Wednesday, November 21, 2018
Maria Guadalupe Martinez Alles has posted to SSRN Tort Remedies as Meaningful Responses to Wrongdoing. The abstract provides:
Tort theorists’ unceasing efforts to draw a clear-cut line between tort law (i.e., private law) and criminal law (i.e., public law) has cabined the understanding of tort remedies as private responses to wrongdoing which are predominantly compensatory. The practice of awarding additional damages contradicts this view. It indicates that in fact tort remedies represent substantive responses to wrongdoing that may involve private and public aspects which may or may not be compensatory. An example of this mismatch between practice and theory is observable in the dialogue between court decisions and scholars where it is openly acknowledged that the practice of awarding damages in tort cases actually represents punitive motives that judges camouflage under classic compensatory labels and the correlative reaction by tort theorists who counter with arguments for a reduction-to-compensation approach to those punitive elements. Against this backdrop, I argue in this article that, in order to properly channel tort victims’ substantive responses to wrongdoing, the time is ripe for revising the classic private understanding of tort remedies to take into account not only the central role of holistic considerations of the circumstances of the wrongdoing and the significance and meaning that the wrongdoing holds for the private parties in tort cases, but also the advantages of providing victims with a legitimate avenue for voicing the private and public values affected by the particular instances of wrongdoing.