Thursday, October 3, 2013
Mark Geistfeld (NYU) has posted to SSRN Compensation as a Tort Norm. The abstract provides:
The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. A rigorous specification of a compensatory tort right shows otherwise. The correlative compensatory duty can be justified by the principle of liberal egalitarianism for reasons illustrated by the conception of equality articulated by Ronald Dworkin. The compensatory dutyholder is not obligated to pay compensatory damages in all cases of harm, because the exercise of reasonable care distributes risk in a manner that satisfies the compensatory tort right. In addition to justifying the default rule of negligence liability, compensation is a defensible norm of corrective justice that can persuasively explain the other important doctrines of tort law, despite the limited availability of the compensatory damages remedy.