Paul M. Secunda

A Public Interest Model for Applying Lost Chance Theory to Probabilistic Injuries in Employment Discrimination Cases

This article assesses Judge Posners opinion in Doll v. Brown, suggesting that lost chance theory be applied to probabilistic injuries in competitive hiring and promotion cases involving employment discrimination. I agree with Judge Posner that the lost chance remedial approach, derived from medical malpractice law, has a proper role to play in determining just and equitable remedies in this employment discrimination context. But I argue for a public interest model to appropriately take into account the public interest emphasis of employment discrimination law. I argue that courts should utilize a modified version of lost chance theory to award punitive-like equitable relief in employment discrimination litigation to effectuate the statutory mandate of eradicating discrimination from the larger economy.

Brief of Law Professors as Amici Curiae in Support of Petitioner, Lane v. Franks, No. 13-483, United States Supreme Court, OT 2013

This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuits decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.