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Do Civil Rights Remedies Deter Police Misconduct?

John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539 (2017).

Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is indemnified and therefore does not feel the personal sting of a money judgment. In a recent article, Professor Joanna Schwartz showed that officer indemnity is, in fact, nearly universal. But maybe deterrence might still obtain because the police department, which has to foot the bill of the indemnification agreement, will push its officers to obey the law. In another article, however, Professor Schwartz showed that this might not happen because most departments carry liability insurance and the cost of indemnification will often simply disappear into a budget line item for insurance. If officers are indemnified, and departments are insured against any loss, how will constitutional tort actions have any deterrent force? Schwartz suggested at the end of her article that one avenue for deterrence might be found within the operation of the insurance agreements themselves and that further study was needed.

Professor John Rappaport’s fantastic new article, How Private Insurers Regulate Public Police, fills that need, and does so splendidly. To study an issue like this, one must dive deep into the insurance industry itself, and that is exactly what Rappaport did. His article is based on “interviews with over thirty insurance industry representatives, civil rights litigators, municipal attorneys, police chiefs, consultants and more.” There is so much to th­e article that any summary will fail to do it justice, but briefly, Rappaport charts a chain of incentives that works as follows: police departments have an incentive to obtain liability insurance because it reduces risk. Insurance companies, in turn, have an incentive to reduce claims, thus increasing their profits. To reduce claims, insurance companies often encourage (or even require) education, training, accreditation, and other conditions that tend to improve officer compliance with the law, thus reducing claims. Departments have an incentive to follow insurance companies’ guidance on these matters not just because they need and want liability insurance, but also because doing so may reduce the cost of premiums and deductibles.

Rappaport is careful not to claim that insurance certainly reduces police misconduct, for that claim would require much more than the qualitative research he presents. Moreover, Charles Epp has collected data that casts some doubt on the role of insurance in pushing police reform (though, as Rappaport notes, Epp’s data is now nearly two decades old and did not focus on misconduct itself, but rather best practices). Nonetheless, Rappaport’s study leaves little doubt that insurance plays a significant role in how departments handle officer training and personnel decisions. The inference of deterrence—to one degree or another—is thus reasonable in most cases.

What is especially attractive about deterrence-via-insurance is that, according to Rappaport’s research, insurance companies may actually be better situated than police departments at avoiding future violations. This is because insurance companies are able to aggregate data from across jurisdictions and are able to better balance the cost of a specific violation against the cost of preventive measures. Insurance companies’ capacities in this regard start to make them look like a government agency, which naturally brings up the question of why an insurance company, rather than the government itself, is regulating the police.

Government has its own problems, however. Agencies, Rappaport notes, are often led by political appointees (or at least the politically minded) and thus must contend with complicated political concerns, such as the interests of police unions, periodic elections, and legislators who control the agency’s funding. This is not to say, of course, that private insurance is always superior. Insurers are necessarily driven by a profit motive and will be far less concerned with constitutional violations that do not lead to high-dollar judgments. Racial bias, for example, is an enormous problem in policing (much as in life generally) but rarely plays a role in high value cases.

In sum, Rappaport’s article brings the potential deterrent force of constitutional tort actions into clearer focus: The availability of a civil rights action gives rise to a demand for liability insurance. Firms in the resulting insurance market naturally seek ways to increase profits, one of which is to lower claims. And one way to lower claims is to demand better education, training, and other reforms by the insured. The article does not prove that the deterrent force always applies, and Rappaport does not claim otherwise. But for those who might contend that civil rights actions do not deter misconduct, the article offers an insightful and eminently reasonable account how they might (and in many instances, likely do) deter misconduct.

Cite as: Jack Preis, Do Civil Rights Remedies Deter Police Misconduct?, JOTWELL (June 21, 2018) (reviewing John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539 (2017)),

Chevron as Remedy

Andrew F. Hessick, Remedial Chevron, 96 N.C. L. Rev __ (forthcoming 2018), available at SSRN.

What’s not to love about a remedies approach to solving an Administrative Law problem? Professor Andrew Hessick’s forthcoming article, Remedial Chevron, aims to do just that. Critics of Chevron deference assert its foundation is shaky. Still, Chevron deference underlies countless judicial decisions. Originalists and textualists challenge Chevron’s legality under the Constitution, the Administrative Procedures Act (APA), and nondelegation doctrine. Two sitting Supreme Court justices call for its demise. Professor Hessick views these threats as dangerous and seeks to save Chevron through reinterpretation. He pragmatically alters tack to overcome formalist objections by reformulating our existing conception of Chevron to a “Remedial Chevron”—a constraint on the court’s remedial authority. The article’s goal is to save Chevron from peril and retain useful purposes. Courts would not be bound to agency interpretation but instead conduct de novo review of the law. This de novo power would be limited to the authority to vacate an agency determination only if it were unreasonable.

The reason the challenges pose threats to the continued vitality of Chevron, according to Professor Hessick, is that the logical conclusion to the legal challenges is that Chevron cannot stand. Professor Hessick seeks to avoid this conclusion and proposes a reconceptualization in order to save Chevron. Underlying his argument is a commitment to retaining the functional advantages of Chevron within the administrative system and to maintaining certainty and stability of agency regulation and adjudications.

According to Professor Hessick, the three primary legal obstacles to Chevron’s legality are: (i) judicial power under Article III of the Constitution, (ii) delegation of interpretive authority, and (iii) scope of judicial review under the APA. Under the first category of attack, Justices Gorsuch and Thomas contend that Article III’s judicial power centers on the federal judiciary’s independent interpretation of law. Professor Hessick outlines Founders’ support for this view but notes a contrary line of court opinions providing for deference to agency decisions. He does not resolve this split, but offers that if Article III requires independent judicial interpretation, Chevron deference conflicts with the Constitution. Under the second line of attack, Congress’s passing of statutes for agency administration amounts to an implicit delegation of power to interpret laws to agencies. Professor Hessick explains two flaws with this critique: it rests on a fiction and violates Article I’s nondelegation doctrine. Chevron flounders under this attack. The last legal obstacle to Chevron is tension with the APA’s requirement that courts interpret statutes. As Professor Hessick explains, any attempt to surmount this hurdle with an implied theory conflicts with the APA’s requirement of express modifications. Accordingly, Chevron remains vulnerable to legal attack.

Remedial Chevron as the answer. Professor Hessick doesn’t respond to policy critiques of Chevron but offers a theory of Chevron as remedy to eliminate the legal barriers. And it does so without overturning mountains of precedent and agency regulations. Viewing Chevron as a remedial doctrine, the judiciary would not show deference to agency interpretations of the law. Courts could vacate agency interpretations on erroneous grounds only if the agency unreasonably interpreted the statute. It is unclear, however, whether Professor Hessick’s conception of Chevron as remedial doctrine is a prudential suggestion for courts to reinterpret Chevron precedent to a limited remedy and behave accordingly in the future or is it a statutory or constitutional mandate that Congress must implement. Given Professor Hessick’s endorsement of Congress’s power over statutory remedies, his proposal may require congressional action.

Professor Hessick proposes a modified interpretation of Chevron to a remedies doctrine as the solution but offers limits on its application. To support this theory, he provides a concise argument for the practice of placing limits on remedies. For example, he notes the legal requirements a movant must meet before securing an injunction. While I appreciate his effort to show limitations, the first category and perhaps the third simply remind readers that remedies law is bounded by laws, precedent, and doctrines. These bounds exist even if the remedy is equitable such as the injunction. It aids his argument that the Supreme Court, in eBay and Winter, strengthened the requirements for injunctive relief: imposing a more pronounced judicial obligation to analyze four factors before issuing (or denying) an injunction, even where historically a judge might have automatically granted the relief. Professor Hessick also emphasizes that similar limitations exist for damages. This assertion is true: scores of doctrines of limitation confine damage remedies. For example, the law of remedies includes a variety of limits including avoidability, certainty, and foreseeability. In certain vectors, the remedy simply will not lie. This result is true for purely economic losses even though caused by a defendant’s negligence. As the last example of limitations on remedies, Professor Hessick reminds us that violations of constitutional rights do not guarantee relief. Regarding this claim, Professor Hessick is correct, though it is sometimes regrettable that for every wrong, the law does not afford a remedy. Accordingly, a limited conception of Chevron would fit within the remedies canon.

Reconceiving of Chevron to a limited remedies frame addresses the legal objections stemming from the Constitution, the APA, and the nondelegation doctrine. No doubt it is within the judicial power of Article III for Congress to tailor the ways the federal judiciary lends relief. Further, Congress has broad Article III power to constrain federal judicial power to issue and shape remedies. Would adoption of Professor Hessick’s reframe result if we simply think about Chevron differently and convince courts to do the same or would it require congressional action? Congress has that power as long as it steers clear of constitutional boundaries such as Klein and Plaut. Professor Hessick’s solution involves a narrowing of when the court can grant relief to instances of agency unreasonableness; he does not suggest altering the rules of decision or the results in a particular case. Thus, Remedial Chevron appears within judicial power; it does not rely upon a delegation fiction, and it better comports with the APA.

Might it garner critique due to its own formalism? The reinterpretation requires courts to be in good faith about when an interpretation is unreasonable versus erroneous on other grounds. Professor Hessick addresses other likely concerns. He offers that the reinterpretation applies narrowly: “courts would consider the reasonableness of an agency interpretation only in adjudicating challenges to that agency’s action” but “would not be bound by agency interpretations in suits that do not challenge agency actions.” Professor Hessick replies with a helpful example about vehicle regulations. The reframe also would eliminate Chevron step zero, which delimits the agency interpretations subject to Chevron deference. Instead, Remedial Chevron would apply to agency interpretations of any law underlying its action—even laws the agency is not charged with administering. The APA limits a reviewing court’s power to vacate an agency’s action as contrary to law. Professor Hessick maintains that Remedial Chevron does not rely on the theory of congressional delegation of interpretative authority to agencies. Accordingly, courts need not resolve whether the agency possessed authority to issue binding interpretations of the statute. Last, Professor Hessick acknowledges that his approach constitutes a sizeable departure from existing law in that an agency would not be permitted to adopt a contrary interpretation of an ambiguous statute already interpreted by a court. The court’s interpretation is the law as “Remedial Chevron does not depend on the theory that agencies have primary interpretive authority.”

Should we reconceive Chevron to embody a remedies doctrine? If you wish to retain administrative stability and diminish formalist objections to Chevron deference, Professor’s Hessick’s proposal warrants your serious consideration.

Cite as: Caprice Roberts, Chevron as Remedy, JOTWELL (May 23, 2018) (reviewing Andrew F. Hessick, Remedial Chevron, 96 N.C. L. Rev __ (forthcoming 2018), available at SSRN),

Studying Specific Performance

Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, 118 W. Va. L. Rev. 100 (2015), available at SSRN.

Parties that have a right to the very thing promised in a contract may opt not to have it delivered by the breaching party through specific performance. Even when the promised item is unique, the plaintiff may choose not to enforce the remedy. Why? Is it too difficult to execute the remedy? Are motivations mixed? Do lawyers advise clients to pursue money damages over specific performance? Will the breaching party behave in good faith when complying with the order? Professor Yonathan Arbel, former managing editor of the New Private Law Blog, offers a fascinating qualitative study of this underexamined issue. He explores why a contractual party that has established a right to the remedy of specific performance might opt out of the preferred remedy. Despite having a proven right to this coveted remedy, he shows why plaintiffs may choose not to force the breaching party to perform as promised. This, he claims, is true notwithstanding the “notoriously” under-compensatory nature of expectancy damages in comparison to specific performance.

Remedies and substance are intertwined. Professor Ariel Porat, in a Remedies chapter in the forthcoming Handbook of Law and Economics, declares that “[a]nalyzing the substantive law without its remedial part is almost meaningless.” Understanding remedial options and goals is essential. Professor Arbel’s work thoughtfully analyzes contract law’s pinnacle remedy of specific performance and the goals it serves. He then critically examines contract’s law primary competing theories—economic and rights-based conceptions—in light of parties’ actual behavior regarding specific performance. His treatment describes what parties actually do when confronted with the option of specific performance in the real world. His qualitative approach explores their practices “‘from the inside,’ tracking the internal view of litigants and their lawyers.”

The heart of Professor Arbel’s article centers on his findings from interviews with lawyers and their clients who were engaged in specific performance litigation. For the qualitative analysis, he uses a comparable legal system, but one where specific performance is the default remedy: Israel. The interesting findings are inconsistent with the two main contract theories: A utilitarian may view specific performance as a bargaining chip to extract more money from the breaching party, while a rights-based advocate may view the remedy as the ultimate vindication of the value of promise-keeping. In part, Professor Arbel opines that the growing empirical data to prove these theories relies upon faulty assumptions. For example, the theorists omit plaintiff’s remedial choices, assume parities will negotiate execution of the order, and fail to appreciate real-world motivations and implementation challenges.

The interviews reveal the complexity that lies beneath. Though not all plaintiffs opt out of this powerful remedy, significant numbers do abstain at various stages: (i) prejudgment, (ii) post-judgment renegotiation, and (iii) ultimate execution. Pursuing a remedy via the court system takes time. Reaching the desired judicial remedy via litigation suspends the parties in an adversarial posture, which may linger post-trial when it is time to execute the special performance decree. Attaining the promised performance may entail further negotiations, and plaintiff’s preference may alter over time. Such orders require good faith in implementation, despite lack of standards or court supervisory means to ensure high quality compliance. In the face of bad faith or even simply delay, plaintiff must choose whether to spend energy and money to demand compliance. Most interviewees reported real challenges enforcing specific performance. Contempt may be ineffective if defendant lacks funds. Plaintiff may be left to leverage defendant’s reputation or rely on social norms—both valuable tools but not full proof in operation.

Professor Arbel also seeks to bridge the binary nature of the two theoretical dialogues. He suggests the economics-minded align assumptions with actual practice—for example, a decree does not equate to receipt of actual performance as promised. For the rights-based theorists, he recommends they consider the strategic and utilitarian motivations plaintiffs demonstrate in the process. Per Arbel’s findings, a plaintiff may choose specific performance prejudgment to signal the strength of the case, minimize costs and delays, and leverage renegotiation after judgment. Both would be well served to enhance their exploration with the possibilities that these real-world findings signify.

Importantly, Professor Arbel maintains that to best protect nonbreaching parties, both theoretical schools should give plaintiff the option between specific performance and expectation damages. Ethical rules must guide lawyers to avoid self-serving advice. But even assuming sage advice, Professor Arbel warns that judges shouldn’t trust plaintiffs to choose wisely, which may necessitate judges exercising broad discretion to craft the remedial award. This harkens back to equitable cleanup jurisdiction in the United States in which the judge would render complete justice, including damages in lieu, should specific performance become unavailable or impossible. What about other possible remedies beyond compensation if specific performance is unattainable: for certain breaches of contract, should plaintiffs also be able to disgorge defendant’s unjust gains? See here, here, and here. Both the United States and Israel permit a disgorgement gain-based remedy for breaches of contract when appropriate. That is a topic for another day, but more research along the lines Professor Arbel conducts would go far in servicing the very goals that the substantive law of contract aims to attain.

Overall, Professor Arbel seeks to contextualize contract theory, break the stalemate between instrumental and deontological stances, and stimulate the collection of more data with larger samples. His article successfully contextualizes the debate, but only time will tell on the other two aims. It is my hope that he and the scholarly community will succeed on all three goals. Fine-tuning data to context and linking theory to practice will sharpen the theoretical debate and aid plaintiffs in achieving optimal results in the face of breach.

May the third generation of specific performance discourse begin.

Cite as: Caprice Roberts, Studying Specific Performance, JOTWELL (May 25, 2017) (reviewing Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, 118 W. Va. L. Rev. 100 (2015), available at SSRN),

Calculating Damages in an Uncertain World

Tun-Jen Chiang, The Information-Forcing Dilemma in Damages Law (Wash. U. in St. Louis Legal Stud. Research Paper No. 16-08-03, 2016), available at SSRN.

There is a rule in the world of remedies that has always struck me as unfair. The rule, generally speaking, is that damages are not available unless they can be proven with certainty. For example, suppose that I own a pub and hire a karaoke DJ for Friday night. Karaoke is popular in my town and I advertise the event widely. On Friday afternoon, however, the DJ breaches and I’m left without entertainment. During the night, patrons show up and ask about the DJ. Many of them express disappointment; some decide to remain and have a couple drinks but some leave right away. I bring suit for $1,000 in damages. Even though liability is clear in this case, I am not likely to recover a dime in damages because my estimate of damages is, in the eyes of the law, little more than conjecture. If this seems unfair to you, you’re in good company. In fact, some courts see it the same way and have tried to soften the “certainty” requirement by awarding damages that seem like a “good guess.” But the “good guess” approach has its own downside. Guesses are sometimes wrong—especially when the guesser stands to benefit from guessing too high. So what is a court to do?

Scholars and jurists have wrestled with this problem for some time but nobody, to my knowledge, has done so as successfully as Tun-Jen Chiang in his new article, The Information-Forcing Dilemma in Damages Law. Unlike prior scholars, Chiang does not attempt to find the sweet spot between the “certainty” and “good guess” approaches. Instead, he takes a step back and tries to understand the problem. The problem is not simply that we have yet to find the sweet spot; it’s that information deficits force courts to fall back on a general sense of fairness. This sense of fairness will, of course, skew different ways in different cases. Chiang helpfully illustrates how courts oscillate between “certainty” and “good guess” approaches as they attempt to implement vague notions of fairness. In one case (or perhaps one period of time), courts move from “certainty” to “good guess” to ameliorate the unfairness to plaintiffs, but then move from “good guess” back to “unfairness” to ameliorate unfairness to defendants. And then the process starts all over again.

The same information deficit foils other attempts to solve the problem. Instead of choosing between a “certainty” or “good guess” approach, legislatures and courts have also experimented with solutions such damages caps or shifting the burden of proof. But these solutions, Chiang shows, are simply further attempts to pinpoint the appropriate level of fairness in a world of inadequate information. But that approach, like others, is prone to oscillation because fairness concerns will always re-assert themselves.

Once Chiang illustrates the real problem—inadequate information—he proposes a solution. Specifically, he argues that

Courts should require a party to produce damages information . . . if and only if two conditions are met. First, the social benefit of having additional information on some issue must outweigh the social cost of collecting the information and presenting it in court . . . . Second, courts should impose the burden of proof on the party that can more cheaply produce the information required. (P. 46.)

At first glance, the first of these two prongs seems unsatisfying. How in the world will a court determine the “social benefit” of presenting evidence of the business my pub lost when the DJ breached, the “social cost” of adducing this evidence? (Note that these costs and benefits are social, not private; if my private benefit exceeds my private cost, I would collect and produce the information without further incentive.) Chiang recognizes the problem, however. He acknowledges that courts will not be able to precisely calculate these costs and benefits. Yet he defends the criterion, persuasively in my view, as a tool for forcing courts to recognize the trade-offs that are inherent in the choice. When these trade-offs are submerged within the doctrine (as they are now), the doctrine oscillates over time because a given result, when stated in stark, black-and-white terms, appears to ignore costs. When a choice is explicitly acknowledged to be balance of costs and benefits, oscillation should be less common because costs are better (and more openly) accounted for.

The second prong of Chiang’s proposed solution does more than simply remind courts what should matter. It specifically instructs courts to consider who can more cheaply produce evidence of loss and penalize that party for failing to do so. But without knowing the nature of the evidence, how can a court know who can more cheaply produce it? Chiang’s solution is to impose a burden of producing evidence of both parties and then allow the court to penalize the party who could have produced more but didn’t. This would set off, as Chiang puts it, a

virtuous cycle where the threat of a penalty on one side (say the plaintiff) indices the plaintiff to produce more and better evidence, which in turn induces the defendant to produce more and better evidence, and so on—the cycle stops only at the point where both parties have produced all cost-effective evidence and therefore do not expect to be found negligent [in the production of evidence] at all. (P. 54.)

Chiang’s solution strikes me as worth a try. If there a cost-effective way for me to find out how many customers I lost at my pub, I should do so. If I don’t do, but instead throw a big damages number at the court, I should not get the benefit of a “good guess” rule. In contrast, if the DJ can cost-effectively determine how much business I lost but did not do so, he should not get the benefit of the certainty rule. What happens if both of us do our best? This is one place where Chiang comes up a bit short, at least on my reading. He does not appear to address that possibility. To his credit, the problem of damages should be less acute in this context because both parties have adduced as much evidence as feasible, thus making the court’s job easier. But there will still be situations when the amount of damages is uncertain even after both parties have done their best. If the court applies a pro-defendant certainty rule at that point, that would seem to diminish the plaintiff’s incentive to produce evidence up front. That is, the plaintiff can only obtain a pro-plaintiff “good guess” rule if (1) the plaintiff is non-negligent and (2) the defendant is negligent. Perhaps the plaintiff’s incentive to adduce as much cost-effective evidence as possible will still be strong enough given that she cannot capitalize on a defendant’s negligence unless she herself is non-negligent. If that is so, Chiang’s solution is a good one, though it would help to more fully explain that point (which is possible because the article still appears to be in draft form).

In sum, scholars, jurists or practitioners who have found themselves perplexed by the prospect of proving damages should read Chiang’s fine article. He helpfully explains why doctrine in this field has oscillated over time and offers an innovative and efficient way to solve the problem. I enjoyed reading it, lots.

Cite as: Jack Preis, Calculating Damages in an Uncertain World, JOTWELL (April 7, 2017) (reviewing Tun-Jen Chiang, The Information-Forcing Dilemma in Damages Law (Wash. U. in St. Louis Legal Stud. Research Paper No. 16-08-03, 2016), available at SSRN),

Justifying the Law-Equity Divide

Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).

Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.”1 In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance.2 But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field.

Professor Bray argues that conventional wisdom—which maintains that “the distinction between legal and equitable remedies is outmoded and serves no purpose”—is wrong (P. 530), and that there are good reasons (though rarely articulated by courts) for continuing to distinguish between legal and equitable remedies (P. 533). Specifically, Bray argues that equitable remedies, far from operating as an antiquated counterpart to legal remedies, should be understood as an integrated system made up of three distinct but “logically connected” (P. 534) components: (1) the equitable remedies themselves (e.g., injunctions, constructive trusts), (2) the equitable managerial devices for administering these remedies (e.g., allowing courts to enforce injunctions via the contempt power or to modify and/or dissolve them to reflect changing circumstances), and (3) the equitable constraints to prevent such remedies from being abused (e.g., by allowing the purported wrongdoer to assert such equitable defenses as estoppel or laches).

Although it might seem difficult to justify the jurisdictional boundary between legal and equitable remedies when we are considering only the first-order problem of deciding what remedy to award an aggrieved party—after all, why should an injured party be required to satisfy the irreparable injury rule to get specific performance if that remedy would best protect the party’s expectation?—Bray makes a strong case for doing so when we also take into account “the second-order policy problems that arise from solving the first-order ones: i.e., the additional need to manage compliance and constrain abuse.” (P. 534.) This is largely because courts cannot always afford complete relief to an aggrieved party by simply forcing the wrongdoer to perform a simple and clear-cut act (such as awarding a legal remedy like requiring a wrongdoer to pay money damages or return stolen property). Instead, courts sometimes must require the wrongdoer to perform (or refrain from performing) a more complex action that must be monitored and enforced over time if it is to be effective. Where this is so, courts must not only be given the power to select the most appropriate remedy for a given situation (component #1), but, for this remedy to be effective, courts must also be given the ability to select the most appropriate tools for monitoring the wrongdoer’s compliance with the remedy (component #2) while preventing the aggrieved party from abusing these remedies (component #3). (P. 562.)

For instance, imagine a wrongdoer (“W”) has inadvertently built a retaining wall trespassing on victim’s (“V”) property. Turning to the first component identified by Bray, it seems clear that there would be a number of instances in which it would be more appropriate to enforce V’s rights with an equitable remedy like an injunction (forcing W to remove the retaining wall) instead of a legal remedy like money damages (forcing W to pay for the value of the land taken), in part because it seems inappropriate to force V to involuntarily sell part of his land to W, and in part because we don’t know how much V would have charged W for the land in a voluntary transaction. This much is obvious.

Where Bray’s article really shines is in showing us that, for the court’s injunction to be effective, the court must be able to draw upon the equitable managerial devices (component #2) to effectively police W’s behavior, due to the fact that a lot can go wrong between the time the order is issued and complied with. For instance, W might misunderstand the court’s injunction as requiring him to remove only the retaining wall (but not the footings), or perhaps W might inadvertently destroy an original wall on V’s property while removing the retaining wall. In either case, the equitable remedy can be effective only if the court retains the ability to manage W’s compliance (e.g., through the power of contempt, or by making adjustments to the language of the injunction). Finally, turning to Bray’s third component, it is important for the court to ensure that these remedies—which are extremely powerful, in no small part because they are enforced by the power of contempt—are not abused and “exploited by a wily litigant” (P. 572) seeking to use them in an inequitable fashion.

For instance, suppose V sat by and observed as W inadvertently built the retaining wall on V’s property, and that the wall, once built, turned out to be very costly to remove. Despite W’s wrong, wouldn’t we want courts to take into account V’s knowledge of W’s action (component #3) before deciding upon the most appropriate remedy (component #1), especially since W may be found in contempt for failing to comply with a court order requiring W to remove the retaining wall (component #2)? In short, Bray convincingly shows that each component in the equitable system operates together, and must be considered together, if the equitable remedy awarded by the court is to be effective and just. As pithily summed up by Professor Bray, “the equitable remedies need the managerial devices; the equitable remedies and managerial devices need the constraints.” (P. 534.)

In suggesting that we think about equitable remedies as part of a single system made up of these three logically related components, Professor Bray has not only provided a rational justification for the current system, but has helped explain why, even long after the merger between courts of law and courts of equity, the distinction between legal and equitable remedies remains alive and well. I, for one, have never thought about equitable remedies in quite this way before, and look forward to exploring this insight with my remedies students over the next semester.

Editor’s note: for another review of The System of Equitable Remedies please see Caprice Roberts, Staying Power of Equity, also published today.

Cite as: Marco Jimenez, Justifying the Law-Equity Divide, JOTWELL (June 16, 2016) (reviewing Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016)),