🤥Causal 'But For' #Counterfactuals in determining #Loss, #Damages & #Compensation T/Stamps/Subtitle

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Eric Descheemaeker, Against Normative Damages, Current Legal Problems, Volume 76, Issue 1, 2023, Pages 35–74,

Abstract
This paper examines an idea which has made some headway into legal scholarship and case law, namely, that the violation of a right ought to sound in substantial (compensatory) damages in and by itself, independently of any factual loss caused to the claimant. This doctrine of ‘normative damages’ was rejected, rightly, by the High Court of Australia in the wrongful imprisonment case of Lewis v. ACT in 2020. However, although the rejection was unanimous, its clarity was undermined by the fact that the issue of normative damages was intertwined with considerations of causal counterfactuals and the definition of false imprisonment. This article considers the doctrine in a broader perspective, examining where it has come from and arguing that normative damages are wrong as a matter of principle: not only do they contradict foundational principles of the Anglo-Commonwealth law of damages, they effectively amount to considering the same injury twice.

Timestamps

00:00:00 - Counterfactuals
00:00:14 - Abstract
00:01:15 - 1. Introduction
00:07:11 - 2. What Are Normative Damages?
00:12:47 - 3. A (Very) Modern Heterodoxy -
00:13:52 - A. A Non-Existent Tradition
00:33:01 - Defamation
00:37:16 - B. Recent Headways
00:39:13 - Right to Privacy
00:45:08 - Loss of the right itself
00:54:01 - 4. Reaffirming Orthodoxy - A. Normative Damages Are Wrong..Principle
01:11:44 - B. The Orthodoxy Needs to be Better Understood
01:24:39 - 5. Conclusion

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law normative damages Australian High Court compensatory damages Lewis v. ACT 2020 causal counterfactuals law of damages Australian Capital Territory wrongful imprisonment quantum of damages vindicatory damages nominal damages right not to be imprisoned factual losses pecuniary loss financial harm emotional harm liberty is not a commodity symbolic damages defamation public interest right to privacy private law theory abstract loss procedural fairness

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