This Article addresses two questions: (1) Should a plaintiff be able to be compensated in tort for having his life shortened by a defendant’s tortious behavior (eg, by medical malpractice or exposure to carcinogens)? and (2) If he should be compensated, in what amount?
This Article primarily explores these questions in the context of cases in which a victim has his expected future shortened by a tort, but in which he has not yet died. In a case of this type, the fact that the victim is still alive makes it possible to compensate the victim himself directly for the value of life-years. But the law generally fails to compensate plaintiffs for these losses – a position that is in great tension with the commonsense intuition that having one’s life shortened is one of the most serious harms that one can incur. If this commonsense intuition is correct, the law’s rule against compensation for a person whose life is shortened is arguably in need of reform.
In order to address these issues, this Article draws upon a novel framework that the author has proposed elsewhere for (1) understanding and systematizing our approach to private law remedies in general, and (2) addressing the specific question of whether, and, if so, how much, a person should be compensated for lost years of life. According to this framework, the goal of private law remedies is, and should be, returning a party to the position he was in, before the harm incurred, in terms of happiness (or, perhaps, another feature of a person’s welfare that might similarly be thought to be intrinsically valuable). After sketching the proposed framework, this Article then significantly develops it, expands upon it, and applies it.
More specifically, the Article applies the author’s three-step approach for determining compensation for lost years of life: (1) Determining which ‘happiness aggregation function’ to espouse, (2) determining how much happiness, according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determining how much financial compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that he lost (according to one’s happiness aggregation function of choice). The Article explains how we should carry out these steps, and it addresses key questions that arise along the way.
Michael Pressman, Aggregating Happiness: A Framework For Exploring Compensation For Lost Years Of Life, 69 DePaul Law Review (2020).