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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 June 2021

Tort Law, Expression, and Duplicative Wrongs

Tort Law, Expression, and Duplicative Wrongs

(p.441) 20 Tort Law, Expression, and Duplicative Wrongs
Civil Wrongs and Justice in Private Law

Findlay Stark

Oxford University Press

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.

Keywords:   tort law, duplicative wrongs, criminal law, expressivism, condemnation, wrongdoing

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