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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 June 2021

Civil Wrongs and Civil Procedure

Civil Wrongs and Civil Procedure

(p.87) 5 Civil Wrongs and Civil Procedure
Civil Wrongs and Justice in Private Law

Matthew A. Shapiro

Oxford University Press

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.

Keywords:   civil wrongs, civil procedure, civil recourse, corrective justice theories, tort law, civil litigation

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