Submitted by Caprice Roberts
Discussants explored working drafts addressing shortcomings in the law of remedies. We discussed legal barriers to relief and a host of related questions: What harms should we accept without recourse? If instead remedy should flow, how should courts shape relief, quantify harms, and deter wrongs? We examined the key role of remedies, from navigating equitable procedure and overcoming legal challenges to garnering meaningful relief that vindicates injury without overreaching.
Professor Aaron-Andrew Bruhl, William & Mary Law School, launched our dialogue with a presentation of an excerpted article, Equity on Appeal. Professor Bruhl’s work traces the origins of federal appellate procedure to expose the complicated, law-equity roots and the hybrid nature of modern federal practice. The article builds on the equity revival in the literature and extends the inquiry to the law of appeals. Ultimately, Professor Bruhl offers functional reasons to extend core facets of equity—e.g., reviewing the balance of equities, reexamining fact determinations, and fashioning just relief—to modern appellate procedure. According to Professor Bruhl, federal courts possess the statutory power to act more like equity’s Chancellors, and practical reasons justify exercising those powers more often. Next, Professor Layne Keele, Samford University Cumberland School of Law, presented his work-in-progress, To Err Is Human, To Restore Is (Usually) the Law: Present Entitlement in the Discharge-For-Value Rule in Restitution. The group grappled with whether the Second Circuit’s requirement of “present entitlement” makes sense. We look forward to learning more about the nuances of restitution from Professor Keele’s article.
Professor Max Hare, Regent University School of Law, presented his working project, Penalty: Dynamically Incorporated Dynamic Pricing Models. Professor Hare introduced the background on dynamic pricing algorithms cause in regional real estate markets. According to Professor Hare, the harms of such applications often include the manipulation of markets, possible collusion, and price-gouging. The federal framework covers some but not all opportunistic behavior. State statutes have limited coverage and inadequate remedies. The conversation included a wide exploration of potential normative solutions from remedies to front-end nudges and agency disclosure requirements and oversight. We also heard presentation of a draft article by me, Professor Caprice Roberts, Associate Dean of Research at Louisiana State University Hebert Law Center. I presented a work-in-progress, Reimagining First Amendment Remedies (forthcoming Iowa Law Review), coauthored with Professor Ron Krotoszynski. The article examines unprotected but proven free speech rights and offers increased equitable remedies from a collective approach to ensure protection of listener interests. Thanks for thoughtful comments by other participants: Professors Robert Brain, Loyola (LA) Law; Richard Heppner, Duquesne Law; Suzette Malveaux, Colorado Law; Erica McElreath, Charleston Law; Keeshea Turner Roberts, Widener Delaware Law; Jean Steadman, Charleston Law; Vanessa Zboreak, Jacksonville Law; Jordan Wallace-Wolf, Arkansas-Little Rock Law.