Personalized Damages

Abstract

In Personalized Law: Different Rules for Different People, Professors Omri Ben-Shahar and Ariel Porat imagine a brave new tort world wherein the ubiquitous reasonable person standard is replaced by myriad personalized “reasonable you” commands. Ben-Shahar’s and Porat’s asymmetrical embrace of personalized law—full stop for standards of care, near rejection for damages—raises four issues, not sufficiently taken up in the book. First, the authors equivocate too much with regard to the purposes of tort law; ultimately, if and when forced to choose, law-and-economics deterrence-based theory holds the most promise for modern tort law. Second, the damage-uniformity approach clearly dominates the status quo of “crude” personalization. Third, via a deterrence lens that eschews “misalignments” in tort law, a personalized standard of care necessitates personalized damages. Fourth, the true benefit of an ideal personalized damages regime might be further uncovering the root cause of racial and gender disparities in status quo tort damages. Paradoxically, ideal personalization might then reinforce the damage-uniformity approach.

Keywords: personalized law, personalized damages, damages, deterrence, racial disparity, gender disparity

JEL Classification: K13