Torts Article 125 Harv. L. Rev. 1727

Duties, Liabilities, and Damages



In this Article I explore two ways of understanding damage awards. The first way, which I call the duty view, supposes that damage awards confirm existing legal duties to pay damages. According to this view, damage awards are structurally similar to awards that require defendants to do things such as deliver contractually promised goods, cease nuisances, or pay contractual debts. Like these awards, damage awards are essentially rubber stamps: they require defendants to do what they should have done already. In contrast, the second way of understanding damage awards, which I call the liability view, supposes that insofar as it makes sense to speak at all of legal duties to pay damages, such duties are created – not confirmed – by damage awards. According to this view, damage awards are structurally similar to awards that require criminal wrongdoers to pay fines. In Montreal, there is a bylaw stipulating that citizens are liable to be fined a minimum of $300 if they allow their dogs to run unleashed. But there is no rule stipulating that if citizens allow their dogs to run unleashed, they should send the city a check for $300. Errant dog owners have no legal or even moral duty to pay the city prior to being ordered to do so. The liability view regards damage awards as similar: they are at most duty creating, not duty affirming.

The Article defends three main propositions. First, the best-known contemporary theories of damages – “rights-based theories” and “utilitarian theories” – are committed to the duty view. Properly understood, the explanations these theories give for why damages should be paid – roughly, that there are moral duties to pay damages or that the practice of paying damages promotes utility – are in principle best satisfied if payment is made immediately after the wrong. If either of these theories is correct, the common law should contain a rule stipulating that wrongdoers have duties to pay damages to their victims. Second, the common law contains no such rule. Rather than imposing ordinary or even inchoate duties to pay damages, the common law merely imposes liabilities to pay damages. Third and finally, it follows from the first two propositions that any theory of damage awards focusing on the value of the actions that such awards require – as do rights-based and utilitarian explanations – is bound to fail. The most important feature of damage awards is that they are awards – that is, that courts issue them. Like orders to pay fines, their importance lies fundamentally not in what they do, but in what they represent. And what damage awards represent is the law’s recognition that the plaintiff was wronged by the defendant. Damage awards are the law’s way of vindicating – not enforcing – the plaintiff’s rights.

A word on terminology: except where indicated otherwise, “legal duties” refers to duties that exist because there is a legal rule – legislative or judge-made – that makes certain behavior obligatory. This usage is familiar: lawyers say that citizens have legal duties to pay their contractual debts because there is a legal rule that contractual debts ought to be paid. It is not, however, the only usage; in particular, lawyers sometimes talk of legal duties that exist because a court issued a judicial award. Thus, it is sometimes said that a defendant who has been ordered to pay a sum has a legal duty, arising from the order, to pay the money. In Part II, I briefly consider whether “court-ordered duties” are different in kind from “rule-based duties” and, more generally, whether the idea of court-ordered duties makes sense at all. In general, however, this distinction is unimportant for my purposes. The alleged duties that are this Article’s focus are duties that arise upon the commission of a wrong and that require the wrongdoer to pay damages. Such duties are necessarily rule-based.