A Sound Taxonomy of Remedies
73 Pages Posted: 28 Jan 2019
Date Written: 2017
Judges and practitioners need recognized categorizations to act as the premises from which reasoned arguments may be developed. The lack of a meaningful taxonomy of remedies is, therefore, a significant impediment to reasoned legal argument. This paper outlines what such a taxonomy should look like.
Replicative remedies exist to vindicate primary rights. We call them “replicative” because they are designed to replicate the very right that they vindicate. They may be maintained against the whole world, and require no proof of harm or wrongdoing.
Substitutionary remedies exist to vindicate secondary rights. But secondary rights differ from primary rights in that they are not themselves worthy of legal protection. Instead they protect legally-recognized interests. When those interests are harmed by someone else's wrongdoing, substitutionary remedies become available to sanction the wrongdoer by providing to the plaintiff a substitute (typically money) for the interest that was violated.
Transformative remedies are quite different. They do not look back at the nature of the rights or interests that require protection, but instead focus on the future with the object of putting the plaintiff in an entirely new position for which the plaintiff's prior rights offer no analog. Unlike replicative and substitutionary remedies, which reflect prior rights, transformative remedies thus generate entirely new, tertiary rights.
This provides the foundation for a sound taxonomy of remedies. It avoids confusing labels, and helps to unpack problems caused by ambiguous terminology. It can both explain the outcomes of past cases and point the way to solutions to new controversies. It is surely time that this taxonomy became more widely articulated and understood.
Keywords: Remedies, Common Law, Equity, Taxonomy, Rights, Wrongs, Not-Wrongs, Powers
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