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Session Summary – Remedies Discussion Group: Remedies in Context

Submitted by Caprice Roberts

SEALS Scholarship Committee Discussion Group Spotlight
SEALS Virtual Conference 2020
30 July 2020
Caprice Roberts, The George Washington University Law School

Remedies Discussion Group: Remedies in Context

We would have loved to connect in person, but our participants and observers found the SEALS Zoom experience to be productive and convivial. We discussed drafts for each of our speakers. A quick summary of each provocative work is below.

Our conversation focused on the extent to which context matters for understanding remedies. A tension exists between articulating a distinct body of remedies law and connecting remedies to the correlative right and broader context. If context is vital, what context—precedent, history, facts, comparative law, the counterfactual world, law and economics, equity, justice, the underlying substantive law, or other judicial doctrines of power and restraint?

  1. Pat Cain (Santa Clara): Comments on the Uniform Law Commission’s draft on Economic Rights of Unmarried Cohabitants Act, addressing remedies for enforcement of economic rights of unmarried cohabitants. Such rights include remedies for breach of express or implied contract as well as other equitable remedies such as quantum meruit, restitution, and constructive trusts imposed for unjust enrichment.
  2. Jonathan Cardi (Wake Forest): Rape as Negligence. Introduction from Martha Chamallas and Jonathan’s article in which they advocate for the analysis of certain types of rape claims under negligence as an alternative to battery. Their article submits that rape is a significant problem in the United States, and that it is one that tort law does not adequately remedy. The primary question this group is this: One argument we will be making is that penetration itself, even in the absence of corresponding harm, constitutes physical harm. What do you think of this argument? Can you think of cases in which courts have characterized analogous types of injury as physical (as opposed to purely emotional) harm?
  3. Chris Roederer (Dayton): Context Matters: Emotional Harm and Satisfaction, exploring how context matters in emotional harm case in the U.S. and South Africa. Receiving compensation for emotional harm in the United States is highly contingent on the context for bringing a claim. We tend to put emotional harm in large number of disjointed causes of action. Sometimes awards for emotional harm are part of the general rule, but more often than not, compensation for emotional harm is lodged in an exception. In contrast, emotional harm under South African law is not an exception, or only to be found within certain causes of action.
  4. Portia Pedro (Boston University): Impact Injunctions: The Myth of the “Nationwide Injunction.” The second in a series of three articles that she is working on regarding “nationwide injunctions,” which she hopes to convince you in the article are actually impact injunctions. (Thanks to many of you for discussing earlier iterations of this project with her.) Portia does not intend this article to be a defense of “nationwide injunctions” (or impact injunctions). Instead, she hopes to disempower the seemingly neutral and technical “nationwide injunctions” framing and illuminate that “nationwide injunctions” skeptics (intentionally or unintentionally) are engaged in the latest iteration of the decades-old battle against civil rights and impact litigation models.
  5. Jean Love (Santa Clara): Commentary—from a Ninth Circuit perspective—on Portia’s paper regarding “The Myth of the Nationwide Injunction.” The Ninth Circuit is developing a small body of very interesting Remedies law out here on the West Coast. The Ninth Circuit “acknowledges the ‘increasingly controversial’ nature of nationwide injunctions” in Innovation Law Lab v. Wolf, 951 F.3d 1073, 1094 (9th Cir. 2020). But instead of limiting its rulings to the question of whether to issue “nationwide-wide” injunctions, the Ninth Circuit has recently begun to grant 1) “state-wide” injunctions and 2) “multi-state-wide” injunctions.” See San Francisco v. Barr, No. 18-17308 (9th Cir. July 13, 2020) (reversing a nationwide injunction which enjoined the Department of Justice from providing funding for state and local criminal justice programs and limiting the scope of the injunction to the State of California) (collecting other Ninth Circuit cases).
  6. Vanessa Zboreak (Elon): Administrative Reparations, examining administrative agency consideration of the racial impacts of their decisionmaking (or rather, lack of consideration), and ways to redress those disparities using the APA framework and other means. Vanessa explores what factors should be inherently relevant factors in agency decisionmaking. Should agencies grapple with the legacy of harm created by administrative decisions and examine prospective racial impact. Possible administrative reparations include requiring agencies to review and disclose past disparate impact and projected harms.
  7. Caprice Roberts (George Washington): A Theory of Restitution Remedies for Wrongs, articulating principles of judicial power and restraint that promote the use of disgorgement of profits remedies but ground them to restitutionary limits. The Supreme Court is reconceptualizing restitution and gain-based remedies across several cases including contracts, securities, intellectual property, and consumer rights. How should equitable principles of unjust enrichment frame such claims, especially where some rely on inartful statutory language? Caprice will update the group on pending restitution claims before SCOTUS, which she also explored with Doug Laycock and Andrew Kull in an ALI #ReasonablySpeaking Podcast, “Disgorgement or Accounting for Profits? An Analysis of Liu v. SEC,” https://bit.ly/2ZO6VlY.

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