minimizing the effect of such criteria is a positive effect of Bayer’s
But how important is horizontal equity in tort law?
On the one
It is related to the core goal of law that that
It has a
distant constitutional Fourteenth Amendment.
like cases should be cousin in the Equal On the other hand, in
practice, it is often ignored. ensure that even two victims of
There is the same
no institutional mechanism to car crash who receive identical
injuries, for example, receive the same amount,
even if both cases are any given tort claimant
will receive hinges upon the largely fortuitous circumstances she was injured by a party who is legally responsible for her
of whether injury and
has the resources to compensate.
Many other factors completely
Tort law’s decentralized common-law adjudication claims is difficult to reconcile with any strong
of individualized claims of the
widespread existence of horizontal equity.
If it is truly an
important goal, tort law does a remarkably poor job of serving it.
Perhaps weaker claims for the role of
horizontal equity in the type of injuries
horizontal equity seems contexts where they may
more important in mass torts than in other tort be more difference in the specifics of each
____________ According to press accounts, Bayer’s schedule provided approximately $1m in compensation for death from cerivastatin induced 49
For comparison, the average award for
a death claim for the 9/11 Victim’s Compensation Fund was $2m with the median being $1.7m.
50 Rabin (1995) identifies the tension between individualized corrective justice and horizontal equity (what he calls “collective
justice” as the central tension to the resolution of mass torts). also Trebilcock (1989) (discussing importance of horizontal equity justifications for administrative alternatives to tort law in New Zealand and elsewhere); Liebman (1976) (noting inconsistencies in