Teaching Remedies from Theory to Practice

Abstract

Remedies is about how different, disparate things fit together. The Remedies course provides an analytical framework to explore the varied goals of substantive doctrinal courses, showing how discreet bodies of law connect. At the same time, Remedies presents its own doctrines and goals, which may run parallel or in contrast to the goals of underlying doctrinal bodies of law. Further, it shows the philosophical shortcomings of the law when a proven right fails to yield a remedy. The Remedies course thus naturally lends itself to rich discussion regarding where and why there is commonality or contrast among the substantive doctrinal causes of action as well as the law of Remedies. The course also addresses the practical reality of relief, i.e., what the court can do for winning claimant.

Teaching Remedies raises a host of provocative legal issues ripe for scholarly contribution, including the restitution revival from a Remedies perspective. This movement seeks to streamline an otherwise complex body of law, in a language the modern lawyer can understand, e.g., considering the way in which remedies such as disgorgement serve or disserve the substantive goals of contract law. However, Restitution has largely vanished from the American law school experience. Where taught at all, it is as a part of the Remedies course. Both subjects need the attention of professors passionate about teaching them; professors can impress upon students the importance of the strategic decisions they make regarding causes of action, remedies, and defenses. Institutions need to throw their academic weight behind the teaching of both Remedies and Restitution.

Keywords: Remedies, Restitution, pedagogy, teaching, rights, contracts, law and equity, litigation strategy