Do the Right Thing: Indirect Remedies in Private Law

47 Pages Posted: 1 May 2013  

Daphna Lewinsohn-Zamir

Hebrew University - Faculty of Law

Date Written: April 30, 2013

Abstract

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.

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

Suggested Citation

Lewinsohn-Zamir, Daphna, Do the Right Thing: Indirect Remedies in Private Law (April 30, 2013). Boston University Law Review, 2014 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2258311

Daphna Lewinsohn-Zamir (Contact Author)

Hebrew University - Faculty of Law ( email )

Mount Scopus, 91905
Israel
972-2-5823845 (Phone)
972-2-5829002 (Fax)

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