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 paper 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 the right to sue only to victims protects wrongdoers from liability and results in under-enforcement. Against this backdrop, this paper 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 is more likely to be incentivized to sue by prospects of compensation. Extending the power to sue to the ‘cheapest compensation seeker’ would resolve chronic problems of under-deterrence. As the paper further shows, this solution outperforms other enforcement mechanisms currently applied by the legal system and is consistent with recent developments in tort law.
Guttel, Ehud and Harel, Alon and Lavie, Shay, Torts for Non-Victims: The Case for Third-Party Litigation (October 29, 2017). University of Illinois Law Review, volume 2018, no 3, 2018 forthcoming.