Geistfeld on Scarce Compensatory Resources and the Tort/Crime Relationship

Mark Geistfeld (New York University School of Law) has posted Tort Law in a World of Scarce Compensatory Resources (123 MICHIGAN LAW REVIEW (forthcoming 2025)) on SSRN. Here is the abstract:

 

A number of large corporations facing extensive tort liabilities have gone into bankruptcy, forcing tort claimants to accept pennies on the dollar in satisfaction of their claims. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

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Accounting for the availability of compensatory resources reveals normative properties of substantive tort law that are often quite different from the ones modern tort theories depict, including the relation between tort law and criminal law and the vital role of deterrence in a rights-based tort system. An adequate account of tort law must comprehend how the scarcity of compensatory resources alters substantive tort doctrine in principled ways.