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 insurance.

After an introduction to the topics covered in the course, the first four sessions will explore the question of what constitutes a fair damages sum in tort law—all the while also exploring the extent to which the fair damages sum might coincide with the sum that effectuates optimal deterrence. We will begin, in session one, by examining the question of whether fair compensation is always, sometimes, or never equal to full compensation, and by examining the relevance of foreseeability to fair compensation. We will then proceed, in sessions two and three, 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: In session two, in the context of the loss-of-chance doctrine in medical malpractice, which prescribes partial damages in certain types of situations in which it is thought that partial damages are the fair and efficient remedy (typically where plaintiffs have high chances of death from underlying medical conditions even absent the negligence); and in session three, in other areas that arguably confront similar considerations—where a plaintiff incurs harm caused by a defendant’s negligence, but where the plaintiff might have incurred certain lesser harms caused by the defendant even if the defendant was not acting negligently (and where the plaintiff thus would have been unable to recover for these harms). Also in session three, and into session four, 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.

Session five will cover punitive damages—a remedy that arguably could constitute a fair remedy, a remedy effectuating deterrence, and/or a remedy serving other possible goals.

Sessions six will cover topics at the intersection of tort law and insurance.

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: 2/6, 2/13, 2/20, 2/27, 3/6, 3/13.