Private Law Theory

What has mercy to do with tort law? Discussion of mercy in relation to crime and punishment is rich and voluminous, while in-depth discussion of mercy in relation to tort law is virtually nonexistent. Yet mercy has a significance for tort law that deserves more attention than it has received; by recognizing and reckoning with this significance, we can better appreciate some fundamental drawbacks of our tort system. Here is one example of such a drawback: Tort law systematically disadvantages the merciful. It similarly disadvantages other sympathetic characters like the forgiving, the soft-hearted, the conflict-averse, those who would rather let bygones be bygones, and so on, but let’s focus on the merciful … (more)

Stephen Bero, ‘Mercy in Tort: An Introduction’ (2024) 102 (7) Texas Law Review 1599.