Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine Be Revived to Dent the Litigation Crisis?

Few stories have more power to outrage than that of Bernard McCummings, the "millionaire mugger" who was awarded $4.3 million by a jury after he was shot by a police officer allegedly using excessive force. This Article focuses on an equitable doctrine which could bar recovery in cases like that of McCummings and, potentially, in a much broader range of cases. The equitable doctrine, "ex turpi causa non oritur actio," means essentially that a person who has committed an illegal or immoral act may not bring a lawsuit. This Article examines how the doctrine is applied in selected western common law jurisdictions (Australia, England, Canada, New Zealand, and the United States), and makes the determination that it should not be used in an attempt to blunt the litigation crisis in the United States or in other western common-law nations.

The author concludes that this doctrine leads courts to focus improperly upon the punctilios of the plaintiff rather than the public policy factors that should underlie a reasoned assignment of legal responsibility.