Publication Date
Spring 2024
Abstract
The access to justice movement broadly concerns people’s ability to resolve legally actionable problems. To the extent that individuals seek resolution through civil litigation, they can be disadvantaged by their unmet need for legal services, particularly in high-stakes cases and complicated areas of law. In part, this is because legal services and litigation are cost-prohibitive, especially for indigent plaintiffs. As a result, these individuals are priced out of litigation and, by extension, unable to use law to seek justice
This Note proposes an innovative legal intervention to this problem called “compensatory preliminary damages.” This intervention builds from the work of Gideon Parchomovsky and Alex Stein, who propose that just as courts can grant equitable relief before deciding on the merits through a preliminary injunction, courts should also be able to award damages before deciding on the merits if certain doctrinal safeguards are met. According to their proposal, these “preliminary damages” would function like a loan that plaintiffs would take out on their expected recovery that would be paid for by the defendants. If granted, plaintiffs could use the award to fund their litigation, but if the court found for the defendant after deciding on the merits, the plaintiff would have to repay the defendant.
In this Note, I argue that preliminary damages should function as compensatory awards for harm to a plaintiff’s ability to access justice rather than a contingency loan that might make indigent plaintiffs worse off than before if they lose. As compensatory awards, preliminary damages address a defendant’s liability for a plaintiff’s prospective litigation costs that inequitably affect the plaintiff’s ability to access justice. In short, given a suitable connection between the underlying harms of the case and the plaintiff’s resources to meet their legal needs, the litigation costs that plaintiffs must face to litigate should, in some cases, be compensable. To seek such compensation, I propose that plaintiffs would have to plead, among other things, that their alleged injuries have resulted in various barriers to accessing justice, but that a balance of equities and hardship to the plaintiff favors shifting the cost to access justice onto the defendant. By awarding such damages, courts make plaintiffs whole for harm to their access to justice that is not conditional upon a decision on the merits or their final recovery for the injuries alleged. As such, the award would not need to be repaid.
To support my proposal, I situate compensatory preliminary damages within a framework that sees civil procedure as resolving three types of externalities inherent in our civil legal system. Using this framework, proposed by Ronen Avraham and William H.J. Hubbard, I show that Parchomovsky and Stein’s debt-based model of preliminary damages would create more externalities than it would address or resolve. By the same token, I show that my compensation-based model would address and resolve more externalities than it would create. Finally, I anticipate and respond to objections against my proposal that concern moral luck and judicial bias. However, I explain that compensatory preliminary damages resolve these concerns because the intervention is compensatory rather than a debt instrument
Recommended Citation
27 CUNY L. Rev. 70 (2024)