Sequencing in Damages

40 Pages Posted: 9 Mar 2021 Last revised: 12 Apr 2021

See all articles by Edward K. Cheng

Edward K. Cheng

Vanderbilt Law School

Ehud Guttel

Hebrew University of Jerusalem - Faculty of Law

Yuval Procaccia

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: March 7, 2021

Abstract

Tort law consists of multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing matters, and it can substantially affect the compensation that a tort victim ultimately receives. Yet, the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature.

In this Essay, we introduce and examine the question of sequencing. We offer three contexts in which the question arises in torts: failures to mitigate, damage caps, and collateral sources of funding – all of which play a major role in the determination of liability and compensation. Each of these examples demonstrates a different way in which attention to sequencing improves legal analysis. Building on these examples, we develop a general theory of legal sequencing.

Keywords: Torts, Sequencing, Comparative Fault, Mitigation of Damages, Damage Caps, Collateral Sources

Suggested Citation

Cheng, Edward K. and Guttel, Ehud and Procaccia, Yuval, Sequencing in Damages (March 7, 2021). Stanford Law Review, 74 STAN. L. REV. __ (2022 Forthcoming ), Hebrew University of Jerusalem Legal Research Paper No. 21-14, Available at SSRN: https://ssrn.com/abstract=3799514

Edward K. Cheng

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-875-7630 (Phone)

Ehud Guttel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Yuval Procaccia

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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