I have previously had the opportunity to write an article devoted to the legal model of damages for death and its implications and possibilities in civil law jurisdictions, especially in light of the complete failure of the traditional compensatory function of civil liability—and the corollary of the principle of full compensation—in adequately protecting the fundamental right to life.
Now, I would like to present to the reader the same line of inquiry from the perspective of the American philosophy of civil liability, through a recent article by Professor Gregory Keating,1 titled “Irreparable Injury and the Limits of the Law of Torts.”2 The author starts from the premise that some harms are simply irreparable. Death is the paradigm. No amount or form of compensation can restore to the dead the lives they have lost. No remedy can restore them to the position they would have occupied had they not died. Civil liability provides no compensation for wrongful death, thereby exposing its Achilles’ heel. On the one hand, premature death is the harm against which we most wish to be protected. On the other hand, it is the harm against which civil liability is least able to protect us. Civil liability fails prospectively because it does not put a price on, and therefore does not prevent, the harm of death. It fails retrospectively because monetary awards cannot compensate for the harm of death.
This inadequacy of the principle of full compensation in the face of irreparable harm has important implications for the main theories developed in the common law—that is, both for the philosophy of corrective justice and for economic analysis.
From the perspective of corrective justice, the obligations imposed on wrongdoers constitute an aspect of the morality of civil liability. However, the harm caused by death strips the reparatory remedy of its restorative power, thereby eliminating the morality of liability that corrective justice embodies. Tortfeasors cannot remedy harms that go beyond compensation. The obligations that civil liability imposes on tortfeasors fall far short of this impossible standard of accountability. Furthermore, to the extent that compensation is not only intrinsically valuable as a means of delimiting liability for wrongfully caused harm, but also instrumentally valuable as a way to induce potential wrongdoers to take the necessary precautions to avoid harming third parties, irreparable harm severely undermines civil liability.
This instrumental aspect is of fundamental importance to the economic conception of civil liability. From an economic perspective, the role of civil liability is to accurately assess the costs of accidental damages, so that only efficient damages are inflicted on lives and property. Deterring unlawful (i.e., inefficient) harm—rather than compensating for it—is the primary role of civil liability. Nevertheless, the failure of damages to meet this requirement is vividly illustrated by damages for wrongful death. Premature death is the physical harm that people most wish to avoid. The harm it inflicts on our physical existence is total and beyond any remedy. In recognition of this fact, civil liability does not even attempt to place a price on the value of the victim’s lost life. However, this perfectly sensible decision profoundly undermines the deterrent powers of civil liability when it is economically conceived as a system of price-based deterrence. Yet civil liability cannot—and does not attempt to—price the greatest harm it is intended to address, rendering it a dysfunctional pricing system. Furthermore, the shortcomings of civil liability as a pricing system increase in tandem with the severity of the harms it addresses. Its predictable deterrent effects are most severely undermined when our interest in deterrence is greatest—when the harms threaten life or result in permanent and severe disability.
Even today, after nearly two centuries of legal and judicial expansion of civil liability for wrongful death, a defendant whose wrongful conduct fatally injures another person is not liable to compensate the victim for the value of the life lost.3 The harm caused by death is not compensated because it lies beyond the scope of compensation. Nothing will restore a deceased victim to the position they held before their death.
In most cases, therefore, damages for the tort of wrongful death are awarded for “relational harm.” The compensation is directed toward various persons related to the victim who have suffered losses resulting from the victim’s wrongful death. However, the victim does not recover for them the value of the life they lost. “The loss of the enjoyment of life,” explains a court, “must be experienced during one’s lifetime before it can form the basis for compensation.”4 The dead do not experience the lost pleasure of the lives that were unjustly taken from them. When monetary compensation cannot make up for a loss, compensatory damages fail to deliver the redress they promised. Paradoxically, by refusing to award damages to the victim for the loss of life, the law remains faithful to the internal logic of tort law itself. However, this internal logic of civil liability clarifies the limits of its powers. Since civil liability is based on reparation both to fulfill its primary obligations and to eliminate the effects of unjustified harm, its powers depend on the possibility of adequate reparation. On the one hand, the harm caused by death makes it impossible to achieve corrective justice. There is no way to remedy the most severe loss that torts can inflict upon us. On the other hand, death strips civil liability of its deterrent powers. For good reason, both courts and legal commentators cite the old adage that “it is cheaper to kill your victim than to leave him maimed.” Empirical evidence confirms this adage. For example, the average jury verdict in New York City between 1984 and 1993 in wrongful death cases exceeded $1 million, while in personal injury cases, verdicts averaged more than $3 million.5 When the damage caused is irreparable, the protection afforded by civil liability is, at best, precarious.
Even punitive damages—which are more widely accepted in the United States than in other common law jurisdictions—do not remedy the inadequacy of civil liability in the face of irreparable harm, as they are primarily aimed at intentional or grossly negligent conduct, which does not cover the entire spectrum, since irreparable injuries can be caused by a momentary lapse of the most common and least blameworthy kind. Taking your eyes off the road for just a fraction of a second while driving can maim or kill another human being, but doing so is a common lapse in attention, not a terribly callous disregard for the safety of others.
Direct risk regulation is the solution that addresses the problem most precisely. Lawmakers and regulators can establish ex ante standards of care whose stringency adequately addresses serious and irreparable harm. Rigorous standards of care against irreparable harm are, in fact, prominent features of federal statutes addressing environmental and workplace harm. They are, however, overlooked by theorists of civil liability with a corrective philosophical bent and condemned as irrational by scholars of law and economics. From an economic perspective, strict precautionary laws are irrational exercises in preferring hypothetical scenarios of less wealth—and thus less potential well-being—over states of affairs with more wealth and greater potential well-being.
Deontology views the scenario differently. When we take the distinctions between people seriously—and place relationships between people at the center of our perspective—we observe that harm carries negative moral significance and that avoiding it is a special priority. Safety is a Rawlsian primary good; an essential condition for effective agency. Unlike financial “losses” and ordinary “costs,” physical harm impairs our basic powers of agency. Physical harm diminishes our ability to exercise our will in the world. Devastating and irreparable injuries permanently and profoundly diminish this ability and may even extinguish it completely. Legal standards that require more than cost-justified precautions respond appropriately—not irrationally—to significant risks of serious and irreversible injury. There is a vigorous debate in the legal literature over whether safety should be prioritized at the expense of efficiency. Federal laws mandate that certain activities be “safe” or require that their risk be reduced as much as is “feasible” to do so. By “feasible,” they mean that the risks in question must be reduced as much as possible without “killing the activity.” Conversely, a chorus of contemporary legal scholars insists that there is no debate to be had. Risk regulation based on safety and feasibility is simply irrational. Eric Posner argues that the feasibility analysis “does not reflect deontological thinking in any direct sense” and that “no attempt to reverse-engineer a theory of well-being that justifies the feasibility analysis has been successful.”6 This criticism is a specific manifestation of the general thesis that efficiency is the only plausible standard for precaution, and that cost-benefit analysis is the only game in town for determining appropriate standards of conduct for socially useful but risky acts.
Cass Sunstein, the most influential American legal scholar currently writing on risk and precaution, asserts that it is not possible to engage in evidence-based regulation without evaluating costs and benefits, and without being as quantitative as possible. Cost-benefit analysis is indispensable for thinking rationally about risk and regulation. Without it, our reasoning will be governed by sentimentality and cognitive bias.7 In this vein, the most recent U.S. Supreme Court decision on the matter states that—in the absence of a specific statute to the contrary—regulatory agencies must conduct cost-benefit analyses when considering the regulation of a harmful substance. It is irrational to even consider harm reduction without taking costs into account.8
There is even a contradiction, since in the early days of law and economics, Guido Calabresi advocated a broad approach that incorporated a whole range of values. We must, he wrote, assign special weight to “constraints of justice.”9 Furthermore, by the time Louis Kaplow and Steven Shavell published their influential Fairness versus Welfare, the legal and economic communities had largely rallied behind the idea that well-being is the primary value and efficiency is its legal expression.10 In other words, there is no reason to believe that economics or any variant of utilitarian consequentialism—the parent philosophy of economic analysis—has a monopoly when it comes to understanding the morality of imposing risks. Non-consequentialist approaches to risk provide the best framework for making sense of the legal standards that are alive in philosophical discourse.11 For example, there are robust philosophical debates about whether contractualism—the most prominent philosophical alternative to consequentialism—can “make the numbers count” in the right way or adequately address cases in which only future lives are put at risk.
The fact is that cost-benefit analysis, as conventionally conceived, is not the embodiment of rationality: it is efficiency incarnate. A precaution justified by cost is an efficient precaution. It prescribes that risks to health and safety must be managed by minimizing the costs of preventing and suffering from illnesses and injuries, while maximizing the net benefit we derive from the activities responsible for these illnesses and injuries. Acting efficiently is, without a doubt, presumably desirable. Efficiency is a value—something whose realization is presumably good—but acting efficiently is not the embodiment of rationality. Efficiency is one value among many. Other values also influence the desirability of various risk-reduction measures. Precautions can be just or unjust, as well as efficient or inefficient, and they can respect or violate people’s rights. As Ronald Dworkin fully demonstrated decades ago, wealth in itself is not a value.12 In contemporary law and economics, wealth maximization is the appropriate end for most legal institutions, but the value that justifies making efficiency the primary criterion for evaluating most legal regimes is well-being. Legal institutions other than the tax system should maximize wealth, and the tax system should (re)distribute wealth in the manner prescribed by some preferred social welfare function. Welfare, in turn, is considered not merely a value, but the value. Other things are good only to the extent that they promote well-being.13
The controversies do not end here. Philosophical and political liberalism has long denied that well-being is a primary value and has long asserted that values are irreducibly plural. Liberalism assumes that people have their own diverse conceptions of happiness and that it is best to leave the pursuit of these conceptions to the people themselves, since they—and not the state—are primarily responsible for their own well-being. The basic role of the state, from a liberal perspective, is to establish the institutional and material conditions for effective agency so that people can pursue happiness as they conceive it. Ensuring the conditions for effective agency is a matter of justice, and claims of justice take precedence over claims of efficiency. This assertion forms the basis of the most prominent liberal theory of justice of the last century.
In this vein, safety is a natural candidate for special priority. We do not need to invoke efficiency to explain why we want our cars, our schools, our air, and our drinking water to be safe. Safety provides people with physical and psychological well-being, a precondition for effective agency. It is worth ensuring safety even if this imposes some cost on economic efficiency. Since our legal and political discourse demands competing moral conceptions, it is surprising to hear that cost-benefit analysis is the only game in town. Cost-benefit analysis expresses one point of view, not the only possible point of view.
Cost-benefit analysis insists that all good and bad things are fungible in some exchange ratio. This maxim depends on the deeper assertion that well-being is the only value and that well-being can and should be measured in monetary terms. Our law and our morality contradict these assertions. The asymmetry between harm and benefit is a deeply rooted characteristic of both law and morality, and common-sense morality requires that avoiding harm take special priority.14
The core of deontological—or non-consequentialist—moral theory is that “the ‘object of morality is not what we do, but how we should relate to one another.’” In a deontological view, both the distinction between people and the relationships between people are central. The fundamental moral issues of risk and precaution are questions about what people owe one another: a coin with two sides. One side of the coin is what people owe one another in terms of the freedom to impose risks of harm on one another, so that each of us has the freedom necessary to pursue the ends we consider valuable. The other side of the coin is what people owe one another in terms of taking precautions to reduce the risks of harm at the hands of others. To lead a valuable life, we need both the freedom to impose risks of harm on others and security against harm at the hands of others. Questions of risk and precaution are questions about the terms of fair interaction between equal and independent persons.
Placing people and their essential interests as agents on a primary moral plane casts a favorable light on the asymmetry between harm and benefit. When we focus on the essential conditions of effective agency, harms and benefits are not symmetrically important. Physical harms—death, disability, illness, and the like—deprive us of our normal and fundamental powers of action. They are bad for us, no matter what our ends may be. By contrast, few benefits comparatively enhance our basic powers of agency. The value of a benefit depends on whether or not it furthers the ends of the person in question. Given that physical harm is generally bad for people because it impairs the basic powers of agency that allow us to pursue a wide variety of ends, the value of any given benefit generally depends on the goals and aspirations of the person to whom the benefit is conferred. Extraordinary hand-eye coordination is indispensable for an elite tennis player but largely wasted on a law professor. A talent for abstract mathematical thinking is immensely valuable to a physicist but of little value to a carpenter.
Since serious physical harm severely impairs the basic powers of human agency—while most benefits do not comparatively enhance our powers of agency—we have reason to give special priority to the prevention of harm. Because deontology regards people and their reciprocal claims as the fundamental concern of morality, the particular perversity of physical harm becomes apparent. Bodily harm paralyzes the capacities and powers upon which the pursuit of all our ends depends. The welfarist foundations of cost-benefit analysis obscure the special significance of harm because they treat it as just another cost in an overall calculation of social goods and evils. Our legal rationality is divided between cost-justified standards of precaution and safe and feasible standards of precaution, because these two perspectives appeal to our moral conscience.
In the second part of this text, we will examine how Gregory C. Keating evaluates the safety and feasibility standards of precaution in terms of costs and explains why civil liability fails in the face of the harm we have the most reason to avoid. Direct risk regulation incorporates a burden that civil liability assumes but cannot fully fulfill.
1 Keating is an acclaimed professor at the USC Gould School of Law and the author of works on civil liability. Some of his recent publications include: “Products Liability As Enterprise Liability”; Comment on Gardner: Duty and Right in Private Law; “Is Cost-Benefit Analysis the Only Game in Town?”; “Must the Hand Formula Not Be Named?”; “Strict Liability Wrongs” (Philosophical Foundations of Tort Law, 2014); “When Is Emotional Distress Harm?” (Tort Law: Challenging Orthodoxy, 2013); and “The Priority of Respect Over Repair” (Legal Theory 2012).
2 Keating, Gregory C., Irreparable Injury and the Limits of the Law of Torts (December 8, 2022). Forthcoming in Oxford Studies in Private Law Theory, vol. 2 (Oxford University Press), USC CLASS Research Paper No. CLASS22-42, Available at SSRN.
3 Andrew J McClurg, 'Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages' (2005) 85 Boston U L Rev 1, 6-7, 20-22. The loss of the deceased’s enjoyment of life is not compensable in the vast majority of jurisdictions. The courts are well aware of this fact and its significance. For example, Acosta v Honda Motor Co Ltd 717 F2d 828, 837 (1983): “Compensatory damages may prove to be an inadequate deterrent, even when victims file lawsuits. The law does not allow, for example, the estate of a decedent killed by a defective product to recover the value of the decedent’s life; compensation is limited to the pecuniary loss of those immediately surrounding the decedent.”
4 Otani v Broudy 59 P3d 126, 129 (Wash Ct App 2002). See also Keene v Brigham & Women's Hosp Inc 775 NE 2d 725, 739 (Mass App Ct 2002) (concluding that there should be no award of damages for loss of enjoyment of life when the "plaintiff lacks the cognitive awareness of his loss"),
5 Richard Pierce Jr, 'Encouraging Safety: The Limits of Tort Law and Government Regulation' (1980)
6 Jonathan S Masur & Eric A Posner, 'Against Feasibility Analysis' (2010) 77 U Chicago L Rev 657, 707, 709
7 Cass R Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge, 2002) 7.
8 Michigan v EPA 135 S Ct 2699, 2707-08 (2015).
9 Guido Calabresi, The Costs of Accidents (Yale 1970), especially pp. 24–26.
10 Louis Kaplow & Steven Shavell, Fairness Versus Welfare (Harvard 2002).
11 See, in particular, John Oberdiek, Imposing Risk: A Normative Framework (Oxford 2017).
12 Ronald Dworkin, 'Is Wealth a Value?' (1980) 9 J Legal Studies 191.
13 Louis Kaplow & Steven Shavell, 'Why the Legal System is Less Efficient than the Income Tax in Redistributing Income' (1994) 23 J Legal Studies 667; Louis Kaplow & Steven Shavell, 'Should Legal Rules Favor the Poor?' (2000) 29 J Legal Studies 821.
14 Seana Shiffrin, 'Harm and its Moral Significance' (2012) 18 Legal Theory 357.
Article originally published on March 20, 2023.