Michael Pressman, ‘Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life’

ABSTRACT
The ubiquitous corrective-justice goals of ‘making a party whole’ or ‘returning a party to the position she was in’ are typically understood in monetary terms, and in this context it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions, and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task.

Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: How to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (eg, medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct?

The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which ‘happiness aggregation function’ to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).

Pressman, Michael, Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life (September 10, 2019), 53 University of Michigan Journal of Law Reform (2019) (forthcoming).

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