Adding Institutional Insult to Personal Injury

Abstract

In this brief comment on the very interesting paper by Blumstein, Bovbjerg and Sloan, I want to question the desirability and defensibility of their proposal to substitute contracts-for-care for the traditional damage award in an important subclass of tort cases. In doing so, I want to draw attention to the connection between one way of understanding of what it is that makes something tortious and the appropriateness of various kinds of remedies given that understanding. The thesis I advance, which I am calling "connectedness" or continuity between offense and remedy, is important not only to our understanding of tort law, but to our understanding of legal liability more generally.