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Oxford Seminars in Jurisprudence: Stephen Bero

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STEPHEN BERO, "MERCY IN TORT"

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Tort law systematically disadvantages the merciful. Admittedly this sounds odd, like saying that the rules of boxing disadvantage the merciful. But closer consideration reveals that tort law’s treatment of the merciful is a source of real unfairness and perversity. This is one dimension of a significant but overlooked problem of mercy in tort. This problem of mercy in tort is itself an illustration of a broader, fundamental problem that needs particularly to be reckoned with now, amid a wave of work emphasising how tort law advances relational values like equality and mutual accountability. The problem of mercy exposes a neglected downside: even if my equal standing is vindicated when I have institutional means to hold you accountable, other relational values — mercy, forgiveness, solidarity— are burdened when I must hold you accountable or else bear the cost of your mistake. We should avoid putting tort victims in this quandary if we can – and, at least in principle, we can.

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