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Journal of Tort Law

Founded by Coleman, Jules

Editor-in-Chief: Robinette, Christopher

Editorial Board: Geistfeld, Mark A / Goldberg, John / Perry, Ronen / Sharkey, Catherine M. / Witt, John / Zipursky, Benjamin

CiteScore 2018: 0.50

SCImago Journal Rank (SJR) 2018: 0.415
Source Normalized Impact per Paper (SNIP) 2018: 2.042

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Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

Scott Hershovitz
Published Online: 2018-09-21 | DOI: https://doi.org/10.1515/jtl-2017-0004


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; expressive function; corrective justice; revenge

Professor of Law and Professor of Philosophy, University of Michigan, Ann Arbor. Thanks to Lynn Baker, Mitch Berman, Guido Calabresi, Sherman Clark, Jules Coleman, Hanoch Dagan, Chris Essert, Jim Fleming, Rich Friedman, Mark Geistfeld, John Goldberg, Don Herzog, Keith Hylton, Greg Keating, Gabe Mendlow, Bill Miller, Andrew Podrygula, Ariel Porat, Richard Primus, Carol Rose, Jed Rubenfeld, Larry Sager, Zoe Sinel, Scott Shapiro, Seana Shiffrin, Henry Smith, Ernie Weinrib, Sean Williams, John Witt, Kathy Zeiler, and Ben Zipursky for helpful comments and conversations. Thanks also to an anonymous reviewer for this journal, as well as audiences at BU, Harvard, Michigan, Tel Aviv, Texas, Western, Wharton, and Yale.

About the article

Published Online: 2018-09-21

Published in Print: 2018-09-25

Citation Information: Journal of Tort Law, Volume 10, Issue 2, Pages 405–447, ISSN (Online) 1932-9148, DOI: https://doi.org/10.1515/jtl-2017-0004.

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