Redressing Future Intangible Losses
59 Pages Posted: 5 Aug 2019 Last revised: 12 Nov 2019
Date Written: August 3, 2019
Prominent scholars argue that tort law redresses only those things that people had before they were (wrongfully) injured. This view holds that tort remedies are for harms to the house the plaintiff already lives in, or the work she already does, or the child she already has—but not the bigger house or better work or would-be child she dreams of. Professors John Gardner, Greg Keating, Arthur Ripstein, and Seana Shiffrin all subscribe to some version of this account, which reflects a moral and legal priority of existing losses over future ones. Psychological studies of “loss aversion” and “prospect theory” bolster this sense that it is worse to have something taken away that was previously yours than it is to be deprived of that very same thing you reasonably counted on getting, but did not have yet.
This backward-looking vision of tort law makes too much of the asymmetry between “harms” and “benefits.” Harms worsen a person’s position in the here and now, compared with the past position she found herself in. Benefits, by contrast, look ahead to how the position might improve in the future. Tort liability should not be closed off to losses that have not yet materialized—not when victims had good reason to expect those lost goods, and to plan their lives accordingly. Tort law is capacious enough to remedy unfulfilled benefits—indeed, sometimes it already does for wrongfully denied investment returns, employment earnings, and the chance for improved health. Resistance to redress future losses gets compounded where victims—like those deprived of procreation—cannot point to the kinds of physical or economic harms whose presumptive validity and ease of proof seal off the floodgate of litigation.
Tort law should not care so much about whether my loss is harder to quantify with precision, or sounds in the register of “harm” more than “benefit.” What matters is how reasonable I was to have expected some lost good in the first place, and how losing out on it foreseeably affects me. Say I have arranged my life around building a house, or getting a job, or having a child when a wrongful injury upends it all just before the last coat of paint, or round of interviews, or stage of pregnancy. That loss is not singularly less devastating just because I had not quite yet moved in, or gotten a paycheck, or held the baby in my arms. Whether some loss is “benefit” or “intangible” should make little absolute difference for liability. Where these features matter is when it comes to determining damage awards. This Article shows how to ballpark remedies for future intangible losses through principled and practical measures of plaintiff well-being.
Keywords: Tort Law, Harms, Benefits, Personality Torts, Medical Malpractice, Emotional Distress, Intangible Loss, Loss of Chance Doctrine, Reproductive Injuries, Fetal Personhood, Adoption, Genetic Affinity
JEL Classification: K11, K12, K13, K41
Suggested Citation: Suggested Citation