Anthony Sangiuliano (York University – Osgoode Hall Law School) has posted Fair Labelling and Social Justice Tort Theory (Journal of Tort Law, forthcoming) on SSRN. Here is the abstract:
Modern scholarship on social justice tort theory has a predominately deconstructive orientation, critiquing how tort doctrines disadvantage marginalized groups or perpetuate social subordination. This article introduces a constructive theoretical method for deploying tort law as a tool for advancing social justice that invokes the principle of fair labelling, which informs the individuation and naming of criminal offences, but whose potential for creating new tort causes of action has been underappreciated. According to this method, even if a plaintiff might arguably be entitled to a remedy for commission of a private wrong that is partially captured by an existing cause of action that, if the specific way the wrong is committed also undermines a public or constitutional value, such as social equality, courts may recognize and distinctively name a new subspecies of cause of action to expressively vindicate that value. I argue that this method is extricable from two recent Supreme Court of Canada judgments concerning the creation of new torts. Its legitimacy is also supported by familiar features of tort law that serve an expressive or vindicatory function, namely, rights of action and damage awards.
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