Tort Claims As Property Rights

25 Pages Posted: 16 Sep 2021

See all articles by D. Theodore Rave

D. Theodore Rave

University of Texas at Austin - School of Law

Date Written: May 26, 2020

Abstract

Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.

Keywords: mass torts, property, settlement, option theory, class actions, Clifford Symposium

JEL Classification: k13, k41

Suggested Citation

Rave, D. Theodore, Tort Claims As Property Rights (May 26, 2020). DePaul Law Review, Vol. 69, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3923722

D. Theodore Rave (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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