Marco Jimenez, Remedial Consilience

• Publication year: 2013

REMEDIAL CONSILIENCE

Marco Jimenez*

ABSTRACT

This Article provides a new way of organizing and thinking about one of the most important, useful, and ubiquitous—yet misunderstood, neglected, and underdeveloped—areas in all of law: remedies. Even though remedial issues are present in every case, too little theoretical attention has been paid to them, leaving a wide array of remedial doctrines—from injunctions to declaratory decrees, punitive damages to contempt, and unjust enrichment to specific performance—in search of a unifying theory.

This Article offers such a theory. Specifically, it argues that the broad array of seemingly distinctive remedies, operating over diverse subject matter areas, can be organized and justified by way of four distinct but related remedial principles: the principles of restoration, retribution, coercion, and protection. Each principle focuses on either the victim or the wrongdoer, and does so from either an ex ante or ex post perspective. These principles, in turn, allow one to organize and unify a large swath of seemingly unique and unrelated remedies under a broad conceptual umbrella.

More importantly, however, by showing that seemingly idiosyncratic remedies reflect larger remedial principles, it is my hope that this Article—by identifying and exploring the relationship between and among these principles—can help judges, practitioners, and policy makers think more clearly about what they are doing, as a descriptive matter, and ought to be doing, as a normative matter, when awarding and justifying any particular

* Leroy Highbaugh Sr. Research Chair and Professor of Law, Stetson University College of Law; J.D., Yale Law School, 2000; B.A. and B.S., University of Southern California, 1997. This Article was supported by a generous research grant from the Stetson University College of Law, and was presented as a work in progress before the faculty at the University of Florida Levin College of Law. In addition to the participants at the University of Florida, who provided valuable feedback, I would like to thank Dean Darby Dickerson and the Stetson University College of Law for their support of this project, and Professors Mike Allen, Samuel L. Bray, Jamie Fox, David Levine, Jean Love, and Doug Rendleman for reviewing earlier drafts of this Article and providing valuable feedback. I would also like to express my deep gratitude for the hard work and extraordinary research assistance of Becky Farrar and Megan Upchurch. Finally, I would like to thank my wife and son for their enduring love and support.

remedy—a matter they must consider no less frequently than in every single case.

1. REMEDIAL DISUNITY: IDENTIFYING THE FOUR REMEDIAL INTERESTS 1311

2. REMEDIAL PLURALISM: EXPLORING THE FOUR REMEDIAL INTERESTS 1318

   1. The Restorative Interest 1318

   2. The Retributive Interest 1322

   3. The Coercive Interest 1341

   4. The Protective Interest 1350

   5. Summary 1357

3. REMEDIAL CONSILIENCE: UNIFYING THE FOUR REMEDIAL INTERESTS 1357

   1. The Four Remedial Interests in an Ideal World 1358

   2. The Four Remedial Interests in an Imperfect World 1362

   3. A Reprise 1367

CONCLUSION 1368

1. REMEDIAL DISUNITY: IDENTIFYING THE FOUR REMEDIAL INTERESTS

   
   

   Though Solomon himself were to lay down the substantive law, though it were to satisfy every just demand of natural right and social policy, the law would be an imperfect instrument unless and until the

   remedies applicable were formulated with equal care.1

   – Charles Alan Wright In a seminal article written over half a century ago, Professor Charles Alan

   Wright lamented that although “[e]very litigated case, without exception, necessarily includes a question of remedy,” there was still—as recently as 1955—“no law of remedies.”2 The scholar, judge, or practitioner interested in obtaining a bird’s-eye view of the field could find no single source where “the

   whole subject [was] put in perspective,” but was left to comb through separate treatises on “Damages, Equity, Specific Performance, Injunction, Quasi- Contracts, Rescission, Declaratory Judgments, Restitution, and perhaps others”3 to gather shards from a broken field she would have to reconstruct for

   
   

   1. Charles Alan Wright, The Law of Remedies as a Social Institution, 18 U. DET. L.J. 376, 377 (1955).

   2. Id. at 376; see also id. at 377 (“Civil actions are not brought to vindicate nice theories as to negligence or nuisance or consideration. They are brought because a person who has been injured, or is afraid he may be, wishes to prevent the injury or be redressed for it.”).

   3. Id. at 376. There was, in short, “no place where [one could] find the whole subject put in perspective.” Id. Even today, students are confounded by the sheer number of remedies available for seemingly identical wrongs and are taught to think about (or memorize!) remedies in terms of a hodgepodge of rules regarding

      herself. Even today, far too many lawyers and judges think about remedies as appendages to substantive fields, and talk in specific terms about “contract remedies,” “tort remedies,” or “remedies for unjust enrichment,” rather than more generally about the underlying remedial principles holding these seemingly disparate fields together. Fortunately, since the time of Professor Wright, many remedies scholars have begun to organize remedies along the lines of general remedial principles (e.g., “compensation,” “restitution,” or

      “punishment”),4 but even here, too little attention has been paid to the

      relationship that exists between and among these remedial principles; relationships that, if discovered, would help unify the field of remedies by highlighting the shared characteristics underlying all remedies in every substantive field.

      
      

      This Article attempts to fill this gap by making sense of the deep structure of remedies. Specifically, this Article develops a framework that identifies and unites these seemingly diverse remedial principles into a unified whole, and offers a new way to think about (and justify) what judges do (and ought to do) when awarding remedies. My claim is this: the ostensibly distinct remedies

      
      

      legal versus equitable remedies, contract versus tort damages, specific performance versus replevin, cost of completion versus diminution in value damages, expectation versus reliance damages, compensatory damages versus restitutionary versus punitive damages, injunctive versus declaratory relief, and they struggle to fit in other concepts such as contempt, nominal damages, accounting for profits, constructive trusts, equitable liens, subrogation, etc. The list of terms one is confronted with when endeavoring to understand the “subject” of remedies goes on and on.

   4. For example, several modern remedies casebooks have revealed these connections to the student by

      organizing the material along functional lines. For instance, in his leading casebook, Professor Laycock not only discusses broad remedies categories that apply across many substantive fields (i.e., compensatory remedies, preventive remedies, restitutionary remedies, punitive remedies, and ancillary remedies), but also goes one step further and helpfully discusses two overarching theories, corrective justice and law and economics, which run throughout the law of remedies and have been offered by others as being capable of helping these broad general principles hang together in a coherent fashion. DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS, at xxix, xxx, 3, 15–19 (3d ed. 2002) (“[T]he book reflects my belief that a course in remedies should not be a series of appendices to the substantive curriculum. It contains no chapters on remedies for particular wrongs or particular kinds of injury. Such chapters are important, but their place is in the substantive courses to which they pertain. This book attempts to explore general principles about the law of remedies that cut across substantive fields and that will be useful to a student or lawyer encountering a remedies problem in any substantive context.”); see also DAVID I. LEVINE ET AL., REMEDIES: PUBLIC AND PRIVATE, at vii (4th ed. 2006) (“The traditional organization of a remedies book subordinates the remedy to the substantive law, classifying the material in whole or in part by cause of action: remedies for damage to chattel, remedies for damage to land, remedies for breach of contract, etc. We believe that there is more to be learned by adopting a transsubstantive approach to remedies. By organizing the material around the remedy, and not the substantive law, our materials allow the professor and the student to explore the concerns that are common to remedial issues in whatever substantive context they arise.”).

      For a wonderful discussion of how remedies came to be thought of as its own field of law, see Douglas Laycock, How Remedies Became a Field: A History, 27 REV. LITIG. 161 (2008).

      (e.g., expectation damages, injunctions, restitution, contempt, punitive damages) that reign over the vast terrain of seemingly unrelated substantive fields (e.g., torts, contracts, unjust enrichment, property, constitutional law) mostly fall into one (or more) broad remedial categories, which are themselves related, and serve to protect one (or more) discrete and well-defined “remedial interest(s).” Each remedial interest, in turn, focuses on either the victim (usually the plaintiff) or the wrongdoer (usually the defendant) from one of two temporal perspectives: an ex ante perspective, which focuses on remedies issued prior to the commission of a wrongful act (a preventive injunction, for example, would fall into this category), or an ex post perspective, which focuses on remedies issued after a wrongful act has been committed (an award of money damages, for example, would fall into this category).

      
      

      The remedial taxonomy developed above can be usefully mapped onto the following remedial matrix, to which I will refer throughout this Article.

      
      

      FIGURE 1: THE REMEDIAL MATRIX

      
      

      Temporal Element

      Ex Ante Ex Post

      
      

      
      

      Personal Element

      IV	I
      III	II

      Victim

      
      

      Wrongdoer

      
      

      In quadrant I resides the “restorative interest,” where the principle...