Torts for nonvictims: The case for third-party litigation

Ehud Guttel, Alon Harel, Shay Lavie

Research output: Contribution to journalArticlepeer-review

5 Scopus citations

Abstract

Under the law, the power to sue and collect damages is granted exclusively to victims, namely to those who can show that their interests were set back by others' behavior. By contrast, the law is much more generous in identifying defendants. A defendant can be liable for no reason other than that she is the "cheapest cost avoider." This Article questions the axiomatic equation of plaintiffs with victims. Information hurdles, as well as strategic concerns, commonly render victims unable or unwilling to litigate. Accordingly, in many cases, the restriction of granting the right to sue only to victims protects wrongdoers from liability and results in under-enforcement. Against this backdrop, this Article argues that this problem can be remedied by extending the right to sue to individuals who are not victims. Precisely as the identity of defendants rests upon policy considerations, so the identity of plaintiffs should rest upon who the prospect of compensation is more likely to in-centivize to sue. Extending the power to sue to the "cheapest compensation seeker" would resolve chronic problems of under-deterrence. As the Article further shows, this solution outperforms other enforcement mechanisms currently applied by the legal system and is consistent with recent developments in tort law.

Original languageAmerican English
Pages (from-to)1049-1090
Number of pages42
JournalUniversity of Illinois Law Review
Volume2018
Issue number3
StatePublished - 2018

Bibliographical note

Publisher Copyright:
© 2018 University of Illinois College of Law. All rights reserved.

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