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

30 Pages Posted: 21 Oct 2010  

Robert L. Rabin

Stanford Law School

Date Written: October 18, 2010


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.

Keywords: Tort law

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:

Robert L. Rabin (Contact Author)

Stanford Law School ( email )

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Stanford, CA 94305-8610
United States
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