Friday, August 16, 2013
Scott Hershovitz (Michigan) has posted two pieces to SSRN. First up is this year's Monsanto Lecture: What Does Tort Law Do? What Can it Do?. The abstract provides:
It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.
In this essay (delivered as the 2012 Monsanto Lecture at Valparaiso University School of Law), I argue that tort is concerned with those injuries and invasions because it aims at corrective justice, not efficiency. But I contend that the corrective justice tort pursues is not best understood on an Aristotelian model, which requires that wrongful transactions be reversed. Rather, I argue, tort pursues corrective justice in much the same way that revenge does — by offering a performance aimed at persuading us that victim and wrongdoer are even in respect of the wrong.
Next is Tort as a Substitute for Revenge. The abstract provides:
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.