Academic journal article The Review of Litigation

How Remedies Became a Field: A History

Academic journal article The Review of Litigation

How Remedies Became a Field: A History

Article excerpt

This is a history of remedies as a field-of how and when legal scholars came to think of remedies as a distinct subject matter. It was not inevitable that there would come to be courses, casebooks, treatises, and all-day workshops on the law of remedies. Even today, lawyers do not necessarily think of remedies in the same ready way they think of fields such as torts or contracts, or corporate or environmental law.

There are multiple reasons for the field's slow emergence and for the lingering unfamiliarity. The largest obstacle was historical. The question that unifies the law of remedies-what should a court do to correct an actual or threatened violation of law-had to be distilled from tangled separate origins in the writ system and in separate courts of law and equity. When and how did lawyers come to see that unifying question? Or perhaps more precisely, when did they come to see that unifying question as the basis for unified treatment of a law of remedies? The short answer is slowly and recently. And some of the giants in the law led the way.

This article resulted from a request that I briefly review the history of remedies when I introduced the Workshop on Remedies at the 2007 Annual Meeting of the Association of American Law Schools. I thought the story was short and simple and that it would be easy to pull together. It has turned out to be long and complex, full of surprises and of mysteries that yielded only to careful investigation. The resulting article is much longer than I anticipated, but at least to me, it is also much more interesting than I anticipated.

Part I specifies the modern idea of remedies as distinct from both substance and procedure, focused on what a court can do to correct a violation of law. Part II, "Antecedents," reviews the quite different idea of remedies in Blackstone and the maxims of equity, and the evolution of early books on damages, equity, and quasi-contract. Part III, "Transitions," reviews two earlier conceptions of remedies that survived well into the twentieth century: remedies as the forms of action, and remedies as civil procedure. Remedies courses in the middle of the twentieth century dealt mostly with civil procedure, and for nearly half a century, the remedies section of the Association of American Law Schools was devoted to civil procedure and evidence. Much of the article tries to understand that usage, which seems so odd today. Part IV traces the emergence of the modern remedies course from John Norton Pomeroy's lectures in 1880, through Edgar Durfee and John Dawson at Michigan, to John Wilson at Baylor and Charles Alan Wright at Minnesota, to the modern casebooks and the Dan Dobbs treatise. Readers who want to skip all the mysteries and go straight to the direct line of descent can go directly to Part IV.

My sources include archival material and personal interviews with founders of the field, and it will simplify the exposition to briefly describe these sources at the outset. In addition to casebooks, treatises, and articles, I have personally reviewed the Proceedings of the Association of American Law Schools year by year from the organization's founding in 1901, and I have used the Directory of Law Teachers and its predecessor publications from their beginnings in 1922. I have reviewed the magnificent collection of law school catalogs separately compiled at Iowa and Michigan and later combined into a single collection in the University of Iowa Law Library. After using the casebooks and the Directory of Law Teachers to determine when professors first began reporting that they taught courses called Remedies, I personally examined the catalog of substantially every law school in the United States for at least three years-one year early in the 1940s, one early in the 1950s, and one early in the 1960s. Where I found a remedies course, or where I had some other reason to suspect that there might have been a remedies course, I worked backwards and forwards year by year or checked earlier and later decades. …

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