Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.
In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required.
Three Arguments Against Anti-Betterment Orthodoxy
Encarnacion’s argument unfolds through three interconnected claims. First, he demonstrates that courts already permit compensatory awards resulting in material betterments more frequently than conventional wisdom suggests. Cases like Burr v. Clark illustrate this point: when a repair technician accidentally destroyed the plaintiff’s old, malfunctioning water boiler, the court awarded the full cost of a new replacement without any depreciation offset. The plaintiff clearly received a “betterment”—a new boiler for an old one—yet the court refused to treat this as an unjust windfall. Encarnacion argues that this outcome exemplifies how existing doctrine permissibly accommodates such betterments, particularly when strict adherence to pre-injury value would be “inequitable or inappropriate,” a standard recognized in Section 9 of the forthcoming Restatement (Third) of Torts: Remedies. (P. 1357.) Encarnacion further notes that the Restatement explicitly recognizes this broad standard, encompassing situations where benefits are “thrust upon” plaintiffs, are not readily convertible to cash, and are unwanted, or when the plaintiff was “already entitled” to the benefit. (Pp. 1357-59.)
Second, and more provocatively, Encarnacion argues that such betterments are not merely exceptions to the make-whole ideal but can even be required by it. His key insight is that compensatory damages are fundamentally “substitutional”—they aim to provide reasonable substitutes for losses rather than perfect restoration. As he explains, “reasonable or next-best substitutes may in some respects be better than the thing being substituted for along some significant dimensions, even if not in all dimensions preferable to the original. That is just part of what it means for something to be a substitute.” (P. 1374.) He elaborates that the goal is often to restore the lost “use value” of property to the owner—its value for its intended purpose—rather than strictly its market value, with any market betterment being an incidental byproduct of fully restoring that use value. When the best available substitute necessarily involves some improvement, courts should focus on providing adequate substitutes rather than mechanically avoiding any betterment.
Third, Encarnacion introduces the genuinely original concept of “resilience interests”, arguing that victims have compelling interests not just in recovering from setbacks, but in “bouncing back better” in the aftermath of wrongdoing. (See Part IV, Pp. 1383-92.) These resilience interests deserve recognition in tort law, even when accommodating them results in material betterment.
The Power of Substitutional Thinking
What makes this article so compelling is how it reframes familiar problems through concrete examples that expose hidden assumptions. Consider Encarnacion’s “Coffee” hypothetical: you negligently bump into me, causing me to spill my homemade coffee. Being decent, you offer to buy me a replacement coffee from the pricey corner shop—the only reasonably available option. The replacement turns out to be more expensive, more voluminous, fresher, and tastier than my home brew. I’m clearly better off. But here’s Encarnacion’s key insight: it would be unreasonable for you to later send me an invoice seeking the difference between what you bought and what I lost. As he puts it, seeking such reimbursement would mean you are “seeking to retroactively force me to help pay for an improvement of my holdings—more and better coffee—that I secured only as a result of your negligence.” (P. 1378.) The substitutional framework reveals that when the only adequate substitute happens to be superior, basic fairness suggests the wrongdoer should bear the full cost rather than forcing the victim to finance their own improvement.
This insight has profound practical implications. A homeowner whose kitchen is destroyed might reasonably choose energy-efficient appliances as part of recovery, or a business whose computer system is damaged might upgrade to more secure technology. Rather than viewing such choices as opportunistic, Encarnacion’s framework sees them as legitimate aspects of obtaining adequate substitutes for what was lost.
Resilience as Innovation
Perhaps the article’s most innovative contribution is the introduction of resilience interests into remedial theory. Encarnacion persuasively argues that tort law should accommodate a victim’s interest in building back better. This psychological and moral dimension of recovery has been largely ignored in traditional remedial analysis, yet it captures something deeply important about how humans experience and respond to wrongdoing.
The concept of resilience provides a principled foundation for allowing victims to undertake reasonable improvements as part of recovery. It recognizes that sometimes the most effective way to restore a victim’s sense of security is to allow them to emerge stronger than before, and that requiring wrongdoers to bear reasonable costs of this process serves important values. Importantly, Encarnacion acknowledges that “not every betterment is justifiable” (P. 1344); a minor injury should not lead to a multi-billion-dollar verdict simply because it would make the plaintiff better off. He suggests that unreasonable betterments are less about concerns for “windfalls” or “unjust enrichment” and more about whether they are “punitive or unjustly exploitative” of the defendant. (P. 1344.) His analysis in Part V provides important limits, suggesting that while proportionality and the so-called “duty” to mitigate damages are relevant, they aren’t the full story; instead, courts should guard against betterments that manifest punitive behavior or constitute ex post exploitation. This nuanced approach makes his argument for allowing betterments even more robust.
Conclusion
By challenging reflexive hostility toward any form of betterment, Encarnacion provides courts and practitioners with tools for reaching more generous and fairer results. His analysis suggests that judges should be more skeptical of defendants’ claims for depreciation offsets and more willing to award plaintiffs the full, reasonable costs of repair or replacement, even when some betterment occurs.
Making Whole, Making Better, and Accommodating Resilience takes what seemed like settled remedial law and reveals its hidden depths and possibilities. For remedies scholars, this piece offers fresh ways to think about compensation and restoration. For practitioners, it provides powerful theoretical support for arguing that clients deserve adequate substitutes rather than bare-bones compensation. For judges, it offers a more principled approach to remedial decision-making.
This article should be read by anyone interested in tort theory, remedial philosophy, or the intersection of law and human psychology. It represents exactly the kind of scholarship that makes legal academia worthwhile—challenging settled assumptions and revealing new possibilities in familiar terrain. I, for one, look forward to exploring Encarnacion’s insights with my Remedies students, confident that rethinking what it truly means to provide adequate compensation will enrich our understanding of one of the law’s most fundamental goals.
