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


Robert L. Rabin


Stanford Law School

October 18, 2010

DePaul Law Review, Forthcoming
Stanford Public Law Working Paper No. 1695235

Abstract:     
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.

Number of Pages in PDF File: 30

Keywords: Tort law

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Date posted: October 21, 2010  

Suggested Citation

Rabin, Robert L., The Pervasive Role of Uncertainty in Tort Law: Rights and Remedies (October 18, 2010). DePaul Law Review, Forthcoming; Stanford Public Law Working Paper No. 1695235. Available at SSRN: http://ssrn.com/abstract=1695235

Contact Information

Robert L. Rabin (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-3073 (Phone)
650-725-0253 (Fax)
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