Scott Hershovitz, ‘Tort as a Substitute for Revenge’

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.

Hershovitz, Scott, Tort as a Substitute for Revenge (August 11, 2013). Philosophical Foundations of the Law of Torts, John Oberdiek (ed.), (OUP, 2014 Forthcoming).

First posted 2013-08-12 06:27:54

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