understanding remedies

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UNDERSTANDING
REMEDIES

James M. Fischer
Southwestern University
School of Law

LEGAL TEXT SERIES
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Library of Congress Cataloging-in-Publication Data
Fischer, James M., 1947-
Understanding remedies / James M. Fischer.
p. cm. — (Legal text series)
Includes index.
ISBN 0–8205–2879–X
1. Remedies (Law)—United States. 2. Damages—United States. I. Title. II. Series.
KF9010.F57 1999
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CHAPTER 1
UNDERSTANDING REMEDIES
SYNOPSIS
§ 1 BASIC REMEDIAL GOALS
§ 2 TYPES OF REMEDIES
[a] Legal v. Equitable Remedies
[b] Specific v. Substitutional Remedies
[c] Damages
[d] Injunctions
[e] Restitution
[f] Declaratory Relief
[g] Punitive Damages
[h] Nominal Damages
[i] Presumed Damages
§ 3 RELATIONSHIP WITH SUBSTANTIVE LAW
§ 4 PUBLIC POLICY
§ 1 BASIC REMEDIAL GOALS
It is frequently stated that for every wrong there is a remedy.1 The concept is at the
very core of American constitutional government.2 The concept was recognized by
1 Faria v. San Jacinto Unified Sch. Dist., 50 Cal. App. 4th 1939, 59 Cal. Rptr. 2d 72, 77 (1996);
Sanzone v. Board of Police Comm’rs, 219 Conn. 179, 592 A.2d 912, 921 (1991); Burns v. Burns,
518 So. 2d 1205, 1208 (Miss. 1988).
2 Marbury v. Madison, 5 U.S. 137, 163, 2 L. Ed. 60 (1803) (“The government of the United
States has been emphatically termed a government of laws, and not of men. It will certainly cease
to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal
right”).
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2 (cid:77) UNDERSTANDING REMEDIES § 1
Blackstone, who noted in his commentaries: “It is a general and indisputable rule, that
where there is a legal right, there is also a legal remedy by suit or action at law whenever
that right is invaded.”3
The linking of a remedy for the invasion of rights brings forth several important legal
consequences. First, we should note the emotive value of the statement. A wrong will
be rectified in fact, not just in principle. Yet, what does it mean to say that a wrong
will be rectified? The essential elements of rectification are to undo the injurious effects
of the wrong. It must be kept in mind, however, that it is not the injury that gives rise
to the remedy, but the legal wrong.4 An injury accomplished without the infliction of
a legal wrong does not give rise to a right to remediation. Some injuries are tolerated,
such as the harm a lawyer may inflict on a non-client when the lawyer is acting within
the adversarial system.5 Other harms are encouraged and promoted, such as the economic
harm that is the inevitable consequence of competition.6 Some harms are seen as beyond
the ability of courts to redress, usually for reasons of deference and discretion.7
The coupling of the concepts of wrong and remedy helps demonstrate the essential
purpose of remedies, which is to redress the wrong by creating the situation that would
have existed had the wrong not occurred. This is often referred to as returning or restoring
the plaintiff to the position he would have occupied had the wrong not occurred.8 This,
3 1 William Blackstone, Commentaries on the Laws of England 23.
4 Lowery v. Mountain Top Indoor Flea Mkt., Inc., 699 So. 2d 158, 161 (Ala. 1997) (noting
that “the law doesn’t say for every injury there is a remedy. It says for every wrong there is a
remedy”) [citation omitted].
5 See, e.g., Levin, Middlebrook, et. al. v. United States Fire Ins. Co., 639 So. 2d 606, 608
(Fla. 1994) (noting that attorney’s immunity for defamation in connection with litigation represents
necessary accommodation to needs of adversary system); Stern v. Thompson & Coates Ltd., 185
Wis. 2d 220, 517 N.W.2d 658, 666 (1994) (noting attorney’s qualified immunity from suits by
non-clients for professional advice given client even though advice results in harm to non-clients).
6 Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 488, 97 S. Ct. 690, 50 L. Ed. 2d 701
(1977) (holding that federal antitrust policies are not advanced by providing compensation for losses
due to increased competition).
7 See, e.g., San Francisco v. United Ass’n of Journeymen and Apprentices, of the Plumbing
and Pipefitting Indus. of U.S. and Canada, Local 38, 42 Cal. 3d 810, 230 Cal. Rptr. 856, 726
P.2d 538, 541 (1986) (holding that absent legislative authorization, the maintenance of an illegal
strike by public employees was not redressable in damages by private employers injured by strike)
See also Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St. 3d 82, 671 N.E.2d 225, 228-29
(1996) (holding that no cause of action existed for wrongfully prolonging the life of a patient in
disregard of prior instructions). The court noted: “There are some mistakes, indeed even breaches
of duty or technical assaults, that people make in this life that affect the lives of others for which
there simply should be no monetary compensation.” 671 N.E.2d at 228 (citation omitted).
8 Albermarle Paper Co. v. Moody, 422 U.S. 405, 413-25, 95 S. Ct. 2362, 45 L. Ed. 2d 280
(1975) (purpose of Title VII remedies for unlawful discrimination is to make plaintiff whole and
restore him to the position he would have occupied if the wrong had not occurred). See also Milliken
v. Bradley, 433 U.S. 267, 280, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977) (desegregation decree
must be designed to restore victims to position they would have occupied in the absence of wrongful
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§ 2 INTRODUCTION TO REMEDIES (cid:77) 3
however, must be understood to be a process of creation. Unlike the traveler in the familiar
Robert Frost poem who could save the road not taken “for another day,”9 a party must
demonstrate to the satisfaction of the court where that unbeaten path led and that but
for the wrong he would have taken it.10
Placement of the plaintiff in the position he would have occupied but for the wrong
is, by necessity, an inexact science given the vagaries of proof and the imprecision of
forecasting. Any construction of plaintiff’s rightful position is also compromised by
competing interests and values that claim a place at the decisional table. These interests
and values influence the extent to which the legal system may return or restore the plaintiff
to the position he would have occupied but for the wrong.11 It is these competing interests
and values that ultimately dictate the rules, principles, and standards that constitute the
law of remedies.
§ 2 TYPES OF REMEDIES
Remedies are flexible. They have been developed both to complement substantive law
and to meet the needs of litigants. Because the scope of substantive law is broad and
the needs of litigants are diverse, remedies law provides a broad and diverse array of
approaches which may be used for the particular situation. Terminology in this area has
a rich, historical tradition. In some cases, that tradition has continuing vitality. Moreover,
knowing the accompanying remedial types promotes understanding and good practice.
In other contexts, the tradition does not have the same claim for continued allegiance.
Use of remedial types in this setting can prove counterproductive. The distinctions sug-
gested by the remedial type may no longer be valid or the distinction may be artificial,
thus creating confusion. This conflict should be kept in mind when reading the remedial
types discussed in this section.
conduct); Lopp v. Peerless Serum Co., 382 S.W.2d 620, 626 (Mo. 1964) (purpose of restitution
is restoration of injured party to as good a position as was occupied by him prior to the commission
of the wrong).
9 Robert Frost, “The Road Not Taken” in Complete Poems of Robert Frost 131 (1964).
10 Ward v. Papa’s Pizza To Go, Inc., 907 F. Supp. 1535, 1544 (S.D. Ga. 1995) (“Plaintiff’s
‘rightful place’ appears to be roughly the position she now holds and the wage she now
earns . . . [i]f it is not, no one can safely formulate the appropriate alternative”); see also Munn
v. Algee, 924 F.2d 568, 575 (5th Cir. 1991) (refusing to compensate plaintiff for the “hypothetical”
injuries she would have sustained had she acted properly to mitigate damages when, on the facts,
she failed to mitigate damages), cert. denied, 502 U.S. 900 (1991); Meletio Sea Food Co. v. Gordons
Transps., 191 S.W.2d 983, 985 (Mo. Ct. App. 1946) (stating that “basic principles of law of
damages . . . contemplates that the remedy provided in a given case shall only afford compensa-
tion for whatever injury is actually sustained) (citations omitted).
11 Kraemer v. Franklyn & Marshall College, 941 F. Supp. 479, 483 (E.D. Pa. 1996) (“instatement
(sic) is not an appropriate remedy if it requires bumping or displacing an innocent employee in
favor of the plaintiff who would have held the [position but for the wrong]”) (citation omitted);
but see Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989) (adopting “bumping theory” when
necessary to place plaintiff in rightful position).
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4 (cid:77) UNDERSTANDING REMEDIES § 2[a]
[a] Legal v. Equitable Remedies
The distinction between legal and equitable remedies is basic to the law of remedies,
even as its importance is diminishing due to the merger of the two systems in most
jurisdictions.
The distinction between law and equity serves as the beginning for the distinction
between legal and equitable remedies. Put simply, legal remedies are those available in
the law courts and equitable remedies are those available in equity courts. As will be
abundantly clear throughout this book, nothing could be so easy, and easy it is not. For
in fact remedies at law were often available in equity, under the equity clean-up rule,
and many equity principles were adopted by the law courts. The reasons for this migration
of rules and doctrine between supposedly independent systems is addressed elsewhere.1
The point here is that the current legal system reflects a hodgepodge of rules that both
imitate past practice and reflect differences with the past.
The importance of the law-equity distinction today lies in the fact that some remedies
are only available on one side of the distinction but not the other. The merger of law
and equity notwithstanding, accessing legal rather than equitable remedies can generate
procedural differences, primarily with regard to jury trial. The distinction between legal
and equitable remedies remains important notwithstanding the formal merger of the two
systems.
[b] Specific v. Substitutional Remedies
A specific remedy is one that gives the plaintiff exactly what she would have if the
legal wrong had not been committed. An example of this is specific performance. The
remedy gives the plaintiff exactly what she bargained for and is legally entitled to
receive— defendant’s performance under the contract. A substitutional remedy is just
what the term suggests—something other than a specific remedy. Returning to the contract
example, a substitutional remedy for breach would give the plaintiff the dollar value of
defendant’s performance, as opposed to the actual performance itself.
There is a tendency to attribute specific remedies to equity and substitutional remedies
to law. As with any generalization there is a basis for the attribution, but it is entirely
descriptive, not normative. The descriptive is accurate, but it is not complete. The nature
of equitable remedies, particularly injunctive relief, is that they tend to favor specific
remedies. Specific remedies claims appear to dominate because, as a practical matter,
a frequent invocation of equity is for injunctive relief. In fact, substitutional remedies
are frequently sought in equity, as for example, damages for breach of fiduciary duty.
The flip side of the issue is that while substitutional remedies appear to dominate at
law, specific remedies are also frequently invoked. For example, the common law legal
remedies of ejectment and replevin were specific remedies for the recovery of real and
personal property, respectively. Modernly, both remedies are available, sometimes under
different names.
1 Section 20 (The Historical Relationship Between Law and Equity).
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§ 2[d] INTRODUCTION TO REMEDIES (cid:77) 5
The distinction between specific and substitutional remedies is helpful in the sense
that it focuses awareness on exactly what one is seeking, but aside from the context of
prioritizing remedies,2 the distinction has little importance. Moreover, money is often
sought as a specific remedy, for example, as reimbursement under principles of indemnity
for discharging another’s obligation. Characterization of the remedy in this case as
specific or substitutional does little more than aid confusion.
[c] Damages
Damages is a term used today to identify the recovery of monetary compensation for
loss caused by the legal wrong of another. Thus, we commonly speak of breach of contract
damages or personal injury damages. In both of these cases, the idea of damages refers
to the losses caused by the defendant’s breach of the contract or the defendant’s breach
of duty. The common practice is to award a sum of money to compensate the plaintiff
for the “damages” sustained. This obviously requires that the “damages” themselves be
determined in the form of a monetary loss to the plaintiff. In other words, the loss due
to a defendant’s non-performance of a contractual obligation must be determined as a
monetary loss, i.e., what was performance worth and what was lost by non-performance.
Similarly, in a personal injury case, we must calculate the loss in dollars, although in
this context we do so because a bodily injury claim can only be remedied through
substitutional forms.
Damages may be compensatory or punitive, general or special, or economic or non-
economic. The common denomination for each form of damages is, however, that the
award be in money for the loss or detriment caused by the defendant.3 The idea is to
place the plaintiff in the position she would have occupied but for the legal wrong by
using money to ameliorate the consequences of that legal wrong to the plaintiff.
[d] Injunctions
Injunctions are a form of equitable relief whereby a defendant is ordered to do
something (mandatory injunction) or refrain from doing something (prohibitory or
negative injunction). A defendant who violates the terms of an injunction may be
sanctioned by being held in contempt of court. The idea is to coerce compliance with
legal obligations. The injunction may prevent a plaintiff’s legitimate legal position from
being altered by a defendant (preventative injunction). Alternatively, the injunction may
restore or return the plaintiff to the position he would have occupied but for defendant’s
wrongful conduct by undoing the continuing effects of that wrongful conduct (reparative
injunction).
2 Section 21 (Adequacy of Remedy at Law/Irreparable Injury).
3 The definition of “damages” can be exceedingly important when the defendant’s liability insur-
ance covers “loss caused by ‘damages.’ ” A broad reading of the insurance contract may lead to
claims being covered that would not fall within a remedies definition of damages. AIU Ins. Co.
v. Superior Court, 51 Cal. 3d 807, 274 Cal. Rptr. 820, 799 P.2d 1253, 1266 (1990) (insurance
policy obligating carriers to pay included, under the circumstances, injunctive relief and the recovery
of clean-up responses costs under CERCLA).
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6 (cid:77) UNDERSTANDING REMEDIES § 2[e]
[e] Restitution
Restitutionary remedies are designed to force the defendant to disgorge a benefit when
retention of that benefit would constitute unjust enrichment. The basic principle here is
that defendant is holding something that in fairness and justice should be held instead
by the plaintiff. The plaintiff’s claim may be inferior to that of a third party, but it is
always superior to that of the defendant. While restitutionary remedies are guided by
equitable principles of fairness and justice, the remedies themselves may be available
in law ( e.g., quasi contract) or in equity ( e.g., subrogation). The location of the restitu-
tionary remedy in law or equity is important when procedural issues are raised, as for
example, the right to a jury trial in an action for rescission, or when additional equitable
remedies, such as a constructive trust or equitable lien, are sought.
[f] Declaratory Relief
Declaratory relief provides a judicial statement of the parties’ rightful legal position
with respect to a particular matter. The most common example of this remedy is the
declaratory judgment, but other remedies fall within this category, such as an action to
quiet title.
The essential feature of declaratory relief is that it does not compel an immediate,
specific obligation to do something. Such judgments lack an “operative command.” A
money judgment must be paid, although the enforcement of that obligation may prove
difficult for the plaintiff (judgment creditor). An injunction must be obeyed under penalty
of contempt of court. Declaratory relief does not, however, require or demand that the
parties do anything. The full effect of the remedy lies in its educative value and the further
remedy of a follow up action to enforce the rights, duties, and obligations recognized
by the court in the declaratory action.4 Admittedly the line between a declaratory
judgment and an action granting affirmative relief, such as damages, may be minimal
in some cases.5
[g] Punitive Damages
Punitive damages are designed to punish a defendant for commission of a legal wrong.
A punitive remedy may be essentially freestanding, such as a punitive damages award,6
or it may be interwoven into the fabric of the remedy itself, as in the case of contempt
where the distinction between criminal and civil contempt is often difficult to discern.7
4 Montana v. United States, 440 U.S. 147, 157-58, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979) (declar-
atory judgment has precedental and collateral estoppel effect).
5 Green v. Mansour, 474 U.S. 64, 67, 106 S. Ct. 423, 88 L. Ed. 2d 371(1985) (declaratory judg-
ment against state would be equivalent of money judgment barred by the Eleventh Amendment
because doctrine of res judicata and absence of continuing violation would give declaration only
retroactive application); but cf. Steffel v. Thompson, 415 U.S. 452, 480, 94 S. Ct. 1209, 39 L.
Ed. 2d 505 (1974) (Rhenquist, J. concurring) (stating that issuance of injunction against state court
prosecution should not occur as a matter of course after declaratory judgment that statute under
which plaintiff would be prosecuted by state officials was unconstitutional).
6 Chapter 18 (Punitive Damages).
7 Chapter 19 (Contempt).
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§ 2[h] INTRODUCTION TO REMEDIES (cid:77) 7
Because punitive damages are designed to punish, there is no need to assess whether
they will restore or return the plaintiff to the position he would have occupied but for
the defendant’s wrongful conduct. On the other hand, a compensatory damages award
may have what can only be described as a punitive component.8 In this context, the
restoration or return of the plaintiff to the position he would have occupied but for
defendant’s wrongful conduct is combined with the desire to punish the defendant.
The line separating punitive from compensatory damages is further blurred by the
existence of certain limitations on punitive awards that require courts to examine the
actual nature of the award to ensure that the limitation is not evaded by artful labeling.
For example, in United States v. Halper9 the Court held that the imposition of civil,
money penalties may in certain circumstances violate the Double Jeopardy Clause.10
Similarly, in Johnson v. Securities Exchange Commission11 the court held that a non-
monetary sanction in the form of a suspension was punitive in nature.12
A punitive remedy need not be labeled as such. Treble damage remedies are usually
characterized as punitive in part.13 Similarly, civil forfeiture remedies may be seen as
punitive in character.14
[h] Nominal Damages
Nominal damages are designed to remedy violations of legal rights which cause no
measurable actual loss or substantial injury. Allowing a plaintiff to claim nominal
damages permits the plaintiff to secure a public vindication of her legal claim.15 The
8 Section 7[b] (Harsh and Mild Measures).
9 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 587 (1989).
10 490 U.S. at 447-48. The ruling was later modified in Hudson v. United States, 522 U.S. 93,
118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) (holding that double jeopardy clause only prohibits
multiple criminal punishments for the same offense and then only when multiple punishment occurs
in successive proceedings). The Court in Hudson held that whether a penalty is civil or criminal
is primarily a legislative function and “only the clearest proof will suffice to override legislative
intent and transform what has been denominated a civil remedy into a criminal penalty.” 118 S.
Ct. at 493 (citations omitted).
11 87 F.3d 484 (D.C. Cir. 1996).
12 Id. at 488-89; but see United States v. Merriam, 108 F.3d 1162, 1164 (9th Cir. 1997) (statutory
bar against acting as broker-dealer imposed as a result of settlement was not punitive for purposes
of the Double Jeopardy Clause), cert. denied, 118 S. Ct. 69 (1997).
13 Section 305[a] (Augmented Damages and Punitive Damages).
14 Compare Austin v. United States, 509 U.S. 602, 619, 113 S. Ct. 2801, 125 L. Ed. 2d 488
(1993) (treating in rem civil forfeiture as punishment for purposes of 8th Amendment excess fines
clause); with United States v. Ursery, 518 U.S. 267, 286-87, 116 S. Ct. 2135, 135 L. Ed. 2d 549
(1996) (treating in rem civil forfeiture as not being punishment for purposes of double jeopardy).
The Court noted, however, that in some cases a civil penalty could be so punitive either in purpose
or effect as to constitute criminal punishment for double jeopardy purposes. 518 U.S. at 289 n.3.
15 Farrar v. Hobby, 506 U.S. 103, 121, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) (O’Connor,
J., concurring) (noting “[n]ominal relief does not necessarily a nominal victory make;” . . . “an
award of nominal damages can represent a victory in the sense of vindicating rights even though
no actual damages are proved”).
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