Pubs & Blogs

Elsewhere Online twitter Facebook SLS Blogs YouTube SLS Channel Linked In SLSNavigator SLS on Flickr

The Pervasive Role of Uncertainty in Tort Law: Rights and Remedies


Publication Date: 
November 06, 2010
Journal Article
Bibliography: Robert L. Rabin, The Pervasive Role of Uncertainty in Tort Law: Rights and Remedies, Stanford Public Law Working Paper No. 1695235 (October 2010) / 60 DePaul Law Review 431 (2011)


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.