Private Law Theory

INTRODUCTION
… Part I of the paper presents Justice Lewis Powell’s famous attack on presumed damages in Gertz v Robert Welch, Inc. After responding to some parts of that attack, I isolate a more general concern underlying his critique: that no coherent conception of intrinsic reputational injury can be formulated. Much of the paper is devoted to sketching such an account and subjecting it to challenges. Part II of the paper sets forth a rather basic theory of reputational injury, which I call ‘the ideational conception of reputational injury’ or ‘the unrestricted ideational conception of reputational injury’. Part III presents a series of challenges to the basic account, and, in response to those challenges, Part IV counterposes a different, and markedly narrower theory based on what I call the ‘restricted ideational conception of reputational injury’. Strikingly, if the restricted conception of reputational injury lies at the core of defamation law, then the doctrine of presumed damages really is problematic. Part V takes up the question of which conception of reputational injury provides the better interpretive account of the common law of defamation, and answers that it is the unrestricted ideational conception, not the restricted one. In this way, it defends the coherence and viability of presumed damages doctrine in the common law of defamation …

Benjamin C Zipursky, Defamation, Presumed Damages, and Reputational Injury: A Legal and Philosophical Inquiry, Journal of Free Speech Law, volume 4, issue 3 (2024).