HARVARD LAW REVIEW I @ 2o17 by The Harvard Law Review Association
This chapter describes the law of remedies, which has an independent and relatively coherent existence. It is available to be cross-referenced by the substantive law. This characteristic of remedies as a relatively cohesive body of law, which can be accessed by other bodies of law, is not unusual but is rather an aspect of law’s systematicity. The chapter then outlines the remedies available in private law in the United States. It looks at several themes that are developed in the New Private Law, including the systematicity of law, the distinctiveness of private law, the use of internal and external perspectives on the law, the centrality of the judicial process in the award of a remedy, and the continuing significance of the law of equity. The chapter also considers the competing rationales offered for private law remedies, emphasizing as primary that the defendant is restoring the plaintiff to the plaintiff’s rightful position. It also sketches how contract and tort achieve that goal, primarily through the development of measures and limiting principles. Moreover, the chapter introduces the panoply of remedies offered by equity, such as the injunction, specific performance, equitable rescission, accounting, and constructive trust. Finally, it introduces anomalies: statutory damages, punitive damages, and declaratory judgments.
The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the equitable remedies and remedy-related doctrines that presently exist in American law can be understood as a system. The components of the system fall into three categories: (1) the equitable remedies themselves, (2) equitable managerial devices, and (3) equitable constraints. ese components interact subtly and pervasively. Together, they make the equitable remedies apt for compelling action (or inaction), especially when the action may be continuing or iterative and is not easily measured. The system of equitable remedies is a useful and integrated whole.This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies—cases such as Great- West Life & Annuity Insurance Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has occurred in other aspects of American law. Finally, this argument offers a new perspective on the requirement that a plaintiff, in order to receive an equitable remedy, must show that legal remedies are inadequate. That requirement helps maintain the system of equitable remedies.
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