{"title":"Are Tort Remedies ‘Civil Recourse’?","authors":"Smith, Stephen A.","doi":"10.1007/s10982-021-09440-8","DOIUrl":"https://doi.org/10.1007/s10982-021-09440-8","url":null,"abstract":"<p>In this article, I examine John Goldberg and Benjamin Zipursky’s argument, set out in <i>Recognizing Wrongs</i>, that the ‘principle of civil recourse’ explains much (though not all) of tort law. Specifically, I assess their claim that tort remedies are instances of civil recourse. I argue that while this label fits a variety of damages awards (and fits them better than the leading alternatives), it does not fit two significant tort remedies: injunctions and damages for pecuniary losses.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"18 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138538113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On Blame and Punishment: Self-blame, Other-Blame, and Normative Negligence","authors":"Walen, Alec Douglas","doi":"10.1007/s10982-021-09436-4","DOIUrl":"https://doi.org/10.1007/s10982-021-09436-4","url":null,"abstract":"<p>Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen by agents who knew that what they were doing was or was likely to be wrong (they saw the reasons not to do it), and who nonetheless acted wrongly because of weakness of will. I agree with Husak about quality of will theories, but I argue that weakness of the will is often exculpating, and that when it is not it is because of normative negligence with regard to the reasons to steel one’s will. Thus, I argue his reason responsive account fails too. I offer instead an account of blame the key idea of which is that criminal blame is normatively appropriate as a way of communicating the importance of self-blame. Self-blame properly responds to normative negligence. Moreover, it comes with the emotion of guilt in which an agent experiences a kind of suffering for her unexcused wrongdoing. Punishment, based on criminal blame, reinforces the importance of guilt for maintaining a community of mutual respect.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"25 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138543511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Replies to Commentators","authors":"Goldberg, John C. P., Zipursky, Benjamin C.","doi":"10.1007/s10982-021-09429-3","DOIUrl":"https://doi.org/10.1007/s10982-021-09429-3","url":null,"abstract":"<p>With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138538112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Revisiting the “But Everybody Does That!” Defense","authors":"G. Yaffe","doi":"10.1007/s10982-021-09425-7","DOIUrl":"https://doi.org/10.1007/s10982-021-09425-7","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"41 1","pages":"419 - 440"},"PeriodicalIF":0.8,"publicationDate":"2022-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52861911","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Law and PhilosophyPub Date : 2022-01-01Epub Date: 2022-08-04DOI: 10.1007/s10982-022-09454-w
Kerah Gordon-Solmon, Theron Pummer
{"title":"Lesser-Evil Justifications: A Reply to Frowe.","authors":"Kerah Gordon-Solmon, Theron Pummer","doi":"10.1007/s10982-022-09454-w","DOIUrl":"https://doi.org/10.1007/s10982-022-09454-w","url":null,"abstract":"<p><p>Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents' permissible options without taking any away. Helen Frowe rejects this view. She claims that, almost always, agents must act on their lesser-evil justifications. Our primary task is to refute Frowe's flagship argument. Secondarily, it is to sketch a positive case for nonconsequentialist orthodoxy.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"41 5","pages":"639-646"},"PeriodicalIF":0.8,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9470609/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40366779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Law and PhilosophyPub Date : 2022-01-01Epub Date: 2021-09-04DOI: 10.1007/s10982-021-09422-w
Douglas Husak
{"title":"Retributivism and Over-Punishment.","authors":"Douglas Husak","doi":"10.1007/s10982-021-09422-w","DOIUrl":"https://doi.org/10.1007/s10982-021-09422-w","url":null,"abstract":"<p><p>Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"41 2-3","pages":"169-191"},"PeriodicalIF":0.8,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8417646/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"39408484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Liability for Emissions without Laws or Political Institutions","authors":"Göran Duus-Otterström","doi":"10.1007/s10982-022-09471-9","DOIUrl":"https://doi.org/10.1007/s10982-022-09471-9","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"42 1","pages":"461 - 486"},"PeriodicalIF":0.8,"publicationDate":"2021-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42006684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Proportionality and Its Discontents","authors":"Vincent Chiao","doi":"10.1007/s10982-021-09423-9","DOIUrl":"https://doi.org/10.1007/s10982-021-09423-9","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"41 1","pages":"193 - 217"},"PeriodicalIF":0.8,"publicationDate":"2021-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46880232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Dissent-Sensitive Permissions","authors":"Ferzan, Kimberly Kessler","doi":"10.1007/s10982-021-09428-4","DOIUrl":"https://doi.org/10.1007/s10982-021-09428-4","url":null,"abstract":"<p>What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents (thereby creating a ‘dissent-sensitive permission’). Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138538115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law","authors":"Veronica Rodriguez-Blanco","doi":"10.1007/s10982-021-09430-w","DOIUrl":"https://doi.org/10.1007/s10982-021-09430-w","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"41 1","pages":"63 - 82"},"PeriodicalIF":0.8,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52862000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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