The plaintiff’s power over the civil claim is problematic for both duty and cost theories. For a duty approach, the problem is that the law does not even in theory enforce the duties in question.50 A civil plaintiff is not like a public prosecutor exercising discretion over how best to advance the aims of the law.51 Rather, the plaintiff acts as a principal. Indeed our ordinary
moral discourse around litigation recognizes this fact. There are times when we recognize that the decision not to sue is praiseworthy