Abstract

The access-to-justice movement broadly concerns the extent to which people have the 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. I propose an innovative legal intervention to this problem called “compensatory preliminary damages,” which builds from the work of Gideon Parchomovsky and Alex Stein. 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 the hardship to the plaintiff and the balance of equities favor 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 on a decision after the merits or their final recovery for the injuries alleged. As such, the award would not need to be repaid.