Tag Archives: Remedies
Nov 26, 2025 Marco JimenezRemedies
Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.
In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required.
Three Arguments Against Anti-Betterment Orthodoxy
Encarnacion’s argument unfolds through three interconnected claims. First, he demonstrates that courts already permit compensatory awards resulting in material betterments more frequently than conventional wisdom suggests. Cases like Burr v. Clark illustrate this point: when a repair technician accidentally destroyed the plaintiff’s old, malfunctioning water boiler, the court awarded the full cost of a new replacement without any depreciation offset. The plaintiff clearly received a “betterment”—a new boiler for an old one—yet the court refused to treat this as an unjust windfall. Encarnacion argues that this outcome exemplifies how existing doctrine permissibly accommodates such betterments, particularly when strict adherence to pre-injury value would be “inequitable or inappropriate,” a standard recognized in Section 9 of the forthcoming Restatement (Third) of Torts: Remedies. (P. 1357.) Encarnacion further notes that the Restatement explicitly recognizes this broad standard, encompassing situations where benefits are “thrust upon” plaintiffs, are not readily convertible to cash, and are unwanted, or when the plaintiff was “already entitled” to the benefit. (Pp. 1357-59.)
Second, and more provocatively, Encarnacion argues that such betterments are not merely exceptions to the make-whole ideal but can even be required by it. His key insight is that compensatory damages are fundamentally “substitutional”—they aim to provide reasonable substitutes for losses rather than perfect restoration. As he explains, “reasonable or next-best substitutes may in some respects be better than the thing being substituted for along some significant dimensions, even if not in all dimensions preferable to the original. That is just part of what it means for something to be a substitute.” (P. 1374.) He elaborates that the goal is often to restore the lost “use value” of property to the owner—its value for its intended purpose—rather than strictly its market value, with any market betterment being an incidental byproduct of fully restoring that use value. When the best available substitute necessarily involves some improvement, courts should focus on providing adequate substitutes rather than mechanically avoiding any betterment.
Third, Encarnacion introduces the genuinely original concept of “resilience interests”, arguing that victims have compelling interests not just in recovering from setbacks, but in “bouncing back better” in the aftermath of wrongdoing. (See Part IV, Pp. 1383-92.) These resilience interests deserve recognition in tort law, even when accommodating them results in material betterment.
The Power of Substitutional Thinking
What makes this article so compelling is how it reframes familiar problems through concrete examples that expose hidden assumptions. Consider Encarnacion’s “Coffee” hypothetical: you negligently bump into me, causing me to spill my homemade coffee. Being decent, you offer to buy me a replacement coffee from the pricey corner shop—the only reasonably available option. The replacement turns out to be more expensive, more voluminous, fresher, and tastier than my home brew. I’m clearly better off. But here’s Encarnacion’s key insight: it would be unreasonable for you to later send me an invoice seeking the difference between what you bought and what I lost. As he puts it, seeking such reimbursement would mean you are “seeking to retroactively force me to help pay for an improvement of my holdings—more and better coffee—that I secured only as a result of your negligence.” (P. 1378.) The substitutional framework reveals that when the only adequate substitute happens to be superior, basic fairness suggests the wrongdoer should bear the full cost rather than forcing the victim to finance their own improvement.
This insight has profound practical implications. A homeowner whose kitchen is destroyed might reasonably choose energy-efficient appliances as part of recovery, or a business whose computer system is damaged might upgrade to more secure technology. Rather than viewing such choices as opportunistic, Encarnacion’s framework sees them as legitimate aspects of obtaining adequate substitutes for what was lost.
Resilience as Innovation
Perhaps the article’s most innovative contribution is the introduction of resilience interests into remedial theory. Encarnacion persuasively argues that tort law should accommodate a victim’s interest in building back better. This psychological and moral dimension of recovery has been largely ignored in traditional remedial analysis, yet it captures something deeply important about how humans experience and respond to wrongdoing.
The concept of resilience provides a principled foundation for allowing victims to undertake reasonable improvements as part of recovery. It recognizes that sometimes the most effective way to restore a victim’s sense of security is to allow them to emerge stronger than before, and that requiring wrongdoers to bear reasonable costs of this process serves important values. Importantly, Encarnacion acknowledges that “not every betterment is justifiable” (P. 1344); a minor injury should not lead to a multi-billion-dollar verdict simply because it would make the plaintiff better off. He suggests that unreasonable betterments are less about concerns for “windfalls” or “unjust enrichment” and more about whether they are “punitive or unjustly exploitative” of the defendant. (P. 1344.) His analysis in Part V provides important limits, suggesting that while proportionality and the so-called “duty” to mitigate damages are relevant, they aren’t the full story; instead, courts should guard against betterments that manifest punitive behavior or constitute ex post exploitation. This nuanced approach makes his argument for allowing betterments even more robust.
Conclusion
By challenging reflexive hostility toward any form of betterment, Encarnacion provides courts and practitioners with tools for reaching more generous and fairer results. His analysis suggests that judges should be more skeptical of defendants’ claims for depreciation offsets and more willing to award plaintiffs the full, reasonable costs of repair or replacement, even when some betterment occurs.
Making Whole, Making Better, and Accommodating Resilience takes what seemed like settled remedial law and reveals its hidden depths and possibilities. For remedies scholars, this piece offers fresh ways to think about compensation and restoration. For practitioners, it provides powerful theoretical support for arguing that clients deserve adequate substitutes rather than bare-bones compensation. For judges, it offers a more principled approach to remedial decision-making.
This article should be read by anyone interested in tort theory, remedial philosophy, or the intersection of law and human psychology. It represents exactly the kind of scholarship that makes legal academia worthwhile—challenging settled assumptions and revealing new possibilities in familiar terrain. I, for one, look forward to exploring Encarnacion’s insights with my Remedies students, confident that rethinking what it truly means to provide adequate compensation will enrich our understanding of one of the law’s most fundamental goals.
Jun 17, 2025 Caprice RobertsRemedies
It’s time to get excited about deepening your understanding of the law of remedies. Law schools should deepen their commitment to hiring professors to teach remedies courses, and scholars should add remedies perspectives to their research agendas. (If you are wondering How Remedies Became a Field, Doug Laycock has answers. Its importance is worldwide. It is rich with theory, and it is practical and meaningful.) Professors Katy Barnett and Sirko Harder’s latest book, Private Law Remedies, provides a comprehensive yet accessible resource for jurists, legislators, private litigators, professors, and students. Notably, the book analyzes private law doctrines as a whole and comparatively to aid greater comprehension of the function and goals for each remedy. They diligently examine a wide array of cases to explore private remedies at common law, in equity, and per statutes. The authors meticulously explore unifying principles and identify commonalities and significant differences among private law wrongs. Their project is ambitious, functional, and successful. They candidly interrogate leading scholarly theories and carefully examine key cases. From their insights, readers can peruse a host of remedies for private law wrongs such as contracts, fiduciary duty, torts, and more.
Their work focuses on English law but includes relevant treatment of other common law countries. Without doubt, the import of the analyses will resonate with a much broader audience. The book is timely and makes an important contribution to the field of remedies. The authors artfully distill the complex field of remedies into meaningful, clear chapters that will benefit experts and newcomers.
The helpful framework begins with an introduction and then follows with general principles of compensation and responsibility. The chapters next explore remedies aligned to contract and then tort before turning to equity and coercive remedies. Valuable contributions also include chapters on vindicatory remedies and the rising frequency of awards for disgorgement of gain. The authors wisely treat restitution remedies and giving back relief. The last chapter explores proprietary remedies, which cover remedies that provide property rights over relevant assets.
Overall, this book structures remedies pursuant to their function regardless of the underlying cause of action. Classic functions include compensation, coercion, vindication, disgorgement, and give-back restitution. The authors recognize that some remedies have several functions, but they identify the dominant function as a pragmatic organizational method. This system enables the reader to glean commonalities and distinctions for a more nuanced understanding.
Professors Barnett and Harder divide core responsibility based on relevant extensive expertise, but both are jointly responsible for the whole of the book. It reads as one voice. Chapter one builds the foundation with key definitions and provides the framework for how remedies operate given their common law history. Readers more conversant in history may not need but will enjoy the concise summary and useful charts. The authors draw comparisons to help civil lawyers appreciate the nonexistence of a comprehensive Code because of the case-by-case development of common law remedial doctrines. Chapter one also outlines the primary functions of remedies in the private law. This chapter helpfully provides a functional roadmap of remedies law correlated to those key functions.
As to the definition of remedies, the authors offer several functional answers—a cure that ameliorates a wrong, for example, or remedy as the ultimate outcome of litigation. Then, they delve deeper into scholarly explorations. They provide an insightful analysis of scholarly treatments such as John Austin on the separation between rights and remedies, but then Barnett and Harder demonstrate the reality that many remedies, including restitution, fail to fit such models. They engage Peter Birks’s important distinction between wrongs and not-wrongs for unjust enrichment. They also explore Rafal Zakrzewski’s definition of remedies as, for example, rights immediately occurring from specific judicial commands. According to Barnett and Harder, the book’s discussion of remedies largely fits with Zakrzewski’s frame, but several remedies should be conceptualized as permission by the court for claimants to react to wrongs in particular ways (self-help remedies) or as procedural mechanisms (equitable orders such as injunctions). The authors also explore the relationship between right and remedy by offering salient critiques of two polar positions: (i) the dualist view providing a discretionary where a judge does whatever is most just or (ii) the monism view, honoring the English tradition, that offers an extremely rigid system where the remedy must reflect the right.
The book does not simply critique without providing an alternative path. The authors endorse an approach that David Wright has described as a sticky relationship between the remedy and the right. According to Barnett and Harder, typical defaults would likely apply, such as expectation damages for contracts, but where inappropriate, structured discretion would permit consideration of other remedies according to specified criteria. In my remedies scholarship, such as a piece coauthored with Ronald J. Krotoszynski, Jr., Reimagining First Amendment Remedies, I propose a similar notion as the application of principled discretion bounded by precedent and doctrine especially where the remedy is equitable. Given the effort to balance concerns, the Barnett and Harder approach is worth serious consideration.
Chapters two and three are essential for appreciating relevant general principles: assessment of compensation and attribution of responsibility—both core to English law. Both chapters provide foundational understanding of pivotal doctrines such as avoidable loss and remoteness as well as usable litigation tools for valuating losses in lump-sum judgments. In the series of chapters devoted to distinct wrongs such as contract and tort, the book artfully synthesizes key concepts and cases in a manageable, useful form. The several chapters devoted to remedial functions, chapter seven on coercive remedies guides the reader through the equitable thicket of specific performance and injunctions, including exploration of traditional hurdles such as inadequacy of legal remedy (discussed as inadequacy of damages) and other discretionary bars like the unclean hands doctrine. This chapter, as with all the chapters, provides ample citation and helpful categorization through useful headings. Chapter eight on vindicatory remedies is particularly timely. These remedies include, for example, self-help remedies, exemplary damages, declaratory relief, and nominal damages. The AALS Torts section focused on vindication and dignitary harms, as have thoughtful scholars such as Rachel Bayefsky in Dignity and Judicial Authority. Chapter nine provides groundbreaking exploration of the remedy, disgorgement of gain. Here, the authors summarize the historical roots and distinguish inapplicable goals such as compensation. They also navigate the uncertain waters of novel, modern disgorgement awards and the challenges of overcoming applicable defenses.
In later chapters, the authors grapple with topics that are easily fields unto themselves such as remedies for unjust enrichment. In chapter ten on restitution, the authors avoid endorsement of any one scholar’s conception, but instead offer an incredibly helpful outline of the modern law of England and Wales with explanation on the current fault lines of controversy. The book unpacks thorny, technical (and very often Latin) terms and incorporates a welcomed inclusion of the American Law Institute’s Restatement of Restitution contribution to the international dialogue on unjust enrichment. The case exploration, developed through each relevant unjust enrichment doctrine, is sharp, contextualized, and valuable. For another example of vexing inquiry, in chapter eleven on Proprietary Remedies, the authors wisely acknowledge the challenges in distilling a complex, less coherent body of law. Still, they ably provide a baseline for greater understanding of such proprietary remedies as constructive trusts. The book provides accessible examples throughout to aid in conveying the nuances.
Overall, their thoughtful treatment in Private Law Remedies reminds all that there is much more worth learning about remedies. I am grateful for their illuminating contribution. Their work reaffirms why we all do what we do. Time devoted to teaching, researching, and writing in the field of remedies is time well spent.
Jul 11, 2024 Caprice RobertsRemedies
Monica Haymond,
Intervention and Universal Remedies,
91 U. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Feb. 1, 2024).
National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values.
This article makes many excellent contributions. For example, it shows the blurred analyses between intervention as-of-right versus permissively, and it examines the contours of an intervenor’s right to participate meaningfully. It starts with effective presentation of intervenor interests and perceiving that the judge heard the interests. More specifically, it includes that the intervenor, unlike amici, can advance evidence, make arguments, participate in settlement talks, and appeal adverse rulings. The article laments that judges have broad discretion in determining whether an intervenor is permissive or of right as well as the nature and scope of participation.
Professor Haymond emphasizes three attributes that are relevant to Rule 24’s function that heighten the import of intervenor participation: “(1) the universal nature of the remedy affects numerous interests not captured by the litigating parties; (2) these cases are often high-profile and involve politically salient national rules and policies; and (3) the remedy often forecloses other types of participation—either in other lawsuits or in the political process.” (P. 29.) Of the 508 cases that Professor Haymond analyzes, thirty-four percent (173) of those cases involved at least one motion by an intervenor. In two-thirds of those cases, the judge granted the motion to at least one party, and judges denied the motion to at least one party in a third of the cases. The article lists all the cases in an Appendix. According to Professor Haymond, this data reveals the surprising impact of intervention on the litigation of national injunction cases.
Intervenors in national injunction cases have six primary motivations, in Professor Hammond’s opinion. First, intervenors commonly seek to offer new evidence to support a substantive claim or justify a proposed scope of remedy. Examples abound including the multi-suit challenge to former President Trump’s travel ban and the multi-state challenge to former President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents. Second, intervenors frequently propel supplemental legal arguments for judicial consideration. Third, though less often, intervenors attempt to add new claims against one of the original parties. Professor Haymond provides a salient example of a transgender student who intervened in Highland Local School District v. United States Department of Education to defend the Department of Education’s interpretation of “sex” in Title IX to include gender identity and to advance a constitutional and Title IX challenge against the district.
As a fourth overarching category, Professor Haymond suggests that intervenors often seek to provide a new perspective or narrative framing to national injunction cases. For this classification, the article offers DACA suits on immigration policy where intervenors wish to embody the perspective of young, affected immigrants. Other examples range from ACA challenges to exemptions for religious schools from LGBTQ anti-discrimination regulations. For the fifth class, the article suggests national injunction cases in which intervenors, such as in the travel ban cases, constitute a new injured plaintiff to satisfy Article III standing requirement of “one-good plaintiff.” (P. 38.)
In the final sixth grouping, Professor Haymond explores intervenors who seek to prevent the original parties from dismantling the case via settlement or declining an appeal from an adverse ruling. Again, Professor Haymond culls through the cases to pinpoint examples of this phenomenon in action. As the article uncovers, this tactic often occurs when the federal government makes a strategic determination to alter its policy such as regarding the definition of “waters of the United States.” (P. 39.) Intervenors also arise when the federal government relinquishes its defense of a challenged policy or rule such as the FDA’s requirements for in-person dissemination of Mifepristone. As Professor Haymond explains such intervenors often ground their participation as essential to the court’s review of troubling government policies or litigation tactics. This phenomenon, as described by some intervenors, centers on the strategy of certain federal agencies to “sue and settle” in, for example, the Public Charge cases and challenges to limits on immigration during the Covid-19 crisis. (P. 40–41.)
The motivations of intervenors paint a clear picture, but as Professor Haymond demonstrates, judicial decisions about intervenors are unpredictable and the outcomes inconsistent. Professor Haymond suggests that the negative conditions may be even worse given that the data represents only a relatively small portion of rulings where judges have offered reasons for granting or denying motions to intervene. These charges merit examination given just how consequential intervention decisions are. The author admits that common intervenor effects on arguments and evidence are mild, but a more troubling consequence arises “when intervenors force cases to proceed past when the original parties would have ended the suit.” (P. 44.) A quintessential example that the article discusses is California v. Texas, in which the intervenors were the sole party to appeal a court determination on the merits of the Affordable Care Act. Other examples involved policy determinations of the EPA and the FDA. The author acknowledges that not all intervenors are the same, but intervenors as the lone appealers pose normative considerations including the goals of Rule 24 and, more broadly, the proper role of federal courts in prominent, politically volatile cases.
Professor Haymond raises troubling concerns regarding the undermining of procedural purposes, decreasing judicial efficiencies, and exacerbating diminished party control. According to the article, not only do the rules not serve their intended goals, but with respect to intervenors, the relevant rule creates additional negative implications. These concerns include broad judicial discretion to determine whether the case proceeds as well as increased judicial involvement in politically infused cases. It undermines judicial impartiality. As noted earlier, an unusual aspect of the latter concern is that intervenors may cause the litigation to survive after the main parties disappear, drop their appeal, or settle. This phenomenon occurs despite intervenors themselves lacking standing. As Professor Haymond warns, such breakdowns may embody the canary in the coal mine about larger, structural deficiencies and systemic problems.
Fortunately, the article includes and assesses recommendations including modifying the presumption of adequate representation either via doctrinal adjustments or rulemaking by the Federal Civil Rules Advisory Committee. Other suggestions focus on remedial intervention such as judicial narrowing of intervention limited to the scope of the remedy, but notes the better course may be the promulgation of a new rule explicitly permitting remedial intervention. Given the high stakes, Professor Haymond recommends that judges broadly grant remedial intervention on the efficacy of national injunctions. Though Professor Haymond recognizes the potential costs, the article provides a model for remedial intervention attainable in fast-moving litigation—the court in State of Louisiana v. Centers for Disease Control denied an intervention motion but swiftly permitted prospective intervenors participation rights including oral argument on the scope of injunctive relief. With such reforms, Professor Haymond convincingly argues that the rules of civil procedure will better serve relevant goals and better equip federal judges with helpful tools for exercising more principled discretion in consequential decisions regarding intervenors and universal remedies.
Jun 3, 2024 Marco JimenezRemedies
If there is one article that nearly every legal scholar is familiar with, that article would have to be Guido Calabresi & A. Douglas Melamed’s Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. It was in that Article that the famous distinction between property rules (i.e., entitlements that can only be purchased in voluntary transactions) and liability rules (i.e., entitlements that can be infringed by simply paying the value of the entitlement as determined by a court) was first put forward. This idea has had a tremendous impact both within and outside the legal academy, its framework having been incorporated into numerous judicial opinions. When one thinks about this Article, one tends to think about law and economics, and how courts that have internalized this approach frequently employ such thinking to choose the most efficient rule when deciding how to protect entitlements in important areas of private law like contract, tort, and property law. What one ordinarily does not think about, however, is racial inequality, which is the focus of a new and interesting Article recently published by Yotam Kaplan in the Maryland Law Review.
The main point of Kaplan’s Article is as simple as it is powerful: because judges are tasked with the burden of choosing between protecting a party’s entitlement with a property rule or a liability rule, and because bias inevitably creeps in whenever humans make decisions, a judge’s decision must necessarily be biased as well. In the author’s own words: “Under a property rule, a right holder is allowed to determine the value of their entitlement; under a liability rule, the power to determine the value of the entitlement is taken from the right holder and given to an objective state organ. Once we recognize that state organs are not objective, but racially biased, it is clear that the move from a property rule to a liability rule is not a neutral one.” (Pp. 483-84.)
For this reason, a judge’s decision to protect an entitlement with a liability rule not only “amounts to the appropriation of the holder’s ability to determine the value of their right” (a fair point, to be sure, but one that was recognized by Calabresi and Melamed in their original Article) but, more perniciously, will be made by “a biased state organ, who is likely to undervalue the right” when it comes to racial minorities (P. 484). The Article points to specific data supporting the fact that judges and jurors tend to undervalue (1) the future earnings of racial minorities, often reinforcing the racial wage gap that already exist as a byproduct of historical and systemic racial discrimination (P. 517), (2) the home values of racial minorities, where “Black homeowners are about twice as likely as white homeowners to have their homes appraised lower than the actual selling price” (P. 509), and even (3) the pain and suffering experienced by racial minorities, presumably on the ground that Blacks experience less pain than their white counterparts from similar injuries (Pp. 513-14), thereby leading to lower compensation when liability rule protection is chosen by a judge instead of property rule protection.
In short, the author makes a convincing argument that, at the very least, judges should consider accounting for their biases by putting a thumb on the property rule side of the scale when choosing between property and liability rules. But even if a judge believed that they were truly unbiased (a dubious proposition in itself) and were really concerned about choosing the most efficient rule, the author makes a compelling argument that judges should still be forced to pick the rule that best ensures that wrongdoers who would infringe on another’s entitlements internalize the full costs of their behavior. At the very least, this would mean that if liability rule protection were chosen, the wrongdoer should have to pay for the full cost of their harmful activities, rather than costs that are systematically undervalued due to racial bias, as the latter would distort economic incentives and allow wrongdoers to continue to engage in economically-inefficient behavior (i.e., behavior in which their victims were not fully compensated).
Of course, there is much more in this Article than can be captured by this short summary, but I can heartily recommend it to anyone interested in law and economics or critical race theory in general, or to anyone who teaches property rules and liability rules in any of their classes (which, I imagine, is a not insignificant portion of the legal academy). I know I will be discussing this Article in both my Remedies and Jurisprudence classes this Spring and look forward to excellent class discussions around these themes!
May 16, 2023 Caprice RobertsRemedies
Katherine Mims Crocker,
Constitutional Rights, Remedies & Transsubstantivity, 110
Va. L. Rev. __(forthcoming 2024), available at
SSRN.
Faith in judicial decision-making is waning to say the least. Intense skepticism and criticism reign the day. Charges of unbridled power grabs abound, whether one decries the erosion of stare decisis or applauds perceived course corrections in constitutional law and remedies. All recognize victories may be fleeting as we increasingly unmoor from judicial norms and doctrines of restraint. Perceptions of more overt partisanship and consequential decision-making do not uplift the role of Article III judges or align with judicial independence. Is all hope lost? If one wishes to understand and improve the judiciary, Professor Katherine Mims Crocker’s article, Constitutional Rights, Remedies & Transsubstantivity, is for you.
Professor Crocker argues that federal courts should provide comparable options for securing remedies for discrete constitutional wrongs. The promotion of generality and neutrality to foster consistent application across distinct substantive areas is part of the transsubstantivity paradigm. The article’s focus is constitutional remedies—specifically, doctrines for preventing or punishing encroachments of constitutional rights or, when proper, remedies effectuating constitutional rights. And this moment in history poses an ideal opportunity to recenter on the transsubstantivity paradigm given its apolitical nature.
Judicial vacillation on constitutional rights and remedies is destabilizing. It is anxiety- inducing. Crucial remedies are no longer available. Inconsistency exists on whether and the extent remedies are available for gun rights, abortion rights, and religious rights. The public’s constitutional priorities show deep division across the country, and recent Supreme Court rulings deepen the divide. Though the modern Court trend is relatively consistent in narrowing access to and the extent of remedies for most constitutional rights (except Free Exercise claims), the Court is inconsistent in treatment of remedial doctrines in constitutional rights cases. Professor Crocker’s article is necessary because it provides systematic scholarly criticism and recommendations for enhanced consideration of transsubstantivity for constitutional remedies.
To improve performance and perception of the federal judiciary, Professor Crocker provides a descriptive framework and normative lessons for enhancing the judiciary’s approach to remedial transsubstantivity. The article offers rich definitional aids as well as a novel framework to classify various instances of non-transsubstantivity. As a fresh descriptive analysis, for example, Professor Crocker shows that existing judicial reasoning on remedies principles is sometimes transparent, but other times, “translucent” only shedding partial light without details or “opaque” only providing cloudy and questionable rationales. (Pp. 22 & 29.) Whether translucent or opaque, courts are failing to sufficiently acknowledge and explain doctrinal inconsistencies in constitutional remedies. Normatively, the article shows how increased transparency of judicial reasons for departure in all constitutional-remedies cases will improve judicial craft and enhance accountability. Assessing judicial analysis occurs both at the time of the opinion and to future applications. Courts and critics will evaluate the soundness of the justifications for departure. Professor Crocker also contributes value with concrete examples throughout the work. Notably, this article does not promote one interpretive methodology over any other. Rather, according to Professor Crocker all conventional methods allow for “generality and neutrality” in constitutional remedies doctrines where reasonable minds may disagree on the best interpretative method to resolve questions not clearly answered by existing law. (P. 39.) Consistency, with room for reasoned deviation, is the name of the game. Specifically, the article advances consistency in the approach and availability of remedies in constitutional cases.
The emphasis on consistency is not intended as a rigid stricture. Here, Professor Crocker maintains that we are wise to examine the extent to which federal courts do and should offer similar opportunities for securing relief for violations of constitutional rights. The article provides examples showing how the Supreme Court has departed from the transsubstantivity paradigm in constitutional remedies cases. For example, Professor Crocker analyzes indeterminate remedial standards including the political question doctrine for justiciability and the plan-of-the Convention doctrine in state sovereign immunity cases. From Baker v. Carr to Rucho v. Common Cause and from Hans v. Louisiana to Central Virginia Community College v. Katz and many more cases, Professor Crocker shows the Court’s missteps in using indeterminate tests. Overall, Professor Crocker delivers in-depth analysis of inconsistencies and faulty logic. The article’s insightful commentary advances the scholarly dialogue. And deeper theoretical and doctrinal treatments of remedies law like Professor Crocker’s work warrant serious attention.
A key justification for the transsubstantivity paradigm is that greater overarching principles across remedies issues would reduce politics and the perception of playing favorites in constitutional decisions. Even where variation of doctrines is preferable or necessary, greater transparency in judicial reasons for any departure will aid judicial, public, and scholarly debate on the validity of judicial approaches and reasoning. In a more normative stance, Professor Crocker presents recommendations with the goal of a providing increased ability to debate and assess judicial legitimacy. All proposals include emphasis on viewing transsubstantivity in constitutional remedies decision-making as vital, though not absolute.
Professor Crocker offers four specific suggestions for how courts could improve their approach to constitutional remedies, with special focus on the Supreme Court: (1) enhance attention to “transsubstantivity in the constitutional-remedies context by spotlighting occasions for adherence and emphasizing the importance of explaining departures,” (2) increasing transparency where lacking by having judges explain any disconnect between a doctrine’s rationale and the method of application (the “range”), (3) decreasing overdetermination, which is where judges provide multiple lines of reasoning that are sometimes unnecessary and unjustified, and (4) reconsidering foundations where the Supreme Court makes context-specific distinctions and exceptions. (Pp. 39, 42, 45, 48.) Each of the four improvements is worth serious dialogue and, at least the first two, worth immediate adoption.
For the first point, enhancing attention to transsubstantivity in the constitutional-remedies context, Professor Crocker showcases instances for adherence to remedial doctrines, but also defends certain instance of deviation. Variation may make sense where warranted and well-explained. Professor Crocker explains that, in the wake of cases like Dobbs v. Jackson Women’s Health Organization, now is an ideal moment for increased attention on transsubstantivity given its apolitical nature. Further, Professor Crocker compares Professor Zach Price’s article advancing a theory of symmetric constitutionalism to show how the transsubstantivity doctrine for constitutional remedies can align with the ends sought with symmetrically constitutional rights, but not the preferred means. For example, if indeterminacy remains, Professor Price suggests consideration of partisan consequences whereas Professor Crocker prefers inclusion of political considerations only as an output rather than an input of the presumption of remedial transsubstantivity.
The second point aims to enhance judicial candor and democratic accountability. Here, Professor Crocker identifies Miranda v. Arizona, as an example of helpful transparency about non-transsubstantive decision-making. The justiciability analysis in Los Angeles v. Lyons, is illustrative of insufficient clarity of analysis as it failed to adequately distinguish relevant doctrines. Two specific failings, for example, are that the Court never mentioned the plaintiff was Black or that most who had died from police chokeholds were Black. With more complete explanation, courts could better grapple with application of these remedial doctrines in future cases.
For her third normative recommendation, Professor Crocker critiques the judicial method of giving multiple rationales, which places transsubstantivity at risk. To be sure, a court providing several reasons can be a good thing. It is transparent, which is good. Providing multiple reasons may show the court took litigants’ arguments seriously and may also help on appeal as alternative bases for upholding the ruling where one justification fails. Accordingly, Professor Crocker focuses on negative consequences that can occur where overdetermination includes unnecessary reasons. As a quintessential example, the article provides the special-solicitude rationale in Massachusetts v. EPA, because the rationale is unclear and unnecessary. In fact, three other doctrines justify the opinion: proprietary standing, sovereign standing, and quasi-sovereign standing. Another example provided is the unnecessary ticking-time bomb language in Grutter v. Bollinger, in which the Court indicated that in 25 years, racial preferences shouldn’t be necessary. If the Court’s statement amounts an expiration date, then the doctrine at issue is non-transsubstantive rather than a principle that should endure.
Last, the article suggests reconsidering, though not necessarily rejecting, foundational doctrines that become less transsubstantive due to excessive exceptions and debatable distinctions. This subsection focuses on cases like Seminole Tribe of Florida v. Florida, where the Court triggered a revolution in sovereign immunity jurisprudence by concluding that Congress cannot abrogate state sovereign immunity via Article I authority. The reasoning was opaque yet repeated by the Court as canonical until recently when the Court began whittling away at it. This pattern may make Seminole Tribe ripe for reconsideration.
This is not a time to surrender on core principles such as expecting judges to provide clear rationales for departures from doctrines and precedent. It’s a time to double down on meaningful principles. A time to refocus, reexamine, and reassert ideals. No doubt, “transsubstantive decision-making about constitutional remedies seems less and less common but more and more crucial.” (P. 50.) We must continue to debate proper judicial decision-making and reach for ideals that will enhance judicial reasoning. If the federal judiciary listens to Professor Crocker, it will do a better job of applying consistent approaches to constitutional remedies across types of constitutional rights. As Professor Crocker notes, “Courts, and especially the Supreme Court, can do better.” (P. 4.) Then perception and reality will align to bolster the legitimacy of the federal judiciary and, vitally, restore faith in the Supreme Court.
