A Public Interest Model for Applying Lost Chance Theory to Probabilistic Injuries in Employment Discrimination Cases

60 Pages Posted: 14 Jan 2005

See all articles by Paul M. Secunda

Paul M. Secunda

Marquette University - Law School

Abstract

This article assesses Judge Posner's opinion in Doll v. Brown, suggesting that lost chance theory be applied to probabilistic injuries in competitive hiring and promotion cases involving employment discrimination. I agree with Judge Posner that the lost chance remedial approach, derived from medical malpractice law, has a proper role to play in determining just and equitable remedies in this employment discrimination context. But I argue for a public interest model to appropriately take into account the public interest emphasis of employment discrimination law. I argue that courts should utilize a modified version of lost chance theory to award punitive-like equitable relief in employment discrimination litigation to effectuate the statutory mandate of eradicating discrimination from the larger economy.

Keywords: loss chance, loss of a chance, lost chance, employment discrimination, remedies, probabilistic injuries, Judge Posner, law and economics, proportional liability

JEL Classification: J70, J71, J78, J79, K13, K31, K40, K41

Suggested Citation

Secunda, Paul M., A Public Interest Model for Applying Lost Chance Theory to Probabilistic Injuries in Employment Discrimination Cases. Wisconsin Law Review, 2005, Vol. 3, 747-794, 2005. Available at SSRN: https://ssrn.com/abstract=624381 or http://dx.doi.org/10.2139/ssrn.624381

Paul M. Secunda (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

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