Private Law Theory

INTRODUCTION
Is torts ready for a revolution? Momentous changes in law are exceedingly rare. In torts, one such change was the advent of comparative fault. Originally codified in the early twentieth century, comparative fault represented a revolutionary shift away from all-or-nothing recovery. For the first time, a plaintiff’s recovery need not be either her full damages or zero – it might be somewhere in between.

Another revolutionary doctrine lurks in tort law. We call this doctrine Probabilistic-Proportional Recovery, or PPR. Like comparative fault, PPR provides for the possibility of partial recovery. It does so, however, in a way that is arguably a more profound break from prior law than that wrought by comparative fault. According to PPR, a plaintiff’s recovery should be proportional to the likelihood that she has established all the elements necessary for liability. In this way, PPR can be thought of as either rejecting tort law’s traditional requirement that the plaintiff establish all the elements of a tort by a preponderance of evidence, recognizing risk itself as an entirely new category of harm, or both …

Jessica Bregant and Anthony Dillof, Fairness and Uncertainty in Torts: A Theoretical and Empirical Inquiry, 102 Oregon Law Review 405 (2024).