‘Rightless Remedies’

Stephen A Smith, Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, 27 New Zealand Universities Law Review 1033 (2017), available at SSRN. It is a familiar quip that a right without a remedy is no right at all. A recent article by Stephen A Smith shows, however, that there is such a thing as a remedy with no right – something I might call a ‘rightless remedy’. In Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, Smith explicates a category of judicial orders (ie, remedies) that are not tied to any underlying legal right or wrong. In doing so, Smith tells us something important about both rights and remedies. To appreciate Smith’s insights, it is first important to understand his taxonomy. The phrase ’cause of action’ can mean many things, but to Smith and other scholars writing in this area, a ’cause of action’ is a set of facts that justify a judicially-administered remedy. Understood as such, a cause of action is not necessarily co-extensive with substantive law … (more)

[Jack Preis, JOTWELL, 6 May]

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