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Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

J. of Tort Law Vol. 10, Forthcoming

U of Michigan Public Law Research Paper No. 570

64 Pages Posted: 17 Oct 2017 Last revised: 1 Nov 2017

Scott Hershovitz

University of Michigan Law School

Date Written: October 16, 2017

Abstract

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law.

In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

Keywords: Tort Law, Corrective Justice, Revenge, Battery, Negligence, Strict Liability, Tort Reform, Expressive Function of Law

JEL Classification: K13

Suggested Citation

Hershovitz, Scott, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law (October 16, 2017). J. of Tort Law Vol. 10, Forthcoming; U of Michigan Public Law Research Paper No. 570. Available at SSRN: https://ssrn.com/abstract=3054163

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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