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This Essay focuses on two strands, or themes, that seem to me central to understanding the place of uncertainty in the rich history of tort law: first, from a liability (or substantive doctrinal) perspective, the tension between rules and standards; and, second, from a remedial perspective, the claims for “make whole” versus categorical damages.
From a liability perspective, I begin by examining accident law from a historical vantage point, emphasizing the rules-dominant character of the system in earlier times. I then explore the heyday of standards, beginning in the mid-1960s, which is followed by what I regard as a period of equipoise extending to the present day.
From a damages perspective, I contrast some of the judicial and scholarly efforts to promote categorical initiatives with the strong adherence to a “make-whole” approach to compensation in the courts. To conclude this perspective, I provide an afterword on punitive damages.
A brief summary suggests that both ethical and pragmatic concerns illuminate why the tension between liability rules and standards, as well as between make-whole and categorical approaches to damages, resists full resolution.
Other publications by this author
- The John G. Fleming Lecture: A Brief History of Accident Law – Tort and the Administrative State
- The Vaccine No-Fault Act: An Overview
- Tort Law and Alternatives: Cases and Materials, 9th ed.
- The Legacy of New York Times v. Sullivan: Time for a Reassessment?
- Harms from Exposure to Toxic Substances: The Limits of Liability Law
- Tort as a Litigation Lottery: A Misconceived Metaphor
- Emotional Distress in Tort Law: Themes of Constraint
- Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption
- Tobacco Control Strategies: Past Efficacy and Future Promise
- Dissembling and Disclosing: Physician Responsibility on the Frontiers of Tort Law
Author
- Robert L. Rabin
- Stanford Law School
- rrabin@stanford.edu
- 650 723.3073