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UNDERSTANDING
REMEDIES

James M. Fischer
Southwestern University
School of Law

LEGAL TEXT SERIES

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Copyright 1999
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All Rights Reserved. Printed in United States of America.
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Fischer, James M., 1947-
Understanding remedies / James M. Fischer.
p. cm. (Legal text series)
Includes index.
ISBN 082052879X
1. Remedies (Law)United States. 2. DamagesUnited States. I. Title. II. Series.
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Chapter 1, Understanding Remedies, is reproduced from
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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 Commrs, 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 M 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 doesnt 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 attorneys 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 attorneys 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 Assn 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 M 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 plaintiffs 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. Papas Pizza To Go, Inc., 907 F. Supp. 1535, 1544 (S.D. Ga. 1995) (Plaintiffs

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 M 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 defendants performance under the contract. A substitutional remedy is just
what the term suggestssomething other than a specific remedy. Returning to the contract
example, a substitutional remedy for breach would give the plaintiff the dollar value of
defendants 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 M 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 anothers 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 defendants breach of the contract or the defendants 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 defendants 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 plaintiffs 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 defendants
wrongful conduct by undoing the continuing effects of that wrongful conduct (reparative
injunction).
2Section 21 (Adequacy of Remedy at Law/Irreparable Injury).
3The definition of damages can be exceedingly important when the defendants 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 M 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 plaintiffs 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 M 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 defendants 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
defendants 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. Halper 9 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 Commission 11 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) (OConnor,

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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cost is the expense and use of judicial and legal resources in a case where no actual
loss or injury has occurred. Although the issue of the advisability of awarding nominal
damages would appear to provoke some debate, the propriety of awarding nominal
damages has been largely ignored. 16 It may be that nominal damages preserves a
desirable status quo. The plaintiff whose legal rights were invaded, but who suffered
no loss or injury, other than the awareness of the invasion, is recognized as the prevailing
party. Thus, the legal system does not discourage such litigation or add injury to insult
by requiring the plaintiff to pay the defendants litigation expenses, which would be the
case in the absence of the nominal damages remedy because the defendant would then
be the prevailing party.
Nominal damages are available in a wide variety of actions, including breach of
contract, 17 negligence, 18 constitutional 19 and business 20 torts. Because an award of
nominal damages will support an award of attorneys fees and costs in civil rights
litigation, some attention has been devoted to the propriety of a plaintiff requesting only
an award of nominal damages. 21
[i] Presumed Damages
Presumed damages originated in defamation actions. Words which were libelous were
reasonably expected to cause harm by their use; thus, they were deemed actionable per
se. 22 The cause of action did not require the plaintiff to prove that the publication of
16 But see Bradley v. American Smelting and Ref. Co., 104 Wash. 2d 677, 709 P.2d 782, 790

(1985) (requiring that when the plaintiff seeks recovery under a theory of trespass for airborne
particles intruding onto his land, the plaintiff must prove actual injury). This requirement is
inconsistent with the general rule that for trespass to land injury is presumed and the plaintiff may
collect nominal damages as a matter of course. Ligo v. Gerould, 244 A.D.2d 852, 665 N.Y.S.2d
223, 224 (1997); Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797, 802 (Ct. App. 1991).
17 Scobell, Inc. v. Schade, 455 Pa. Super. 414, 688 A.2d 715, 719 (1997); Magu Realty Co.

v. Spartan Concrete Corp., 239 A.D.2d 469, 658 N.Y.S.2d 45, 45 (1997).
18 Nick v. Baker, 125 N.C. App. 568, 481 S.E.2d 412, 414 (1997); contra Bird v. Rozier, 948

P.2d 888, 892 (Wyo. 1997) (holding that [n]ominal damages, to vindicate a technical right, cannot
be recovered in a negligence action, where no actual loss has occurred).
19 Carey v. Piphus, 435 U.S. 247, 266-67, 98 S. Ct. 1042, 55 L. Ed. 2d (1978); Muhammad

v. Lockhart, 104 F.3d 1069, 1070 (8th Cir. 1997).

20 United States Football League v. National Football League, 842 F.2d 1335, 1377 (2d Cir.

1988) (antitrust action). See also Lodise v. Lodise, 9 F.3d 108 (6th Cir. 1993) (credit report
improperly obtained but not used for improper purpose) (unpublished disposition) (1993 WL
441787).
21 Farrar, 506 U.S. at 115 (plaintiffs who recovered only nominal damages on claim for $17

million in damages were not entitled to attorneys fee award under civil rights statute); Section
332 (Prevailing Party).
22 There is some disagreement whether presumed damages applied to all libel actions or only

libel per se. Lawrence Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv. L. Rev. 733
(1966); William Prosser, Libel Per Quod, 46 Va. L. Rev. 839 (1960). See also Biondi v. Nassimos,
300 N.J. Super. 148, 692 A.2d 103, 106 (1997) (applying principle to slander per se); Chapter
13 (Remedies for Injury to Reputation).
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2[i] INTRODUCTION TO REMEDIES M 9

the libel caused any harm to reputation or injury to the plaintiff. 23

Although the presumed damages rule was pegged to a causal relationship between act
and harm, it is also clear that the rule was rooted in a realization that actual damage,
while likely, would be a difficult proof. It is the combination of the causal element and
the difficulty of proof that informs modern courts as to when presumed damages may
be awarded. 24
The doctrine of presumed damages in the common law of defamation per se has been
referred to as an oddity of tort law, for it allows recovery of purportedly compensatory
damages without evidence of actual loss. 25 Notwithstanding the backhanded comple-
ment, the doctrine of presumed damages has been recognized in other contexts, such
as trespass 26 and certain forms of invasion of privacy. 27 The doctrine has received a
mixed reception in the context of constitutional torts. The Supreme Court in Carey v.
Piphus 28 stated that whether a constitutional tort would support an award of presumed
damages depended on the nature of the constitutional right at issue. 29 In Carey the Court
rejected a claim of presumed damages when only procedural due process claims were
involved. In Memphis Community School District v. Stachura, 30 the Court extended this
proscription to First Amendment claims. 31 Nonetheless, lower courts have evidenced
a general willingness to apply the presumed damages rule to cases not expressly
foreclosed by Supreme Court holdings. To this extent the Court itself has been somewhat
ambivalent. 32
23Sisler v. Gannett Co., Inc., 104 N.J. 256, 516 A.2d 1083, 1096 (1986).
24Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 310-11, 106 S. Ct. 2537, 91 L.
Ed. 2d 249 (1986) (presumed damages may be appropriate when injury is likely but difficult to
prove).
25 Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).

The availability of presumed damages in defamation cases has been restricted due to First
Amendment concerns. 418 U.S. at 349-50; see Section 210[b] (Presumed Damages).
26 Gross v. Capital Elec. Line Builders, Inc., 253 Kan. 798, 861 P.2d 1326, 1329 (1993) (rule

of presumed damages recognized when trespass constitutes tangible invasion, but not recognized
when invasion is intangible, i.e., airborne pollution). See also Bradley, 709 P.2d at 790 (same).
27 Nolley v. County of Erie, 802 F. Supp. 898, 903 (W.D.N.Y. 1992) (presumed damages are

appropriate in a cause of action founded on the unwarranted disclosure of a persons HIV status).
28 435 U.S. 247 (1978).

29 435 U.S. at 262-63.

30 477 U.S. 299 (1986).

31 477 U.S. at 312-13.

32 477 U.S. at 310-11:

Presumed damages are a substitute for ordinary compensatory damage, not a supplement
for an award that fully compensates the alleged injury. When a plaintiff seeks compensation
for an injury that is likely to have occurred but difficult to establish, some form of presumed
damages may possibly be appropriate. In those circumstances, presumed damages may
roughly approximate the harm that the plaintiff suffered and thereby compensate for harms
that may be impossible to measure. As we earlier explained, the instructions at issue in
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10 M UNDERSTANDING REMEDIES 3

3 RELATIONSHIP WITH SUBSTANTIVE LAW

Remedies do not exist in isolation but are bound up with rights, which are creatures
of substantive law. While remedies are frequently characterized as procedural for a variety
of nomenclature purposes, such as choice of law and retroactive application, 1 the
distinction should not be taken too far. The nature of an available remedy is clearly tied
to the substantive right at issue. Although the remedy may generically be labeled as
damages, or injunctive, or restitutionary, the content of the remedy will be strongly
influenced by the nature of the interests that comprise the right. Property rights usually
will not support emotional distress claims because the latter are not usually seen as part
of the bundle of interests that comprise the former. That approach may seem counterintui-
tive to a layperson who is told that the defendant, whose neglect caused the loss of Fido,
the beloved household pet, need not respond to the distress the loss has caused. 2 But
unless the substantive bundle of interests is defined to include the owners emotional
attachment to property, the remedy will follow the law.
While remedies will follow the law, the law will provide appropriate remedies to protect
the right. If an injunction is needed to protect a contract right, the remedy of an injunction
is available in the form of specific performance. Likewise if an injunction is needed to
prevent a trespass or a nuisance, it will be provided. If an injunction is not needed, but
damages to redress the violation of a right are, the law will provide such a remedy. The
law of remedies is essentially a study of the rules and principles that have been developed
to determine how much redress a person is entitled to once a right has been violated. 3
The importance of the right will influence the courts desire to find a remedy. Not
surprisingly it has been noted that courts will be alert to adjust their remedies so as
to grant the necessary relief for the safeguarding of protected rights. 4 By the same token,

this case did not serve this purpose, but instead called on the jury to measure damages
based on a subjective evaluation of the importance of particular constitutional values. Since
such damages are wholly divorced from any compensatory purpose, they cannot be justified
as presumed damages.
(Citations omitted). See also Section 216 (Civil Rights).
1 16 Am. Jur. 2d Conflict of Laws 137 (1979). This was an area where the decisional law was,

and remains, in substantial flux over the proper characterization of remedies for choice of law
purposes. See Robert Leflar, Luther McDougal, and Robert Felix, American Conflicts Law 126
(4th ed. 1986). The modern trend has been to reject the substance-procedure distinction in this
area due to inconsistency in the characterization of the issue and the perception that the distinction
was unworkable. See William Richman and William Reynolds, Understanding Conflict of Laws
57, at 155 (2d ed. 1993).
The traditional rule is that legislation would be construed as operating prospectively absent
express language to the contrary, but this rule did not apply to statutory remedies. First of Am.
Trust Co. v. Armstead, 171 Ill. 2d 282, 664 N.E.2d 36, 39 (1996) (criticizing traditional approach).
2 Section 71 (Property With No Martket Value).

3 United States v. Sanchez, 917 F. Supp. 29, 34 (D.D.C. 1996) (noting that while courts must

ensure that for every right there is a remedy . . . courts need not provide for every right the
same remedy ) (citations omitted).
4 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392, 91

S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

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3 INTRODUCTION TO REMEDIES M 11

judicial reluctance to recognize or protect a right may be demonstrated by a courts

refusal to provide a remedy for the breach of a right. For example, in Anderson v.
St. Francis-St. George Hospital, Inc., 5 the court refused to recognize a distinct action
for wrongful prolongation of life. The court recognized the validity of a patients right
to refuse and anticipatorily reject life-saving treatment. It also found that the defendant
had violated a patients instructions to that effect. Nonetheless, the court refused to permit
a suit for damages arising out of the patients later suffering of a stroke. According to
the court, it was necessary to show that the unauthorized treatment caused or contributed
to the stroke. It was not sufficient to base the claim on the mere breach of instruction
given by the patient. Nor was it sufficient merely to demonstrate that a stroke was
reasonably foreseeable after the patient had been resuscitated in violation of his
instructions. 6
Wrongful life claims have proven to be particularly difficult and troubling for courts.
While jurisdictions have recognized a persons right to decide whether to be administered
life-saving treatment, as Anderson illustrates, courts have been reluctant to back up the
right with an enforceable damages remedy. On the other hand, injunctive relief compelling
compliance with the instructions would be recognized. 7 Here we see the rough balancing
of interests that can be accommodated through the judicious blending of rights and
remedies.
Although the same right may be involved, the elements of proof necessary to establish
a violation of that right for remedial purposes will vary as the remedy varies. Consider,
for example, a person with a transmittable disease who has been terminated from his
employment. If he seeks the remedy of an injunction reinstating him to his position, the
critical issue has been framed as whether based on the current considered judgment of
medical and public health officials, the employee poses a significant risk to others. 8
When, however, the remedy sought is damages, the critical issue is framed as the employ-
ees qualifications at the time the separation decision is made. 9 In this regard the relevant
inquiry is what the employer knew or should have known at the time he took action
against the employee, about whether the employee was otherwise qualified to perform
his job.
577 Ohio St. 3d 82, 671 N.E.2d 225 (1996).
6671 N.E.2d at 229:
We also observe that unwanted life-saving treatment does not go undeterred. Where a
patient clearly delimits the medical measures he or she is willing to undergo, and a health
care provider disregards such instructions, the consequences for that breach would include
the damages arising from any battery inflicted on the patient, as well as appropriate licensing
sanctions against the medical professionals.
7 In re Fiori, 438 Pa. Super. 610, 652 A.2d 1350 (1995); Care and Protection of Beth, 412 Mass.

188, 587 N.E.2d 1377 (1992).

8 School Bd. of Nassau County v. Arline, 480 U.S. 273, 288, 107 S. Ct. 1123, 94 L. Ed. 2d

307 (1987); Chalk v. United States Dist. Court, 840 F.2d 701, 707-09 (9th Cir. 1988).
9 Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir. 1985); cf. Teahan v. Metro-North Commuter

R.R., Inc., 951 F.2d 511, 519 (2d Cir. 1991), cert. denied, 506 U.S. 815 (1992).
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12 M UNDERSTANDING REMEDIES 4

4 PUBLIC POLICY
Lord Justice Burrough, when asked to invalidate a contract on public policy grounds,
stated that public policy is a very unruly horse, and once you get astride it you never
know where it will carry you. 1 Other judges have expressed a more accepting role for
public policy. 2 While public policy considerations are usually derived from constitutions
and statutes, an act may be declared violative of public policy through judicial discretion. 3
The conflicting judicial attitudes toward the role of public policy in decision making
tends toward three considerations. First, expressions of public policy are usually made
as broad generalizations. Thus, it is frequently said that a person should not be permitted
to profit from his own wrongdoing, 4 or that whether a contract violates public policy
turns on whether the contract as made has a tendency to evil, to be against the public
good, or be injurious to the public. 5
The second consideration flows from the first: Broad generalizations prove exception-
ally difficult to apply with regularity and consistency in practice. The matter is often
further complicated by the question whether public policy should be decided by the
court 6 or commited to the jury. 7
1 Richardson v. Mellish, 2 Bing. 229, 130 Eng. Rep. 294, 303 (Comm. Pleas 1824). See also
Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318, 323-24 (1982) (noting
courts inherent limitations in gauging and weighing competing social interests presented as policy
considerations).
2 Pittsburg C, C & St. L.R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 507 (1916):

Public policy is the cornerstonethe foundation&mdash&of all constitutions, statutes,

and judicial decisions, and its latitude and longitude, its height and its depth, greater than
any or all of them. If this be not true, whence came the first judicial decision on matter
of public policy? There was no precedent for it, else it would not have been the first.
3 Pittsburg C, C & St. L.R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 507 (1916) (Sometimes

such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision.
More often, however, it abides only in the customs and conventions of the peoplein their clear
consciousness and conviction of what is naturally and inherently just and right between man and
man). See also Petrillo v. Syntex Labs., Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952, 956 (1986),
cert. denied, sub nom. Tobin v. Petrillo, 483 U.S. 1007 (1987).
4 Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39, 41 (1984) (voluntary

participation in an illegal act).

5 Marshall v. Higginson, 62 Wash. App. 212, 813 P.2d 1275, 1278 (1991). See also Petrillo,

499 N.E.2d at 956.

6 Bovard v. American Horse Enters., Inc., 201 Cal. App. 3d 832, 247 Cal. Rptr. 340, 343 (1988)

(stating that the illegality of contract is a question of law determined by the judge) (citation omitted).
See also Vogel v. Liberty Mut. Ins. Co., 214 Wis. 2d 442, 571 N.W.2d 704, 706 (Ct. App. 1997)
(stating that application of public policy factors to determine existence of liability in tort is a
function of the court).
7 17A Am. Jur. 2d Contracts 335, p.340 (1991) (stating that illegality of contract is question

of fact for jury when determination whether contract violates public policy depends on circum-
stances or parties intent).
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4 INTRODUCTION TO REMEDIES M 13

Lastly, public policy issues are rarely unidirectional; rather, they tend to raise
competing considerations. For example, the public policy in compensating individuals
for anothers tortious infliction of emotional distress may conflict with the public policy
that the intimacies of family life should be preserved against routine litigation when the
parties are husband and wife. 8 The intersect of these considerations tends to turn many
invocations of public policy into a surrogate for a balancing or cost/benefit oriented
analysis. 9
Public policy claims are best established when tied to a statute from which a legislative
policy can be discerned. In these contexts, courts will apply the inferred public policy
standards to the case before them. 10 The results can, on occasion, be quite startling. For
example, in Hydrotech Systems Ltd. v. Oasis Waterpark 11 the court refused to allow
an unlicensed contractor to recover any remedies for work performed for which a license
was required. Refusing an unlicensed party from recovering the contract price is seen
as consistent with the statutory scheme creating the license requirement in the first place.
The court went on to hold, however, that the public policy behind the licensure
requirement not only foreclosed a quantum meruit recovery for the value of any benefit
realized by the party who hired the unlicensed contractor, but that public policy also
foreclosed a promissory fraud claim that the hiring party retained the unlicensed
contractor specifically because he knew the contractor was unlicensed and had no
intention of paying for the services. 12 The public policy horse can be not only unruly
but occasionally stubborn.
Public policy concerns are often tied to concrete issues that can give public policy
considerations a conservative rather than activist tone. For example, the absence of
acceptable and easily applicable standards or the fear of opening a floodgate of litigation
have been asserted as public policy reasons for not providing a remedy. 13 On other
occasions the court may simply treat the wrong as de minimis:
8 Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320, 1323-24, 1326 (Ct. App. 1991).
9 Koestler v. Pollard, 162 Wis. 2d 797, 471 N.W.2d 7, 12 (1991) (Public policy bars Koestlers
claim because more harm than good will result if Koestler is allowed to pursue this action). See
also Christensen v. Eggen, 562 N.W.2d 806, 810 (1997):
In determining whether an agreement violates public policy, courts employ a balancing
test, weighing public policy favoring freedom of contract against policy favoring observance
of the duty allegedly breached by a contracting party. A value of great public importance
may outweigh the countervailing public policy favoring freedom in negotiating contracts.
(Citations omitted).
10 Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 237 N.E.2d 876, 876-77 (1968).

11 52 Cal. 3d 988, 803 P.2d 370 (1991).

12 803 P.2d at 376:

Regardless of the equities, section 7031 bars all actions, however they are characterized,
which effectively seek compensation for illegal unlicensed contract work. Thus, an
unlicensed contractor cannot recover either for the agreed contract price or for the reasonable
value of labor and materials. The statutory prohibition operates even where the person for
whom the work was performed knew the contractor was unlicensed. (Citations omitted).
13 Ross v. Creighton Univ., 957 F.2d 410, 414 (7th Cir. 1992) (educational malpractice); Section

221 (Educational Malpractice).

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14 M UNDERSTANDING REMEDIES 4

There are many wrongs which in themselves are flagrant. For instance, such
wrongs as betrayal, brutal words, and heartless disregard of the feelings of others
are beyond any effective legal remedy and any practical administration of
law . . . . To attempt to correct such wrongs or give relief from their effects
may do more social damage than if the law leaves them alone. 14
14 Richard P. v. Superior Court, 202 Cal. App. 3d 1089, 249 Cal. Rptr. 246, 249 (1988) (citations

omitted) (rejecting tort claims by husband against another man for fathering two children with
plaintiffs wife during plaintiff and his wifes marriage); Section 203[c] (Fraud and Personal
Relationships).

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