Ironic Remedies

Abstract

Some remedies replicate the very harm that motivates their enforcement. Such remedies are "ironic" in the sense that — no matter their overall efficacy — they work against themselves; in every specific instance of application, they subvert the goal they aim to advance. One particularly amusing example is the rule from the First Department (of New York) that (1) requires all court submissions to be printed on recycled paper, and (2) penalizes non-compliance by mandating resubmission.

In this short essay, I argue that remedial irony, while sometimes unavoidable, should give us pause. To the extent that ironic remedies are justified, they are justified only as remedies of last resort. In this sense, the analysis of ironic remedies shares something in common, conceptually, with strict scrutiny in constitutional law: both proceed counterfactually, evaluating existing regulation against the backdrop of what might have been.

Keywords: Remedies, Strict Scrutiny, Constitutional Law, Irony

JEL Classification: K10, K40