Remedies Casebook Revision: Chapter 1 (“Introduction”)

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This is the second in a series of posts about the revision that is in the works for Ames, Chafee, and Re on Remedies. (The previous post is here.)

Chapter 1 offers a kind of microcosm of the revisions in Ames, Chafee, and Re on Remedies. The introduction lays out different types of remedies, the goal of remedies (the plaintiff’s rightful position), and equity as a central idea in the law of remedies.

There are four cases in the first chapter. The first case has the job of introducing the central question of remedies–how do we put the plaintiff in the position he or she would have been in without the legal violation? The last three cases work through different senses of “equity” (Riggs v. Palmer, Cardozo’s dissent in Graf, and Weinberger v. Romero-Barcelo).

On the whole, it’s a very effective chapter, putting key concepts front and center while leaving the details for later chapters. But the first case, Valco Cincinnati, Inc., needed to be changed. It’s a trade secret case, and the remedy is an injunction. That means that all four cases in the introductory chapter are about equity, in one sense or another. (And that was true before I joined the book three editions ago.) So the first case really should be about damages.

I substituted Standard Oil Co. of New Jersey v. Southern Pacific Co., a 1925 U.S. Supreme Court decision in admiralty. It’s all about the the value of a ship. In paragraph two it lays out some basic principles: “It is fundamental in the law of damages that the injured party is entitled to compensation for the loss sustained. Where property is destroyed by wrongful act, the owner is entitled to its money equivalent, and thereby to be put in as good position pecuniarily as if his property had not been destroyed.”

It has an incisive quotation from Dr. Lushington, the great admiralty judge: “It is the market price which the court looks to, and nothing else, as the value of the property. It is an old saying, ‘The worth of a thing is the price it will bring.'” And Standard Oil introduces some of the main themes of damages–the rightful position, evidence that is good enough and not perfect, case-specific evaluation, and the emphasis on pecuniary injuries.

I ran across this case in McCormick’s Cases on Damages, published by Foundation in 1935, and think it will be a terrific teaching case. (By the way, litigators, even though there are good recent treatises, like Dobbs and Roberts, don’t overlook the value even today of McCormick on Damages, which is the hornbook accompanying McCormick’s casebook.)

What else is new in chapter 1? There’s a paragraph defining a “remedy” on page 1. There are four sets of “Analysis” notes, guiding the student through the main points on each of the four cases. There is a new topical note on Cardozo and equity, which quotes from work by Jeff Powell and Henry Smith. The note that draws from Learned Hand’s student work on remedies is sharpened. The note on the three meanings of “equity” is expanded and refined. And there’s a new note on how to explain Riggs v. Palmer, especially since most state courts at the time went the other way (that note quotes from an article in the American Journal of Legal History by William Meyer, who has a very interesting forthcoming book on Riggs v. Palmer).

The bottom line: the structure and aspirations of the chapter remain the same, but there is one new case, which is meant to allow the instructor to more directly teach fundamental principles of remedies; and lots of refinements in the notes to guide students and make the cases as effective as possible.

Interested in more? Here’s the note on the meanings of equity:

Note on Three Meanings of Equity

Aristotle famously described equity as follows:

So when the law speaks universally, and a particular case arises as an exception to the universal rule, then it is right—where the lawgiver fails us and has made an error by speaking without qualification—to correct the omission. This will be by saying what the lawgiver would himself have said had he been present, and would have included within the law had he known. What is equitable, therefore, is just, and better than one kind of justice. But it is not better than unqualified justice, only better than the error that results from its lacking qualification. And this is in the very nature of what is equitable—a correction of law, where it is deficient on account of its universality.

Aristotle, Nicomachean Ethics bk. v, ch. 11, 1137b (Roger Crisp ed., 2000).

The word equity has other senses, too. It can refer to a moral reading of the law and its demands. Or, more technically, the word can refer to the doctrines and remedies developed by the English courts of equity. There are thus at least three main senses in which equity is used in this casebook and in other legal sources.

First, equity can refer to the correction of an error that results from the generality of a legal rule, often in a case not anticipated by the maker of the legal rule. This can be called the Aristotelian sense of equity, and it is, more or less, the sense in which the word is used in the excerpt just given.[1]

Second, equity can refer to a moral reading of the law, such as interpreting the law to prevent a person from abusing a legal right against someone else. This moral reading may not be required by, or may even be inconsistent with, the positive law. This can be called the general sense.

Third, equity can refer to the doctrines and remedies originating in the English courts of equity, especially the Court of Chancery. This is the technical sense.

These three senses are not mutually exclusive, for as courts of equity decided cases (equity in sense three), they were influenced by the idea of correcting errors from general rules (equity in sense one) and the idea of preventing opportunistic abuse of legal rights (equity in sense two).

How important is equity in each of these senses? Can a legal system get by without equity in the technical sense? Presumably so, since civil law jurisdictions never had separate courts of equity, and most common law jurisdictions no longer have them.

But can a legal system get by without equity in the Aristotelian sense? Can any legal system that aims for justice really flourish without equity in the general sense? But what problems can you predict will arise if judges are trying to apply equity in the Aristotelian and general senses? Keep these questions in mind throughout this course, as we consider both legal and equitable remedies.

[1] There is more to Aristotle’s discussion of equity than presented here, including equity as a virtue. The equitable person, Aristotle says, is someone who is not a stickler for his rights.

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