How Tort Law Empowers: Ori J. Herstein

How Tort Law Empowers
Ori J. Herstein
The Dickson Poon School of Law

Somerset House East Wing
Strand Campus
The Strand, London
WC2R 2LS
King’s College London Dickson Poon School of Law

Legal Studies Research Paper Series, paper no. 2014-7
This paper can be downloaded without charge from:

http://ssrn.com/abstract=2374677
How Tort Law Empowers
Ori J. Herstein*
UNIVERSITY OF TORONTO LAW JOURNAL (forthcoming in Vol. 64:4, 2014)
ABSTRACT
The following realization has begun to dominate contemporary tort theory:

in order to understand tort law, theorists must also focus on the legal power
that tort law vests in tort victims to pursue a remedy, not only on the
implications of holding tortfeasors liable for such a remedy. This insight has
lead some of the leading theorists of tort law – often writing under the
banner of ‘civil recourse theory’ – to suggest that tort law empowers tort
victims to pursue and even to obtain redress from tortfeasors. This view has
even been expanded to describe private law in general. Yet, close scrutiny
reveals that tort law mostly does not vest in tort victims a legal power over
the rights of tortfeasors. The same is most likely true for private law more
broadly. For the sake of both descriptive accuracy and of realizing its
prescriptive potential, civil recourse theory is best amended to view the legal
rights and powers of tort victims, as well as the realities of civil litigation,
more soberly, and with more conceptual accuracy. This article endorses and
grounds the more modest and I think orthodox view on how tort law and
private law more broadly empower victims of civil wrongs.
Introduction
The idea that a central feature of tort law, and of private law more broadly, is to
vest in victims a power to pursue and even to obtain redress has gained significant
traction in the past decade. The main champions of this view, which is a
cornerstone in their influential theory of tort law as a law of “civil recourse,”1 are
John C.P. Goldberg and Benjamin C. Zipursky. Moreover, other leading

*
Lecturer (Assistant Professor), King’s College London Dickson Poon School of Law. For their
comments on previous drafts, I am grateful to Irit Samet, Anna Finkelstern, Gregory C. Keating,
Sandy Steel, the participants of the Second Conference on Moral Values and Private Law at
King’s College London (2013) and to the referees for the University of Toronto Law Journal for
exceptionally helpful and detailed comments.
1
See e.g. Interview with Benjamin Zipursky, “Rethinking Tort Law” (Spring 2012) Fordham
Lawyer 12 at 14 [“the core idea of civil recourse theory is that tort law is about empowering
people who have been wrongly injured to obtain some sort of redress against the injurers”]; John
C.P. Goldberg and Benjamin C. Zipursky, “Civil Recourse Revisited” (2011) 39 FL S U L R 342,
343 [“It [tort law] is also a law of recourse, in that it empowers victims of these wrongs to demand
of the wrongdoer responsive action as redress for the wrong”].
Electronic copy available at: http://ssrn.com/abstract=2374677

theorists, such as Jules Coleman,2 Nate Oman,3 and Jason Solomon4 have – in one
way or another and not necessarily in the same way as Goldberg & Zipursky –
endorsed the basic view of tort law as empowering tort victims. My aim here is to
clarify the nature of this empowering feature of tort law which, in the past decade,
has become so central in the recent scholarly literature. The question I aim to
answer is: how exactly does tort law empower? My answer will be deflationary,
demonstrating that describing tort law in terms of empowerment has been
exaggerated. For all their appeal, civil recourse theorists have often
mischaracterized how tort law, and private law more broadly, empowers victims
of civil wrongs. In reality, the practical powers that the private law provides are
often ineffective and the legal powers the private law vests in potential litigants
are far less robust than some believe.
One preliminary comment: as already suggested, civil recourse theory seems at

least potentially applicable not only to tort law but to private law more generally.5
Accordingly, on occasion I will refer to ‘civil wrongs’ more broadly, and not only
to ‘torts.’ Moreover, I assume that the lessons learned here are, mutatis mutandis,
applicable not only to tort theory but also to the theory of the private law in
general. Yet, because I am concerned with ideas that primarily evolved out of
reflections on the law of tort, I will mostly focus on the tort context.
Empowering as Aspiration
On its face at least, the view of tort law as empowering victims is appealing.
Until relatively recently, tort theory has focused more on the functions6 and on the
normative structure7 of defendant-liability, neglecting the active role that tort law
affords victims. Realizing how tort law empowers tort victims and incorporates

2
In article not yet available for citation.
3
See e.g. Nate Oman, “A Theory of Civil Liability” [forthcoming].
4
See e.g. Jason M. Solomon, “Judging Plaintiffs” (2007) 60 Vand L Rev 1747; Jason M.
Solomon, “Equal Accountability Through Law” (2009) 1766, 1770.
5
John Gardner, “Torts and Other Wrongs” (2011) 39 FL S U L R 43; Goldberg and Zipursky,
supra note 1 at 347-56.
6
For a summary of various functionalist theories of tort law, such as deterrence-compensation
theories or loss spreading theories, see John Goldberg, “Twentieth-Century Tort Theory” (2003)
91 Geo LJ 514.
7
See e.g. Jules Coleman, The Practice of Principle (Oxford, UK: Oxford University Press, 2001)
[for a corrective justice based account of the normative structure of tort law]; Richard A. Posner
and William M. Landes, The Economic Structure of Tort Law, (Cambridge, Mass: Harvard
University Press, 1987) [for an economic account of the normative structure of tort law].
2

Electronic copy available at: http://ssrn.com/abstract=2374677

victims’ agency into the legal processes of private law, shines a more positive
light on tort law. For instance, advocates of restorative justice, who have argued
for more inclusion of victims in the criminal justice system,8 would presumably
welcome the observation that a core feature of tort law, and of the private law
more broadly, is to empower victims to control the legal process for the
vindication of their rights.
A second appealing effect of empowering tort victims is pacifying social unrest

and violence.9 Tort law gives victims of civil wrongs a rational, controlled, and
tempered form of recourse through which to channel their aggression and demand
for rectification; emotions that would otherwise potentially manifest in
uncoordinated, socially destructive, and disproportionate manners.
Perhaps the most appealing feature of conceiving of private law in terms of

empowerment is that it presents the law as a vehicle for victims to respond or take
action against those who wronged them. The law mostly protects peoples’
property and bodily interests, thereby curtailing the liberty of victims to take
action against those who wrong them. According to civil recourse theory, tort law
as well as other branches of the private law, opens legal avenues to victims to
respond and to act – through the courts and the state – against those that wronged
them: to obtain satisfaction, hold accountable, enforce an agreement or other
right, exercise vengeance, or some other form of remedy.10 In this sense, the
private law empowers private actors.
There are further possible benefits to the empowerment of victims.11 A recent

theory focuses on the benefits the empowering of victims of private wrongs has
for markets. Nate Oman points out that allowing repeat actors to hold each other
liable for wrongdoings facilitates cooperation in social and economic
interaction.12 A more obvious benefit of empowering tort victims is assisting
them with obtaining redress for the wrongs that they suffer. Goldberg has pointed

8
See e.g, Zvi Gabbay, “Justifying Restorative Justice: A Theoretical Justification for the Use of
Restorative Justice Practices” (2005) 2 J Dis Resol 349.
9
John C.P. Goldberg, “The Constitutional Status of Tort Law: Due Process and the Right to a Law
for the Redress of Wrongs” (2005) 115 Yale LJ 524 at 602-03.
10
For a discussion of the types of ends litigants may obtain through the recourse of private law see
Andrew S. Gold, “The Taxonomy of Civil Recourse” (2011) FL S U L R 65.
11
See e.g., Solomon (2009), supra note 4.
12
Oman, supra note 3.
3

out that by empowering plaintiffs, tort law is actually empowering tort victims
politically, thereby instantiating notions of equality in civil society.13
All this notwithstanding, the view of tort law (or of private law generally) in terms
of empowerment is overly rosy, and to a large extent aspirational. The reality of
tort law, and of private law in general, in terms of the recourse it actually offers
victims is often somewhat bleak. While empowering tort victims may bring
various benefits such as those just enumerated, in actual practice tort law often
falls short of providing such empowerment. For many tort victims the path that
the law of tort charts for obtaining a remedy is long, discouraging, expensive,
confusing, daunting, and emotionally and financially taxing. Moreover, at times
there is little point to suing considering that many tortfeasors are uninsured,
insolvent, or shrewd in shielding their assets. In fact, it is safe to assume that
most tort victims do not even bother with suing. In other words, in many ways
tort law seems rather dysfunctional, especially if viewed as a tool for the practical
or ‘real’ empowerment of tort victims. Moreover, one need not read Charles
Dickens’ classic novel Bleak House to know that at times private litigation may
do more to debilitate, cripple, and deplete the energies and resources of victims
that it does to empower them.
Thus, if tort law is truly designed to empower tort victims to obtain redress for
legally wrongful harms (and to thereby achieve goods such as those listed above),
then the law is only partially successful in fulfilling this end; which is why a
theory aimed at highlighting how tort law empowers victims is a welcomed
development, especially if such a theory were to contain a prescription for how
tort law could do better to effectively empower victims.
The academic focus on the practical empowerment of victims of civil wrongs,

therefore, best understood, at least partially, as an aspirational project. Laying out
ways in which private law could – if it functioned well – empower victims.
Accordingly, such an endeavor must focus not only on how tort law practically
empowers tort victims, but also on how to reform tort law so that it better
empowers victims. But that is not the project I set for my self here. At least when
it comes to the matter of how private law practically empowers victims of civil
wrongs, civil recourse theory is, therefore, better viewed as a normative
prescriptive theory.

13
Goldberg, supra note 9, at 625.
4

Legal Empowerment
My primary concern in this paper is to clarify the logic and structure of the legal
powers that tort law supposedly vests in tort victims. As explained in the outset, I
am less concerned with how these legal powers serve to actually or practically
empower tort victims. As just suggested, I believe that the forms and procedures
of tort law – that is the procedural and institutional framework and the legal rights
and powers that tort law vests in tort victims – often prove less than ideally
designed to realize the (practically) empowering aspirations some have ascribed
to tort law. Yet, obtaining a sober and conceptually tight understanding of the
forms of the law and the legal powers that it offers tort victims is essential for
reforming the law. That is, understanding the legal powers that tort law affords
victims is a first step towards reflecting on how this body of law can better
empower victims in ways that are practically meaningful.
The aim of this paper is to scrutinize the notion that tort law legally empowers tort
victims, and to offer an alternative and more modest conception of the rights of
tort victims for civil recourse theory.
Goldberg & Zipursky are the ideal interlocutors for such a conceptually driven
exploration. Because their descriptive theory of tort law as a law of civil recourse
positions the empowering of tort victims at the center of tort law. Moreover,
Goldberg & Zipursky’s conception of tort law as empowering victims is
concerned with the structural and logical features of the legal power that tort law
vests in tort victims and less, I think, with the realities of exercising that power.
Finally, I also offer my reflections on how tort law legally empowers as a friendly
amendment to civil recourse theory.
So how does tort law empower? There are, at least, two views on the legal power
of tort victims (or on the legal powers of civil litigants more broadly). In fact,
both views are actually found in the work of Goldberg & Zipursky themselves.
At times, Goldberg & Zipursky describe the power of tort victims primarily as a
power to initiate judicial proceedings against tortfeasors for the purpose of
obtaining redress. This view, I think, is uncontroversial. For example:
Tort law is thus plainly private law in the sense that it is about empowering private parties
to initiate proceedings designed to hold tortfeasors accountable.14

14
John C.P. Goldberg and Benjamin C. Zipursky, “Torts as Wrongs” (2010) 88 Tex L Rev 917 at
946-947 [emphasis added].
5

Tort law is a government-sponsored system for responding to wrongdoing by arming
putative victims with private rights of action – legal powers for bringing claims, at their
discretion, for damages and other relief based on wrongs done to them.15
… tort law is a law of civil recourse – law that empowers a person . . . to bring suit
against a wrongdoer and, if she prevails, to obtain recourse against the wrongdoer. . .16
… a system of rules empowers those who have been treated in the ways the law prohibits
to seek redress, through the state, against those who have mistreated them.17
These formulations of the power of tort victims cohere with another primary
feature of Goldberg & Zipursky’s theory of tort law as a law of civil recourse,
which is to stress the discretionary or privileged nature of the power that victims
of tortious conduct hold to determine whether or not to pursue recourse. A
constituent feature of the structure of tort law is not, as corrective justice theories
tend to claim, to obligate or to hold tortfeasors liable for the correction of the
results and outcomes of their wrongdoing, but rather to legally empower victims
to choose whether or not to initiate proceedings oriented towards obtaining
redress from tortfeasors.18 Accordingly, tort law does not simply impose
corrective justice, but rather gives victims the discretionary choice to pursue a
remedy which, if the litigation is successful, may (and often does) accord with
corrective justice. In other words, tort victims are empowered with a legal
capacity to sue for a remedy, as well as with the privilege to choose whether or
not to exercise this power and make use of the recourse that the private law
affords them. This description of tort law and, mutatis mutandis, of private law
generally, is the most important insight of civil recourse theory for the theory of
the private law.
Notice that it is this discretionary feature of tort law that is the key to
understanding the aspirational features of conceiving of tort law in terms of
empowering victims: the law grants victims a legal power to decide to pursue
litigation against those who wronged them; thereby engaging the agency of
victims and incorporating them into the justice system; such incorporation serves
to practically empower tort victims, as well as to thereby achieve certain social

15
John C.P. Goldberg and Benjamin Zipursky, “Tort Law and Moral Luck” (2007) 92 Cornell L
Rev 1123 at 1136 [emphasis added].
16
John C.P. Goldberg, “Wrongs Without Recourse: A Comment on Jason Solomon’s Judging
Plaintiffs” (2008) 61 Van L Rev 9 at 13 [emphasis added].
17
Benjamin Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, (1998) 51 Vand L Rev 1
at 100.
18
See e,g. Benjamin C. Zipursky, “Civil Recourse, Not Corrective Justice” (2003) 91 Geo LJ 695
at 720-21 [emphasis added].
6

ends. As pointed out above, however, given the realities of civil litigation, and
specifically of tort litigation, this story about how the law practically empowers
victims is to a large degree aspirational. Yet the kernel for this aspirational story
about practical empowerment is found in Goldberg and Zipusrky’s insight on
how the law grants victims the legal power and discretion to pursue litigation.
In other passages, however, Goldberg & Zipursky (especially Zipursky whom

Goldberg endorses) describe the power that tort law vests in tort victims in more
robust terms; viewing this power as more akin to a power to engage in
institutionalized self-help, to take from the tortfeasors, to render torfeasors liable,
and to impose, obtain, force, and extract a remedy. This view, which I call the
‘expansive view,’ does not necessarily contradict the former ‘thinner’ and more
modest view of the legal power of tort victims, but it certainly adds to it. In
addition to the privilege to choose to sue for redress, here the legal power of tort
victims also incorporates a legal power over the legal rights and relations of
tortfeasors; it is a legal power not only to petition the court for redress but also to
actually take or obtain redress and to thereby alter the legal rights and
entitlements of tortfeasors. For example:
[T]ort is best understood as law that empowers the victim of a wrong to obtain a fair
measure of satisfaction by extracting something from the wrongdoer. 19
[P]laintiffs are entitled to act against defendants through the coercive machinery of the
state . . . [A] power in the person whose rights were violated to act against the rights-
violator through the authority of the state. . .20
…the plaintiff is privileged to have the state coerce the defendant into paying him if he
chooses to proceed.21
What we in fact have is a system in which the power to bring a tort action belongs to the
one who has been wronged. It is literally a legal power to force defendant to pay
plaintiff, a legal power to take from the defendant. This legal power is a right of action.22
… the rule that a property owner who is able to prove a nuisance is entitled to have an
injunction against the nuisance entered against a defendant is a rule that confers upon
property owners the power to put the defendant under an injunction against engaging in
certain activity. The rule that a tort plaintiff who obtains a damages verdict is entitled to

19
Goldberg, supra note 16 at 13 [emphasis added].
20
Zipursky, supra note 17 at 81, 85 [emphasis added].
21
Ibid at 83 [emphasis added].
22
Benjamin Zipusrky, “A Theory of Punitive Damages” (2005) 84 Tex L Rev 105 at 150
[emphasis added].
7

a judgment against the defendant confers upon persons a power to render a defendant
legally in debt to them.23
According to Zipursky,
[a]n individual who brings a tort or contract suit, if successful in obtaining a judgment,
will alter the legal relations between herself and the defendant. The ability to alter legal
relations is a form of legal power.24
In these formulations, Goldberg & Zipursky appear to believe that the legal power
of tort victims goes beyond the mere and obvious legal power to file suit, but
extends to some form of actual legal power over tortfeasors. Is this more robust
characterization of the legal power with which tort law arms victims accurate?
Do tort victims really hold a legal power to alter tortfeasors’ legal rights and
relations? Is it the plaintiffs, as Goldberg & Zipursky at times seem to contend, or
rather is it the state that holds that power? Another way to frame the issue is to
simply ask what legal power does tort law vest in victims of tortious conduct? It
is important to note that Goldberg & Zipursky are not naïve thinkers. They are of
course aware that courts, and more broadly the state, play a role in altering the
rights of defendants in favor of claimants. And, as explained below, their view of
the power of tort victims attempts to take this feature into account.
In what follows, I argue in favor of the more modest of the two approaches to the
legal powers of victims of civil wrongs. It is, in other words, an argument for
amending the leading version of civil recourse theory and a vindication of what
seems to me the more orthodox picture of the power of private litigants. The
structure of the argument is as follows: I begin with a definition of ‘legal power.’
The definition, which shows fidelity to aspects of Goldberg & Zipursky’s
(especially the latter’s) expressed conception of ‘power,’ is Hohfeldian. Upon
laying out a definition of ‘legal power,’ the paper goes on to explore which legal
powers tort law really does vest in tort victims. In addressing this question, it is
helpful to distinguish between two periods: one preceding judicial judgment in a
tort suit; and a second, which I call the ‘post-judgment period,’ following a
judgment in favor of the tort claimant but preceding the satisfaction of that
judgment. This bifurcation facilitates assessing the two competing views on the
powers of tort victims in relation to the realities of civil litigation.

23
Benjamin Zipusrky, “Philosophy of Private Law” in Jules Coleman & Scott Shapiro, ed, The
Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, UK: Oxford University Press,
2002) 623 at 632 [emphasis added].
24
8

What is Legal Power?
Briefly, it is the ability to change and create law. That is, a capacity to modify,
annul, and create legal relations, rights, immunities, obligations, statuses, powers,
and entitlements. A power is a second-order normative category. As such,
powers govern first-order normative categories. First-order normative categories
– such as rights, obligations, privileges, and duties – govern actions. Accordingly,
second-order normative categories – such as powers and immunities – govern the
creation, annulment, and change of, for instance, rights, obligations, privileges,
and duties. For example, a property owner holds a power-right that is reflected in
a capacity to transfer her property rights to others, thereby altering her own
entitlements and creating new entitlements for others.25
Unless indicated otherwise, my use of the term ‘power’ throughout most of this
essay follows this precise Hohfeldian concept. This use of the term ‘power’ is in-
line with the concept that Zipursky expressly purports (at least in some places) to
employ in his own work on the empowering feature of tort law. 26
A concept closely related to ‘power’ is ‘liability.’ Under the Hohfeldian scheme,

‘liability’ is the correlative normative category to ‘power.’ That is, liability is the
state of exposure to the exercise of power. Person X is legally liable to person Y if
Y holds the legal power to alter or annul X’s legal relations, rights, and
entitlements.27
As explained, my concern here is with the scope and nature of the legal power
that tort law vests in victims of tortious conduct to pursue civil recourse. As

25
It is also possible for a power to function as a third-order normative category. That is as a power
to change, annul, and create second-order normative categories. For example, one may hold a
(third-order) power to govern (second-order) powers to govern first-order normative categories.
An instance of a third-order power is the power to amend constitutional arrangements of
legislative (second-order) powers to create, change, and annul (first-order) laws that regulate
conduct.
26
Zipursky explicitly purports to use the term ‘power’ in its rigorous and technical Hohfeldian
sense. This is certainly what Zipursky is doing in his essay on the philosophy of private law,
published in the widely read Oxford Handbook of Jurisprudence & Legal Philosophy, supra note
23 at 632; See also Zipursky, supra note 18 at 720-21, which is one of the accounts Goldberg
relies on as determinative of how tort law “empowers victims under civil recourse theory.”
Goldberg, supra note 13 at 601 ft. 389.
27
On the Hohfeldian conception of ‘liability’ see William A. Edmundson, An Introduction to
Rights, (Cambridge, UK: Cambridge University Press, 2004) at 90; Alon Harel, “Theories of
Rights” in Martin P. Golding & William A. Edmundson, ed, The Blackwell Guide to Philosophy of
Law and Legal Theory, (Blackwell Publishing, 2005) 191 at 193.
9

reflected in the two sets of quotations offered above, there are at least two views
on the matter. I labeled one the ‘thin view’ and the second the ‘expansive view.’
The Legal Power of Tort Victims in the Period Preceding Judgment
The ‘Thin View’
I begin with the view I think right. On the face of things, victims of tortious
conduct do not possess a legal power to extract redress from tortfeasors. Even if
in principle tort law directs or determines that a victim of tortious conduct holds a
right to pursue redress or even a right to receive a remedy, tort victims normally
cannot lawfully unilaterally take, seize, force, or obtain a remedy or satisfaction
from the tortfeasor. Tort law is not a doctrine of self-help,28 for it does not
empower victims to directly annul or alter the legal relations, or the property or
liberty rights of tortfeasors. In other words, tortfeasors are not liable to the power
of tort victims to alter their legal relations, rights, and entitlements, even if it were
in the furtherance of tort victims’ rights. A tort victim cannot simply snap her
fingers or whisper an incantation that would constitute or result in a change in the
legal rights and entitlements of tortfeasors in favor of the victim. For example,
tort victims lack the legal power to impose binding injunctions or debts on
tortfeasors. It seems mostly the exclusive role of the court to rule on a claimant’s
suit for redress. A role that includes the power to change, annul, or alter the legal
rights and relations of the claimants. All this, I believe, is almost orthodoxy.29
In certain circumstances, tort victims may turn to authorities other than courts to
obtain redress. This does not alter the reality that in the context of tort litigation it
is the authority and not the plaintiffs that holds the power to alter the rights,
relations, and entitlements of torfeasors. Arbitration is one such example.
Another available avenue for achieving a change in the rights and entitlements of
tortfeasors in favor and in accordance with the rights of tort victims is through a
settlement agreement between the parties. Here the parties that hold and exercise
the legal power to alter the rights and entitlements of tortfeasors are the tortfeasors
themselves, via their legal power to undertake contractual obligations.

28
One exception is the shop owner privilege to detain shoplifters as a defense against false
imprisonment claims. For a brief discussion see Robert L. Rabin & Michael D. Green, Tort Law
and Alternatives, 9th ed (Foundation Press, 2011) at 917.
29
See e.g. Henry M. Hart Jr & Albert M. Sacks, The Legal Process: Basic Problems in the Making
and Application of Law, (Foundation Press, 1994) at 137 (prepared for publication from the 1958
Tentative Edition and containing an introductory essay by William N. Eskridge, Jr. & Philip P.
Frickey).
10

I do not claim that tort law does not vest any powers in victims. The act of suing
is an exercise of a legal power over tortfeasors in that it exposes defendants to the
power of the court to alter and annul the plaintiffs’ legal rights and entitlements
through judicial creation of, for example, remedial norms.30 This ‘exposure’ or
liability to the court’s power, which victim-plaintiffs impose on tortfeasor-
defendants, does not exist prior to the victims’ initiation of the litigation. Outside
of litigation, a court obviously does not hold the power to change, annul, or
otherwise rule on the rights of tortfeasors. Torfeasors are, therefore, liable to the
power of their victims to expose or make liable the torfeasors to the power of
courts. Unlike the ‘expansive view,’ however, this power of tort victims does not
include a power to further alter the legal rights and relations of torfeasors, even in
the pursuit of lawful redress. Tort victims do not have, in other words, the power
to create remedial obligations in tortfeasors; they only hold the power to expose
tortfeasors to the power of courts to create such obligations. This power to expose
others to the power of courts is, of course, a general feature of civil litigation,
which is not restrictive to the context of tort victims and tortfeasors, but mostly
available to all would be plaintiffs.
Moreover, it is at least not implausible that victims’ power to sue includes the
power to create an obligation in the court to adjudicate the litigants’ matter in
light of the claimants’ rights; an obligation that the court does not have – in the
particular case and in relation to those particular litigants – prior to the filing of
the lawsuit. In this respect, courts are liable to the power of private litigants to
initiate court proceedings, because such proceedings create new obligations for
the court. Obligations that plaintiffs can (to an extent) enforce through appeal.
One indication that courts indeed have such an obligation is the doctrine of
judicial immunity from (even malicious) erroneous judicial rulings.31 Simply put,
if there was no duty there would be no need for immunity.32
However, perhaps grounding the judicial obligation to faithfully apply the law in
the litigants’ power to sue is confused. It is possible to understand this judicial
obligation as deriving from a broader obligation of courts to faithfully apply the
law. Thus, perhaps courts are not liable to the power of potential claimants to
obligate them in this way.

30
See Joseph Raz, Practical Reasons and Norms, 2 ed (Oxford, UK: Oxford University Press,
1990) at 132; Hans Kelsen, Introduction to the Problems of Legal Philosophy (Oxford, UK:
Clarendon Press, 1992) (Bonnie Litchewski Paulson and Stanley Paulson trans).
31
Dan B Dobbs, The Law of Torts (St. Paul, Min: West Group, 2000) at 1214.
32
For more on how and when immunities assume duties see [redacted].
11

Nevertheless, even if tort victims’ power to initiate litigation does not include a
legal power to create an obligation in the court, the power of victims does include
the practical capacity to trigger or effectuate such an obligation. The exercise of
the power to sue, which is a power that tort victims do hold, triggers or effectuates
the judicial obligation in specific instances. The fact of the existence of a specific
litigation – created by litigants’ legal power to sue – is the triggering condition for
the judicial obligation to arise in that specific case.
But orthodoxy and modesty alone are not, of course, reasons to adopt the ‘thin
view.’ Therefore, before turning to assessing the expansive account of the power
of tort victims, I demonstrate that the power to change the legal rights and
entitlements of torfeasors, which Goldberg & Zipursky claims is held in some
way by tort victims, is in fact held by the court. After which I explore whether the
expansive view gives reason to think otherwise; concluding that it does not.
The Power of Courts: The Error Test of Normative Power
Courts are not only norm applying, but also norm creating institutions.33 Norm
creating is a function of an exercise of legal power. It constitutes a change in the
legal landscape by creating and annulling litigants’ legal obligations, liabilities,
powers, statuses, etc. Normally, courts exercise their norm creating power to
cohere with their norm applying role. That is, usually courts apply the law to
particular cases by creating new legal norms that individualize, concretize, and
enforce broader or more general norms to the specific case and litigants.34 For
example, in ruling that a defendant is obligated to compensate the plaintiff, the
court in effect attempts to make the general corresponding rules of tort law
concrete and individualized, by creating a new and specific remedial obligation in
the specific defendant towards the specific plaintiff. In addition, in so ruling the
court exposes the defendants to certain enforcement mechanisms, should the
defendants fail to comply.
For some, at this juncture it may be tempting to ask whether courts indeed create
remedial obligations – thereby changing the rights and entitlements of litigants –
or whether courts merely announce or affirm rights and obligations that exist
regardless of judicial action. If the latter is true, it may seem that my position
stated above – that courts are norm-creating – is flawed, at least in the case of
private law courts. Because it would appear that as wrongdoers violate their
primary obligations under private law, a secondary remedial obligation arises ipso
facto out of the violation. For example, if D violates her duty of care towards P by

33
Raz, supra note 30 at 132-37.
34
Kelsen, supra note 30 at 68.
12

negligently causing P harm, then D must – as a matter of law – compensate P for
his injuries. If D fails, for whatever reason, to fulfill her remedial obligations, P
may sue D and petition the courts to vindicate or affirm his rights to compensation
and enforce D’s obligation to provide such a remedy. Under this view, P’s
remedial rights exist prior to and independently of the court's intervention. All that
courts do, therefore, is to declare or affirm already existing remedial rights and
obligations. Under this view, courts do not create remedial rights and obligations,
and thus do not hold a legal power over the rights of litigants.
Appearances notwithstanding, this line of reasoning does little to affect my

position that courts are norm-creating institutions that hold a power to alter the
rights of litigants. This is true whether or not remedial obligations are court-
created or merely court-affirmed. If the former is true, as some believe,35 then
obviously no issue arises. But even if remedial obligations for civil wrongs do
exist in some sense prior to judicial intervention,36 courts remain, to a significant
degree, norm-creating institutions when ruling on matters of private law, and
therefore still hold legal powers to alter the rights of litigants. First, unless one is
willing to depart from positivism, one must accept that the law is often under-
determined, containing no clear single position prior to judicial ruling. When
filling in the gaps of under-determinacy in the law, courts create norms and alter
the rights of litigants. Second, courts make general legal norms concrete and
specific or, to use John Gardner’s term, ‘crystalized’.37 For example, even if D
legally must compensate P regardless of judicial ruling on the matter, the fact that
D must – as a matter of law – pay P 30,340$ is only the case once a courts rules it
so. There are of course many other such instances of concretizing general norms
to specific cases that involve judicial norm creating. Finally, as will become
apparent later in this paper, court rulings make litigants liable to the power of the
state's judgment-enforcing mechanisms, which is a type of liability that mostly
does not obtain prior to judicial ruling. Concluding, courts appear to hold a legal
power over the rights and obligations of litigants in ways that do not depend on
whether or not remedial rights and obligations exist prior to judicial ruling.

35
See e.g. Stephen A. Smith, “Duties, Liabilities, and Damages” (2012) 125 Harv L Rev 1728.
36
See e.g., Gardner, supra note 5 at 58 n 56; Robert Stevens, “Rights and Other Things” in Donal
Nolan & Andrew Robertson, eds, Rights and Private Law (Oxford: Hart Publishing, 2011) 115 at
133-34.
37
Gardner, supra note 5 at 56.
13

Yet, courts as norm creators are fallible as norm appliers.38 That is, courts hold
the power to change the legal rights and relations of litigants even in contradiction
to the law and to the litigants’ valid and controlling rights,39 which the courts are
obligated to apply. What happens when courts, exercising their power as norm-
creators to alter the legal rights and relations of litigants, rule in contradiction to
the applicable laws? There is little doubt that even in such cases courts still
exercise a power to create new legal norms, altering the legal rights and relations
of litigants. Yet, the contradiction notwithstanding, the court’s misapplication of
the law does not negate the fact that the court’s ruling still binds the parties and
alters their legal rights. When such judicial misapplication or deviation from the
law occurs, the legal system comes to contain two contradictory legal norms, and
until such erroneous rulings are overruled or their applicability suspended by the
court, the litigants are bound to the specific judicially created norm that is
individually directed at them.
The fallibility of courts as norm-appliers demonstrates that the legal power over
the rights of litigants is indeed the courts’ and not the litigants,’ as the ‘expansive
view’ assumes. If courts were purely a norm applying and not a norm creating
institution, courts would be incapable (normatively) of generating or producing
binding yet contradictory and, in a sense, invalid legal norms. The capacity to
create binding legal norms that nevertheless misapply higher binding law
demonstrates that courts hold the legal power over the rights of litigants. If courts
were merely charged with figuring out what the legal rights of litigants already
are, then courts would have lacked the capacity to generate binding norms that
contradict those rights. It is the capacity to create erroneous norms that
nevertheless still bind the parties, which demonstrates that the courts hold the
legal power over the rights of litigants.
Accordingly, the view that victims of private wrongs (i.e., potential plaintiffs with
meritorious tort claims) hold a power over the rights of litigants to obtain redress
seems mistaken. Were the power truly the plaintiffs’, courts would not have the
normative capacity to rule against the genuine rights of claimants. At least not
once the claimants fulfilled all the conditions of evidence and procedure. Yet, as
just explained, in reality courts do hold a power over the rights of litigants that is
beyond the reach and control of the legal powers of claimants. And when a court
happens to exercise this power, even those claimants with meritorious claims
whose suit meets all the conditions of procedure and evidence, are still powerless
to effectuate the vindication of their rights. The question then becomes, can

38
HLA Hart, The Concept of Law, 2nd ed (Oxford, UK: Oxford University Press, 1994) at 141-47.
39
Raz, supra note 30 at 137-38.
14

Goldberg & Zipursky’s description of the legal power of tort victims overcome
the ‘error test of power’?
The Expansive View
As the quotes above demonstrate, Goldberg & Zipursky depart from what I
labeled the ‘thin view.’ According to them, tort victims hold a legal power over
tortfeasors to alter tortfeasors’ legal rights and relations in pursuant to victim’s
rights under tort law. For example, Zipursky characterizes the power of tort
victims as “legal power to act so as to alter a third party’s legal statuses so that it
becomes obligated to pay a certain person or to act for the benefit of a certain
person…”40
Zipursky recognizes of course that the power that tort victims hold to pursue
redress and to accordingly alter the legal rights of tortfeasors involves courts.
Victims of tortious conduct obviously lack the power to directly alter or annul the
legal rights, statuses, or relations of tortfeasors, even if such an alternative were in
line with the victims’ legal rights under tort law.41
Nevertheless, Zipursky still maintains the position that it is the victims that hold
the power to alter the rights of tortfeasors. Zipursky explains that the power that
tort victims hold over torfeasors is not direct but is ‘conditioned,’ as well as
‘mediated.’42 Understanding these qualifications is key to assessing the expansive
view and whether it can overcome the “error test.”
Conditioned legal powers are common. One example involves formality

requirements, as they are called in the U.K., or statutes of fraud, as they are
known in the U.S., which condition the exercise of the power of landowners to
transfer their property rights in their land. Without satisfying these writing
requirements, owners of land simply cannot exercise their power to transfer or
alter their real-property rights. According to the ‘expansive view,’ the legal
power to alter the legal rights and relations of tortfeasors is the plaintiffs’, but its
exercise is conditioned on satisfying the rules of civil procedure and on passing
certain evidentiary hurdles. The picture of civil litigation that Zipursky draws is
of a litigant attempting – by meeting the requirements of evidence and procedure
– to satisfy conditions for the exercise of her legal power over tortfeasors;
departing from the orthodox picture of a litigant attempting to satisfy the hurdles
of evidence and procedure in order to allow and convince the court to exercise the

40
Zipurksy, supra note 23 at 636 [emphasis added].
41
Zipursky, supra note 18 at 734; Zipursky, supra note 17 at 83; Zipursky, Ibid at 632-33, 636.
42
Zipurksy, supra note 23 at 632-33.
15

court’s own power to enforce the litigant’s rights. The primary challenge that
Zipursky must meet is to explain why this conditioned power really is the
claimant’s and not the state’s or, more specifically, the court’s.
Zipursky claims that the power of victims to impose a remedy or to somehow

extract satisfaction is, as he puts it, ‘mediated’ and not direct. It is the court and
not the plaintiff that enters the judgment that directly results in altering the legal
rights and relations of the defendant in favor of the plaintiff. But this fact
notwithstanding, Zipursky still maintains that it is private litigants that hold the
power to alter the legal rights and relations of tortfeasors. Under this view, in
enforcing the rights of tort victims the court, in effect, acts as a kind of medium or
conductor for the plaintiff’s legal power.43
As claimed above, on the face of things and in contradiction to Zipursky’s notion

of ‘mediated power,’ it is mostly the court (not the claimants) that holds the legal
power to alter the legal rights, relations, and entitlements of litigants. For
example, in their classic The Legal Process, Henry Hart and Albert Sacks take the
position that ‘remedial powers’ arising in victims of civil wrongs constitute a
“capacity to invoke the judgment of a tribunal of authoritative application upon a
disputed question . . . and to secure, if the claim proves well-founded an
appropriate official remedy.”44 This view conflicts with Goldberg & Zipursky’s.
In fact, Zipursky explicitly states that his view on the power of victims departs
from Hart & Sacks.’45 Zipursky’s position is, therefore, that the power of tort
victims is not a power simply to go before a tribunal and present one’s case, but
rather an actual legal power to obtain redress by meeting the requisite procedural
and evidentiary requirements.46
I confess that in this context the notion of a ‘mediated power’ is not entirely clear
to me. By way of explanation, Zipursky says that “… it is almost as if the state
acts as an agent of the plaintiff...”47 Analogizing the court to the plaintiff’s agent
suggests that the court’s capacity to alter the legal rights and relations of
torfeasors to obtain redress is somehow derived from the plaintiff who is –
following the analogy – the court’s ‘principal.’ That is, although the court is the

43
Zipurksy, ibid at 633.
44
Hart & Sacks, supra note 29 at 137. I read the term ‘invoke’ to mean ‘to make an earnest
request for, or to solicit,’ which is also Zipursky’s reading of Hart & Sacks. See Zipursky supra
note 17 at 80 ft. 279.
45
Zipursky, ibid at 80 ft. 279.
46
Ibid.
47
Supra note 23 at 633 [emphasis added].
16

entity that in practice exercises the power to alter the legal statuses and rights of
defendants, the power to do so really is the tort victims’/plaintiffs’. Yet the
analogy to agency does little more, to my mind, than to frame the revisionary
view in slightly different terms. After all, clearly there are no actual agency
relations between the court and the plaintiff. Perhaps the analogy to agency is
intended to evoke the sense that although the court – the presumed ‘agent’ – is not
subject to or controlled by the victim – the presumed ‘principal’ – the court still
acts to fulfill the will or in the interest of the claimant. But even were that true,
and I am not sure it is, acting in the interest of another does not entail that the
‘fiduciary’s’ powers are controlled, held, or derived from the ‘beneficiary’. The
question remains, therefore, why should we view a power that logically and
intuitively seems to be the courts’ as the (mediated) power of plaintiffs?
In what follows, I construct two possible accounts of the position that tort victims
hold a mediated power over torfeasors. I call the first the “vending-machine
view” and the second the “vertical view.” I do not ascribe these views to
Goldberg & Zipursky, and freely concede that my efforts are interpretive. My
conclusion is that, at least in the period preceding judicial judgment, both
accounts fail to capture the nature of the relation between the powers of private
law claimants and the power of courts over the rights of defendants. Thus, the
notion of a ‘mediated’ power does not succeed, to my mind, in explaining or
vindicating the revisionary position in which tort victims have a legal power over
the rights of tort victims. Tort law does empower tort victims, but not in the
expansive way Goldberg & Zipursky have argued.
Mediated Power: The Vending-‐Machine View of Courts
According to Zipursky, tort victims are vested with a power to “have the state
alter the legal relations between the parties.”48 As already explained, this power is
only exercisable if a plaintiff satisfies certain evidentiary and procedural
conditions. According to Zipursky, once such conditions are satisfied “the court
will enter a judgment or grant an injunction.”49 Seemingly, therefore, as long as
plaintiffs with genuine claims follow the rules of procedure and present the court
with sufficient evidence to support their claim, the court will invariably produce a
judgment in the plaintiffs’ favor, in accordance with what the law mandates.
Following this line of reasoning, perhaps what matters for assessing the powers of
litigants is not which entity holds the de jure power (which as we saw is the court)
but rather which party holds what may called the de facto power to bring about a

48
49
Ibid at 633 [emphasis redacted and added].
17

change in the legal rights and relations of tortfeasors. Thus, even if there is a
theoretical possibility of court error in applying the law and even if that possibility
demonstrates that strictly speaking the power over the legal rights and relations of
torfeasors is the court’s and not the litigant’s, what matters is not who technically
holds this legal power but rather who has the effective ability or the de facto
power to unleash that power.
And as it happens, in reality, courts presumably follow the law. The judicial
imposition of remedial obligations on torfeasors in favor of their victims is,
therefore, the natural result of the decision of genuine tort victims to exercise their
legal power to pursue litigation. That is, in the real world, the legal power that
effectively matters for changing the legal rights of tortfeasors in favor of their
victims is the latter’s power to pursue recourse through the courts. Accordingly,
although it is the court that technically holds and exercises the power over the
rights of defendants, that power is effectively or practically in the hands of the
plaintiffs. Once a plaintiff with a meritorious claim exercises her power to initiate
litigation, and assuming she litigates and proves her case properly and
convincingly, what will result is a change in the legal rights and relations of
tortfeasors that is in accordance with the plaintiff’s rights under tort law. Because
once a tort victim exercises her legal power to sue, the court will follow the law
and exercise its own legal power to provide the victims-plaintiffs with the ruling
they are entitled to. Therefore, while it is formally the court that rules to alter the
legal rights of defendants in pursuant to plaintiffs’ right to redress, in practice
such eventuality is merely the natural result of the tort victim’s decision to
exercise her power to sue.
This picture of the workings of courts is highly mechanistic. The exercise of

court power works here almost like a vending-machine: as long as one inserts the
correct amount in the appropriate slot the machine will produce the requested
product. The court is reduced here to a near perfect discretionless and infallible
applier of the law, appearing almost like a tool, mechanism, row of falling
dominos, or process which litigants can, within certain parameters and conditions,
control and activate at their discretion. Under the vending-machine view, a court
exercising its own power is the almost inevitable effect of a tort victim – that is
someone with a meritorious tort claim – suing and meeting the conditions of
procedure and evidence.
The shortcomings of the “vending-machine view” begin to become apparent once

attention is turned to the fact that in reality, at least on occasion, courts fail to rule
as the law requires. Courts not only can misapply the law in principle, as already
pointed out above, but they actually do so in practice. Therefore, even when a
litigant is in the right as a matter of law, and has fulfilled all procedural and
18

evidentiary requirements, that litigant is not assured a ruling in her favor by the
mere exercise of her legal power to sue.
Thus, even were we to adhere to the realist stance of discounting the significance
of analytical categories in favor of ‘what really matters practically,’ it does not
follow that the question of who holds the power over the rights of tortfeasors is
trivial, or that all that matters for effectuating the vindication of the rights of tort
victims is the victims’ decision to sue. The simple fact is that court error or
misapplication of law is not merely a possibility in logical space, but part of the
reality of any real world judiciary. Even the surest of litigants hold their breath
just before the judge gives her ruling. And appeals courts, after all, exist for a
reason. For better or worse, the vending-machine view does not capture the
realities of real world legal systems.
A second shortcoming of the vending-machine view is its inability to account for

judicial agency. The mechanistic description of the judicial process fails to
capture the many instances of judicial judgment that characterize a trial. Judges
make numerous decisions, both big and small, which require interpretation and
judgment. In exercising judicial judgment, judges are often guided by the law, yet
the law of course often does not provide precise prescriptions to all matters. The
law is often vague, general, under determined, and filled with principles and
standards requiring interpretation. The judicial craft is not analogous to the duties
of a clerk required to check boxes on a presubscribed checklist. It is certainly not
analogous to a formalistic mechanistic process or to a machine in which the
output – remedial rights in the favor of victims and at the expense of the rights of
defendants – is fully determined by the input – a well-proven and procedurally
proper claim by a genuine victim. In applying its judicial power over litigants, the
court is not merely a mediator or a conductor for the power of claimants, but
rather an autonomous agent making decisions on how to exercise its own power to
apply the law.
It is true that the more technical the matter, the more technical the judicial activity
tends to become. Accordingly, the vending machine view may ring truer in
certain cases than in others. But even then, the vending machine view by no
means captures the rule. Moreover, even the most technical cases are obviously
not immune to judicial error, and thus the power in such cases is analytically still
the court’s.
Notice that I am doubtful whether the vending machine view is what Goldberg &
Zipursky have in mind when talking about the empowering feature of tort law.
Because the realist argument proves, at most, that given the realities of private law
litigation, the question of who normatively holds the power to alter the rights of
19

tortfeasors is a trivial one. For the realist, the important question is not who
normatively holds the power over the rights of tortfeasors, but rather who has the
ability or capacity to actually unleash and wield that power. Thus, even if this
ability or capacity was in some sense ‘really’ the claimant’s, it would not strictly
speaking vindicate Goldberg & Zipursky’s position that the power over the rights
of tortfeasors is the victims’ and not the court’s. If I read them correctly,
Goldberg & Zipursky do not want to say that tort victims are de facto empowered
to bring about a change in the rights of tortfeasors, but rather that tort victims are
legally empowered – in some mediated way – to do so. Goldberg & Zipursky’s is
an argument about the normative structure of tort law and not about the realities
of the court system. But even if I am wrong, and the vending-machine view does
capture what Goldberg & Zipursky mean by “mediated power,” that view simply
does not correspond to the nature and reality of the judiciary.
Mediated Power: The Vertical View
An alternative account to the idea of a ‘mediated power’ is available. Yet I fear

this approach is also unsuccessful. Under civil recourse theory, private law both
rejects and replaces the non-legally sanctioned aggression of victims with a
tempered state-controlled avenue for victims to respond to civil wrongs. The law
achieves this end by empowering tort victims “to act against the rights-violator
through the authority of the state,”50 that is “by the empowerment of private
parties to alter the legal status of wrongdoers, through a civil process that includes
the state.”51 The idea of empowering tort victims to act or to alter the rights of
tortfeasors “through the authority of the state” may suggest another relation of
‘mediation’ between the powers of courts and the powers of tort plaintiffs.
Accordingly, perhaps the idea of a ‘mediated power’ is that plaintiffs hold a

power over the court’s exercise of the court’s own power over the rights of
defendants. This vertical view remains true to Goldberg & Zipursky’s picture of
civil litigation: the court here is subject to the power of tort victims as to how to
exercise the court’s power over defendants, so that the ultimate power over
torfeasors in a sense still belongs to their victims; even though that power passes
‘through’ or is ‘mediated’ by the court’s power.
I see two possible versions to the vertical view. One is that tort victims hold a
legal power to effectuate the court’s exercise of its own power. But this view fails

50
Zipursky, supra note 17 at 81, 85 [emphasis added].
51
Zipursky, supra note 23 at 643 [emphasis added].
20

on conceptual grounds. As detailed above, powers are to change normative
relations, rights, and statuses. A legal power is the ability to alter legal categories
such as legal powers, rights, duties, obligations, liberties, liability etc.
Accordingly, powers regulate the realm of normativity. That said, it is important
to notice that legal powers are exercised through actions. For example, when a
court rules to impose an injunction, the court’s act of ruling constitutes an
exercise of its legal power to impose new obligations on the litigants. The notion
that tort victims hold a legal power over the court’s exercise of its own power
assumes, therefore, a power over action. It is a power to make the court take
action that is constitutive of an exercise of court power.
Such a power entails a conceptual contradiction. It is a conceptual truth that

powers regulate norms, not actions. And, therefore, the concept of ‘legal power’
simply does not cohere with the category of ‘power over or to regulate action.’
The prospect, threat, or promise of the exercise of power may of course function
to pressure, deter, or allure others to act to exercise their own powers. But a
normative power cannot effectuate or result in any action or other change in the
physical world. The notion that tort victims hold a power over how courts
exercise their own powers is, therefore, conceptually muddled. As I explain in the
following section, the normative relation between claimants and the court’s legal
power over the rights of defendants is not a power but rather a claim-right.
The second possible version of the vertical view is equally unsuccessful. One
could claim that tort victims hold the power to direct the court to exercise its own
power to alter the rights of torfeasors. If this were the case, some sense could
perhaps be made of Goldberg & Zipurskyipursky’s position. Because, even given
that the power over the rights of tortfeasors is the court’s, tort victims would still
hold legal control or authority over how that power is wielded. That is, holding
the power to obligate or command the court, victims could be said to act against
tortfeasors through the court. But this line of argumentation is, I fear, a
nonstarter. Simply put, litigants do not order courts how to rule in their matters.52
Claim-‐Right Not Power
Having demonstrated that courts and not claimants hold the power over the rights
of litigants, and having tried and failed to redeem the notion of a ‘mediated
power,’ it is time to chart a course for a different account.

52
Notice that this does not conflict with my claims above that claimants hold a power to create
obligations in the court to apply the law or, in the alternative, have the capacity to trigger such an
obligation. An obligation to apply the applicable law is not the same as an obligation to rule in
favor of the claimant, even if at times former may entail the latter.
21

The better conception, I believe, of the rights that litigants hold in relation to the
power of courts to alter the legal rights and relations of wrongdoers (such as
tortfeasors) is not in terms of a (mediated) power-right (as Goldberg & Zipursky
contend) but rather of a claim-right. Civil recourse theory should be amended
accordingly: rejecting the idea that victims of civil wrongs have a power
(mediated or otherwise) over the rights of those that wronged them; in favor of the
position that meritorious claimants hold a claim against the court to exercise its
own power over defendant-tortfeasors in favor of their victims.
A ‘claim-right,’ like ‘power,’ is an Hohfeldian category.53 A holder of a claim-

right has a claim against others for a certain action (or omission). Correlating to
claim-rights are duties of others to so act (or omit). So that if X holds a claim-
right against Y to φ, X has a claim against Y that she φ and Y owes a duty to X to φ.
As I already claimed above, it seems that prior to judicial judgment tort victims
have at least two primary powers. Both are aspects of the power to sue. One is
the privileged capacity to hold torfeasors liable to the power of courts. The
second is a power to create an obligation in the court towards the litigants for the
lawful adjudication of their matters. I also considered the possibility that even if
claimants do not have the power to create obligations in courts, claimants do have
the practical capacity to trigger such obligations through the exercise of their
power to initiate litigation.
This power to obligate the court, or, in the alternative, the capacity to trigger an
obligation in the court, explains the nature of the relation between the rights of
tort victims and the court’s power to change the rights of defendant-tortfeasors.
The correlative Hohfeldian right to the obligation that claimants create or trigger
in the court is the plaintiff’s claim-right – not power – against the court to comply
with its obligation. This obligation, and its correlative claim-right, arises at the
discretion of plaintiffs who (as Goldberg & Zipursky explain) are privileged to
decide whether or not to exercise their legal power to initiate court proceedings.
The main mechanism for enforcing the court’s obligation and the claimants’
correlative claim-right is the litigants’ power to appeal. As already suggested
above, another indication that such a claim-right obtains is the doctrine of judicial
immunity. Judges enjoy an almost complete immunity for harms they cause –

53
Wesley Hohfeld, Fundamental Legal Conceptions (New Haven, CT: Yale University Press,
1923). See also Joel Feinberg, Social Philosophy (Pearson, 1973) at 56-67; Harel, supra note 27 at
192-93.
22

negligently or even intentionally – in their professional capacity.54 As already
explained, immunity is suggestive of duty.
While obviously not in line with his expressed position, there is language in
Zipursky’s work to support my alternative explanation of the rights of tort victims
in terms of claim-rights. As Zipurksy puts it, what he calls the ‘power’ of victims
is encapsulated in the tort right-of-action, which “involves an assertion of an
entitlement against the state;”55 or, includes a “claim, against the state to its
assistance in changing the legal relations of the defendant.”56 Elsewhere Zipurksy
says that “the state accedes to, and enforces, a plaintiff’s demand that the state
compel defendant to pay her a certain amount;”57 and that “… in light of the rules,
norms, and principles of our tort system, a person is legally entitled to prevail in
litigation and win judgment…”58 Although, as the many quotes in this paper
demonstrate, when describing the rights that tort law vests in tort victims
Goldberg & Zipursky insist on talking about a ‘power,’ the passages just quoted
suggest that perhaps the category that better captures the relation Goldberg &
Zipursky have in mind (at least on occasion) between the rights of claimants’ and
the courts’ power over torfeasors is actually ‘claim-right.’
Regardless of whether we can ascribe such hidden meaning to Goldberg &

Zipursky, we should amend civil recourse to incorporate these insights: tort
victims do not hold a legal power, mediated or not, over torfeasors to extract
redress from them; rather, victims hold a claim against the court to exercise its
own legal power over torfeasors in accordance with the victims’ rights for redress.
Notice that the legal power or practical capacity to obligate the court is not
negligible. Although I deny Goldberg & Zipursky’s position that tort law vests in
victims a legal power (mediated or otherwise) to alter the legal relations, rights,
and entitlements of tortfeasors, it does not follow that tort victims are practically
powerless. The legal power to create or the practical capacity to trigger
obligations in the court – with a corresponding claim-right in claimants – is often
quite significant, considering that courts mostly attempt and succeed in adhering
to their obligation to apply the law. Thus, litigants with a genuine cause of action,
who manage to overcome the often-considerable practical hurdles standing in the

54
In the UK see Houlden v. Smith [1850] 14 QB 841; John Murphy, “Rethinking Tortuous Immunity for
Judicial Acts” (2012) Legal Studies. In the US see Dobbs, supra note 31 at 1214.
55
56
Ibid [emphasis added].
57
58
23

way of successfully pursuing civil litigation, have a good chance at vindicating
their rights.
The Legal Power of Tort Victims: Post-‐Judgment
Given that the ‘thin view’ decisively prevails in the pre-judgment area, we turn to
the period following the court’s ruling in favor of the claimant. How does the law
empower private law litigants once the court has ruled in their favor? In some
places, especially in his now classic essay Civil Recourse, Not Corrective
Justice,59 Zipursky’s discussion suggests that tort victims hold a legal right to alter
the rights of torfeasors during what may be called the ‘post-judgment period,’ that
is the period following the court’s ruling in favor of the tort claimant but
preceding the carrying out of the judgment. According to this view, once the
judge rules in favor of the plaintiff, thereby changing the rights and relations of
the defendant and subjecting the defendant to remedial obligations, plaintiffs are
vested with a legal power over the defendants to obtain the remedy that they are,
according to the court’s ruling, entitled to from the defendants. Here are several
passages from Zipursky suggesting this view:
The victim of a tort has a right not in the sense that defendant must pay, simpliciter, but
in the sense that if the victim chooses to bring a right of action, and proves the tort, she is
not prohibited from taking, but is in fact empowered to do so.60
When the state has recognized a right of action, and when a plaintiff has proven it, the
state both permits and empowers a plaintiff to act against a defendant. For example, if I
prove that the fence-breaker negligently broke my fence and that it will cost $200 to
repair it, I can have her adjudged liable to me for that amount; this means that I am
actually empowered to take possession of $200 worth of her assets if she does not pay
me. The judgment of liability is, in effect, a judgment that she is vulnerable to my taking
two hundred dollars from her under certain procedures. Similarly, if I prove that the
newspaper defamed me, I may be empowered to demand that it expunge the defamatory
reference on pain of sanctions, which I will have imposed.61
Individuals are permitted to take the money of another if it is in the context of executing a
judgment that has been entered against the other. This is an exception to the general rule
against taking the assets of others…”62

59
Zipursky, supra note 18.
60
61
62
Ibid at 736.
24

When the remedy is damages, the court's act literally empowers the plaintiff to be
satisfied with the defendant's assets. When the remedy is injunctive relief, the court
empowers the plaintiff by converting her application for an injunction into an order with
which the defendant must comply on pain of a sanction for contempt.63
…those courts are privileging and empowering victims to use the state to force
wrongdoers to act in a particular way. The same goes for other injunctive measures. A
parallel analysis applies to damages. To award damages is to make the defendant liable to
the plaintiff for a certain amount, entitling the plaintiff to take a certain amount from the
defendant.64
The notion of a ‘power to take’ is a variant of an Hohfeldian ‘legal power.’ The

legal significance of the power to take is that the act of taking constitutes a change
in the rights of the deprived person. Taking is an action that has the legal
significance of altering and annulling the rights and entitlements of others to their
detriment. Where the act of taking is not backed up by a legal power to do so, the
taking most likely amounts to a legal wrong and certainly not to a taking in the
legal sense. A lawful taking may or may not be of a physical object, but it is
certainly a taking of a right, entitlement, or legal status. In our context, taking
from a debtor-defendant has two legal implications: changing and thereby
depriving the debtor-defendant of her right; and, at least partially, discharging the
debtor-defendant’s judicially imposed remedial obligations towards the creditor-
plaintiff.
The question is in what sense are creditor-claimants, or, more specifically to our
context, tort victims who were victorious in their litigation, legally empowered to
obtain the redress that they are entitled to (based on the court’s judgment) from
the defendants? More precisely, whether, and if so how, are victorious plaintiffs
‘empowered to take’ from the defendants, and thereby to alter the defendant’s
rights and entitlements, so as to satisfy the plaintiffs’ judicially created right to a
specific remedy.
To answer this question, we must look at how the law tackles cases wherein
defendants fail to comply with the court’s ruling in favor of the plaintiff. Where
defendants do comply with the court’s ruling, the issue of empowering debtor-
plaintiffs ‘to take’ obviously never arises, because no taking is required to obtain

63
Ibid at 738.
64
Zipursky, supra note 18 at 748.
25

the remedy. The question then is what legal powers, if any, does a victorious-
plaintiff hold against a noncompliant debtor-defendant?
Judgment-‐Enforcement and the Rights of Claimant-‐Creditors
Judgments are mostly enforceable, at least in principle. When a defendant fails to

comply with her judicially imposed obligation to remedy the plaintiff, the law
provides recourse in the form of certain mechanisms for obtaining compliance and
for enforcing the court’s judgment. Here the legal power to ‘take,’ is manifested
in the authority to impose or activate these enforcement mechanisms.
Who then holds the power to effectuate or to employ these judgment-enforcing

mechanisms, which constitute a taking from the defendant-debtor? Does the court
empower the victorious plaintiff with the (meditated) power to take – via these
enforcement mechanisms – from noncompliant creditor-defendants, as Zipursky’s
view appears to be? Or, similarly to the pre-judgment period, is the power to take
really the courts’, or more broadly the state’s; leaving victims with the power to
initiate enforcement proceedings and with a claim that the state exercise its legal
powers of enforcement?
The answer to these questions may fluctuate. The process of enforcing judicial
judgments is not necessarily the same for all types of remedies, circumstances,
and in relation to all types of assets from which redress is obtainable (e.g.,
personal or real property). Moreover, rules and practices vary between
jurisdictions. In other words, in this field of the law things turn technical and
confusing rather quickly.
Thankfully, for the purpose of assessing Zipursky’s position all that is needed is a
demonstration that the power – mediated or otherwise – to alter the rights of
debtor-defendants is not necessarily or often the creditor-plaintiff’s. Once
demonstrated, the position that a defining feature of tort law, or of private law
more broadly, is to empower (post-judgment) victims to obtain or take remedies is
weakened and even refuted.
I will only briefly touch on some central procedural features of judgment-

enforcement. For examples, I draw mostly on the laws of New York and
California. By no means do I purport to offer anything nearing a comprehensive
survey of the mechanism and laws governing the enforcement of judgment, or
even to give a detailed description of the mechanism and rules that I do mention. I
concede that given the possible diversity in judgment-enforcement mechanism
26

between jurisdictions, it is possible that my own account of the rights of claimant-
creditors is contingent.
I do not deny the existence of judgment-enforcement mechanisms that involve

genuine self-help; that is, a legal power in claimants-creditors to directly take
from defendant-debtors. Yet, it seems to me that such powers are far from the
norm; judgment-enforcement, certainly where torts claims are involved, mostly
appear to involve state actors.
In the eventuality of a debtor’s noncompliance with a court’s judgment, the basic

mechanism in New York for enforcing money judgments is via an ‘execution.’65
It is the court that issues an execution, yet the court’s role in this process is
something of a formality or technicality: so long as the judgment-debtor meets
certain formal conditions, the court normally almost automatically endorses
execution. Moreover, what is known as the ‘execution form’ is actually drafted
by the plaintiff herself who also delivers it, upon its endorsement by the court
clerk, to the enforcement officer (e.g. the sheriff).66 Consequently, the
enforcement officer is empowered to seize and even sell assets belonging to the
debtor in order to discharge the debt.
California follows a similar procedure. To enforce a judgment from the debtor’s

real property, a judgment creditor's first step is to go through the formalities of
applying for a writ of execution with the county clerk.67 The writ of execution is
directed to the levying officer, normally the sheriff or marshal in the county where
the levy is to be made,68 or to any registered process server.69 After its issuance,
the judgment debtor delivers the writ to the levying officer.70 Then the levying
officer, upon the creditor fulfilling some further requirements, executes the writ
by seizing or recording a lien on the debtor’s property.71 Finally, the property is
sold and the money judgment is satisfied from the proceeds.

65
In NY enforcement of judgment is mostly governed by article 52 of the CPLR.
66
Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.11; NY CLS CPLR § 5230 (2012); NY CLS
CPLR § 5232 (2012).
67
Cal Civ Code § 699.510. See also, Mathew Bender Practice Guide: Ca Debt Collection 2-16
(2012) 16.02.
68
Cal Civ Code § 680.260.
69
Cal Civ Code § 699.510. Mathew Bender Practice Guide: Ca Debt Collection 2-17 (2012)
17.16.
70
71
See Cal Civ Code §§ 697.710, 700.015(a).
27

Another enforcing mechanism for money judgments is the judgment-lien.72 A
lien is a legal right a creditor holds in another’s property until a debt or duty that it
secures is satisfied.73 A judgment-lien is predicated on a debt arising out of a
judicial decision. A judgment-creditor may obtain a judgment-lien on the real or
personal property of the debtor. In New York, a judgment-lien is imposed
through a process of ‘docketing,’ in which the judgment is docketed with the clerk
of the county in which the realty is located.74 The lien then automatically attaches
to any property within the jurisdiction in which the judgment debtor has an
interest or thereafter acquires an interest.75 In California, recording an abstract of
the judgment in the county where the judgment debtor’s real property is located
creates a judgment lien on real property.76
A creditor-plaintiff may also have a debtor-defendant’s wages garnished, yet

another mechanism for enforcing money judgments. Here, the debt is extracted
not directly from the judgment-debtor but from a third party who has a debt to the
judgment-debtor. Garnishment is most frequently used to reach a judgment-
debtor's earnings from employment. Once garnished, the debtor-defendant’s
employer is required to pay a measure of the defendant’s wages to the creditor-
plaintiff.77 In California, a writ of execution is a condition for the issuance of an
order for the garnishment of a judgment-debtor's earnings.78 Once the order is
issued, following a rather formal process,79 the order is served on the employer to
pay the funds to the levying officer who then transfers the appropriate sum to the
judgment-creditor.80

72
John C.P. Goldberg and Benjamin Zipursky, The Oxford Introduction to U.S. Law, Torts,
(Oxford, UK: Oxford University Press, 2010) at 53.
73
Black’s Law Dictionary, 8th ed (St. Paul, Min: West Group, 2004) at 941.
74
Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.19.
75
Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.19.
76
Cal Civ Code § 697.310(a). Mathew Bender Practice Guide: Ca Debt Collection 1-11 (2012) at
11.04.
77
Goldberg and Zipursky, supra note 72 at 53.
78
Mathew Bender Practice Guide: CA Debt Collection 2-21 (2012) at 21.14.
79
80
Mathew Bender Practice Guide: CA Debt Collection 2-21 (2012) at 21.14.
28

Who in these various mechanisms for the enforcement of money judgments holds
the legal power over the rights and entitlements of debtor-wrongdoers, such as
tortfeasors? Formally, the power in all these cases appears to remain in the hands
of the state. In each case there is an official or state authorized private actor who
must perform certain official actions in order for an actual taking of the rights of
debtors to effectuate. For example, the imposing of a lien on a property
constitutes a change in the property owner’s rights: one’s holding in the property
become subject to newly formed rights of the debtor in that property. The
capacity to place a lien is, therefore, a legal power to change the rights of property
owners. But who holds this power? Considering that docketing is constitutive of
the lien (the lien is created by the docketing and if the clerk fails to properly
docket, the lien is not placed), at least technically the power to impose the lien is
the clerk’s and not the debtor’s. The debtor may ask for a lien and fulfill all the
formal conditions for obtaining a lien. Yet, at the end of the day the power to
impose the lien is still the state’s. We need only apply the error test for normative
power introduced above to see why: if the clerk fails to docket the judgment, the
lien does not form; regardless of whether or not the creditor is in her rights and
has fulfilled all the formal requirements to obtain a lien.
A similar analysis is applicable to levying an execution order on a debtor. The act

of taking the rights of debtors occurs when the execution or levying officer
actually seizes the debtor’s assets, not when the creditor requests such a remedy.
If the execution officer does not exercise her power to take assets from the debtor,
then the debtor’s rights remain unaltered, the creditor’s rights and actions
notwithstanding. The creditor may request that the execution officer seize the
debtor’s assets or petition the court to order the officer to do so. But the power to
directly take from the debtor, and thereby deprive her of her rights in an asset,
remains outside of the hands of the creditor.
Yet perhaps my analysis is overly formalistic. It is at this juncture that the

conceptual approach to civil recourse theory perhaps loses, in certain instances,
some of its appeal in favor of a more realist account. The actions of officials
charged with the enforcement of judgments are often mandatory and rather
narrowly prescribed, involving practically no judgment or discretion in deciding
whether or not to employ the state’s legal power to take from the debtors. The
more the court-clerk’s or the enforcement-officer’s duties boil down to checking
whether the judgment-creditor’s papers are in order and, if so, to automatically
carrying out the execution process, the more enforcement processes seem like a
tool or a mechanism at the de facto control of creditors. In other words, the
vending-machine view of the relation between the legal powers of litigants and
the state’s legal power to alter the rights of defendants seems more plausible in at
29

least certain instances of the post-judgment period than it does in the pre-
judgment period.
Recall that the vending-machine view assumed a realist approach to our main
question: who holds the power over the rights of tortfeasors? From the realist
point of view, the more technical, formalistic, and precise the exercise of state
power the more mechanistic the role of the state becomes. If indeed genuine
judgment-creditors, that meet all the procedural requirements, are mostly
successful in initiating the state’s mechanisms of judgment-enforcement; and if
the agency of the state’s officials is truly minimally engaged in deciding whether
or not to pursue judgment-enforcement, performing little more than a formal
check of the creditors’ application; then it seems that although formally the power
to enforce judicial judgments is the state’s, in reality the primary force unleashing
the state’s power to take is claimant-creditors filing for judgment-enforcement.
Thus, subject to my empirical assumptions about efficacy and near lack of
agency, the metaphor of a ‘mediated power’ seems to fit the realities of certain
instances of judgment-enforcement rather well.
Accordingly, to my mind at least, in the case of judgment enforcing mechanism of

the type discussed above, perhaps the conceptual analysis of ‘whose legal power
is it?’ should take a backseat to the realist analysis of ‘whose de facto power is
it?’ In my analysis of the pre-judgment scenario, I disagreed with aspects of
Goldberg & Zipursky’s conceptual analysis; yet I saw little reason to depart from
their apparent conceptually driven approach. In the post-judgment period I
similarly disagree with the same aspects of Goldberg & Zipursky’s conceptual
analysis concerning the legal power to take; that is, I do not agree that it is a
general feature of private law to grant plaintiff-creditors the legal power over the
rights of defendants-debtors. Yet here, I wonder whether civil recourse theory
should also incorporate a more realist or practically driven conception of the term
‘power.’ In other words, perhaps a creditor’s legal power to initiate enforcement
proceedings is de facto the primary cause or trigger that almost invariably
activates the state’s almost automatic exercise (or at least attempt) of its own legal
power to take from defendant-debtors.
Notice, however, that even if the vending-machine view may on occasion ring
true in relation to some mechanisms of judgment-enforcement, it clearly does not
fit all of them. While the court is mostly not involved in the execution process in
any substantive, discretionary, or non-technical way, there are instances in which
an actual court judgment is required in order to authorize the enforcement officer
to take from the debtor. In New York, for instance, the officer often may not sell
30

a homestead without a hearing and court authorization,81 and a court order is also
needed to require a debtor to turn over assets to the enforcing officer.82 Forcing a
third party to turn over assets belonging to the debtor also requires a court order.83
In cases such as these, the court’s role in deciding whether or not to apply its legal
power over the rights of debtors seems much too robust to characterize as a mere
mechanistic mediation of a claimant’s power to initiate judicial proceedings.
Accordingly, in the cases just mentioned, attempts to apply the realist approach
will suffer from the same difficulty discussed above in relation to the pre-
judgment period. Not only is the legal power to take formally held by the state,
but the exercise of that power by courts cannot be characterized in the mechanistic
terms of the vending-machine view. Here I would describe the powers and rights
of victims on the same lines as detailed in the discussion on the pre-judgment
period: holding the power to ask, or petition, or file for enforcement, as well as a
claim-right that the court rule on the matter according to law.
Another aspect of judgment-enforcement that the realist view on the (mediated)

power of claimants-creditors does not capture, is the nature of the judiciary’s role
in the enforcement of injunctions, of which there are many kinds.84 In tort, an
injunction is often a judicial order to refrain from certain torturous conduct.85
Enforcing an injunction on a noncompliant defendant is achieved, at least often,
through fines or imprisonment for contempt of court,86 which the court may
impose.
Contempt proceedings involve full judicial hearings.87 Thus, while a court may
decide to hold the defendant in contempt of court at the behest of the plaintiff, the
legal power to do so, as well as to impose the matching sanctions, is the court’s,
not the plaintiffs’. Plaintiffs obviously do not hold the power to directly order the
imposition of fines or the imprisonment of defendants, even if the latter fail to
comply with their judicially imposed obligations to the plaintiffs. All the claimant

81
Weinstein, Korn & Miller, 2-27 CPLR Manual § 27.07 [court authorization is often required for
the sale of a homestead]; Mathew Bender Practice Guide: CA Debt Collection 2-17 (2012) at 17.
82
NY CLS CPLR § 5225(a) (2012).
83
NY CLS CPLR § 5225 (2012).
84
See e.g. James M. Fischer, Understanding Remedies (Mathew Bender, 1999) at 244-301
[discussing various kinds of injunctions].
85
Goldberg and Zipursky, supra note 72 at 53.
86
Fischer, supra note 84 at 731-40; Ibid.
87
See e.g. Cal Civ Code § 1217.
31

is empowered to do is to initiate contempt proceedings and to petition the court to
exercise the court’s own power over the non-compliant defendant to enforce the
court’s judgment by means available to the court and within the court’s power.88
Characterizing the exercise of court power involved in contempt proceedings in

the terms of the vending-machine view falls into the same difficulties discussed
above in relation to the pre-judgment period. Succinctly put, courts make too
many errors and exercise more judgment and discretion to allow for the
characterization of their role in contempt proceedings in mechanistic terms.
Summing up, there is variety in the nature of the power that the law affords
claimants-creditors to collect their court-granted remedy. Instances of self-help,
in which claimants-creditors hold a legal power to directly take from defendants-
debtors may exist, yet do not appear to be the norm. At times, the law de facto
empowers claimants-creditors to activate or initiate the exercise of state legal
power to take from defendants-debtors. In such cases, which cohere to the
vending-machine model, the law does not grant claimants-creditors a legal power
to take, but given the realities of the judgment-enforcement mechanism involved,
the legal power to request the enforcement of a judgment at times comes with the
de facto capacity to bring about the exercise of the state’s legal power to take.
Finally, in some central types or mechanisms of judgment-enforcement the legal
as well as the practical power to take from defendants-debtors is clearly, both de
jure and de facto, mostly a state or court power.
Is the empowering of victims a core feature of tort law, or of private law more
generally? Considering the varied reality of judgment-enforcement mechanisms,
I dare say it is not. First, if we understand the notion of ‘empowering’ in its legal
sense then, considering that self-help is not a central feature of judgment-
enforcement, it follows that the law rarely empowers victims to take from
tortfeasors, even in the post-judgment period. Second, even if we expand the term
‘empowering’ to incorporate de facto power or capacity (on the lines of the
vending machine view), only some mechanism of judgment-enforcement may
grant such powers to defendants-debtors. Even in the post-judgment period,
therefore, empowering tort victims is not a defining feature of the law, even
though, unlike the pre-judgment period, it is perhaps a significant part of the
landscape.

88
For the rules in California see Mathew Bender Practice Guide: CA Debt Collection 2-22 (2012)
at 22-16.
32

Finally, even when it does arise the legal or de facto power to take from torfeasors
is much less dramatic or significant – in terms of the practical empowering of
victims – when granted in the post-judgment period than it would have been in the
period preceding judicial ruling. Once the court has ruled in favor of the plaintiff,
the de facto power then presumably granted to the plaintiff to alter the rights of
the defendant through the state’s judgment enforcing mechanism strikes me –
from a practical point of view – as little more than a power to collect one’s prize.
It is not at all clear to me that the various virtues of empowering victims that were
enumerated at the opening, equally manifest in the post-judgment period as they
would have in the prejudgment period.
Conclusion
Tort law vests certain legal powers in tort victims to seek redress through a civil
action. In this respect, tort law is indeed a law of civil recourse. The same is true
for private law more broadly. Tort victims hold the legal power to sue those
torfeasors that caused them wrongful harm, and thereby expose defendants to the
power of courts to alter litigants’ legal rights and relations; tort victims are also
privileged to decide whether or not to exercise this power. Moreover, victims’
power to initiate litigation may include the power to create, or at least to trigger or
effectuate, obligations in the court towards the litigants, thereby giving rise to a
corresponding claim-right in the litigants.
In the period following a judicial ruling, the rights and powers of victorious
claimants are more varied. First, claimants-creditors hold a similar set of rights as
they do in the pre-judgment period. Such claimants hold a right in the form of a
power – which they are privileged to exercise – to initiate/request judgment-
enforcement proceedings against noncompliant defendants-debtors. Moreover, on
occasion, claimants-creditors also hold what may be called a de facto power to
unleash the legal powers of state mechanism of judgment-enforcement. Finally,
at times defendants-debtors may even hold legal powers of self-help to take
directly from defendant-debtors. The mix of these powers may vary between
jurisdictions and among different fields of private law. My focus here was
primarily on the law of tort.
Therefore, unlike what Goldberg & Zipursky have often argued for more than a
decade now, tort victims mostly do not hold the legal power to take, obtain, force,
extract, or impose remedies on or from tortfeasors. This is true of the period
preceding judicial judgment, as well as mostly of the period following such
judgment. Although, from a realist perspective, claimants-creditors at times hold
a de facto (not legal) capacity or power to effectively bring about a change in the
rights of defendant-debtors. Thus, tort law at times empowers tort victims, but
mostly not in the way Goldberg & Zipursky believe. Not even in the post-
33

judgment period. In other words, the power of self-help is neither an essential
feature of tort law – tort law can obviously exist as tort law without this power –
nor is it even a central feature of the law – i.e., it is fairly rare even when
available. The same I assume is mostly true for private law in general.
Although my analysis is basically friendly to civil recourse theory, it comes with a

price. It is not so much my prescriptions on how to amend civil recourse theory,
replacing the concept ‘power’ with the concepts of ‘legal power,’ ‘de facto
power,’ and ‘claim-right,’ in different junctures of civil recourse theory. But
rather the realization that once amended, civil recourse theory lacks much of its
professed novelty; at least if we view civil recourse theory as a descriptive
account of the powers provided by the private law. Because under my analysis of
the rights and powers of tort victims, civil recourse theory appears much closer to
what I referred to as the ‘thin’ view of the nature of civil litigation, the rights of
litigants, and the powers of courts: basically, litigants hold the power to sue and
courts hold the power – legally and most often also practically – to rule on those
suits.
I began this paper with the claim that thinking about tort law in terms of
empowering victims is promising, even if partially only as an aspirational project.
In reality, tort law often does less than an ideal job in providing victims with a
legal tool that is practically effective in obtaining redress for the civil wrongs that
they suffer. Tort litigation is often expensive, complicated, long, and
discouraging. If tort law, or private law more generally, is indeed designed to
offer victims of private wrongs a form of recourse through private law litigation,
then that law, and the institutional and procedural frameworks it is imbedded in,
often seem poorly designed and not fully up to the job. For those who prize the
practically empowering potential of tort law, figuring out what Hohfeldian legal
rights and powers tort law affords litigants is a preliminary step. In this article I
attempted to clarify our understanding of these legal rights and powers. But once
the logic of tort law is clarified, the primary project becomes reflecting on how
and whether these formal legal rights and powers can better succeed in
empowering victims in a practically meaningful way.
When considering how tort law empowers, the novelty and importance of civil
recourse theory is found in its normatively aspirational account of how tort law,
and private law more broadly, can and should practically empower victims and of
normative benefits of this legal structure; not, as I have shown, in civil recourse’s
descriptive conceptual account of how private law empowers legally. But in order
to properly reflect on how the law can better attain the former, we must first
possess an accurate account of the latter.
34

How Tort Law Empowers: Ori J. Herstein

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

How Tort Law Empowers: Ori J. Herstein

Uploaded by

Copyright:

Available Formats

How Tort Law Empowers

The Dickson Poon School of Law

King’s College London Dickson Poon School of Law

This paper can be downloaded without charge from:

UNIVERSITY OF TORONTO LAW JOURNAL (forthcoming in Vol. 64:4, 2014)

The following realization has begun to dominate contemporary tort theory:

Electronic copy available at: http://ssrn.com/abstract=2374677

One preliminary comment: as already suggested, civil recourse theory seems at

Empowering as Aspiration

Electronic copy available at: http://ssrn.com/abstract=2374677

A second appealing effect of empowering tort victims is pacifying social unrest

Perhaps the most appealing feature of conceiving of private law in terms of

There are further possible benefits to the empowerment of victims.11 A recent

The academic focus on the practical empowerment of victims of civil wrongs,

In other passages, however, Goldberg & Zipursky (especially Zipursky whom

A concept closely related to ‘power’ is ‘liability.’ Under the Hohfeldian scheme,

The ‘Thin View’

Appearances notwithstanding, this line of reasoning does little to affect my

The Expansive View

Conditioned legal powers are common. One example involves formality

Zipursky claims that the power of victims to impose a remedy or to somehow

As claimed above, on the face of things and in contradiction to Zipursky’s notion

Mediated Power: The Vending-­‐Machine View of Courts

This picture of the workings of courts is highly mechanistic. The exercise of

The shortcomings of the “vending-machine view” begin to become apparent once

A second shortcoming of the vending-machine view is its inability to account for

Mediated Power: The Vertical View

An alternative account to the idea of a ‘mediated power’ is available. Yet I fear

Accordingly, perhaps the idea of a ‘mediated power’ is that plaintiffs hold a

Such a power entails a conceptual contradiction. It is a conceptual truth that

Claim-­‐Right Not Power

A ‘claim-right,’ like ‘power,’ is an Hohfeldian category.53 A holder of a claim-

Regardless of whether we can ascribe such hidden meaning to Goldberg &

The Legal Power of Tort Victims: Post-­‐Judgment

The notion of a ‘power to take’ is a variant of an Hohfeldian ‘legal power.’ The

Judgment-­‐Enforcement and the Rights of Claimant-­‐Creditors

Judgments are mostly enforceable, at least in principle. When a defendant fails to

Who then holds the power to effectuate or to employ these judgment-enforcing

I will only briefly touch on some central procedural features of judgment-

I do not deny the existence of judgment-enforcement mechanisms that involve

In the eventuality of a debtor’s noncompliance with a court’s judgment, the basic

California follows a similar procedure. To enforce a judgment from the debtor’s

A creditor-plaintiff may also have a debtor-defendant’s wages garnished, yet

A similar analysis is applicable to levying an execution order on a debtor. The act

Yet perhaps my analysis is overly formalistic. It is at this juncture that the

Accordingly, to my mind at least, in the case of judgment enforcing mechanism of

Another aspect of judgment-enforcement that the realist view on the (mediated)

Characterizing the exercise of court power involved in contempt proceedings in

Although my analysis is basically friendly to civil recourse theory, it comes with a

You might also like

Mediated Power: The Vending-‐Machine View of Courts

Claim-‐Right Not Power

The Legal Power of Tort Victims: Post-‐Judgment

Judgment-‐Enforcement and the Rights of Claimant-‐Creditors