What If a Moral Theory of Tort Requires Deterrence?
Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.
Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.) Continue reading "What If a Moral Theory of Tort Requires Deterrence?"
