According to conventional wisdom, the tort system is a hallowed place where injured victims receive their venerable day in court so they can right the wrongs committed against them. Despite the poignancy of this account, it is merely an idyllic assumption. The indisputable truth is, every tort claim begins as an unproven accusation of responsibility with an unconditional demand for satisfaction. Once filed in court, that claim becomes an even more belligerent tort action, which commences a strategic campaign of coercive maneuvers. Indeed, stripped of its noble veneer, such an action is simply the disgruntled person’s as-yet unjustified attack against the object of her wrath to compel the latter’s submission. Like any personal assault, this aggressive measure poses a significant threat to the liberty of its recipient. Yet a tort action is even more troubling, since it brandishes state authority, targets an unwitting and unwilling subject, and harms that subject even if she emerges victorious.
In my forthcoming book “The Right to Civil Defense in Torts,” I explore the historical, theoretical, practical, and constitutional dimensions of this scheme. Given the public hazard of the tort process, I reach the explosive conclusion that all civil defendants enjoy a due process right against such litigation so long as it remains unsubstantiated. This right accounts for the very existence of both tort law and procedure, which establish the normative and formal obstacles to seeking recourse against one’s adversaries. While current requirements offer adequate protection in some tort actions, they fall far short in negligence cases, where both the defendant’s duties and the plaintiff’s enforcement powers are inherently circumstantial, extremely flexible, and highly unpredictable. The book solves this problem by proposing a groundbreaking procedure that finally provides the necessary justification for a plaintiff’s right to sue for negligence. Because this right, and the right to recourse more generally, is defined, limited, and counterbalanced by the right to civil defense, the current project reveals the fatal deficiencies of the patently one-sided civil recourse theory of torts while also laying the groundwork for a more robust theory of liberal justice.
The book’s first chapter — entitled “The Incivility of Civil Litigation” — offers a detailed overview of the entire work, including more specific explanations of the issues noted above.
Calnan, Alan, The Right to Civil Defense in Torts: Chapter 1 – The Incivility of Civil Litigation (July 3, 2012). A. Calnan, THE RIGHT TO CIVIL DEFENSE IN TORTS, Forthcoming.