On March 16, Scott Hershovitz, Professor of Law and Philosophy at the University of Michigan, delivered the second Tort Law Research Group Public Lecture of the 2014-15 academic year. Hershovitz proposed that revenge, not corrective justice, not deterrence, and not compensation, is the key to understanding tort law. This is because, like revenge, tort law performs the straightforward expressive function of saying that this defendant wronged this plaintiff.
Reflecting on the famous 19th century case of Alcorn v Mitchell, Hershovitz explained that the generous award of vindictive damages in that case can be seen as a substitute for revenge. The facts in Alcorn v Mitchell were these: following the resolution of an earlier lawsuit in Alcorn’s favour, Mitchell spat in Alcorn’s face, and while the courtroom crowd demanded that Alcorn kill Mitchell on the spot, Alcorn sued him for battery instead. Hershovitz accepted that intentional torts could no longer be considered typical or common in modern tort law and so suggested that even the law of negligence embodies the concept of revenge. In discussing the law of negligence, he focused on the devastating injuries suffered by Rosa Kresin when she was negligently run over by a Sears employee, Alfredo Jijon. Kresin was awarded 16.5 million dollars. Because the accident left Kresin permanently and catastrophically disabled it would, according to Hershovitz, be absurd to think that these damages, no matter how high, could somehow make her whole again or put her back in her pre-wrong position. Instead, damages, according to Hershovitz, function as a symbolic marker: expressing that the way in which Kresin was treated by Jijon was wrong. The message of a defendant’s negligent wrongdoing is “I don’t have to watch out for you.” A finding of liability coupled with a damage award sends the counter-message: “Yes, you do have to watch out for me.”
Professor Hershovitz, a Rhodes Scholar and former law clerk for Justice Ruth Bader Ginsburg of the US Supreme Court, teaches and writes about jurisprudence and tort law. His publications include "The Model of Plans and the Prospects for Positivism" (Ethics, 2014), "The Role of Authority" (Philosophers' Imprint, 2011), "Harry Potter and the Trouble with Tort Theory" (Stanford Law Review, 2010), and "Two Models of Tort (and Takings)" (Virginia Law Review, 2006). His forthcoming work includes "The End of Jurisprudence" (Yale Law Journal, 2015).
The Tort Law Research Group’s public lecture series is generously sponsored by Legate and Associates LLP, a firm that uses a client-centred team approach focused on getting to know each client and assuring that he or she feels empowered. Founding lawyer Barbara Legate, a graduate of Western Law, has argued significant cases in a wide variety of situations, from administrative tribunals to the Ontario Court of Appeal. She was recently named 2014 Lawyer of the Year in Personal Injury Litigation.