340
O'Connor, J., dissenting
character of the right they seek to enforce," id., at 249, and I remain of that view today. Dean Prosser presciently observed years ago that "[t]he relation between the remedies in contract and tort presents a very confusing field, still in process of development, in which few courts have made any attempt to chart a path." W. Prosser, Law of Torts 635 (3d ed. 1964) (footnote omitted). Three decades later, and despite the Court's attempt to chart a path in Burke (or perhaps because of it), whether a remedy sounds in tort often depends on arbitrary characterizations. Compare Schmitz v. Commissioner, 34 F. 3d 790, 794 (CA9 1994) (ADEA liquidated damages are tortlike because they "compensate victims for damages which are too obscure and difficult to prove"), with Downey v. Commissioner, 33 F. 3d 836, 840 (CA7 1994) (ADEA liquidated damages, "as the name implies, compensate a party for those difficult to prove losses that often arise from a delay in the performance of obligations—as a type of contract remedy").
The Court today sidesteps these difficulties by laying down a new per se rule: An illegal discharge based on age cannot "fairly be described as a 'personal injury' or 'sickness.' " Ante, at 330. To justify this conclusion, the Court offers a hypothetical car crash, the injuries from which cause the taxpayer to miss work. She would be able, in such circumstances, to exclude the recovered lost wages because they would constitute damages received " 'on account of personal injuries.' " Ante, at 329. By contrast, in the Court's view, ADEA damages are not excludable because they are not " 'on account of' any personal injury and because no personal injury affected the amount of back wages recovered." Ante, at 331.
This reasoning assumes the wrong answer to the fundamental question of this case: What is a personal injury? Eight Justices in Burke agreed that discrimination inflicts a personal injury under § 104(a)(2). See 504 U. S., at 239- 240; id., at 247 (Souter, J., concurring in judgment); id., at
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