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Tort as a Substitute for Revenge

Philosophical Foundations of the Law of Torts, John Oberdiek (ed.), (OUP, 2014 Forthcoming)

U of Michigan Public Law Research Paper No. 348

29 Pages Posted: 11 Aug 2013 Last revised: 17 Sep 2013

Scott Hershovitz

University of Michigan Law School

Date Written: August 11, 2013

Abstract

In 1870, William Alcorn sued Andrew Mitchell for trespass. His suit did not go well, and at the end of trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1000, which the Illinois Supreme Court approved on the ground that awarding “liberal damages . . . save[d] the necessity of resort to personal violence as the only means of redress.” In the Court’s view, Alcorn had to pay so that Mitchell would not have to strike back.

The idea that tort suits substitute for revenge is still with us today. But it is not clear how the substitution is supposed to work. Taking Alcorn v. Mitchell as a template, I argue that the primary reason for regarding tort as a substitute for revenge is that both are tools for doing corrective justice. Along the way, I develop and defend a communicative conception of corrective justice, and I argue that tort and revenge share similar expressive aims.

Keywords: tort, revenge, alcorn v. mitchell, corrective justice, punitive damages, compensatory damages

JEL Classification: K13

Suggested Citation

Hershovitz, Scott, Tort as a Substitute for Revenge (August 11, 2013). Philosophical Foundations of the Law of Torts, John Oberdiek (ed.), (OUP, 2014 Forthcoming); U of Michigan Public Law Research Paper No. 348. Available at SSRN: https://ssrn.com/abstract=2308590

Scott Hershovitz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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