Irreparable Injury And The Limits Of The Law Of Torts

Tort law safeguards security by requiring reparation for harm wrongly done. The fact that reparation is the institution's default remedy limits tort law's powers. Some harms are simply irreparable. Death is the most vivid case in point. No amount, or form, of compensation can restore the dead to the lives they have lost. No remedy can return them to the position that they would have occupied had they not died. Faced with this stark truth early modern tort law did not award any damages for wrongful death and contemporary tort law still stops short of awarding damages for the value to those who are wrongly killed of the lives that they have lost. Wrongful death doctrine exposes tort law's Achilles' heel. On the one hand, premature death is the harm that we most wish to be protected against. On the other hand, premature death is the harm against which tort law is least able to protect us. Tort law relies on reparation to enforce its obligations, both prospectively and retrospectively. Tort fails prospectively because it does not price, and therefore does not deter, the harm of wrongful death. It fails retrospectively because money damages cannot udo the harm of death. Direct regulation of risk is required to remedy the incompleteness of tort law. This chapter examines the two most relevant regulatory norms--the “safe level” and “feasibility” standards-- against the background of tort law's limitations.