52 Pages Posted: 27 Jan 2019 Last revised: 2 Feb 2020
Date Written: August 28, 2019
Many private law remedies enforce or vindicate infringed underlying rights. Substantive remedies are different. Substantive remedies adjust the remedial response for a right violation so as to ensure just remedial interaction. They therefore require the law of remedies not only to look back, but also to have a second look at the parties’ post-wrong interaction. At times, as in the landmark Boomer case, such a second look affects the type of remedy awarded; in other cases — where the doctrines of crushing liability, collateral sources, of structural payments apply — it imposes a ceiling on the plaintiff’s compensation; and in yet other cases, dealing with loss earning capacity or with the thin skull rule, it implies that a compensatory floor must be applied.
This Article shows that these seemingly disparate rules and doctrines are not embarrassing deviations from a solid make-whole rule. Rather, they all manifest, albeit imperfectly, a distinctively liberal conception of remedies in private law, founded on the twin commitments to substantive freedom and equality. These commitments serve as the regulative ideals for the construction of respectful interactions at the remedy stage between plaintiffs and defendants.
Highlighting the irreducible role of substantive remedies in a liberal system of private law not only helps explain important pockets of the law and demonstrate their coherence with private law’s remedial scheme. It also points to doctrinal confusions and failings. To this extent, our account provides a source of internal critique that can allow the private law of remedies to make good on its latent affirmation of the ideal of relational justice whereby participants at the remedial level relate as genuinely, rather than merely formally, free and equal persons.
Keywords: remedies, private law, relational justice, make-whole, tort law, damages
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