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

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