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Liability for Future Harm

PERSPECTIVES ON CAUSATION, Richard S. Goldberg, ed., Hart Publishing, 2010

U of Chicago Law & Economics, Olin Working Paper No. 486

Cardozo Legal Studies Research Paper Series No. 268

20 Pages Posted: 20 Aug 2009 Last revised: 8 Jul 2011

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Alex Stein

Brooklyn Law School

Abstract

This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected - albeit not yet materialized - harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim’s expected harm erodes the wrongdoer’s ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved.

Suggested Citation

Porat, Ariel and Stein, Alex, Liability for Future Harm. PERSPECTIVES ON CAUSATION, Richard S. Goldberg, ed., Hart Publishing, 2010; U of Chicago Law & Economics, Olin Working Paper No. 486; Cardozo Legal Studies Research Paper Series No. 268. Available at SSRN: https://ssrn.com/abstract=1457362

Ariel Porat

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://www.law.tau.ac.il/Heb/?CategoryID=357&ArticleID=388

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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