What to Compensate? Some Surprisingly Unappreciated Reasons Why the Problem is so Hard

27 Pages Posted: 11 Jun 2003

See all articles by Leo Katz

Leo Katz

University of Pennsylvania Carey Law School


Finding the rightful measure of compensation involves first finding the right baseline. But baseline problems, though common throughout law, are remarkably ill-understood. Rather than solve these problems outright, this essay seeks to get to the bottom of their multiple roots. The four kinds of cases being considered are typified by (1) the plaintiff whose leg the defendant tortiously broke - thus preventing him from getting on the plane that crashed (i.e., "failure to worsen" cases); (2) the plaintiff whose loss of legs due to defendant's tortious conduct caused her to give up her career as a professional athlete - with the result that she is now much happier and has no regrets about losing her former career (i.e., "subjective improvement" cases); (3) the promisee of an enforceable contractual promise asking to be put in the position he would have been in had the promise been kept rather than had the promise never been made (i.e, the contract damage question); (4) the plaintiff who but for defendant's tortious conduct would not exist, with particular emphasis on the descendants of slaves who but for slavery would not have existed, and surely not in the United States.

Keywords: jurisprudence, remedies, torts, contracts

JEL Classification: K00, K10, K13

Suggested Citation

Katz, Leo, What to Compensate? Some Surprisingly Unappreciated Reasons Why the Problem is so Hard. Available at SSRN: https://ssrn.com/abstract=413640 or http://dx.doi.org/10.2139/ssrn.413640

Leo Katz (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-9334 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics