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Indiana Law Journal

Document Type

Article

Publication Date

Fall 2012

Publication Citation

87 Indiana Law Journal 1745 (2012)

Abstract

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At first blush, both corrective justice and civil recourse appear to undercut lost life damages. Once properly understood, however, each theory supports a life-projects approach to lost life damages. The normative underpinnings of these tort theories suggest that tort damages should respect the ends that the victim set for herself and should refrain from valuing the victim only as a means. Our current tort practices do the reverse. The victim is valued only through the effects she had on others—only as a means of her family’s flourishing—rather than as an equal person with her own life projects. Lost life damages can respect the victim’s ends in several ways. One possibility would be awarding money to her estate. The victim’s will or other testamentary instrument would then direct that award to further whatever life projects she felt were important enough to survive her death.

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