July 24, 2006

A little while back Prof. Childs linked (here and here ) two new pieces of scholarship of potential relevance to debates over damages:

* According to Randy Picker at the University of Chicago Faculty Law Blog, (May 29), Daniel Gilbert's new book Stumbling on Happiness argues (among other things) that: "Able-bodied people are willing to pay far more to avoid becoming disabled than disabled people are willing to pay to become able-bodied again because able-bodied people underestimate how happy disabled people are (p. 153)." One implication may be that finders of fact, typically able-bodied themselves, systematically overestimate the likelihood of injuries to devastate their victims, end their chances of normal happiness, and so forth.

* In "Two Conceptions of Tort Damages: Fair v. Full Compensation", Vanderbilt lawprof John C.P. Goldberg argues that "the prevailing notion of tort damages was until the late Nineteenth Century one of "fair" rather than "full" compensation. [Historical materials] also suggest that the modern tendency to equate tort with the idea of making whole rests on a subtle but critical re-characterization of the concept of injury, which once predominantly referred to a doing - a wronging of the victim by the tortfeasor - but now predominantly refers to an outcome - a loss suffered by the victim." (SSRN)