Do the Right Thing: Indirect Remedies in Private Law
Hebrew University - Faculty of Law
April 30, 2013
Boston University Law Review, 2014 Forthcoming
Private law provides diverse remedies for right violations: compensatory and punitive, monetary and non-monetary, self-help and court-awarded. The literature has discussed these (and other) classifications of remedies, yet it overlooked the important distinction between direct and indirect remedies. Some remedies directly order right-infringers to realize the desired outcome, while others bring it about indirectly, by inducing them to self-comply. This classification cuts across the traditional ones.
This Article fills the gap in the literature by introducing the novel category of indirect remedies. It identifies how indirect remedies are used in current legal rules — with examples from property, contract, torts, intellectual property and family law — and underscores several advantages of the indirect form of relief. The normative discussion demonstrates that indirect remedies may be superior to direct ones in encouraging cooperative and considerate behavior, reducing interference with personal autonomy, fulfilling the educative role of the law, preserving the parties’ relationship, decreasing expressive harms, and mitigating litigation costs and wealth effects. In light of these benefits, the Article sets guidelines for crafting additional indirect remedies in new contexts.
Number of Pages in PDF File: 47
Keywords: remedies, private law, property, contract, self-compliance, cognitive dissonance, intirnsic and extrinsic motivation, landlord and tenant, possessory lien, divorce, defamation, apology, declaratory judgment
JEL Classification: K10, K11, K12, K40, K41
Date posted: May 1, 2013