In this Seminar, Professor Daniel Markovits will present his most recent paper on A New View of Remedies in Private Law. Private law faces a choice between two appealing but apparently incompatible approaches to remedies. On the one hand remedies redress wrongs. This underwrites a formal imperative that remedies should vindicate the rights that the wrongs have violated. On the other hand, remedies influence how people treat one another concerning their rights, establishing incentives to respect rights and affecting the relationship between the parties following a wrong. Remedies are powerful policy tools, and this underwrites a functionalist imperative to use remedies to promote the common good, including both welfare and freedom.

Sometimes these two imperatives appear to conflict, as the narrow precision required to vindicate rights seems to eliminate the flexibility required for making good policy. The current state of private law – both in practice and in theory – is therefore trapped in a remedial dilemma.
Although private law is centuries old, it remains deeply conflicted over which approach to follow. Both judges and scholars remain ensnared in the remedial dilemma, unable to reconcile the demands of form and function, to choose between vindicating, or V-remedies, and policy-based, or P-remedies. Indeed, both scholarly writings and judicial opinions typically do not acknowledge, and often fail even to recognize, the dilemma in which they are trapped: that to choose one remedy is to reject the other. In his paper, Markovits elaborates, explains, and attempts to dissolve the remedial dilemma.