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Zittrain Torts Playlist Spring 2013

XXII. Damages

Once one gets beyond the concrete medical bills and replacement costs for lost items chargeable in a tort action, assessing damages can be profoundly difficult. The core idea of tort is to make a deserving plaintiff whole again, and money is the vehicle by which to do it. Lost wages might be clear in some cases, and speculative in others. What amount to account for a lifetime’s labor for a ten year old girl who has been wrongfully killed? A one-day-old baby? If someone’s wrong has caused pain and suffering, that’s a negative to be offset by the positive of compensation. But how should a jury assess pain and suffering? Sometimes this can be thought of as a question of evidence: what may be brought before the jury as fact by one party, subject, as always, to challenge by the other? At other times it may fall to jury instructions, or to what a lawyer may say in opening or closing argument.

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