Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing altogether or accept unfavorable and unjust settlements to alleviate their financial plight. Aware of this reality, corporate defendants have an inherent incentive to break the law and then strategically drag on trials in order to force victims who lack the financial wherewithal into unfair settlements. As we show, preliminary damage awards will rectify these distortions. By providing poor victims the financial oxygen they badly need and by eliminating the incentive of rich wrongdoers to drag litigation unnecessarily, preliminary damage awards will not only level the litigation playfield, but will also free up considerable judicial resources.
remedies, preliminary damages, Rawls, legal theory, poverty law, settlements, path dependence, equality, access to justice, civil procedure
Vanderbilt Law Review
Parchomovsky, Gideon and Stein, Alex, "Preliminary Damages" (2022). Faculty Scholarship at Penn Carey Law. 2258.
Civil Procedure Commons, Courts Commons, Law and Society Commons, Legal Remedies Commons, Litigation Commons, Other Legal Studies Commons, Policy Design, Analysis, and Evaluation Commons, Public Law and Legal Theory Commons, Social Justice Commons, Social Policy Commons
75 Vand. L. Rev. 239 (2022)