The Role of Plaintiffs in Private Law Institutions

Abstract

This chapter, a contribution to a volume on John Gardner’s work in private law theory, considers a question Gardner posed most explicitly in his later writings: why do victims of private wrongs, rather than third parties such as government officials, have the power to sue those who wronged them? Perhaps surprising for an avowed corrective justice theorist, Gardner denied that victims have any moral entitlement to the power to sue, arguing instead that granting them that power serves various institutional objectives, such as the dispersion of political power. We critically examine Gardner’s arguments for this claim, distinguishing several possible readings of his account of the power to sue. While we agree with Gardner that the power to sue is rightly conceptualized in institutional terms, we also contend that his account has some serious shortcomings, particularly in how it alienates victims from the moral underpinnings of the powers they exercise and the institutions in which they participate as plaintiffs. A more compelling account of the power to sue, we suggest, recognizes that victims of private wrongs have a moral stake in how those wrongs are rectified, even as it allows that such personal considerations must sometimes yield to more pressing institutional imperatives.

Keywords: private law theory, power to sue, John Gardner, equity, civil procedure, offices and officials, institutions, corrective justice, property

JEL Classification: K10, K13, K40, K41