Liability Under Uncertainty: Evidential Deficiency and the Law of Torts

ecause factual uncertainty distorts the allocation of civil liability, this article argues that the law should impose liability for uncertainty. Justified on both corrective justice and economic efficiency grounds, this liability should be imposed upon any person who negligently aggravates the uncertainty of a civil case by making its evidential base deficent. Because "evidence" belongs to the world of inferences rather than things, evidential damage may be inflicted in a variety of ways, far beyond destruction of documents and other physical tampering with evidence. Through adoption and refinement of this insight, the Article diagnoses the presence of evidential damage in many legally important settings, such as mass torts, medical malpractice, exposure to risk and employment discrimination. It also identifies a number of legal doctrines that handle the evidential damage problem indirectly and thus attempt to resolve it within the narrow scope of their application. As underdeveloped forms of liability for evidential damage, these doctrines are urged to be replaced by an explicit and comprehensive liability.