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In particular, the fictional assimilation of substantial certainty to intention enables the law to enforce ordinary moral convictions that its formal structure would otherwise leave unenforced. Thus, for example, it allows the law to deny the defendant, as an intentional tortfeasor, the ability to plead the plaintiff’s own fault in order to eliminate or diminish her recovery;191 precludes the defendant from discharging the liability in bankruptcy;192 and allows the law to readily widen the scope of the tortfeasor’s liability beyond the bounds of reasonable foreseeability.193 These results seem proper when the batterer is highly culpable, as will often be true of the substantially certain injurer (just as it will often be true of the intentional injurer). It is widely recognized by thoughtful legal commentators that these results are more difficult to defend when the batterer is not highly culpable.194 That fact helps to confirm what reflection on the battery tort otherwise suggests: The distinction between intentional and nonintentional harm set up by the law’s distinction between battery and negligence is a rough proxy for culpability, rather than the law’s reflection of distinct classes of relational moral wrongs or mistreatments.
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全国政协委员、贝达药业董事长丁列明。受访者供图。
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