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Date: Wed, 30 Jul 2003 08:17:13 -0400 From: Jason Neyers Subject: Insurance et al
I post this on behalf of Lionel Smith: Although I am happy to declare that I am a formalist who believes in the internal rationality of private law, I think I can make the following point quite independently of that. When I taught remedies for the first time I was quite interested to find that the common law seems quite unstable on a point which can be encapsulated by stating an issue in this way: if D wrongfully caused a loss to P, but between the time of the injury and the time of trial some other event has occurred which reduces the loss, and which is but-for causally related to the wrongful loss, can D have the benefit of that? The common law, so far as I can tell, is strikingly inconsistent in answering that question. Insurance is only one aspect of this. There are lots of others. Mitigation is a big part of this story, but there can be loss-reducing events which a plaintiff could not have been reasonably expected to bring about. Even if you do not believe in functionalism, you still have to figure out the answer to the question whether these events are relevant, as a matter of corrective justice or whatever other logic you choose to follow.
Lionel Smith --
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