Below is the abstract for “Making Whole, Making Better, and Accommodating Resilience,” available for download on SSRN.

The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched.

This article undermines this story in three ways. First, it highlights an oft-overlooked point: that sometimes courts may, as a doctrinal matter, award compensatory damages that render plaintiffs materially better off than before. Second, and more surprisingly, the paper shows that awarding material “betterments” is sometimes (and paradoxically) required by the make-whole ideal itself, not merely as a limited exception to it (as some authorities suggest). Third, the paper argues that plaintiffs have compelling but currently unrecognized interests in rebuilding aspects of their lives—including property—better than before the wrongdoings they suffer. Accommodating such “resilience interests” in the law of tort remedies is not only justified but would also systematically require courts to allow plaintiffs to keep material betterments, at least more often than legal practice generally allows.

In short, plaintiffs often have compelling reasons to “build back better.” Courts can and should allow them to do so without necessarily abandoning the aim of making them whole. Indeed, failing to recognize these reasons means that plaintiffs are routinely undercompensated.


Erik Encarnacion

The University of Texas School of Law

Erik Encarnacion is an assistant professor at the University of Texas School of Law. His research focuses on the moral and conceptual foundations of private law, especially contract law, tort law, and more recently, the private law aspects of antidiscrimination law.