That is not the strategy that Cardozo adopted, however, and it is not hard to see why. The intuitive moral conviction that, in cases such as Prosser’s hypothetical, the defendant owes his victim an enforceable duty to compensate for the damage he has inflicted on her — a remedial duty of precisely the kind that the tort system ought, in principle, to enforce — is a very powerful one. It finds expression in a longstanding body of case law on transferred intent;131 it is expressly affirmed by both the Second and Third Restatements;132 and it has deeply rooted doctrinal analogues in other legal systems, both common law and civil.133 And the intuition does not seem like it can be explained away as the creature of retributive instincts properly located in the criminal law (if anywhere). The law would not satisfy the intuitive requirements of justice to the victim simply by punishing the defendant in such a case, or by extracting from him a financial penalty to be deposited into a general fund for the victims of crime. It seems clear that the defendant is liable to his victim, unforeseeable though she may be — that he must compensate her, in preference to the victims of other wrongdoers.
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——抚顺特殊钢股份有限公司高级工程师王艾竹代表
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Андрей Сибига. Фото: Globallookpress.com
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