ABSTRACT
Frequently, American law chooses who may seek damages for harms they have suffered based on the positive social benefits of the defendant’s conduct. For example, in New York Times v Sullivan, the Supreme Court limited the ability of public figures to recover for libel out of concern for the important social benefits produced by newspapers reporting on public issues. Other problems have a similar structure: The recovery of the plaintiff is barred for fear of chilling socially valuable actions by the defendant.
This Article argues that this all-or-nothing approach is misguided. Instead, courts (and policy-makers more broadly) should consider awarding partial damages in such cases, where the plaintiff is allowed to recover a fraction of her damages. It argues that this approach better promotes efficiency, deters bad behavior on behalf of defendants, and promotes important process values. Further, the use of partial damages opens up additional policy-making tools for legislatures looking to shape the incentives of regulated actions while ensuring that valuable behavior is not chilled.
Johnston, Mitchell, Partial Damages (2021).
First posted 2021-03-29 09:00:04
Leave a Reply