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Q: What is Tort? A: Categorical Hurt
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Anita Bernstein
Published/Copyright:
November 30, 2021
Abstract
The capacious and hard-to-confine term Tort challenges observers to identify what it includes and does not include. Offered here to describe tort, the label “categorical hurt” makes reference to two foundational characteristics. “Hurt,” the noun in this phrase, insists that tort plaintiffs bring to court their experience of suffering. Its adjective, used in this article to echo the word Immanuel Kant chose to modify a different noun, “imperative,” means that tort courts hear claims of general rather than exclusively personal interest. To earn a tort remedy, the suffering reported by a hurt plaintiff must be of a kind that other people can experience and understand.
Keywords: hurt; categorical; civil recourse; injury; feeling; pain; Kant; Posner; common law; bill of attainder
Published Online: 2021-11-30
Published in Print: 2021-10-26
© 2021 Walter de Gruyter GmbH, Berlin/Boston
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Articles in the same Issue
- Frontmatter
- Editor’s Introduction
- Symposium Issue: The State of Tort Theory
- Research Articles
- The Inward Turn and the Future of Tort Theory
- Q: What is Tort? A: Categorical Hurt
- Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured
- Social Justice Tort Theory
- Tort Theory and Restatements: Of Immanence and Lizard Lips
- From Liability Shields to Democratic Theory: What We Need from Tort Theory Now
- Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory
- Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8
- Instrumental Comparative Tort Law
- The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance
- Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?
Keywords for this article
hurt;
categorical;
civil recourse;
injury;
feeling;
pain;
Kant;
Posner;
common law;
bill of attainder
Articles in the same Issue
- Frontmatter
- Editor’s Introduction
- Symposium Issue: The State of Tort Theory
- Research Articles
- The Inward Turn and the Future of Tort Theory
- Q: What is Tort? A: Categorical Hurt
- Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured
- Social Justice Tort Theory
- Tort Theory and Restatements: Of Immanence and Lizard Lips
- From Liability Shields to Democratic Theory: What We Need from Tort Theory Now
- Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory
- Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8
- Instrumental Comparative Tort Law
- The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance
- Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?
