Two Standards of Repair: Restoration and Resilience

Oxford Studies in Private Law Theory, Vol. 2

U of Texas Law, Public Law Research Paper

28 Pages Posted: 11 Oct 2021

See all articles by Erik Encarnacion

Erik Encarnacion

The University of Texas School of Law

Date Written: October 8, 2021

Abstract

Compensatory damages are often understood through the lens of repair. Tort theorists differ about what the fundamental *object of repair* should be—e.g., bodies, property, interpersonal relationships, normative relationships, or something else. But repair can also be distinguished by the applicable *standard of repair* governing it—i.e., which of several reparative ideals should govern an object’s repair. Courts typically presuppose a restorative standard, which seeks to undo destructive forces as though they never happened. But this paper argues that there is an overlooked standard—i.e., resilient repair—that appears in ordinary thinking about how to appropriately respond to setbacks. Roughly, this ideal encourages repair that makes its object in some significant way better than before a given setback, without seeking to erase all evidence of past injuries. After explaining the ideal and its normative underpinnings, this paper offers resilient repair as an evaluative resource to help us rethink compensatory damages. To illustrate the ideal’s utility, the paper argues that resilient repair allows us to reinterpret hedonic damages in the face of otherwise withering criticisms, including the objection that hedonic damages denigrate disabled persons. Although more might be said for and against understanding tort law through the lens of resilient repair, this paper aims to generate interest in resilience as an ideal for evaluating private law.

Suggested Citation

Encarnacion, Erik, Two Standards of Repair: Restoration and Resilience (October 8, 2021). Oxford Studies in Private Law Theory, Vol. 2, U of Texas Law, Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=3939502

Erik Encarnacion (Contact Author)

The University of Texas School of Law ( email )

Austin, TX
United States

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