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34 Am. J. Comp. L. Supp. 141 (1986)
Tort Damages for Loss of Future Earnings

handle is hein.journals/amcomps34 and id is 149 raw text is: AGENDA II.A.4. Tort Damages for Loss of Future Earnings John G. Fleming* I. PRELIMINARY Loss of earnings or earning capacity is the least controversial head of tort damages for personal injury.1 Assessment is based on largely objective data capable of verification and, in contrast to non- pecuniary loss (pain and suffering), far less dependent on subjective judgments by juries apt to be swayed by emotion. It also represents, together with damages for medical expenses, compensation for a ba- sic need on which there is universal consensus. While damages for non-pecuniary loss, still more punitive damages, have been the tar- get of criticism from a variety of quarters, most of all because of what are widely perceived to be extravagant awards, there is strong public support for compensation for financial losses. A contributing factor is the absence in the United States of any systematic, general2 provision of Social Security for accident victims,3 with the result that the tort system has to play a larger role as a source of compen- sation than in most other industrialized countries. This silent per- suader explains both the remarkable expansion of substantive liability in recent decades by liberal judges bent on transforming traditional tort law into a system of social welfare,4 as well as the explosion of damage awards.5 * Professor of Law, University of California, Berkeley. 1. The Law of Damages has been traditionally neglected as an academic sub- ject. Thus the leading torts treatise (Prosser & Keeton, Torts (5th ed. 1984) does not deal with the topic at all; Harper & James, The Law of Torts (1956) devotes Chapter XXV to it, as does Dobbs, Remedies Ch. 8 (1973). For practitioners the subject is of course of primary importance, especially for plaintiff's attorneys whose willingness to act will be contingent on what the case is worth. Commentaries catering to this need are e.g. Frumer & Friedman, Personal Injury, Vol. III (1984). 2. As distinct from special compensation schemes like Workers' Compensation. 3. Federal Social Security benefits for disability are available for persons under 60 only in case of total and permanent disability. There is a safety net only under varying State welfare legislation. Only a very small number of states (California, Hawaii) have disability schemes, funded by employee contributions. 4. Neither the national nor state legislatures have the stomach to burden the taxpayer with the cost of additional disability benefits. By contrast, the cost of tort liability is in the first instance born by individual defendants and only in the last resort by the general public in the form of higher prices. 5. This explosion was already noted by Jaffe in 1953, Damages for Personal In-

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