Dagan and Dorfman, ‘Substantive Remedies’

ABSTRACT
Often, private law remedies enforce or vindicate infringed underlying rights. Substantive remedies are different. Substantive remedies do not aim at restoring these rights; nor do they seek to change them. Instead, substantive remedies adjust the remedial response for a right violation so as to ensure post-wrong justice. They require the law of remedies not merely to look back, but rather to take a second look at the parties’ post-wrong situation. At times, such a second look affects the type of remedy awarded (damages in lieu of injunctive relief); in other cases – for instance, the tort doctrine of crushing liability – it imposes a ceiling on the plaintiff’s compensation; and in yet other cases, dealing with loss of earning capacity or with the thin-skull rule, remedies law’s second-look sets a compensatory floor below which compensation should not go.

This Article shows that these seemingly disparate rules and doctrines are not embarrassing deviations from a traditional make-whole rule. Rather, they all manifest a distinctively liberal conception of remedies in private law, founded on the twin commitments to substantive freedom and equality. These commitments serve as the regulative ideals for the construction of respectful interactions at the remedy stage between plaintiffs and defendants.

Highlighting the irreducible role of substantive remedies in a liberal system of remedies law not only helps explain important pockets of the law and demonstrate their coherence. It also points to doctrinal confusions and failings. To this extent, our account provides a source of internal critique that can allow the law of remedies to make good on its latent affirmation of the ideal of relational justice whereby participants at the remedial stage relate as genuinely, rather than merely formally, free and equal persons.

Hanoch Dagan and Avihay Dorfman, Substantive Remedies, 96 Notre Dame Law Review 513 (2020).

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