Emily Sherwin, ‘What Civil Remedies Do’

A much-cited principle holds that civil remedies should protect or reconstruct, as nearly as possible, plaintiffs’ substantive rights. In practice, remedies often depart from this goal. This essay examines three different ways of looking at the role of civil remedies in the legal system. First, remedies may be strictly derivative of substantive rights; if so, gaps between the two reflect the institutional limitations of courts. Second, remedies may enable courts to supplement and improve upon a set of incomplete forward-looking substantive rights at the point of application to a particular case; in this case, ex post remedies are an additional aspect of rights. Third, remedies may serve purposes that are independent of the plaintiff’s substantive right — purposes such as deterrence, mercy, channeling of resentment, or expression of social condemnation of a wrongful act or harm. I examine these possible roles of remedies through the prism of an imaginary civil action between the family of Trayvon Martin and George Zimmerman, as well as other examples drawn from cases.

Sherwin, Emily L., What Civil Remedies Do (October 21, 2013).

First posted 2013-10-24 06:49:15

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