Abstract
This chapter examines puzzles that arise when both tort law and criminal law admonish the selfsame wrongs. It considers these “duplicative wrongs.” Engaging with the recent work of Scott Hershovitz, who draws insight from expressive theories of criminal law to defend an expressive theory of tort law, the chapter argues that Hershovitz cannot borrow from criminal law’s expressivism as straightforwardly as he suggests. According to expressive theories of criminal law, criminal sanctions send a message of condemnation. This chapter posits that, to the extent that tort law sends the message of wrongdoing rather than of condemnation, tort law may well need to designate new torts to properly calibrate its messaging. It cannot simply adopt criminal law’s denominations because that would risk undermining the condemnatory messages that criminal law sends. Any new expressive torts, this chapter concludes, must therefore be cast in tort law’s own terms.
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