A Remedy for the Least Well-Off: The Case for Preliminary Damages

37 Pages Posted: 1 Mar 2021 Last revised: 29 Mar 2021

See all articles by Gideon Parchomovsky

Gideon Parchomovsky

University of Pennsylvania Carey Law School

Alex Stein

Israel Supreme Court

Date Written: February 27, 2021

Abstract

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.

Keywords: remedies, preliminary damages, Rawls, legal theory, poverty law, settlements, path dependence, equality, access to justice, civil procedure

Suggested Citation

Parchomovsky, Gideon and Stein, Alex, A Remedy for the Least Well-Off: The Case for Preliminary Damages (February 27, 2021). U of Penn Law School, Public Law Research Paper No. 21-11, Vanderbilt Law Review, Vol. 75, 2022, Available at SSRN: https://ssrn.com/abstract=3794359

Gideon Parchomovsky

University of Pennsylvania Carey Law School ( email )

United States

Alex Stein (Contact Author)

Israel Supreme Court ( email )

Sha'arei Mishpat Street
Jerusalem, 9195001
Israel
972-2-6759743 (Phone)

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