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.

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Edward K. Cheng

Vanderbilt Law School

Edward Cheng's research focuses on scientific and expert evidence, and the interaction between law and statistics. He holds a J.D. from Harvard Law School and a Ph.D. in statistics from Columbia University. 

Ehud Guttel

Hebrew University of Jerusalem

Ehud Guttel is the Bora Laskin Chair in Law at the Hebrew University of Jerusalem. He received his LL.B from Hebrew University and his J.S.D. and LL.M from Yale Law School.

 

Yuval Procaccia

Interdisciplinary Center Herzliyah

Yuval Procaccia specializes in Economic Analysis of Law, Behavioral Law and Economics and Contract Law. He holds an S.J.D. and LL.M from Harvard Law School, as well as an M.A in Economics and a joint LL.B and B.A in Law and Economics from the Hebrew University.

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