Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
Issa Kohler-Hausmann, Community Characteristics and Tort Law: The Importance of County
Demographic Composition and Inequality to Tort Trial Outcomes, 8 J. EMPIRICAL LEGAL STUD.
413 (2011). Kohler-Hausmann’s finding is that “the social environment of highly unequal
counties may alter overall attitudes and standards related to the questions adjudicated in tort
disputes.” Id. at 437.
5. Beyond Dollars
What beyond dollars might we seek to get from the resolution of a tort suit? Linda Radzik
suggests that the goal of torts might be conceived of as repairing the relationships damaged by the
wrong.
A reconciliation theory of corrective justice insists a proper response to wrongdoing
or harming requires the correction of the damage that the wrong or harm does to the
relationships of the parties involved. This relational damage must be repaired for
two reasons. First, insofar as damaged relations are allowed to continue, the wrong
continues. Consider again the case of the bullied child. His money is returned to
him. The bully is punished. But these steps do not guarantee his future safety. They
probably do not remove the social stigma of having been bullied, or restore his selfesteem.
He continues to suffer from the bully’s misdeeds. Second, leaving
damaged relations unrepaired is dangerous. Resentment, fear, humiliation, and
distrust threaten to lead to new wrongs and harms. For this point, the example of
bullying is sadly apt. Not infrequently, bullied children become bullies themselves.
. . .
Apologies, explanations, promises of better behavior, and gestures of respect can
all be properly demanded of wrongdoers. Without these sorts of interactions,
victims may find it very difficult to put the past behind them and re-establish
morally appropriate relationships with their former abusers, their communities, and
themselves. . . .
[I]f we look at the tort process as a whole and not just tort judgments, we see that
they provide victims with less tangible forms of corrective remedies as well.
Through the proceedings, Janie [a hypothetical tort plaintiff bitten by a vicious dog]
and her family may finally receive an explanation of how this wrong came about—
what the dog’s history was, why it was aggressive to children, and what Andy [the
defendant] was thinking in letting the dog roam among children. This sort of
information might help Janie work through her fear of dogs. It might help her
parents manage their feelings of anger so that, even if they do not forgive Andy,
they can move on.
Linda Radzik, Tort Processes and Relational Repair, in PHILOSOPHICAL FOUNDATIONS OF THE
LAW OF TORTS 231 (John Oberdiek ed., 2014). Are the goals Radzik identifies compatible with a
system of adversarial litigation that delegates decision-making authority over the litigation to
private parties? If relational repair is important, can it be achieved where the parties settle in more
than nine out of ten cases?
650