DOCSLIB.ORG

Punitive Damages: Divergence in Search of a Rationale

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Punitive Damages: Divergence in Search of a Rationale TSpace Research Repository tspace.library.utoronto.ca Punitive Damages: Divergence in Search of a Rationale Bruce Chapman and Michael Trebilcock Version Publisher's version Citation Bruce Chapman & Michael Trebilcock, "Punitive Damages: Divergence (published version) in Search of a Rationale" (1989) 40 Alabama Law Review 741 Publisher’s Statement Bruce Chapman & Michael Trebilcock, "Punitive Damages: Divergence in Search of a Rationale" (1989) 40 Alabama Law Review 741 Copyright © [1989]. Reprinted by permission of Alabama Law Review. How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. PUNITIVE DAMAGES: DIVERGENCE IN SEARCH OF A RATIONALE Bruce Chapman* Michael Trebilcock** TABLE OF CONTENTS 1. INTRODUCTION: THE GENERAL PUZZLE OF PUNITIVE DAMAGES'. ............................ .. ....... .. 742 II. THE EVOLUTION OF THE LAW ON PUNITIVE DAMAGES.. 745 A. Developments in the United Kingdom: Restricting Punitive Damages .............. .. 745 B. Canadian Developments: A Cautious Expansion of Punitive Damages ...................... .. 750 C. Developments in the United States: Substantial Expansion of the Scope of Punitive Damages. 758 D. Divergence in Search of a Rationale. ....... .. 761 III. THE COMPENSATION RATIONALE ... .. 761 A. First-Order Issues. ........................ .. 761 1. Types of Proscribed Conduct ........... .. 761 2. Quantum of Punitive Damages 769 B. Second-Order Design Issues. ............... .. 774 ~, 1. Vicarious and Corporate Liability. ...... .. 774 I 2. Insurability............................. 777 3. The Relevance of Defendant's Wealth. .. .. 777 4. Special Procedural Protections '. 778 IV. THE RETRmUTIVE RATIONALE.... .. 779 * Assistant Professor of Law, University of Toronto. ** Professor of Law and Director of the Law and Economics Program, University of Toronto. This study was sponsored by the Ontario Law Reform Commission, whose financial assistance is gratefully acknowledged. However, the views expressed herein are not to be attributed to the Commission. In addition to the invaluable research assistance of James Penner and Paula Hurwitz, we gratefully acknowledge helpful comments from Alan Brudner, John Jeffries, John Palmer, Harold See, and Stephen Waddams. 741 Electronic copy available at: http://ssrn.com/abstract=1156859 742 Alabama Law Review [Vol. 40:3:741 1989] Divergent Rationales 743 A. First-Order Issues. ........................ .. 779 what the defendant pays as damages must go to the plaintiff as 1. Proscribed Conduct : . .. 779 compensation, and adequate activity level incentives to avoid ex a. A Third Kind of Wrongdoing? ...... .. 780 ante the costly interactions between the two parties require some­ b. Private Enforcement of Retribution: thing other'than the zero sum game that tort law characteristically The Argument from Administrative provides ex post? This strictly economic approach to a problem is Efficiency ......................... .. 786 one that presupposes only the singular policy concern of optimal 2. Quantum of Damages : ..... .. 797 accident deterrence in the very particular context of tort law." We B. Second-Order Design Issues. ............... .. 7.98 should expect these difficulties to be that much greater if we are 1. Vicarious Liability. .................... .. 798 trying to combine within a single action for punitive damages the 2. Insurability............................. 801 quite different types of concerns that typically inform tort and 3. The Relevance of Defendant's Wealth. .. .. 801 criminal law. 4. Special Procedural Protections 804 The specific puzzle in an action for punitive damages is in ex­ V. THE DETERRENCE RATIONALE : .. .. 805 plaining the characteristic focus of the action on the quality of the A. First-Order Issues: Types of Conduct Addressed defendant's conduct, and in particular on whether the defendant's and Sanctions Imposed. ................... .. 806 conduct was "wilfully," "maliciously," or otherwise "outrageously" 1. Criminal Conduct 808 wrong, while at the same time providing an explicit role for the 2. Tortious Conduct. ..................... .. 811 plaintiff as an enforcer of the law." Sometimes we find ourselves a. Intentional Torts. ................. .. 811 b. Negligence. ....................... .. 812 c. Strict Liability .................... .. 817 1. See S. SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987) [hereinafter S. SHAVELL, ECONOMIC ANALYSIS]; Shavell, Strict Liability versus Negligence, 9 J. LEGAL STUD. 3. Breach of Contract 818 1, 19 (1980) (Proposition 5). According to Shavell, B. Second-Order Design Issues. ............... .. 819 one is led to ask whether there exists any conceivable liability rule that always results 1. Vicarious Liability. .................... .. 819 in optimal levels of activities. The answer is no.: The reason, in essence, is that for injurers to choose the correct level of their activity they must bear accident losses, 2. Insurability............................. 821 whereas for victims to choose the correct level of their activity they too must bear 3. The Relevance of Defendant's Wealth. .. .. 822 accident losses. Yet injurers and victims cannot each bear accident losses. 4. Special Procedural Protections 825 S. SHAVELL, ECONOMIC ANALYSIS, supra, at 29. VI. CONCLUSION..................................... 826 Of course, alternatives to tort law litigation, which provide for negative sum games ex post (e.g., regulatory fines or taxes), could help to solve this problem. 2. We do not mean to suggest that economic analysis of law is unconcerned with the other possible goals of tort law. It has much to say, for example, about the optimal provision 1. INTRODUCTION: THE GENERAL PUZZLE OF PUNITIVE DAMAGES of insurance for accident costs that cannot be avoided. Our point here is only to argue that whatever further goals are added, a single action in tort will in general be unable to provide Punitive damages lie at the interface between torts and crimi­ adequately for deterrence of both the victim and the injurer at the activity level. As it hap­ pens, combining deterrence with insurance only compounds the difficulties for tort. See nallaw. While the separation between any two substantive areas of generally Trebilcock, The Social Insurance-Deterrence Dilemma of Modern North Ameri­ law is always somewhat artificial, there is, nevertheless, good rea­ can Tort Law: A Canadian Perspective on the Liability Insurance Crisis, 24 SAN DIEGO L. son to be skeptical that any single legal institution can provide us REV. 929 (1987) [hereinafter Trebilcock, The Social Insurance-Deterrence Dilemma]. with a coherent response to the quite different concerns that ani­ 3. It is commonplace to point to the anomaly of allowing the plaintiff to recover as damages what the defendant must pay as a penalty. See, e.g., J. FLEMING, THE LAW OF mate the law relating to tort and crime. In fact, economists have TORTS 566-68 (7th ed. 1987); S.M WADDAMS, THE LAW OF DAMAGES para. 985 (1983); Cooter, recently argued that a'single tort action is incapable of providing Economic Analysis of Punitive Damages, 56 S. CAL. L. REV. 79, 90 & n.9 (1982) [hereinafter, adequate incentives, at both the care and activity levels, for both Cooter, Economic Analysis]; Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S. CAL. L. REV. 1, 10-11 (1982) [hereinafter Ellis, Fairness and Efficiency]. For judicial the defendant and the plaintiff to avoid the costly interactions that articulation of the anomaly, see Lord Reid's opinion in Cassell & Co. v. Broome, [1972] App, happen to link them. This is because in a private law tort action, Cas. 1027, 1086 (H.L.). Electronic copy available at: http://ssrn.com/abstract=1156859 744 Alabama Law Review [VoL 40:3:741 1989] Divergent Rationales 745 looking at the defendant, and sometimes at the plaintiff, but rarely Cooter in his earlier article on punitive damages" can be usefully at the two together as the private law form of the action really' dissected into subcomponents to reveal a richer array of very par­ requires. It all depends, it seems, on whether we emphasize the ticular implications that vary according to context. At the action as one for punitive damages, or as one for punitive dam­ conclusion of our analysis of punitive damages under the different ages. While these two are obviously the same in some sense, the rationales, we will provide a summary matrix of the different im­ different points of emphasis reveal them to be very different, too. plications of all the rationales for both the first and second-order And therein lies the source of our continued puzzlement. issues." This matrix, we think, provides some understanding for This puzzle takes on a different complexion depending upon why it is generally believed that the law on punitive damages is not which of the various rationales or perspectives one uses to under­ now developing in a sufficiently single-minded or coherent fashion. stand .punitive damages. In this Article, after a general No single legal institution can be responsive to the requirements of comparative
Load more

Recommended publications
  • Tort Recovery for Loss of a Chance David A
    University of Missouri School of Law Scholarship Repository Faculty Publications Fall 2001 Tort Recovery for Loss of a Chance David A. Fischer University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Torts Commons Recommended Citation David A. Fischer, Tort Recovery for Loss of A Chance, 36 Wake Forest L. Rev. 605 (2001) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. TORT RECOVERY FOR LOSS OF A CHANCE David A- Fischer- "Loss of a chance" is a novel theory of causation commonly used by courts in the United States in medical misdiagnosis cases. Yet, the theory has a vastly broader potential application than this. In fact, it could be applied in virtually every case of questionable causation. While this Article asserts that the doctrine could legitimately be expanded and applied in a variety of additionalsituations, the Article cautions that it would be unwise to apply the doctrine so broadly that it routinely supplants traditional causation rules. The Article searches for a principled basis for limiting the theory within proper bounds by comparing the differing applicationsof the loss of a chance doctrine in British Commonwealth cases and United States cases. The Article concludes that current rationalesfor the doctrine do not provide an adequate limiting principle, but that a case by case policy analysis can appropriatelylimit the theory.
    [Show full text]
  • "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions
    University of Michigan Journal of Law Reform Volume 11 1977 Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions Harold J. Rennett University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Civil Rights and Discrimination Commons, Legal Remedies Commons, and the Torts Commons Recommended Citation Harold J. Rennett, Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions, 11 U. MICH. J. L. REFORM 122 (1977). Available at: https://repository.law.umich.edu/mjlr/vol11/iss1/8 This Note is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEVELOPING "TORT" STANDARDS FOR THE AWARD OF MENTAL DISTRESS DAMAGES IN STATUTORY DISCRIMINATION ACTIONS Affronts to dignity are compensable by monetary damages for "mental distress" 1 through various tort actions.2 Some courts recently have rec­ ognized significant similarities between the emotional injury suffered by victims of such "dignitary"3 torts and the emotional injury suffered by persons aggrieved under federal and state discrimination statutes.4 In­ creasingly, victims of discrimination have sued successfully under these statutes for mental distress damages.5 1 "Mental distress" takes many forms and is referred to by many names. The injury discussed in this article is primarily one that is not caused by physical injury.
    [Show full text]
  • Emotional Harm in Housing Discrimination Cases: a New Look at a Lingering Problem Victor M
    Fordham Urban Law Journal Volume 30 | Number 3 Article 17 2003 Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem Victor M. Goode City University School of Law Conrad A. Johnson Colombia University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Housing Law Commons Recommended Citation Victor M. Goode and Conrad A. Johnson, Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem, 30 Fordham Urb. L.J. 1143 (2003). Available at: https://ir.lawnet.fordham.edu/ulj/vol30/iss3/17 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem Cover Page Footnote Victor M. Goode is an Associate Professor of Law, City University School of Law; B.A., Northwestern University; J.D., Rutgers Newark School of Law. I would like to thank the dedicated staff of the Open Housing Center of New York with whom I have served as a Board member for the last eight years and whose work to end housing discrimination helped inspire this Article. Conrad A. Johnson is a Clinical Professor of Law, Columbia University School of Law; B.A., Columbia University; J.D., Brooklyn Law School.
    [Show full text]
  • The Puzzle of the Dignitary Torts Kenneth S
    Cornell Law Review Volume 104 Article 2 Issue 2 January 2019 The Puzzle of the Dignitary Torts Kenneth S. Abraham University of Virginia School of Law Edward White University of Virginia School of Law Follow this and additional works at: https://scholarship.law.cornell.edu/clr Part of the Torts Commons Recommended Citation Kenneth S. Abraham and Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317 (2019) Available at: https://scholarship.law.cornell.edu/clr/vol104/iss2/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE PUZZLE OF THE DIGNITARY TORTS Kenneth S. Abraham & G. Edward Whitet In recent years, there has been much greater legal atten- tion paid to aspects of dignity that have previously been ig- nored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular,certain forms of tort liability are imposed in order to protect individual dignity of various sorts and compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonmentfall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express atten- tion in tort cases or torts scholarship. The absence of a ro- bustly-articulatedconception of the interest in dignity that tort law protects is puzzling.
    [Show full text]
  • Tort, Speech, and the Dubious Alchemy of State Action
    TORT, SPEECH, AND THE DUBIOUS ALCHEMY OF STATE ACTION Cristina Carmody Tilley∗ ABSTRACT Plaintiffs have historically used defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court reimagined these private law torts as public law causes of action that explicitly privileged speech over dignity. This Article claims that Sullivan was a misguided attempt at alchemy, manipulating state action doctrine to create more of a precious commodity—speech— while preserving a tort channel for the most deserving plaintiffs. In Sullivan the Court departed from its usual practice of narrowly defining the relevant state action in constitutional challenges to private law matters. Instead, it defined state action to include not just the isolated verdict being appealed but the entirety of the private law that produced the questionable verdict. This approach aggrandized the Court’s authority to “fix” private law in the dignitary tort arena, where it seemed to fear that insular communities could chill important news coverage by imposing parochial norms onto the national community. The Court used its enhanced remedial authority to design a national constitutional common law of dignitary tort. In the quasi-statutory scheme that emerged, the Court attempted to strike an ex ante balance between valuable speech and wrongful behavior by conditioning liability on different scienter requirements for different categories of plaintiff. But the Sullivan project is rapidly failing. Operationally, insignificant but injurious speech such as revenge porn has flourished under the Court’s brittle categorization matrix. Conceptually, the private law message that speakers owe some duty to those they discuss has been supplanted with a public law message that they have no duty of care.
    [Show full text]
  • Attorney's Fees, Nominal Damages, and Section 1983 Litigation
    Digital Commons @ Georgia Law Scholarly Works Faculty Scholarship 3-1-2016 Attorney’s Fees, Nominal Damages, and Section 1983 Litigation Thomas A. Eaton University of Georgia School of Law, [email protected] Michael Wells University of Georgia School of Law, [email protected] Repository Citation Thomas A. Eaton and Michael Wells, Attorney’s Fees, Nominal Damages, and Section 1983 Litigation , 24 Wm. & Mary Bill Rts. J. 89 (2016), Available at: https://digitalcommons.law.uga.edu/fac_artchop/1066 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. ATTORNEY'S FEES, NOMINAL DAMAGES, AND SECTION 1983 LITIGATION Thomas A. Eaton and Michael L. Wells Can plaintiffs recover attorney's fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely re- duced fee, should be awarded in such circumstances. This position, which we call the "low award, low fee" approach, rests primarily on the Supreme Court's 1992 opinion in Farrarv. Hobby. We argue that a "low award, low fee" approach is misguided for two main reasons. First, the majority opinion in Farraris fragmented, and the factual record is opaque regarding what and how the plaintiff's constitutional rights were violated. These com- plexities render Farrara poor case upon which to frame a rule regarding the relation- ship between damage awards and the proper calculation of attorney's fees.
    [Show full text]
  • The Puzzle of the Dignitary Torts
    \\jciprod01\productn\C\CRN\104-2\CRN203.txt unknown Seq: 1 23-APR-19 8:33 THE PUZZLE OF THE DIGNITARY TORTS Kenneth S. Abraham & G. Edward White† In recent years, there has been much greater legal atten- tion paid to aspects of dignity that have previously been ig- nored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular, certain forms of tort liability are imposed in order to protect individual dignity of various sorts and compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment fall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express atten- tion in tort cases or torts scholarship. The absence of a ro- bustly-articulated conception of the interest in dignity that tort law protects is puzzling. Why have notions of dignity and dignitary torts been little more than labels, reflecting a value that has gone unanalyzed and undebated, despite its obvious and growing importance? The answers to these questions lie in the structure of the common law of torts, the history of twentieth-century tort law scholarship, the jurisprudence of doctrinal boundaries, and—perhaps, surprisingly—develop- ments in constitutional law during the last four decades of the twentieth century. In the first analysis of the dignitary torts as a whole in half a century, this Article explores the puzzle of the dignitary torts. It argues that these torts have been under- theorized because of the very nature of the common law sys- tem, which poses a powerful obstacle to any doctrinal re- orientation of tort law toward the understanding or creation of a unified species of dignitary torts.
    [Show full text]
  • Addressing Negligence Claims for Pure Reputational Harm
    Fordham Law Review Volume 83 Volume 83 Issue 1 Volume 83, Issue 1 Article 8 2014 Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm Bryson Kern Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Bryson Kern, Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm, 83 Fordham L. Rev. 253 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol83/iss1/8 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. REPUTATIONAL INJURY WITHOUT A REPUTATIONAL ATTACK: ADDRESSING NEGLIGENCE CLAIMS FOR PURE REPUTATIONAL HARM Bryson Kern* This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation. When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for handling the claim.
    [Show full text]
  • The Case of Informed Consent, 2015 BYU L
    BYU Law Review Volume 2015 | Issue 1 Article 4 February 2015 Rethinking Injury: The aC se of Informed Consent Erin Sheley Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Torts Commons Recommended Citation Erin Sheley, Rethinking Injury: The Case of Informed Consent, 2015 BYU L. Rev. 63 (2015). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2015/iss1/4 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. DO NOT DELETE 11/18/2015 2:12 PM Rethinking Injury: The Case of Informed Consent Erin Sheley* ABSTRACT This article argues that the traditional debates between the expressive and compensatory views of tort law ignore the way in which an injury may itself have an expressive component, one that in turn increases the extent of physical harm suffered by a victim. I take up the example of informed consent in the medical malpractice context to show how an excessively narrow idea of physical harm has negative consequences for tort law in general. In these situations, when a physician performs a procedure without providing the patient with sufficient information, we can better understand the harm that occurs through a combination of civil recourse theory and new insights from the field of narrative medicine. Under the current regime, the effort to cabin potential liability for physicians’ well-intended conduct has resulted in a disconnect between a negligence standard—with its requirement of strictly physical injury—and the actual harm in question, which has historically been recognized as at least partially dignitary.
    [Show full text]
  • Joyce 1 Pager Final
    Start with winning points: “A jury would likely find X liable to Y for subject unless gathered at cost and sold as commodity— Adults: Objective standard; Knowledge & experience of an 2. Breach of the duty of care: Must show what in fact happened Z. Z occurs when...” ; move to borderline issues where triers of formulated w/ inventive genius & labor; Π may have property ordinary reasonable person, NOT Δ’s own traits and from those facts that Δ acted unreasonably; can be shown by fact could go either way: a. what’s the majority rule? B. Why could returned under remedy of replevin Direct or Circumstantial evidence: **Res Ipsa Loquitur: Thing causing these facts result in more than one result?; c. Where does this Children held to age, intelligence, & maturity-matched standard injury was under Δ’s control; Event causing injury would not have case fall on the dispute?; d. ; then fringe issues where facts Defenses to Intentional Tort: Privileges *Distinct from immunities unless engaged in activity usual exclusive to adults occurred but for Δ’s negligence in an ordinary course of events; require hypothesis - privileges arise from circumstances / immunities arise from minority: Neither Π nor third party contributed to the injury*Can also person’s status Physical disabilities standard is “reasonable person with the be used against multiple Δs when injuring party unknown; Application: lntentional Torts-EVERYONE can form intent Consent: Δ can reasonably believe that Π has consented to Δ’s disability”; mental disability=reasonable person standard Majority: Res Ipsa warrant an inference of negligence that the fact- NO required actual injury: Battery; Assault; FI; Tres to Land actions Express-words used; Implied: a.
    [Show full text]
  • The Anatomy of Emotional Distress Claims in Minnesota Michael K
    William Mitchell Law Review Volume 19 | Issue 1 Article 1 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson Mitchell Hamline School of Law, [email protected] Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Part of the Torts Commons Recommended Citation Steenson, Michael K. (1993) "The Anatomy of Emotional Distress Claims in Minnesota," William Mitchell Law Review: Vol. 19: Iss. 1, Article 1. Available at: http://open.mitchellhamline.edu/wmlr/vol19/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Steenson: The Anatomy of Emotional Distress Claims in Minnesota William Mitchell College of Law Mitchell Open Access Faculty Scholarship 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson William Mitchell College of Law, [email protected] Publication Information 19 William Mitchell Law Review 1 (1993) Repository Citation Steenson, Michael K., "The Anatomy of Emotional Distress Claims in Minnesota" (1993). Faculty Scholarship. Paper 24. http://open.wmitchell.edu/facsch/24 This Article is brought to you for free and open access by Mitchell Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Open Access. Published by Mitchell Hamline Open Access, 1993 1 William Mitchell Law Review, Vol. 19, Iss. 1 [1993], Art.
    [Show full text]
  • Treating Wrongs As Wrongs: an Expressive Argument for Tort Law Scott Eh Rshovitz University of Michigan Law School, [email protected]
    University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2017 Treating Wrongs as Wrongs: An Expressive Argument for Tort Law Scott eH rshovitz University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/1993 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Public Law and Legal Theory Commons, and the Torts Commons Recommended Citation Hershovitz, Scott. "Treating Wrongs as Wrongs: An Expressive Argument for Tort Law." J. Tort L. (2017). Ahead of print. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. J. Tort Law 2017; aop Scott Hershovitz* Treating Wrongs as Wrongs: An Expressive Argument for Tort Law https://doi.org/10.1515/jtl-2017-0004 Abstract: The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff.
    [Show full text]