Henry E. Smith

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Structured Settlements as Structures of Rights, 88 Virginia Law Review 1953 (2002)


We are all used to thinking about law in terms of the primary rights and duties that obtain in the world at large. One has a right against everyone else not to be punched in the nose or to be run over by a negligent driver. Once these primary rights are violated, a second set of rights and duties can arise out of a judgment or settlement. The victim now has a right to compensation from the tortfeasor. It is tempting to think that there is nothing interesting left to say. A judgment or settlement paid by the tortfeasor to the victim will compensate the victim according to the size of the damages in present value terms and will deter potential tortfeasors in the same proportion. Whether a settlement is paid in a lump sum or periodically should not matter because it is the amount paid that impacts the goals of tort law.

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