Rehabilitating Tort Compensation

Abstract

What it means to fully compensate a plaintiff can depend on whether one approaches the question from an efficiency perspective, a corrective justice view, or some other normative stance. One formulation of “compensation” is prominent in theoretical work and in the day-to-day operation of the tort system: compensation is the payment of a sum of money that will restore the plaintiff to the status quo ante, to the extent money can do so. This paper argues that this view of compensation has several core failings that have been noticed too little by courts and scholars. In addition, a different concept of compensation – rehabilitation as compensation – should become a more dominant theme in tort practice and theory. This would help illuminate and address several key topics: (1) problems with tort law’s current definition of “medical and rehabilitative expenses”; (2) the role of the plaintiff in the rehabilitative process; (3) the responsibilities of the plaintiff’s lawyer with respect to rehabilitation, and (4) counter-rehabilitative features of tort not already emphasized in the tort literature.

Keywords: rehabilitation, tort, damages

JEL Classification: K13, K41