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

Citation

Publication Date: 
November 06, 2010
Format: 
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)

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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.