X hits on this document

108 views

0 shares

0 downloads

0 comments

31 / 40

  • -

    29 -

minimizing the effect of such criteria is a positive effect of Bayer’s

strategy.

49

But how important is horizontal equity in tort law?

On the one

hand,

it

seems

like

a

self-evidently

generally

desirable

characteristic.

It is related to the core goal of law that that

treated alike.

It has a

Protection

Clause

of

the

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,

tried

before

the

same

judge.

The

actual

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

unrelated

to

the

seriousness

of

her

injury

will

determine

the

outcome.

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.

50

If it is truly an

important goal, tort law does a remarkably poor job of serving it.

law

Perhaps weaker claims for the role of

may

be

made.

Because

the

defendant

and

horizontal equity in the type of injuries

tort recur,

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

rhabdomyolysis.

(Langley, 2004)

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

See in

Document info
Document views108
Page views108
Page last viewedThu Dec 08 21:39:48 UTC 2016
Pages40
Paragraphs2488
Words11844

Comments