As if it had never happened.

• Jurisdiction: United States
• Author: Ripstein, Arthur
• Date: 01 April 2007

[The logical positivists of] [t]he Vienna Circle made certain apparently very damaging criticisms of the kind of philosophy that was current in their day.... We ... share with the critics a basis of discussion such as neither of us shares with those who have chosen to ignore these important developments and to carry on in their old ways as if nothing had happened.

R.M. Hare (1)

[T]he injured right lives on in a claim for damages. (2)

Law students are usually told that the purpose of damages is to make it as if a wrong had never happened. (3) Although torts professors are good at explaining this idea to their students, it is the source of much academic perplexity. Money cannot really make serious losses go away, and it seems a cruel joke to say that money can make an injured person "whole." Worse still, if money could make an injured person whole, injuring someone and then paying them seems just as good as not injuring them at all.

My aim in this Essay is to redeem the common sense idea that damages really do make it as if a wrong had never happened. I do so by focusing on the normative structure of private rights to person and property. I first show how such rights are best understood in terms of an entitlement to have certain means subject to your choice. I then go on to argue that although wrongdoing can cause a factual loss, it does not change what a person has a right to. I will then show how money can be understood as restoring to the wronged party the means he or she is entitled to. I will close with some broader reflections about the relation between law and morality.

1. THE TRADITIONAL CONCEPTION OF PRIVATE LAW AND THE "MODERN" OBJECTIONS

   There is a familiar way of thinking about the law of private remedies, both loss-based and gain-based, according to which the purpose of a remedy between two private parties is to make it as though the wrong in question had never occurred. (4) So, for example, in the most familiar case of compensatory damages, defendant is made to repair plaintiffs loss, so that plaintiff will be in the situation in which she would have been, if defendant had not wronged her. (5) In the equally important, if less familiar, context of gain-based damages, the defendant is made to surrender the benefits she gained through wronging the plaintiff. Thus defendant is put back into the position in which she would have been, if she had not wronged plaintiff. (6) Law students accept something like this picture in the first week of their torts course, as do experienced lawyers trying to settle a case, asking what it would take to make a problem "go away." My aim is to defend this familiar wisdom.

   The supposed difficulties are almost as familiar as the view itself: First of all, a sum of money, even a huge sum of money, does not really make it as though someone has not suffered terrible bodily injury, or lost a loved family member. Personal injuries are not fungible, and so no amount of money can make them "go away." In cases of property damage, if injurer is made to compensate victim, it may be that, from the point of view of the victim, it is as though things had never happened; but, it might be said, it is hardly so from the point of view of the injurer, who is left worse off as a result. So, the argument continues, we cannot undo the harm but can only transfer it, and the cost of making the transfer exacerbates the problem.

   The conclusion usually drawn from this line of thought, at least since Holmes's The Common Law, is that the "moral phraseology" in which the law "abounds" cannot be taken at face value. (7) The real inquiry is not about making wrongs go away, indeed, not about wrongs at all, but rather about when we should call upon the "cumbrous and expensive machinery" of the state to transfer a loss from one person to another. (8) Sophisticated people take old-fashioned talk about making a plaintiff "whole," or making it as though a wrong had never happened, as a sort of smokescreen to disguise the difficult questions of social policy that judges are forced to confront. (9) Patrick Atiyah further laments the fact that compensatory damages are a "lottery," and that their payment results in higher consumer prices. (10) Like the philosophers on whose behalf Hare speaks in the opening quote, people such as Atiyah doubt these familiar claims about damages mean anything.

   This line of thought is not limited to damages. Guido Calabresi describes "causation" as a "weasel word" behind which judges hide their policy choices. (11) Lord Denning asserts that

   the truth is that all these three duty, remoteness and causation --are all devices by which the courts limit the range of liability for negligence or nuisance.... [I]t is not every consequence of a wrongful act which is the subject of compensation. The law has to draw a line somewhere.... [U]ltimately ... it is a question of policy which we, as judges, have to decide. (12) The common sense view is also said to run into difficulty in circumstances in which the injured party ends up better off as a result of the wrong against her. In cases of "waiver of tort," plaintiff declines to make the claim in tort for the wrong she has suffered, demanding instead that defendant disgorge the gains he garnered by wronging her. As a matter of legal strategy, as well as self-interest, a plaintiff will only waive her tort rights when the defendant's gain exceeds her loss. In such cases, she ends up doing better for having been wronged. How can two remedies that differ in their magnitude the feature that is of immediate interest to the parties each serve to make it as though the wrong in question had never happened? If that is not enough of a puzzle, how can they do so solely at the election of the plaintiff?

   The solution to all of these problems can be found in other ideas that are both as familiar and unpopular as the problems themselves: the legal distinction between harm and wrongdoing, and the dependence of remedies on primary rights. It is a commonplace of legal analysis that not all harms are legal wrongs, and not all legal wrongs are harms. If I cut across your lawn without your consent, I commit a trespass against you, but any harm that I do to you is well below the de minimis range. I wrong you nonetheless, even if it is not worth your while to do anything about it. Another commonplace of private law is that not all harms are wrongful. If you lure customers away from my business, you harm me, but as a matter of legal doctrine you do not wrong me. Again, if you damage property that I depend on, but have no legal right to, you harm me without wronging me. I have no legal grounds for complaint. It is equally a commonplace that private law remedies follow rights: the plaintiff in a tort action comes before a court claiming that defendant has wronged her, and seeking a remedy to address that wrong. None of the puzzles arise if these basic ideas stay in focus. (13)

   If the common sense idea is to be redeemed as an interpretation of the law of damages, exactly what has happened and how things would stand if it had not happened need to be specified. That is what I propose to do. I will argue that we can understand the idea that damages give expression to underlying rights by focusing on the idea of a wrong, and so on the idea that damages serve to make it as though the wrong had never happened.

   These conclusions may strike you as bizarre, callous, or both. There are many important respects in which money damages can never undo terrible things that have happened. Most significantly, I do not mean to deny the tremendous human significance of suffering or loss. My claim is that despite these important dissimilarities, the sole rationale for granting damages at all--for bringing the coercive and cumbrous machinery of the state to bear on a particular defendant to require him to compensate the plaintiff he has injured--is the respect in which damages make it as if the wrong had never happened. It also does not follow that the wrong does not matter if it can be made good: the remedy serves to repair the damage, not to license it. The point of repairing it, I shall argue, is to restore to plaintiff the means to which he or she had a right.

   The claim that damages serve to make it as if a wrong had never happened is not a factual prediction about the effects of a payment of damages, but rather a normative claim about the relation between wrongdoing and repair. Private law enforces the rights that private persons have against each other. Those are not rights against harm, as such, but rather rights against injuries brought about in certain specified ways. The rights in question cannot be identified apart from a specification of the wrongs that would violate them. Thus, they are not rights against harms in the sense in which Mill's "harm principle" has become a mainstay of debates about the criminal law. (14) Instead, they are rights that others forbear from injuring interests in particular ways. In the same way, the repair of a wrong is not simply a matter of the causal annulment of its factual effects but of the repair of the rightful claims of the person who has been wronged.

   In order to make this point, I will offer an interpretation of the distinction between wrongs and harms. That distinction provides the starting point for my analysis, because it highlights the sense in which the central focus of private law is on norms of conduct and the wrongs that consist in violations of those norms, rather than on harms or benefits, considered simply as such. (15) I do not mean to deny that many familiar torts are "harm-based" in the sense that the wrong complained of injures plaintiff or damages plaintiffs goods. In the familiar context of a negligence action, the measure of damages is tied to the magnitude of plaintiffs loss. Indeed, I will also explain how a focus on wrongs rather than on harms can explain the significance that attaches to the harm plaintiff...