The Yale Law Journal

October 2011

The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

Mark A. Geistfeld

121 Yale L.J. 142 (2011).

When a tort rule is fully aligned, harms are valued equally across the elements.
Because the valuation of harm within duty equals the valuation within the damages remedy, a
fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any
harm by paying (the equally valued) compensatory damages for that harm. Full alignment
characterizes a rule of strict liability but not negligence liability, which partially misaligns the
elements for reasons of principle. Owing to its primary reliance on the damages remedy, a fully
aligned rule is unable to address adequately the problem of irreparable injury, a common law
category encompassing bodily injury and damage to real or tangible property. In cases of
irreparable injury, the common law has long recognized the principle that it is better to prevent
the harm instead of attempting to compensate for its occurrence with the inherently inadequate
monetary damages award. This principle explains why tort law has adopted a default rule of
negligence liability that seeks to prevent the irreparable injury of physical harm without
imposing undue hardship on the dutyholder. To function in this manner, the negligence rule
must misalign the elements so that dutyholders are prohibited from rejecting the primary duty of
care (based on a higher legal valuation of harm) in exchange for payment of (the lower-valued)
compensatory damages.

The principle of misalignment reorients the interpretation of tort law in a manner that has
been missed by leading accounts. It decisively shows that courts have formulated the negligence
rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of
corrective justice must explain why that form of justice would primarily value the exercise of
reasonable care as opposed to the payment of compensatory damages. For reasons revealed by
the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort
norm that redirects the dutyholder’s compensatory obligation from the damages remedy into
expenditures that would prevent physical harm, yielding the type of misaligned negligence rule
that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce
resources, the varied limitations of tort liability can all be understood in relation