Abstract

http://ssrn.com/abstract=2117957
 
 

Citations (7)



 


 



Substantive Standing, Civil Recourse, and Corrective Justice


Benjamin C. Zipursky


Fordham University School of Law

July 26, 2012

Florida State University Law Review, Vol. 39, No. 299, 2011
Fordham Law Legal Studies Research Paper No. 2117957

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

Number of Pages in PDF File: 31

Keywords: Accountability, Civil Recourse, Corrective Justice, Darwall, Duty, Gardner, Recourse, Redress, Relational Duties, Responsibility, Ripstein, Rights, Self-Defense, Torts, Tort Law, Vengeance, Weinrib, Wrongs

Accepted Paper Series


Download This Paper

Date posted: July 28, 2012 ; Last revised: August 9, 2012

Suggested Citation

Zipursky, Benjamin C., Substantive Standing, Civil Recourse, and Corrective Justice (July 26, 2012). Florida State University Law Review, Vol. 39, No. 299, 2011; Fordham Law Legal Studies Research Paper No. 2117957. Available at SSRN: http://ssrn.com/abstract=2117957

Contact Information

Benjamin C. Zipursky (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
Feedback to SSRN


Paper statistics
Abstract Views: 556
Downloads: 111
Download Rank: 145,542
Citations:  7

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.296 seconds