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91 Geo. L.J. 585 (2002-2003)
Negliegence, Compensation, and the Coherence of Tort Law

handle is hein.journals/glj91 and id is 599 raw text is: Negligence, Compensation, and the Coherence of
Tort Law
The ongoing debate over the appropriate purpose of tort liability has not
adequately considered the long-held belief that the tort system is designed to
compensate physical injuries. The neglect may seem surprising. After all, the
compensation rationale for tort liability appears in the Restatement (Second) of
Torts, which states that the purposes for which actions of tort are maintainable
... are: (a) to give compensation, indemnity or restitution for harms; (b) to
determine rights; (c) to punish wrongdoers and deter wrongful conduct; and (d)
to vindicate parties and deter retaliation or violent and unlawful self-help.'
The neglect of the compensation rationale becomes understandable in light of
the tort system's general reliance on negligence liability. A compensatory
objective would seem to justify a tort regime based on strict liability, yet tort
compensation typically is limited to injuries caused by unreasonable or negli-
gent behavior. Even negligence liability is limited in important ways, providing
no compensation to numerous individuals who suffer emotional or economic
harms caused by the negligent behavior of another. Negligence doctrine would
seem to contradict the compensation rationale for tort liability.
The compensation rationale is not invoked by the draft Restatement (Third) of
Torts.- Basic Principles, which instead relies on the justification that negligence
liability remedies an injustice and supplies an incentive to deter such unjust
behavior.2 This justification, despite its apparent logic, may be inconsistent with
important tort doctrines. Eliminating that inconsistency yields a compensatory
justification for tort liability.
If the purpose of negligence liability is to remedy wrongful injuries, as the
Restatement (Third) posits, then the justificatory force is supplied by the nature
of the injury-causing conduct rather than the injury itself. Negligent behavior is
wrongful-the actor unjustly injures another-and that wrong normatively
grounds the duty to compensate. This rationale requires unjust or wrongful
conduct, so the fact of injury does not provide a morally coherent justification
* Professor of Law, New York University School of Law. Special thanks to the symposium
participants, particularly Heidi Li Feldman, for their comments. I am also grateful for the helpful
comments I received from Daryl Levinson, Liam Murphy and Stephen Perry, and from Marshall Shapo
and other participants in the faculty workshop at the Northwestern University School of Law. This
research was supported by the Filomen D'Agostino and Max E. Greenberg Research Fund of the New
York University School of Law.
(Tentative Draft No. 2, 2002) [hereinafter RESTATEMENT (THIRD) OF TORTS].

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