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.
