Rethinking Intangible Injuries: A Focus on Remedy

Abstract

Theoretically the tort process serves to compensate victims, disperse and thus minimize the impact of the losses they experience, deter wrongdoers, and vindicate important societal and personal values.'Moreover, these goals are to be accomplished without unduly impairing or discouraging societal development and human interactions.In recent years, however, critics have questioned whether the tort process effectively achieves these goals. 2 This questioning is most justified when directed at the tort system's method of assessing and compensating intangible injuries which, ostensibly, are both nontransferable and nonquantifiable.For example, money damages alone will not repair one's reputation, restore one's privacy, or end one's emotional distress.Consequently, rather than dispersing and minimizing the loss, money damages may compound the aggregate societal injury by increasing the cost of certain activities without correspondingly reducing the impact of the plaintiff's personal injury.Furthermore, the nonquantifiable nature of intangible injuries impedes the tort process' traditional mechanisms for controlling juries and avoiding excessive deterrence of beneficial, though risky, activities.For example, activities that potentially impair reputation or violate privacy are highly affected by the risk of excessive damage awards.Such activities, though potentially harmful, are normally protected by free speech and press guarantees.Consequently, allowing the tort process to compensate for intangible injuries at times may jeopardize rather than vindicate recognized social values.In spite of growing criticism of the tort process, tort law continues