Prerequisite: None

Exam Type: No Exam

This reading group explores various theories of tort remedies—examining the theories themselves as well as specific scenarios raising puzzles for how to understand and apply them. Among other topics, the course will cover fair compensation, deterrence, punitive damages, and injunctive relief.

After an introduction to the topics covered in the reading group, the first three sessions will explore the question of what constitutes a fair damages sum in tort law. We will begin, in session one, by examining corrective justice theory and the question of whether fair compensation is always, sometimes, or never equal to full compensation. We will then proceed, in session two, to further examine the concepts of fair compensation and full compensation, and we will do so in the context of various types of situations that raise puzzles for how to understand and apply them: first in the context of the loss-of-chance doctrine in medical malpractice, and next in other areas that arguably confront similar problems involving probabilities.

Next, in session three, we will explore how the principles underlying our analysis in these areas apply to tort damages more generally. In doing so, we will examine the notion of a party’s baseline entitlement and different possible accounts of what this might be. Accordingly, and drawing on contract doctrine, we will consider different damages measures in tort that arguably could constitute the fair compensation amount and / or the full compensation amount. In examining these questions, we will also explore the ways in which accounts of baseline entitlements and fair / full damages measures intersect with the long-standing debate between negligence and strict liability.

Next, in session four, we turn to theories according to which the purpose of tort damages is to effectuate deterrence, and we will consider various questions pertaining to deterrence that arise in theory and practice.

Sessions five and six, respectively, will cover punitive damages and injunctive relief—two particular instances of remedies that arguably could constitute a fair remedy, a remedy effectuating deterrence, and/or a remedy serving other possible goals.

Readings will include both classic and contemporary tort theory, with some pieces addressing the broad themes of the course and others addressing specific applications.

Note: This reading group will meet on the following dates: TBD.