It's About Time
Abstract
This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed. Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy of judicial attention. This Article demonstrates the relevance of lost time claims to remedial policy generally, showing that the denial of these claims undermines the twin remedial policies of fairness and efficient deterrence. Finally, I reject the various hedonic models that have been used to measure leisure time on the ground that they are either administratively cumbersome or are anti-egalitarian, and propose a model that eliminates these two deficiencies. The lack of judicial and academic attention given to lost personal time claims is somewhat astonishing, considering its prevalence in legal contexts. This trend suggests that the traditional common law position against the recovery of nonpecuniary damages generally has a powerful hold on our judicial intuition. A reevaluation of at least one aspect of this slighted area of law would be good public policy, and it's about time.