TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, May 8, 2023

Two by Steel

Sandy Steel has posted to SSRN Deterrence in Private Law.  The abstract provides:

Non-consequentialist justifications of private law liability foreground the role of the law in setting out, part-constituting, and providing enforcement of interpersonal moral rights and duties at the suit of right-holders. The justificatory role of deterrence is either explicitly rejected or hardly mentioned. The impression given is that deterrence is somehow necessarily inconsistent with the justificatory role of interpersonal moral rights and duties. My aim in this paper is to show that this is not the case. I try to outline a general account of the normative role of deterrence in the justification of private law norms and enforcement. In making this argument, I will ultimately be affirming Gardner’s view that deterrence matters, non-trivially, to private law, while not being the whole story, or even the most important story.

And also, Damages Without Loss.  The abstract provides:

One of the most disputed issues in the law of damages in recent years has been the existence and justification of substantial damages awards for private law wrongs in circumstances in which the victim of the wrong has suffered no loss. Some argue that such awards exist and are justifiable on the basis that they vindicate, in some sense, the rights of the person wronged.Others argue that a sophisticated loss-based analysis of these awards can in fact explain and justify all or most of the law. Finally, some argue that, while such awards do exist, they cannot be reconciled with the fundamentally loss-centred approach to damages in English law and so should be rejected.

In this article, I make two contributions to the debate about the existence and justification of damages awards without loss. First, after introducing some important analytical distinctions about the concept of loss, I show that there are indeed awards, normally described as compensatory, which do not aim to compensate for loss. While others have argued for a similar claim, the analysis here does so in a distinctive way: by focusing on the counterfactual nature of the concept of loss; in addition, it responds to recent attempts to salvage a loss-based analysis of certain awards. Secondly, it examines in greater depth the possible normative foundations of damages without loss. I argue that non-loss-based awards can be justified, (i) by the duties that wrongdoers incur upon breaching a duty to serve the underlying goal of the original duty which has been breached, (ii) as a matter of fairness, and (iii) tentatively, in some cases, as a matter of expressive vindication. I show how the existence of such awards does not undermine, but may sit coherently alongside, damages for loss. In short, the article provides an analytical and normative defence of damages without loss.

Scholarship | Permalink


Post a comment