The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

53 Pages Posted: 26 Oct 2011  

Mark Geistfeld

New York University School of Law

Date Written: October 26, 2011


When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by paying (the equally valued) compensatory damages for that harm. Full alignment characterizes a rule of strict liability but not negligence liability, which partially misaligns the elements for reasons of principle. Owing to its primary reliance on the damages remedy, a fully aligned rule is unable to address adequately the problem of irreparable injury, a common law category encompassing bodily injury and damage to real or tangible property. In cases of irreparable injury, the common law has long recognized the principle that it is better to prevent the harm instead of attempting to compensate for its occurrence with the inherently inadequate monetary damages award. This principle explains why tort law has adopted a default rule of negligence liability that seeks to prevent the irreparable injury of physical harm without imposing undue hardship on the dutyholder. To function in this manner, the negligence rule must misalign the elements so that dutyholders are prohibited from rejecting the primary duty of care (based on a higher legal valuation of harm) in exchange for payment of (the lower-valued) compensatory damages.

The principle of misalignment reorients the interpretation of tort law in a manner that has been missed by leading accounts. It decisively shows that courts have formulated the negligence rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of corrective justice must explain why that form of justice would primarily value the exercise of reasonable care as opposed to the payment of compensatory damages. For reasons revealed by the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort norm that redirects the dutyholder’s compensatory obligation from the damages remedy into expenditures that would prevent physical harm, yielding the type of misaligned negligence rule that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce resources, the varied limitations of tort liability can all be understood in relation to a norm of compensation for reasons fully illustrated by the misaligned negligence rule.

Suggested Citation

Geistfeld, Mark, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability (October 26, 2011). Yale Law Journal, Vol. 121, p. 142, 2011; NYU School of Law, Public Law Research Paper No. 11-77; NYU Law and Economics Research Paper No. 11-39. Available at SSRN:

Mark Geistfeld (Contact Author)

New York University School of Law ( email )

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