55 DePaul L. Rev. 435 (2005-2006)
Two Conceptions of Tort Damages: Fair v. Full Compensation

handle is hein.journals/deplr55 and id is 449 raw text is: TWO CONCEPTIONS OF TORT DAMAGES:
FAIR V. FULL COMPENSATION
John C. P. Goldberg*
INTRODUCTION
A conference devoted to the subject of noneconomic damages in-
vites us to consider the broader question of what, in principle, a dam-
ages award in a tort case is meant to accomplish.' On its face, that
question seems easily answered. The point of tort damages is to com-
pensate, to restore the status quo ante, to make the plaintiff whole.
Among modern torts scholars, these stock phrases tend to be under-
stood as different ways of saying that the immediate purpose of a tort
suit is to compensate the victim with an amount of money equal to the
losses suffered because of the tort. The Harper and James treatise
nicely conveys this point: The cardinal principle of damages in An-
glo-American law is that of compensation for the injury caused to the
plaintiff by defendant's breach of duty where compensation consists
of repairing plaintiff's injury or ... making him        whole as nearly as
that may be done by an award of money.'2
* Associate Dean for Research and Professor, Vanderbilt Law School. Thanks to Anita
Bernstein, Jim Ely, Julie Faber, Richard Nagareda, Tony Sebok, Michael Stein, and Ben Zipur-
sky for helpful comments, and to Isaac Combs for valuable research assistance.
1. The following analysis operates at a high level of generality and is subject to numerous
qualifications. For now, I leave aside, among other topics, awards of nominal damages and in-
junctive relief; the role of comparative fault and failure to mitigate in reducing damages; the
theoretical question of the incommensurability of money and certain losses; practical problems
of computation; the effect on the plaintiff's recovery of U.S. common law's refusal to embrace
the loser pays rule; the roles played by first-party and liability insurance; and issues pertaining
to collection, bankruptcy, and the like.
2. 4 FOWLER V. HARPER ET AL., THE LAW OF TORTS  25.1, at 490, 493 (2d ed. 1986) (internal
citations omitted); see also MARC A. FRANKLIN ET AL., TORT LAW AND ALTERNATIVES: CASES
AND MATERIALS 2 (7th ed. 2001) ([T]he fundamental issue addressed by a system of tort liabil-
ity for unintended injury is when losses should be shifted from an injury victim to an injurer or
some other source of compensation); CLARENCE MORRIS & C. ROBERT MORRIS, JR., MORRIS
ON TORTS  3, at 7 (2d ed. 1980) (The central problem in most tort cases is: whether the plaintiff
or the defendant should bear a loss.); Harry Kalven, Jr., The Jury, The Law, and the Personal
Injury Damage Award, 19 OHIO ST. L.J. 158, 160 (1958) (noting in passing that the function of
tort damages [is] to make the plaintiff whole); Clarence Morris, Rough Justice and Some Uto-
pian Ideas, 24 ILL. L. REV. 730, 732 (1929-30) (arguing that, relative to the interests of the
plaintiff, tort law substitutes for vengeance an insurance payment by which [t]he exact sum of
the plaintiff's loss is charged to the defendant). The Second Torts Restatement states that the
proper measure of tort damages must be derived from the purposes for which actions of tort

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