User damages and the limits of compensatory reasoning
Theuse of the term “user damages” in reference to compensatory damages isparticularly problematic because it tends to overgeneralise the cases andconceal the importance of identifying the relevant loss in each case, which hasimplications on issues of proof, quantification and mitigation. This hascontributed to the persistent neglect to squarely address issues of loss, whichhas in turn led to both over- and underestimation of the limits of compensatorydamages. Once we look past the broad label, it becomes obvious that the casespurportedly unified by a common measure of loss tend to vary widely in factsand that the employment of the same measure was often merely coincidental. Ifthe broad label adds nothing but distraction and confusion, perhaps it is timeto consider dropping it from our legal vocabulary.