Below is the abstract for “Sequencing in Damages,” available for download on SSRN.
Tort law consists of multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing matters, and it can substantially affect the compensation that a tort victim ultimately receives. Yet, the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature.
In this Essay, we introduce and examine the question of sequencing. We offer three contexts in which the question arises in torts: failures to mitigate, damage caps, and collateral sources of funding – all of which play a major role in the determination of liability and compensation. Each of these examples demonstrates a different way in which attention to sequencing improves legal analysis. Building on these examples, we develop a general theory of legal sequencing.