Scott Hershovitz, ‘What Does Tort Law Do? What Can It Do?’

From the start, our questions have been: What warrants treating Alice differently than Betty? What is tort trying to do when it empowers Alice to claim compensation? In revenge, we have found our answers. A tort suit is not an act of revenge. But it aims to do the same thing that people taking revenge aim to do. That is, a tort suit aims to render wrongdoer and victim even in respect of the wrong. This means that philosophers are right to think that tort treats Alice differently than Betty because Alice was wronged. Alice and Alice alone has reason to get even. And philosophers are right to say that tort empowers Alice with a claim to compensation so that she may demand corrective justice. But they are mistaken about the way that tort law does corrective justice. Tort doesn’t do corrective justice by reversing wrongful transactions or putting victims in the position they would have been in absent the wrong. It does corrective justice the only way it can be done — performatively. And the question whether it succeeds depends on whether the remedies that courts award are sufficient to make their performances persuasive …

Scott Hershovitz, What Does Tort Law Do? What Can It Do?, 47 Valparaiso University Law Review 99 (2012).

First posted 2013-06-30 06:58:06

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