Samuel Bray, ‘Remedies’

This paper is a contribution to the Oxford Handbook of New Private Law. It offers an outline of the remedies available in US private law. It begins by canvassing the competing rationales offered for private law remedies, emphasizing as primary that the defendant is restoring the plaintiff to his rightful position. It then sketches how contract and tort achieve that goal, primarily through the development of measures and limiting principles. Next, the focus shifts from how private law remedies restore losses to how they transfer gains. It then introduces the panoply of remedies offered by equity, such as the injunction, specific performance, equitable rescission, accounting, and constructive trust. Once equity has been introduced, the basic structure of private law remedies has been outlined: the pursuit of the primary goal of having the defendant restore the plaintiff to the plaintiff’s rightful position, the doctrines that limit that pursuit, and the additional remedies provided by the second-order system of equity. Next the paper extends the basic structure, or, depending on one’s perspective, introduces anomalies: statutory damages, punitive damages, and declaratory judgments.

Bray, Samuel L, Remedies (March 23, 2019). Oxford Handbook of New Private Law (Andrew Gold, John CP Goldberg, Daniel B Kelly, Emily L Sherwin, and Henry E Smith eds, 2019); Notre Dame Legal Studies Paper.

First posted 2019-03-30 08:55:29

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