The Restoration Remedy in Private Law

49 Pages Posted: 25 Oct 2017 Last revised: 15 May 2018

Omri Ben-Shahar

University of Chicago Law School

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: October 24, 2017

Abstract

One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This article proposes a novel way to accomplish this remedial goal — a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm — measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, the article proposes that damages be paid to directly restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification — compensating only those who truly suffered the emotional harm — the article develops a sorting mechanism that separates sincere claimants from fakers, awarding the restoration measure of damages only to account for the harm suffered by the former class. The article demonstrates how the proposed restoration remedy would apply in important cases, and discusses its relevance to additional remedial challenges in private law.

Suggested Citation

Ben-Shahar, Omri and Porat, Ariel, The Restoration Remedy in Private Law (October 24, 2017). Columbia Law Review, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 819; U of Chicago, Public Law Working Paper No. 670. Available at SSRN: https://ssrn.com/abstract=3058186 or http://dx.doi.org/10.2139/ssrn.3058186

Omri Ben-Shahar (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Ariel Porat

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://english.tau.ac.il/profile/porata

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.law.uchicago.edu/faculty/porat

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