Taking Wrongful Death Seriously: Dworkinian Interpretivism and the Common Law Right of Action for Wrongful Death

Abstract

This article asserts that the late Ronald Dworkin’s theory of adjudication can be harnessed by sympathetic courts to find that there is a common law right of action at wrongful death. Following an explanation of the reasons for the need to recognize such a right in Part II, Part III discusses Dworkin’s general theory of adjudication. Part IV summarizes the popular history of wrongful death, showing that the dichotomous lines of cases both upholding and denying the common law existence of wrongful death indicate that such suits are indeed hard cases in the Dworkinian sense of the phrase, the resolutions of which depend on a judge’s interpretation of the tort’s decisional history with respect to her and her community’s values. Following this, Part V discusses Dworkin’s rights-based theory with regards to a contemporary wrongful death claim in which the dissenting judge’s opinion, which relies on much of the institutional history explained in Part IV, demonstrates (unwittingly) how Dworkin’s adjudicatory theory can be used to recognize the common law existence of wrongful death. Finally, Part VI concludes that judicial application of Dworkin’s theory to wrongful death will result in the “right answer.”