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