Thursday, December 15, 2011
It is a familiar ideal that the remedy should fit the wrong – this wrong, by this wrongdoer, against this victim. Modern legal systems ordinarily pursue this kind of fit, at least in civil cases, by tailoring the remedy case by case. There is an alternative, though, which is for a legal system to announce in advance exactly what the remedy will be for all violations of a legal rule. This Article analyzes this alternative, and it offers a theory for when remedies should be announced.
Announcing has important social benefits. First, there is greater equality, because what a successful litigant recovers is not affected by her race, gender, or other characteristics. Second, announcing produces greater compliance with legal rules, because it assures the public that remedies are not being unfairly manipulated. Third, announcing reduces the “costs of telling.” When remedies are decided case by case, a plaintiff’s recovery depends on how successfully she tells her story. This telling has personal costs, such as impaired hedonic adaptation, that are avoided when remedies are announced.
In achieving these benefits, announcing does not operate as a unitary phenomenon. Sometimes it performs a cost-saving function, sometimes a communication function, and sometimes a precommitment function. Distinguishing between these functions is critical to proper use of announcing. Other important considerations include the interplay of rights and remedies, the need for future-proofing, and the way announcing one remedy can affect the entire system of remedies.