‘Expressivism, Corrective Justice, and Civil Recourse’

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 Journal of Tort Law 1 (2017), available at SSRN. With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J Tort L 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up. Hershovitz’s principal claim in this article is that ‘tort law is very much an expressive institution’. He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – ‘this person is entitled to be treated with dignity’ and ‘the defendant wronged the plaintiff’ – and why it is an important fact about tort law that it sends these messages … (more)

[Benjamin C Zipursky, JOTWELL, 20 February]

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