Remedial Consilience

Abstract

This Article provides a new way of organizing and thinking about what is perhaps the most important, useful, and ubiquitous – yet misunderstood, neglected, and underdeveloped – area in all of law: remedies. Even though remedial issues are present in every case, too little theoretical attention has been paid to them, leaving a wide array of remedial doctrines – ranging from injunctions to declaratory decrees, punitive damages to contempt, and unjust enrichment to specific performance – in search of a unifying theory.

This Article is the first to offer such a theory. Specifically, I argue that the broad array of seemingly distinctive remedies, operating over diverse subject matter areas, can be organized and justified by way of four distinct but related remedial principles: the principles of restoration, retribution, coercion, and protection. Each principle focuses on either the victim or the wrongdoer from a distinct (ex ante or ex post) temporal perspective. These principles, in turn, allow one to organize and unify a large swath of seemingly unique and unrelated remedies under a broad conceptual umbrella.

More importantly, however, by showing that all remedies are little more than specific instantiations of general remedial principles, it is my hope that this Article – by identifying and exploring the relationship between and among these principles – can help judges, practitioners, and policy makers think more clearly about what they are doing, as a descriptive matter, and ought to be doing, as a normative matter, when awarding and justifying a remedy – a matter they must consider no less frequently than in every single case.

Keywords: Contracts, Economics, General Law, Jurisprudence, Law and Economics, Remedies, Torts