DePaul Law Review Volume 55 Issue 2 Winter 2006: Symposium - Who Feels their Pain? The Challenge of Noneconomic Article 3 Damages in Civil Litigation General Damages Are Incoherent, Incalculable, Incommensurable, and Inegalitarian (but Otherwise a Great Idea) Richard Abel Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Richard Abel, General Damages Are Incoherent, Incalculable, Incommensurable, and Inegalitarian (but Otherwise a Great Idea), 55 DePaul L. Rev. 253 (2006) Available at: https://via.library.depaul.edu/law-review/vol55/iss2/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact
[email protected]. GENERAL DAMAGES ARE INCOHERENT, INCALCULABLE, INCOMMENSURABLE, AND INEGALITARIAN (BUT OTHERWISE A GREAT IDEA) Richard Abel Lawyers care deeply about damages. Before taking cases, plaintiffs' lawyers are as concerned about what they are worth as about the diffi- culty of proving liability.1 Defendants and insurers want to know what to offer in settlement or invest in defense. But law professors marginalize damages.2 In the two years between December 2002 and December 2004, just 111 of the 1,100 scholarly articles on torts con- cerned damages (ten percent), of which twenty-one (two percent) dis- cussed punitive damages (because recent Supreme Court decisions had constitutionalized the issue) and fifteen (1.4%) discussed medical malpractice caps (in response to the third wave of liability insurance 3 "crises"). Treatises and texts give equally short shrift to damages, generally less than ten percent of their pages, often none at all (see Table A).