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Session Summary: Limits on Remedial Discretion

Submitted by Caprice Roberts

Once again, we had a lively, provocative conversation about remedial discretion across several fields. We discussed a host of drafts and welcomed new commentators. Andy Hessick began our inquiry with a thoughtful organizational flow: (i) damages liability in torts and cyber torts, (ii) appellate discretion, (iii) restitution theory, and (iv) fostering principled equity. Jonathan Cardi (Wake Forest) discussed his draft as part of his ongoing labor with the American Law Institute. He explored thorny issues of comparative fault in intentional torts. We also had a draft paper from Tom Folsom (Regent) on secondary liability in cyber-torts. Aaron Bruhl (William & Mary) presented his ongoing project on The Remand Power, in which he argues that skeptics are mistaken about limits on the remand power. Vanessa Zboreak (Elon) offered thoughts on an early-stage project regarding rule-making and judicial review of agencies that ignore science. I presented a work-in-progress on The Art and Science of Restitution, in which I argue for scientific precision to ground restitution while also enabling space for artistic lines of interpretation to harness its equitable roots and address novel avenues of wrongdoing. Cortney Lollar (Kentucky) persuaded listeners that the ongoing civil equity revival exists in criminal law and that the law should embrace a robust, yet bounded equity in criminal law. Regarding national injunctions, we explored contrasting drafts from Portia Pedro (Boston University) and Michael Morley (Florida State). Portia explained that injunctions themselves are without geographic limits and are absolutely essential to safeguarding constitutional rights. Michael offered a taxonomy for disaggregating “nationwide” injunctions. Jean Love (Santa Clara) recommended that everyone give full attention to Doug Rendleman’s (Washington and Lee) article, Rehabilitating the Nuisance Injunction to Protect the Environment, 75 Wash. & Lee L. Rev. 1859 (2018), SSRN 3140473. Jean then began a dialogue regarding the influence of Doug’s treatment on whether and how we should teach Boomer with eBay with respect to understanding equitable remedies. As always, we are grateful for insightful comments from our audience, and we had more to discuss than we had time. Here’s to next year!

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