Academic journal article
By Currie, David C.
The Review of Litigation , Vol. 27, No. 2
The Review of Litigation is pleased to present Part Two of the Symposium Remedies: Justice and the Bottom Line. This Symposium "is the fruit of an all-day workshop on Remedies at the 2007 Annual Meeting of the Association of American Law Schools."1 Part One contains articles on damages, 2 injunctions,3 and restitution.4 Part Two presents articles on remedies as a field and reparations, and then revisits the field of damages. In Part One, Douglas Laycock, who served as chair of the planning committee for the workshop, provided an introduction to all the articles appearing in this Symposium.5 He introduced the articles appearing in Part Two as follows:
V. REMEDIES AS A FIELD
My own contribution to this Symposium will review the history of how remedies became a field.6 The short explanation is that courses in damages, equity, and restitution were combined into a single course in remedies. But this consolidation took many years, with some of the key steps emerging in unpublished casebooks. "Remedies" also meant the forms of action, and it meant civil procedure, and each of these meanings lasted well into the second half of the twentieth century. The AALS section on Remedies dealt with civil procedure and evidence for fifty years, until modern remedies teachers took over the section in 1972. To help me make sense of what I found in the archives, I interviewed the surviving founders of the field-John Cribbet, Kenneth York, John Bauman, and Dan Dobbs-and both the archives and the interviews are summarized here.
This emergence of the remedies course flowed seamlessly into a proliferation of remedies courses, with different emphases and distinct but overlapping coverage choices. Considering the many options for teaching the remedies course, Russell Weaver and David Partlett propose that we think of it as a capstone course that helps students pull together the rest of the curriculum.7 Because the remedies course is inherently transsubstantive, students can be asked to solve problems that cut across the lines that separate courses in the rest of the curriculum, to focus on the needs of the client rather than on doctrinal categories, and to evaluate choices among causes of action and choices among remedies. Such a course should be offered in the third year, when students have taken most of the other courses.
Natsu Taylor Saito considers the problem of remedies for massive wrongs that tend to escape the ordinary legal process. Famous examples in American history are African-American slavery, the seizure of Indian lands, Japanese internment, and the overthrow of native Hawaiian government. She resists the common tendency to say that legal remedies are impractical in such cases and that victims must look to the political process. This reaction leads to a perverse de facto principle: the greater the wrong, the lesser the remedy. She argues that only if there is full legal process, including an assessment of damages, can we even know the extent and magnitude of the wrong. And she argues that statutes of limitation and similar rules designed to regulate the workings of the legal system should be modified as necessary where they prevent the legal system from even considering the most egregious wrongs.9
Ellen Pryor assesses the law of compensatory damages for personal injuries in light of its interaction with our many other compensation schemes: workers' compensation, Social security disability insurance, Medicare, Medicaid, programs for particular industries, such as Longshore Harbor Workers Compensation, and private medical insurance.10 These multiple programs present important issues of coordination. Recent legislation limiting tort recoveries, and changes in medical insurance practices, have affected these coordination issues in ways not yet fully understood. Payment of settlements often awaits further litigation on these coordination issues; repeal of the collateral source rule may not have repealed anything in many states; federal Medicaid law requires new hearings not provided for in any state's tort law; and managed care creates fundamental ambiguity about the cost and value of medical services. …