Amitpal C. Singh (Harvard University – Harvard Law School) has posted Expressivism, Fittingness, and New Torts (Journal of Tort Law, forthcoming) on SSRN. Here is the abstract:
A growing chorus of scholarly and judicial voices anoints expressivism as a rationale for creating new torts, such as a tort of family violence or intimate partner violence. Rather than take issue with expressivism directly, this Article grants expressivism arguendo and shows that no convincing rationale for new torts follows. The argument proceeds by way of a two-pronged dilemma. Tort law’s expressive function must lie either in remedial orders or in liability determinations. Neither supplies a convincing rationale for new torts. If expression lies in remedies, existing torts already provide ample expressive resources through aggravated damages, punitive damages, and the factual findings in judicial reasons themselves, which are prerequisites for tort remedies. If expression lies in liability determinations, i.e., in tort labels, the argument turns on an implicit demand for fittingness between tort labels and tortious conduct. Drawing on the philosophical literature on fittingness, I argue that this demand misfires twice over. First, existing torts such as battery, assault, and intentional infliction of emotional distress are fitting of family violence—they pick out morally salient features of family violence, even if a bespoke tort of family violence would be more fitting. Second, the expressivist who retreats to the softer claim that the existing torts are not “fitting enough” must import substantive, non-expressivist criteria. Any such criteria will, by their own logic, disqualify the tort of “family violence” itself, which aggregates morally heterogeneous conduct just as battery, assault, and intentional infliction of emotional distress do. I close with a constructive thesis: tort taxonomy need not perfectly mirror morality’s taxonomy of individuated wrongs. Indeed, there are good institutional reasons for it not to do so. These institutional reasons, which concern the rule of law and congruence with legal subjects’ prelegal expectations, militate in favor of a stable, limited, and coarse-grained catalog of legal wrongs.
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