Symposium Remedies: Justice and the Bottom Line Introduction

Article excerpt

I. INTRODUCTION

This Symposium is the fruit of an all-day workshop on Remedies at the 2007 Annual Meeting of the Association of American Law Schools. Thirty-seven scholars and practicing lawyers, organized by subject matter into eleven panels, made oral presentations on a diverse array of remedies issues. Many of the speakers were remedies specialists; others had worked on remedies issues as they arose in torts, contracts, civil rights, civil procedure, or alternative dispute resolution. Most of the speakers provided outlines, and these outlines are available online.1

The planning committee for the workshop invited speakers to submit publishable papers, but we did not require it. About half the speakers promised papers, but lawyers and academics lead busy lives, and in the end, only eleven written papers were actually delivered. But these eleven papers are, in my judgment, a fascinating lot.

As chair of the planning committee, I exhorted authors to keep their papers short. Short papers attract more readers, and a symposium of eleven or more papers would look unmanageable to most law reviews if each paper were long. Most of the papers in this Symposium are indeed short and easy to read. The authors of these short papers are to be commended. Their brevity made this Symposium possible, and they saved room for other authors who could not follow instructions so well.

The most egregious offender of length limits was me, the one exhorting others to keep it short. Of course I did not plan it that way. When we submitted the Symposium to law reviews in the spring of 2007, after the oral presentations at the workshop, I still had no idea what I had undertaken. What I knew of how remedies became a field was short and simple, enough to fill one segment of an informal talk introducing the workshop, but what I knew at that point barely scratched the surface. When at last I began to convert that short talk into a footnoted article, I discovered a vast array of archival materials that cast new light on the topic. Fearing that no one would retrace my steps in those archives, and that interview subjects would not live forever, I decided that I should report whatever I found. The resulting manuscript grew disproportionately long, but the editors graciously allowed it to remain in the Symposium.

The title of the original workshop and of this Symposium is Remedies: The Bottom Line of Justice. That title, which requires no explanation to litigators, was an attempt to communicate the essential importance of remedies to academics in other fields. The remedy is what the client gets, the practical payoff of litigation, the bottom line of justice. Even when the client cares about the precedent, the precedent is important because it will lead to the grant or denial of remedies in future cases, and because the deterrent effect of those remedies, or the prospect of not having to worry about any more remedies, will guide the defendant's behavior. Without the prospect of an effective remedy, a claim of right is meaningless. Too much remedy overdeters and overcompensates; too little remedy underdeters and undercompensates.

Remedies is a vast field; every successful legal claim must end in a remedy, and the scope and extent of that remedy will often be disputed. These eleven papers cannot survey the entire field; rather, they examine a sample of important problems in the effort to provide the right remedy at the bottom line.

The Symposium will appear in two parts. This issue contains Part One: Damages, Injunctions, Restitution. The next issue will contain Part Two: Remedies as a Field; Reparations.

II. DAMAGES (INCLUDING PUNITIVES)

Keith Hylton reviews the Supreme Court's efforts to impose constitutional limits on punitive damages, using economic analysis to reach conclusions that some will find surprisingly pro-plaintiff.2 He distinguishes between socially useful conduct that causes harm, where we should require individuals and firms to internalize the costs of their conduct, and conduct that is always undesirable or amounts to a nonconsensual taking from others, where we should try to eliminate all gains from the whole pattern of undesirable conduct, to the end of entirely deterring it. …