Abstract

http://ssrn.com/abstract=2332061
 


 



Compensation as a Tort Norm


Mark Geistfeld


New York University School of Law

September 27, 2013

Forthcoming: Philosophical Foundations of the Law of Torts (Oxford University Press, John Oberdiek ed.)
NYU Law and Economics Research Paper No. 13-28
NYU School of Law, Public Law Research Paper No. 13-54

Abstract:     
The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. A rigorous specification of a compensatory tort right shows otherwise. The correlative compensatory duty can be justified by the principle of liberal egalitarianism for reasons illustrated by the conception of equality articulated by Ronald Dworkin. The compensatory dutyholder is not obligated to pay compensatory damages in all cases of harm, because the exercise of reasonable care distributes risk in a manner that satisfies the compensatory tort right. In addition to justifying the default rule of negligence liability, compensation is a defensible norm of corrective justice that can persuasively explain the other important doctrines of tort law, despite the limited availability of the compensatory damages remedy.

Number of Pages in PDF File: 32

Keywords: Compensation, Norm of Tort Liability, Risk Distribution, Corrective Justice, Equality of Resources

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Date posted: September 29, 2013 ; Last revised: November 15, 2013

Suggested Citation

Geistfeld, Mark, Compensation as a Tort Norm (September 27, 2013). NYU School of Law, Public Law Research Paper No. 13-54; Forthcoming: Philosophical Foundations of the Law of Torts (Oxford University Press, John Oberdiek ed.); NYU Law and Economics Research Paper No. 13-28; NYU School of Law, Public Law Research Paper No. 13-54. Available at SSRN: http://ssrn.com/abstract=2332061

Contact Information

Mark Geistfeld (Contact Author)
New York University School of Law ( email )
40 Washington Square South
Room 411A
New York, NY 10012-1099
United States
212-998-6683 (Phone)
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