Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by ‘transsubstantive’ rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an ‘interpretive’ methodology that commits it to deeming those procedural features a ‘basic’ part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the ‘pragmatic’ desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.
Shapiro, Matthew A, Civil Wrongs and Civil Procedure (March 1, 2019). Civil Wrongs and Justice in Private Law (Paul B Miller and John Oberdiek eds, Oxford University Press, forthcoming).