Redressing Future Intangible Losses


Dov Fox

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Prominent scholars argue that torts is just for the loss of things you had before you were wrongfully injured. According to this view, tort law remedies the loss of a house you already live in, or health you already enjoy, or child you already have—but not the loss of a bigger house or better health or child you hope for, but do not have yet. John Gardner, Greg Keating, Arthur Ripstein, and Seana Shiffrin all subscribe to some version of this account. It reflects a familiar legal priority of existing losses over future ones, and relies on psychology principles of loss aversion and prospect theory to support the sense that it is worse to have something taken away from you when that thing—your house or health or child—was already yours, than it is to be deprived of that very same thing if you did not quite have it yet.

This backward-looking vision of tort law makes too much of the asymmetry between “harms” and “benefits.” “Harms” worsen your position in the here and now, as compared with how things were going for you before you were wronged. “Benefits” instead look ahead to how your position would have improved had it not been for the wrong that was done to you. Tort liability should not be closed off to unrealized benefits if you had good reason to expect that those plans would have materialized otherwise. Future losses to your home or health—even intangible losses of reproductive health—should still be compensable. The hardest question is not about liability but remedies. This Article spells out practical ways for courts to redress these intangible future losses through principled measures of plaintiff well-being.