Abstract:
According to the popular civil recourse theory of torts, the purpose of the tort system is to offer victims a civilized means of redressing their wrongs. This view is based on three key assumptions: (1) civil recourse is a “just” right that empowers deserving people, (2) the right to civil recourse is triggered by the commission of a wrong, and (3) this right is unilateral and exclusive — meaning, it is free of or superior to any countervailing right of civil defense.
This book chapter not only demonstrates the errors in these assumptions, it suggests an alternative framework for understanding and explaining the tort process. While some tort claims eventually prove to be just, every tort suit actually begins as an act of aggression that always harms the party being sued. If improperly initiated, that action itself may be wrongful. Acknowledging this fact, tort law has long recognized a counterclaim for Wrongful Use of Civil Proceedings (WUCP). Under WUCP, a tort suit is wrongful when it lacks probable cause and a legitimate adjudicative objective. In essence, WUCP shows that the right to civil recourse depends not on the existence of a wrong, but rather on the plausibility and purpose of the plaintiff’s legal action. More importantly, WUCP reveals that the right to civil recourse is not unlimited. Rather, that right is burdened by a rigorous responsibility not to assert immature or unfounded claims. This duty, in turn, invests defendants with an equally prodigious right to civil defense against civil recourse. Though WUCP enforces this defensive right with a corrective remedy, less severe measures also seem warranted. Because probable cause is a prerequisite to civil recourse, plaintiffs should bear the burden of substantiating their actions from the outset, and defendants should have the power to stop such aggression before it causes more serious damage.
Calnan, Alan, Civil Defense against Civil Recourse (October 31, 2012).
First posted 2012-11-04 09:04:17
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