Substitute Victims

Scholars have long recognized that the dominant theory of corrective justice—according to which compensatory damages are designed to return a tort victim to the position they were in prior to the tort—inherently tethers damages awards to victims’ economic status. In this way, tort law’s internal logic creates perverse incentives for tortfeasors to target the poorest victims for their riskiest activities and to exercise greater care toward wealthier individuals.

     The Article demonstrates the centrality of this problem in tort law, illustrating how tortfeasors who can identify their potential victims in advance are likely to systematically target poorer victims for their risky activities, rather than their wealthier counterparts, rendering the former “substitute victims” for the latter. The Article illustrates how the problem of substitute victims manifests in the context of three dominant tort doctrines: negligence, nuisance, and product liability. It then proposes a novel solution, tackling the problem from a new angle by shifting the focus away from an evaluation of the harm the victim suffers and toward an assessment of the benefit the tortfeasor gains by choosing to exploit the system of compensatory damages to profit from existing socioeconomic inequities.

     The Article provides a comprehensive analysis to show that an injurer who benefits from their deliberate choice to target a substitute victim is unjustly enriched. Accordingly, the victim of such a choice should have a claim for restitution of the benefit the tortfeasor obtained at their expense, which can be measured by the costs the tortfeasor saved as a result of that choice. By subverting the opportunity for tortfeasors to benefit from deliberately targeting poorer victims over wealthier ones for their risky activities, the proposed framework effectively tackles the problematic incentives created by the prevailing compensatory damages model. The Article further proposes a practical test for valuing gain-based damages within the framework of the law of unjust enrichment, demonstrates how it applies in the three legal contexts presented, and highlights its desirability from a policy standpoint. The Article then completes the analysis by addressing its potential challenges and practical limitations.