58 Pages Posted: 17 Dec 2014 Last revised: 7 Jul 2016
Date Written: December 15, 2014
The recent media coverage of Disneyland’s measles outbreak is one of many manifestations of a pervasive asymmetry. We care more about child lives than adult lives. This asymmetry is visible when legislators race to name bills after dead children and when reports of natural disasters, mass accidents, and war highlight the special tragedy of child deaths over and above mere adult deaths. Drawing on an expansive body of empirical work — including bioethics research, contingent valuation studies, and analyses of consumer behavior — this Article systematically maps the pervasiveness and boundaries of that asymmetry and tracks its broad implications for tort law. As a prima facie matter, a deterrence-oriented tort system should impose duties of care that are twice as stringent for children as for adults, and award tort damages that are twice as high for child victims. This has important implications for case law, damage caps, lost consortium claims, risk-utility analyses, and many scholarly reform proposals. These insights — generated by focusing on deterrence — remain robust when we instead view tort law through the lenses of corrective justice and civil recourse. Drawing on moral philosophy and bioethics, this Article defends child premiums against challenges rooted in principles of equality, the expressive impact of child exceptionalism, and the potential injustices of “hidden-child” cases. Moving beyond tort law, this Article translates its contributions to other systems focused on promoting safety, including administrative cost-benefit analysis, criminal sentencing, and civil orders of protection.
Keywords: Tort law, law and economics, corrective justice, civil recourse, children and the law, family law, bioethics
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