Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence

Most survivors of gender-based violence do not sue their perpetrators in tort because they cannot find attorneys to take their cases. Attorneys who charge contingent fees find these cases financially unappealing. The cases are unlikely to result in substantial collectible judgments because of insurance policy exclusions, laws that protect tortfeasors’ assets, and, at times, insufficient damages. Yet empirical evidence reveals that survivors do not seek to use the tort system to achieve compensation, but rather accountability, revenge, empowerment, and deterrence. Civil recourse theory suggests that their cases belong in the tort system, even assuming the absence of substantial collectible judgments.

This article proposes a market-based solution to improve access to  justice. It recommends the development of legal expense insurance for victims of intentional torts to the person. “Civil recourse insurance” would provide the insured with an attorney to pursue a meritorious tort claim, even if it would not result in a large collectible judgment. Civil recourse insurance appears to be commercially viable. It would avoid the moral hazard and adverse selection problems that have stymied other insurance proposals to address survivors’ needs. The article also recommends governmental action that would assure the commercial success of this product; it suggests that civil recourse theory itself supports such governmental action.