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Within Republican political circles, numerous state legislatures, and even the U.S. Congress, advocating caps on "noneconomic" damages in tort suits is in vogue, as part of the ongoing politics of "tort reform." Yet, the distinction between "economic" and "noneconomic" damages is nonsensical. It does not originate in the discipline of economics, but seems instead to be purely a rhetorical invention of those who wish to limit damages by any means politically possible. But law reform based on sheer rhetoric should be shunned; unprincipled rhetoric is no substitute for justificatory reasons, and to make laws without reasons exemplifies arbitrariness and injustice.

The focus of this article is relatively narrow--restricted primarily to revealing the incoherence of a purported distinction between economic and noneconomic harms or losses--the author's pursuit of this point reveals, along the way, certain similarities between the common law of tort and the main ideas of modem economics. Quite often, those who defend the common law approach to torts contrast it with an economic interpretation of this area of law. While there may be areas where economics and tort law conflict, understanding loss is not one of them.

Publication Citation

35 N.M. L. Rev. 375-390 (2005)