Wrongs Without Recourse: A Comment on Jason Solomon's Judging Plaintiffs

Abstract:     
Jason Solomon's very interesting article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in response to the harm. The vitality of these "judging plaintiffs" doctrines, he maintains, attests to the superiority of an alternative theory of tort known as civil recourse theory. According to Solomon, recourse theory treats tort law as one component of a liberal political order and thus explains these doctrines in terms of a liberal principle calling for state nonintervention where it was or is unnecessary. In this comment, I situate Judging Plaintiffs within current tort theory debates, describe briefly its major claims, and discuss some of the doctrinal and theoretical strengths and weaknesses of the position it stakes out.

Number of Pages in PDF File: 20

Keywords: Assumption of Risk, Civil Recourse, Corrective Justice, Efficient Deterrence, Negligence, Right of Action, Self Help

Accepted Paper Series