The Journal of Things We Like (Lots)
Select Page
Gideon Parchomovsky & Alex Stein, Preliminary Damages, 75 Vand. L. Rev. 239 (2022).

In a recent essay, Preliminary Damages, Professor Gideon Parchomovsky and Justice Alex Stein have not only come up with a creative way to help indigent and/or poorly-financed plaintiffs finance their lawsuits against intransigent and deep-pocketed defendants, but in the process, they have plugged an important philosophical gap in the remedies literature by proposing the novel remedy of “preliminary damages,” a legal remedy mirroring its equitable counterpart “preliminary injunctions.” There is a lot in this essay that should be of particular interest to Remedies scholars. This Jot cannot do justice to their piece in so short a space, but I hope to offer the reader at least a small taste of this delicious article, which may entice some readers to sit down and enjoy the full course.

In short, their argument is as follows: it is a mere historical accident that courts of equity, whose primary form of relief was the injunction, and courts of law, whose primary form of relief was money damages, grew up independently. However, as these two courts have long since been merged in most states, there is no good reason for a court today to offer one type of remedy (i.e., preliminary injunctions) that happens to have developed in a court of equity while failing to offer its legal counterpart (i.e., preliminary damages). Or, as the authors ask in their article, “If courts can award plaintiffs preliminary injunctions before the conclusion of a trial, why can’t they award preliminary damages? Or, contrariwise, if no damages can be awarded until liability is found, how is it that preliminary injunctions can be granted?” (P. 242.) The answer, to be sure, is purely historical, and by bringing this new form of damages to the attention of judges and scholars, they hope to not only correct this historical anomaly, but to make it easier for indigent plaintiffs to overcome the sometimes nefarious tactics of sophisticated defendants whose deep pockets, intransigence, and policy of “deny, delay, defend,” (P. 256) rather than the strength of their defense, keeps many legal wrongs from being righted by our courts.

Another strength of their article is that, rather than confining their proposal to the purely theoretical, they offer several real-world examples where courts have, in fact, awarded something akin to preliminary damages, as with interim payments for personal injuries for tort victims in the United Kingdom (P. 243) or preliminary money awards in divorce cases in the United States. (P. 244.) Although these examples admittedly make up a small portion of a court’s remedial offerings, they at least illustrate that preliminary damages are possible, and that judges ought to at least consider awarding them in appropriate circumstances.

Which brings us to the following question: what, exactly, are the circumstances in which an indigent or poorly financed plaintiff should get preliminary damages? According to the authors, preliminary damages should be awarded to help poor plaintiffs finance legitimate lawsuits against much better funded defendants. Preliminary damages should be awarded whenever the plaintiff is able to show (1) likelihood of success on the merits, (2) irreparable harm (if such damages are denied), (3) a balance of equities tipping in their favor, and (4) that such an award is consistent with the public interest. (P. 262.) Remedies scholars will immediately recognize that these are the same four factors that the Supreme Court requires a plaintiff to prove to obtain a preliminary injunction, but one wonders whether preliminary damages aren’t sufficiently different from preliminary injunctions so as to justify their own test.

For instance, one of the risks courts will face should they award preliminary damages to indigent plaintiffs is that, as with preliminary injunctions, the court might get it wrong and erroneously grant preliminary damages to a plaintiff that subsequently loses its case on the merits. If plaintiffs only need demonstrate a “likelihood of success on the merits,” or a greater than 50% chance of prevailing on their underlying claim against defendant, there will be many false positives (i.e., erroneously awarded preliminary damages). Because the plaintiffs are indigent, those wrongly-awarded preliminary damages will, in all probability, never be repaid to the defendant, even though the court has found the defendant free of liability. An equitable court easily solves this problem by requiring the plaintiff to post an injunction bond making it liable for any irreparable damages caused to defendants via a court’s erroneous grant. However, the authors do not require such a bond in cases of preliminary damages and, in any case, requiring one would prevent many indigent plaintiffs from bringing their suits in the first place, which would defeat the goal of the authors’ proposal. Similarly, at another point, the authors “propose that preliminary damages be capped at forty percent of the total damages sought by the plaintiff,” (P. 267) but this number seems arbitrary and is nowhere supported in their otherwise excellent essay. Finally, the authors are primarily concerned with, and therefore seem to confine their proposal to, indigent plaintiffs seeking preliminary damages, but the authors’ own theoretical justification for preliminary damages suggests that these damages should be available whenever awarding them makes sense (i.e., wherever doing so could prevent irreparable harm to the plaintiff).

But these are minor quibbles. Professor Parchomovsky and Justice Stein have made an important contribution to the literature that should be of interest not only to Remedies scholars, but to judges and litigants alike. I will surely find ways of working the contributions of this article into my own Remedies course and cannot recommend their essay highly enough.

Download PDF
Cite as: Marco Jimenez, Expanding the Remedial Toolbox: A Legal Analogue to Preliminary Injunctions, JOTWELL (November 21, 2022) (reviewing Gideon Parchomovsky & Alex Stein, Preliminary Damages, 75 Vand. L. Rev. 239 (2022)), https://lex.jotwell.com/expanding-the-remedial-toolbox-a-legal-analogue-to-preliminary-injunctions/.