What is the Point of the Tort Remedy?

Abstract

A tort remedy, as the conventional wisdom has it, might serve any number of masters (ranging from justice to economic efficiency) by vindicating the status quo ante the tort. I shall argue that this view forces one to accept the proposition that the duty to restore the victim to the status quo ante the wrong done her represents a contingency—that is, one among different permissible extensions of the core of the remedial regime animating tort law. Anything outside the core of the remedial regime of tort law, which is the victim’s entitlement to have her rights vindicated by a court of law, is fundamentally a matter of legal engineering; designing the best overall institution to resolve infringements of rights and their lasting, material consequences. In these pages, I shall develop a novel account of this remedy, maintaining that, apart from the contingent services it may render whatever masters are deemed appropriate, the remedial process in tort law is in itself a source of value. The connection that this process establishes between tortfeasors and victims generates a special form of attending to other persons as such—that is, as free and equal agents. The tort remedy, on this account, expresses the intrinsically social character of a legal practice (of torts) grounded in a liberal vision of coexisting with others in the world. It re-establishes and, therefore, engenders a valuable relationship of respectful recognition—a form of a thin solidarity—between parties in a tort dispute. The account that I shall articulate does not only provide a more sympathetic interpretation of the essential core of tort law and remedy than the one implicit in the conventional view and in the various approaches that dominate contemporary theoretical discourse. Rather, it also aspires to illuminate important questions in positive tort law and remedy. Pursuing this task piecemeal, I shall deploy the ideal of re-establishing respectful recognition through the tort remedy in the service of explaining the mysterious category of punitive damages. Accordingly, I shall show that, in taking the form of private law, this category can make sense insofar as it is viewed as a conceptually plausible extension of the proposed ideal. ∗ Associate Professor, Tel Aviv University Faculty of Law. J.S.D. ‘08, LL.M. ‘06, Yale Law School; LL.B. ‘04, B.A. ‘04, Haifa University. This Article has benefited substantially from responses received at the conference Forgiveness: Probing the Boundaries and at the faculty workshop at Tel Aviv University Faculty of Law. I would like to thank the participants in these occasions. I would also like to thank Daphne Barak-Erez, Yishai Blank, Michael Birnhack, Hanoch Dagan, Francesca Dominello, Roy Krietner, Anthony Kronman, Shai Lavi, Assaf Likhovski, Daniel Markovits, Daniel More, Ariel Porat, Robert Post, David Schorr, David White, and Neta Ziv. Finally, I am grateful to Nitzan Buchnik for invaluable research