ruled in their favor? In some places, especially in his now classic essay Civil Recourse, Not Corrective Justice,59 Zipursky’s discussion suggests that tort victims hold a legal right to alter the rights of torfeasors during what may be called the ‘post-judgment period,’ that is the period following the court’s ruling in favor of the tort claimant but preceding the carrying out of the judgment. According to this view, once the judge rules in favor of the plaintiff, thereby changing the rights and relations of the defendant and subjecting the defendant to remedial obligations, plaintiffs are vested with a legal power over the defendants to obtain the remedy that they are, according to the court’s ruling, entitled to from the defendants. Here are several passages from Zipursky suggesting this view:

The victim of a tort has a right not in the sense that defendant must pay, simpliciter, but in the sense that if the victim chooses to bring a right of action, and proves the tort, she is not prohibited from taking, but is in fact empowered to do so.60 When the state has recognized a right of action, and when a plaintiff has proven it, the state both permits and empowers a plaintiff to act against a defendant. For example, if I prove that the fence-breaker negligently broke my fence and that it will cost $200 to repair it, I can have her adjudged liable to me for that amount; this means that I am actually empowered to take possession of $200 worth of her assets if she does not pay me. The judgment of liability is, in effect, a judgment that she is vulnerable to my taking two hundred dollars from her under certain procedures. Similarly, if I prove that the newspaper defamed me, I may be empowered to demand that it expunge the defamatory reference on pain of sanctions, which I will have imposed.61 Individuals are permitted to take the money of another if it is in the context of executing a judgment that has been entered against the other. This is an exception to the general rule against taking the assets of others…”62

59 Zipursky, supra note 18. 60 Zipursky, supra note 22 at 150 [emphasis added]. 61 Zipursky, supra note 18 at 734 [emphasis added]. 62 Ibid at 736.

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When the remedy is damages, the court's act literally empowers the plaintiff to be satisfied with the defendant's assets. When the remedy is injunctive relief, the court empowers the plaintiff by converting her application for an injunction into an order with which the defendant must comply on pain of a sanction for contempt.63 …those courts are privileging and empowering victims to use the state to force wrongdoers to act in a particular way. The same goes for other injunctive measures. A parallel analysis applies to damages. To award damages is to make the defendant liable to the plaintiff for a certain amount, entitling the plaintiff to take a certain amount from the defendant.64 The notion of a ‘power to take’ is a variant of an Hohfeldian ‘legal power.’ The legal significance of the power to take is that the act of taking constitutes a change in the rights of the deprived person. Taking is an action that has the legal significance of altering and annulling the rights and entitlements of others to their detriment. Where the act of taking is not backed up by a legal power to do so, the taking most likely amounts to a legal wrong and certainly not to a taking in the legal sense. A lawful taking may or may not be of a physical object, but it is certainly a taking of a right, entitlement, or legal status. In our context, taking from a debtor-defendant has two legal implications: changing and thereby depriving the debtor-defendant of her right; and, at least partially, discharging the debtor-defendant’s judicially imposed remedial obligations towards the creditor-plaintiff. The question is in what sense are creditor-claimants, or, more specifically to our context, tort victims who were victorious in their litigation, legally empowered to obtain the redress that they are entitled to (based on the court’s judgment) from the defendants? More precisely, whether, and if so how, are victorious plaintiffs ‘empowered to take’ from the defendants, and thereby to alter the defendant’s rights and entitlements, so as to satisfy the plaintiffs’ judicially created right to a specific remedy. To answer this question, we must look at how the law tackles cases wherein defendants fail to comply with the court’s ruling in favor of the plaintiff. Where defendants do comply with the court’s ruling, the issue of empowering debtor-plaintiffs ‘to take’ obviously never arises, because no taking is required to obtain

63 Ibid at 738. 64 Zipursky, supra note 18 at 748.

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the remedy. The question then is what legal powers, if any, does a victorious-plaintiff hold against a noncompliant debtor-defendant? Judgment-‐Enforcement and the Rights of Claimant-‐Creditors

Judgments are mostly enforceable, at least in principle. When a defendant fails to comply with her judicially imposed obligation to remedy the plaintiff, the law provides recourse in the form of certain mechanisms for obtaining compliance and for enforcing the court’s judgment. Here the legal power to ‘take,’ is manifested in the authority to impose or activate these enforcement mechanisms. Who then holds the power to effectuate or to employ these judgment-enforcing mechanisms, which constitute a taking from the defendant-debtor? Does the court empower the victorious plaintiff with the (meditated) power to take – via these enforcement mechanisms – from noncompliant creditor-defendants, as Zipursky’s view appears to be? Or, similarly to the pre-judgment period, is the power to take really the courts’, or more broadly the state’s; leaving victims with the power to initiate enforcement proceedings and with a claim that the state exercise its legal powers of enforcement? The answer to these questions may fluctuate. The process of enforcing judicial judgments is not necessarily the same for all types of remedies, circumstances, and in relation to all types of assets from which redress is obtainable (e.g., personal or real property). Moreover, rules and practices vary between jurisdictions. In other words, in this field of the law things turn technical and confusing rather quickly. Thankfully, for the purpose of assessing Zipursky’s position all that is needed is a demonstration that the power – mediated or otherwise – to alter the rights of debtor-defendants is not necessarily or often the creditor-plaintiff’s. Once demonstrated, the position that a defining feature of tort law, or of private law more broadly, is to empower (post-judgment) victims to obtain or take remedies is weakened and even refuted. I will only briefly touch on some central procedural features of judgment-enforcement. For examples, I draw mostly on the laws of New York and California. By no means do I purport to offer anything nearing a comprehensive survey of the mechanism and laws governing the enforcement of judgment, or even to give a detailed description of the mechanism and rules that I do mention. I concede that given the possible diversity in judgment-enforcement mechanism

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between jurisdictions, it is possible that my own account of the rights of claimant-creditors is contingent. I do not deny the existence of judgment-enforcement mechanisms that involve genuine self-help; that is, a legal power in claimants-creditors to directly take from defendant-debtors. Yet, it seems to me that such powers are far from the norm; judgment-enforcement, certainly where torts claims are involved, mostly appear to involve state actors. In the eventuality of a debtor’s noncompliance with a court’s judgment, the basic mechanism in New York for enforcing money judgments is via an ‘execution.’65 It is the court that issues an execution, yet the court’s role in this process is something of a formality or technicality: so long as the judgment-debtor meets certain formal conditions, the court normally almost automatically endorses execution. Moreover, what is known as the ‘execution form’ is actually drafted by the plaintiff herself who also delivers it, upon its endorsement by the court clerk, to the enforcement officer (e.g. the sheriff).66 Consequently, the enforcement officer is empowered to seize and even sell assets belonging to the debtor in order to discharge the debt. California follows a similar procedure. To enforce a judgment from the debtor’s real property, a judgment creditor's first step is to go through the formalities of applying for a writ of execution with the county clerk.67 The writ of execution is directed to the levying officer, normally the sheriff or marshal in the county where the levy is to be made,68 or to any registered process server.69 After its issuance, the judgment debtor delivers the writ to the levying officer.70 Then the levying officer, upon the creditor fulfilling some further requirements, executes the writ by seizing or recording a lien on the debtor’s property.71 Finally, the property is sold and the money judgment is satisfied from the proceeds.

65 In NY enforcement of judgment is mostly governed by article 52 of the CPLR. 66 Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.11; NY CLS CPLR § 5230 (2012); NY CLS CPLR § 5232 (2012). 67 Cal Civ Code § 699.510. See also, Mathew Bender Practice Guide: Ca Debt Collection 2-16 (2012) 16.02. 68 Cal Civ Code § 680.260. 69 Cal Civ Code § 699.510. Mathew Bender Practice Guide: Ca Debt Collection 2-17 (2012) 17.16. 70 Cal Civ Code § 687.010. 71 See Cal Civ Code §§ 697.710, 700.015(a).

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Another enforcing mechanism for money judgments is the judgment-lien.72 A lien is a legal right a creditor holds in another’s property until a debt or duty that it secures is satisfied.73 A judgment-lien is predicated on a debt arising out of a judicial decision. A judgment-creditor may obtain a judgment-lien on the real or personal property of the debtor. In New York, a judgment-lien is imposed through a process of ‘docketing,’ in which the judgment is docketed with the clerk of the county in which the realty is located.74 The lien then automatically attaches to any property within the jurisdiction in which the judgment debtor has an interest or thereafter acquires an interest.75 In California, recording an abstract of the judgment in the county where the judgment debtor’s real property is located creates a judgment lien on real property.76 A creditor-plaintiff may also have a debtor-defendant’s wages garnished, yet another mechanism for enforcing money judgments. Here, the debt is extracted not directly from the judgment-debtor but from a third party who has a debt to the judgment-debtor. Garnishment is most frequently used to reach a judgment-debtor's earnings from employment. Once garnished, the debtor-defendant’s employer is required to pay a measure of the defendant’s wages to the creditor-plaintiff.77 In California, a writ of execution is a condition for the issuance of an order for the garnishment of a judgment-debtor's earnings.78 Once the order is issued, following a rather formal process,79 the order is served on the employer to pay the funds to the levying officer who then transfers the appropriate sum to the judgment-creditor.80

72 John C.P. Goldberg and Benjamin Zipursky, The Oxford Introduction to U.S. Law, Torts, (Oxford, UK: Oxford University Press, 2010) at 53. 73 Black’s Law Dictionary, 8th ed (St. Paul, Min: West Group, 2004) at 941. 74 Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.19. 75 Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.19. 76 Cal Civ Code § 697.310(a). Mathew Bender Practice Guide: Ca Debt Collection 1-11 (2012) at 11.04. 77 Goldberg and Zipursky, supra note 72 at 53. 78 Mathew Bender Practice Guide: CA Debt Collection 2-21 (2012) at 21.14. 79 Cal Civ Code § 706.102. 80 Mathew Bender Practice Guide: CA Debt Collection 2-21 (2012) at 21.14.

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Who in these various mechanisms for the enforcement of money judgments holds the legal power over the rights and entitlements of debtor-wrongdoers, such as tortfeasors? Formally, the power in all these cases appears to remain in the hands of the state. In each case there is an official or state authorized private actor who must perform certain official actions in order for an actual taking of the rights of debtors to effectuate. For example, the imposing of a lien on a property constitutes a change in the property owner’s rights: one’s holding in the property become subject to newly formed rights of the debtor in that property. The capacity to place a lien is, therefore, a legal power to change the rights of property owners. But who holds this power? Considering that docketing is constitutive of the lien (the lien is created by the docketing and if the clerk fails to properly docket, the lien is not placed), at least technically the power to impose the lien is the clerk’s and not the debtor’s. The debtor may ask for a lien and fulfill all the formal conditions for obtaining a lien. Yet, at the end of the day the power to impose the lien is still the state’s. We need only apply the error test for normative power introduced above to see why: if the clerk fails to docket the judgment, the lien does not form; regardless of whether or not the creditor is in her rights and has fulfilled all the formal requirements to obtain a lien.

A similar analysis is applicable to levying an execution order on a debtor. The act of taking the rights of debtors occurs when the execution or levying officer actually seizes the debtor’s assets, not when the creditor requests such a remedy. If the execution officer does not exercise her power to take assets from the debtor, then the debtor’s rights remain unaltered, the creditor’s rights and actions notwithstanding. The creditor may request that the execution officer seize the debtor’s assets or petition the court to order the officer to do so. But the power to directly take from the debtor, and thereby deprive her of her rights in an asset, remains outside of the hands of the creditor.

Yet perhaps my analysis is overly formalistic. It is at this juncture that the conceptual approach to civil recourse theory perhaps loses, in certain instances, some of its appeal in favor of a more realist account. The actions of officials charged with the enforcement of judgments are often mandatory and rather narrowly prescribed, involving practically no judgment or discretion in deciding whether or not to employ the state’s legal power to take from the debtors. The more the court-clerk’s or the enforcement-officer’s duties boil down to checking whether the judgment-creditor’s papers are in order and, if so, to automatically carrying out the execution process, the more enforcement processes seem like a tool or a mechanism at the de facto control of creditors. In other words, the vending-machine view of the relation between the legal powers of litigants and the state’s legal power to alter the rights of defendants seems more plausible in at

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least certain instances of the post-judgment period than it does in the pre-judgment period.

Recall that the vending-machine view assumed a realist approach to our main question: who holds the power over the rights of tortfeasors? From the realist point of view, the more technical, formalistic, and precise the exercise of state power the more mechanistic the role of the state becomes. If indeed genuine judgment-creditors, that meet all the procedural requirements, are mostly successful in initiating the state’s mechanisms of judgment-enforcement; and if the agency of the state’s officials is truly minimally engaged in deciding whether or not to pursue judgment-enforcement, performing little more than a formal check of the creditors’ application; then it seems that although formally the power to enforce judicial judgments is the state’s, in reality the primary force unleashing the state’s power to take is claimant-creditors filing for judgment-enforcement. Thus, subject to my empirical assumptions about efficacy and near lack of agency, the metaphor of a ‘mediated power’ seems to fit the realities of certain instances of judgment-enforcement rather well.

Accordingly, to my mind at least, in the case of judgment enforcing mechanism of the type discussed above, perhaps the conceptual analysis of ‘whose legal power is it?’ should take a backseat to the realist analysis of ‘whose de facto power is it?’ In my analysis of the pre-judgment scenario, I disagreed with aspects of Goldberg & Zipursky’s conceptual analysis; yet I saw little reason to depart from their apparent conceptually driven approach. In the post-judgment period I similarly disagree with the same aspects of Goldberg & Zipursky’s conceptual analysis concerning the legal power to take; that is, I do not agree that it is a general feature of private law to grant plaintiff-creditors the legal power over the rights of defendants-debtors. Yet here, I wonder whether civil recourse theory should also incorporate a more realist or practically driven conception of the term ‘power.’ In other words, perhaps a creditor’s legal power to initiate enforcement proceedings is de facto the primary cause or trigger that almost invariably activates the state’s almost automatic exercise (or at least attempt) of its own legal power to take from defendant-debtors.

Notice, however, that even if the vending-machine view may on occasion ring true in relation to some mechanisms of judgment-enforcement, it clearly does not fit all of them. While the court is mostly not involved in the execution process in any substantive, discretionary, or non-technical way, there are instances in which an actual court judgment is required in order to authorize the enforcement officer to take from the debtor. In New York, for instance, the officer often may not sell

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a homestead without a hearing and court authorization,81 and a court order is also needed to require a debtor to turn over assets to the enforcing officer.82 Forcing a third party to turn over assets belonging to the debtor also requires a court order.83 In cases such as these, the court’s role in deciding whether or not to apply its legal power over the rights of debtors seems much too robust to characterize as a mere mechanistic mediation of a claimant’s power to initiate judicial proceedings.

Accordingly, in the cases just mentioned, attempts to apply the realist approach will suffer from the same difficulty discussed above in relation to the pre-judgment period. Not only is the legal power to take formally held by the state, but the exercise of that power by courts cannot be characterized in the mechanistic terms of the vending-machine view. Here I would describe the powers and rights of victims on the same lines as detailed in the discussion on the pre-judgment period: holding the power to ask, or petition, or file for enforcement, as well as a claim-right that the court rule on the matter according to law.

Another aspect of judgment-enforcement that the realist view on the (mediated) power of claimants-creditors does not capture, is the nature of the judiciary’s role in the enforcement of injunctions, of which there are many kinds.84 In tort, an injunction is often a judicial order to refrain from certain torturous conduct.85 Enforcing an injunction on a noncompliant defendant is achieved, at least often, through fines or imprisonment for contempt of court,86 which the court may impose. Contempt proceedings involve full judicial hearings.87 Thus, while a court may decide to hold the defendant in contempt of court at the behest of the plaintiff, the legal power to do so, as well as to impose the matching sanctions, is the court’s, not the plaintiffs’. Plaintiffs obviously do not hold the power to directly order the imposition of fines or the imprisonment of defendants, even if the latter fail to comply with their judicially imposed obligations to the plaintiffs. All the claimant

81 Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.07 [court authorization is often required for the sale of a homestead]; Mathew Bender Practice Guide: CA Debt Collection 2-17 (2012) at 17. 82 NY CLS CPLR § 5225(a) (2012). 83 NY CLS CPLR § 5225 (2012). 84 See e.g. James M. Fischer, Understanding Remedies (Mathew Bender, 1999) at 244-301 [discussing various kinds of injunctions]. 85 Goldberg and Zipursky, supra note 72 at 53. 86 Fischer, supra note 84 at 731-40; Ibid. 87 See e.g. Cal Civ Code § 1217.

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is empowered to do is to initiate contempt proceedings and to petition the court to exercise the court’s own power over the non-compliant defendant to enforce the court’s judgment by means available to the court and within the court’s power.88 Characterizing the exercise of court power involved in contempt proceedings in the terms of the vending-machine view falls into the same difficulties discussed above in relation to the pre-judgment period. Succinctly put, courts make too many errors and exercise more judgment and discretion to allow for the characterization of their role in contempt proceedings in mechanistic terms. Summing up, there is variety in the nature of the power that the law affords claimants-creditors to collect their court-granted remedy. Instances of self-help, in which claimants-creditors hold a legal power to directly take from defendants-debtors may exist, yet do not appear to be the norm. At times, the law de facto empowers claimants-creditors to activate or initiate the exercise of state legal power to take from defendants-debtors. In such cases, which cohere to the vending-machine model, the law does not grant claimants-creditors a legal power to take, but given the realities of the judgment-enforcement mechanism involved, the legal power to request the enforcement of a judgment at times comes with the de facto capacity to bring about the exercise of the state’s legal power to take. Finally, in some central types or mechanisms of judgment-enforcement the legal as well as the practical power to take from defendants-debtors is clearly, both de jure and de facto, mostly a state or court power. Is the empowering of victims a core feature of tort law, or of private law more generally? Considering the varied reality of judgment-enforcement mechanisms, I dare say it is not. First, if we understand the notion of ‘empowering’ in its legal sense then, considering that self-help is not a central feature of judgment-enforcement, it follows that the law rarely empowers victims to take from tortfeasors, even in the post-judgment period. Second, even if we expand the term ‘empowering’ to incorporate de facto power or capacity (on the lines of the vending machine view), only some mechanism of judgment-enforcement may grant such powers to defendants-debtors. Even in the post-judgment period, therefore, empowering tort victims is not a defining feature of the law, even though, unlike the pre-judgment period, it is perhaps a significant part of the landscape.

88 For the rules in California see Mathew Bender Practice Guide: CA Debt Collection 2-22 (2012) at 22-16.

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Finally, even when it does arise the legal or de facto power to take from torfeasors is much less dramatic or significant – in terms of the practical empowering of victims – when granted in the post-judgment period than it would have been in the period preceding judicial ruling. Once the court has ruled in favor of the plaintiff, the de facto power then presumably granted to the plaintiff to alter the rights of the defendant through the state’s judgment enforcing mechanism strikes me – from a practical point of view – as little more than a power to collect one’s prize. It is not at all clear to me that the various virtues of empowering victims that were enumerated at the opening, equally manifest in the post-judgment period as they would have in the prejudgment period. Conclusion

Tort law vests certain legal powers in tort victims to seek redress through a civil action. In this respect, tort law is indeed a law of civil recourse. The same is true for private law more broadly. Tort victims hold the legal power to sue those torfeasors that caused them wrongful harm, and thereby expose defendants to the power of courts to alter litigants’ legal rights and relations; tort victims are also privileged to decide whether or not to exercise this power. Moreover, victims’ power to initiate litigation may include the power to create, or at least to trigger or effectuate, obligations in the court towards the litigants, thereby giving rise to a corresponding claim-right in the litigants.

In the period following a judicial ruling, the rights and powers of victorious claimants are more varied. First, claimants-creditors hold a similar set of rights as they do in the pre-judgment period. Such claimants hold a right in the form of a power – which they are privileged to exercise – to initiate/request judgment-enforcement proceedings against noncompliant defendants-debtors. Moreover, on occasion, claimants-creditors also hold what may be called a de facto power to unleash the legal powers of state mechanism of judgment-enforcement. Finally, at times defendants-debtors may even hold legal powers of self-help to take directly from defendant-debtors. The mix of these powers may vary between jurisdictions and among different fields of private law. My focus here was primarily on the law of tort.

Therefore, unlike what Goldberg & Zipursky have often argued for more than a decade now, tort victims mostly do not hold the legal power to take, obtain, force, extract, or impose remedies on or from tortfeasors. This is true of the period preceding judicial judgment, as well as mostly of the period following such judgment. Although, from a realist perspective, claimants-creditors at times hold a de facto (not legal) capacity or power to effectively bring about a change in the rights of defendant-debtors. Thus, tort law at times empowers tort victims, but mostly not in the way Goldberg & Zipursky believe. Not even in the post-

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judgment period. In other words, the power of self-help is neither an essential feature of tort law – tort law can obviously exist as tort law without this power – nor is it even a central feature of the law – i.e., it is fairly rare even when available. The same I assume is mostly true for private law in general.

Although my analysis is basically friendly to civil recourse theory, it comes with a price. It is not so much my prescriptions on how to amend civil recourse theory, replacing the concept ‘power’ with the concepts of ‘legal power,’ ‘de facto power,’ and ‘claim-right,’ in different junctures of civil recourse theory. But rather the realization that once amended, civil recourse theory lacks much of its professed novelty; at least if we view civil recourse theory as a descriptive account of the powers provided by the private law. Because under my analysis of the rights and powers of tort victims, civil recourse theory appears much closer to what I referred to as the ‘thin’ view of the nature of civil litigation, the rights of litigants, and the powers of courts: basically, litigants hold the power to sue and courts hold the power – legally and most often also practically – to rule on those suits.

I began this paper with the claim that thinking about tort law in terms of empowering victims is promising, even if partially only as an aspirational project. In reality, tort law often does less than an ideal job in providing victims with a legal tool that is practically effective in obtaining redress for the civil wrongs that they suffer. Tort litigation is often expensive, complicated, long, and discouraging. If tort law, or private law more generally, is indeed designed to offer victims of private wrongs a form of recourse through private law litigation, then that law, and the institutional and procedural frameworks it is imbedded in, often seem poorly designed and not fully up to the job. For those who prize the practically empowering potential of tort law, figuring out what Hohfeldian legal rights and powers tort law affords litigants is a preliminary step. In this article I attempted to clarify our understanding of these legal rights and powers. But once the logic of tort law is clarified, the primary project becomes reflecting on how and whether these formal legal rights and powers can better succeed in empowering victims in a practically meaningful way.

When considering how tort law empowers, the novelty and importance of civil recourse theory is found in its normatively aspirational account of how tort law, and private law more broadly, can and should practically empower victims and of normative benefits of this legal structure; not, as I have shown, in civil recourse’s descriptive conceptual account of how private law empowers legally. But in order to properly reflect on how the law can better attain the former, we must first possess an accurate account of the latter.

How Tort Law Empowers

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