Remedies and Respect: Rethinking the Role of Federal Judicial Relief
109 Georgetown L.J. 1263 (2021)
74 Pages Posted: 24 May 2021 Last revised: 7 Aug 2021
Date Written: May 25, 2021
Plaintiffs bringing civil lawsuits often express sentiments like “I just wanted the defendants to admit they were wrong” and “we’re worth something and can’t be treated this way.” These statements suggest that civil litigation is not only a vehicle for material redress. It can also be a quest for more intangible forms of relief—respect, dignity, or vindication. But are these the kinds of interests that courts imposing remedies may legitimately satisfy? In analyzing divergent responses to this question, this Article illuminates the bounds of courts’ remedial authority.
According to an influential line of reasoning in federal courts, which the Article identifies and calls the “circumscribed” approach, the central remedial task is to change the material circumstances of the parties to a lawsuit. On this view, federal courts are not meant to provide “moral” or “psychic” satisfaction. The Article reveals the impact of the circumscribed approach in a variety of doctrinal areas, including class action mootness, nationwide injunctions, and attorney’s fees. The effect of this approach, the Article argues, is to define appropriate judicial relief in ways that shortchange litigants for whom a true remedy requires courts to take due account of their dignity.
The Article then articulates and justifies an alternative approach: a remedy that takes effect by expressing respect for the party whose rights were violated is a constitutionally legitimate, normatively desirable, and practically feasible exercise of federal judicial authority. This alternative view has several implications. For example, it provides a basis for courts to impose “symbolic” remedies like nominal damages; to treat an admission of liability from the defendant as a prerequisite of full relief for the plaintiff; and to issue nationwide injunctions in order to address stigma directed at a group to which the plaintiff belongs. In addition to highlighting these practical consequences, the Article draws out theoretical ramifications for the nature of a judicial remedy. The result is a distinctive and fuller view of federal courts’ remedial authority.
Keywords: Remedies, Dignity, Federal Courts, Article III
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