Papers by Scott Hershovitz
Journal of Tort Law
The idea that criminal punishment carries a message of condemnation is as commonplace as could be... more 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. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays i...
SSRN Electronic Journal
In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are pla... more In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro's case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro's argument reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz.
Jotwell the Journal of Things We Like, May 13, 2014
Florida State University Law Review, 2011
Valparaiso University Law Review, 2013
Thanks to the Valparaiso University Law School for inviting me to deliver the 2012 Monsanto Lectu... more Thanks to the Valparaiso University Law School for inviting me to deliver the 2012 Monsanto Lecture, and to those in attendance for a terrific discussion. Finally, thanks to Nick Bagley, Don Herzog, and Alex Sarch for the helpful comments and conversations.
Jotwell the Journal of Things We Like, Jun 10, 2013
Ssrn Electronic Journal, 2013
In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are pla... more In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro's case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro's argument reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz.
The Routledge Companion to Philosophy of Law, 2010
Exploring Law's Empire, 2008
Oxford Journal of Legal Studies, 2002
Legal Theory, 2003
... 19. Id. at 53. Page 7. Legitimacy, Democracy, and Razian Authority 207 source ... own. Contra... more ... 19. Id. at 53. Page 7. Legitimacy, Democracy, and Razian Authority 207 source ... own. Contrast this with the case of Dave. Dave is also ill, but he is a doctor. Dave's mother has no medical training but likes to dispense folk remedies. ...
Legal Theory, 2003
... 19. Id. at 53. Page 7. Legitimacy, Democracy, and Razian Authority 207 source ... own. Contra... more ... 19. Id. at 53. Page 7. Legitimacy, Democracy, and Razian Authority 207 source ... own. Contrast this with the case of Dave. Dave is also ill, but he is a doctor. Dave's mother has no medical training but likes to dispense folk remedies. ...
University of Michigan Legal Working Paper …, 2010
thanks to the editors of this journal for their hard work and helpful suggestions and to Eli Best... more thanks to the editors of this journal for their hard work and helpful suggestions and to Eli Best and Alex Sarch for valuable research assistance. 1. See, e.g., WILLIAM M. LANDES AND RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1 (1987) (defending "the hypothesis that the common law of torts is best explained as if the judges who created the law. .. were trying to promote efficient resource allocation"). 2. See, e.g., JULES L. COLEMAN, RISKS AND WRONGS 325 (1992). Of course, tort theorists' substantive views do not sort perfectly by discipline, but the sort is good enough that it is not misleading to juxtapose an economists' view of tort with a philosophers'.
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Papers by Scott Hershovitz