The End of Trial on Damages? Intangible Losses and Comparability Review
78 Pages Posted: 27 Aug 2007
This Article tracks the movement to dismantle the system of tort compensation by attacking trials as the means to fix damages. Many proponents are behaviorial law and economics scholars. They argue that human irrationality justifies removing damages from a populist trial system. Under their approach, bureaucrats would impose their own assessment of compensible risk and the value of intangible losses on the public. The purpose of this Article is to uncover the normative assumptions and real agenda of this movement--especially as they implicate democratic values--by using one example as a focal point. It is the device of comparability review, wherein appellate courts, many of them federal, reverse damages on the sole ground that they do not cohere with amounts given in allegedly similar cases. This flouts a foundational principal of remedies and a background assumption of American political values, i.e., that damages are supposed to be individualized to the particular victim.
Keywords: tort reform, appellate review, federal courts, intangible losses, remedies, law and economics, trial
JEL Classification: K40, K41, K42
Suggested Citation: Suggested Citation