… We have special reasons, moreover, to behave resiliently when harms derive from wrongdoings. Or at least that is what this Article will suggest. Part I discusses in more detail the particular ideal of resilience I have in mind. The ideal is demanding. It holds that after suffering harm the person that suffers that harm ought to try to make herself, in response to that very setback, better off than before she has suffered it, and in some non-trivial way. I will summarize my recent attempts to formulate the ideal elsewhere, as well as some reasons for trying to conform to it in our own lives. In short, Part I briefly articulates and defends the ideal.
Part II returns to tort law, highlighting apparent differences between tort law’s domain and the domain of resilience. Although tort law and the ideal represent ideal norms that apply in many of the same circumstances, a Venn diagram would show only a partial overlap. For example, tort law applies in many fewer situations involving harm (eg, primarily those involving legal wrongdoings) and also (at least superficially) entrenches a different remedial ideal (ie, making plaintiffs whole rather than making them better off). Part II canvasses this and other distinctions.
Still, Part III aims to complicate this contrast by focusing on their overlap …
Erik Encarnacion, An Ideal of Resilience and the Law of Torts, 73 DePaul Law Revew 395 (2024).
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