Remedial Consilience

61 Pages Posted: 13 Apr 2012 Last revised: 25 Jul 2013

See all articles by Marco Jimenez

Marco Jimenez

Stetson University College of Law

Date Written: April 13, 2012

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

Suggested Citation

Jimenez, Marco, Remedial Consilience (April 13, 2012). Emory Law Journal, vol. 62, no. 5, Stetson University College of Law Research Paper No. 2012-10, Available at SSRN: https://ssrn.com/abstract=2039444

Marco Jimenez (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
(727) 562-7305 (Phone)
(727) 347-3738 (Fax)

HOME PAGE: http://www.stetson.edu/law/faculty/jimenez-marco-j/

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