The Taxonomy of Civil Recourse

Abstract

This paper is a contribution to a symposium on civil recourse theory. The paper argues that civil recourse theory has developed into several different theories, with varying conceptions of what it means for a plaintiff to “act against” another. These conceptions include norms of enforcement, accountability, and private revenge. After developing the significance of each conception, the paper analyzes whether civil recourse theory has the flexibility to incorporate these distinct ideas. It suggests that civil recourse theory may be able to incorporate each conception by adopting a pluralist approach. It also suggests that this would provide a significant explanatory benefit. A pluralist approach would better enable civil recourse theory to explain not only tort law, but also other fields, such as contracts and unjust enrichment.

Keywords: civil recourse theory, private law, contract theory, tort theory, unjust enrichment, punitive damages