Legal remedy

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with
which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes
a penalty, or makes another court order to impose its will in order to compensate for the
harm of a wrongful act inflicted upon an individual.[1]

In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies
distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an
equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy
available in these systems is declaratory relief, where a court determines the rights of the
parties to action without awarding damages or ordering equitable relief. The type of legal
remedies to be applied in specific cases depend on the nature of the wrongful act and its
liability.[1]

In the legal system of the United States, there exists a traditional form of judicial remedies
that serve to combat juror biases caused by news coverage. The First Amendment of the
United States forbids the government from censoring and restraining the freedom of
expression, which allows the ever-expanding news media to influence the legal process. The
entangled relationship between mass media and the legal system presents challenges to the
Sixth Amendment that guarantees the rights of criminal defendants to receive fair trials. Trial-
level remedies are in place to avoid pretrial publicity from affecting the fairness of a trial. To
minimize the impacts of pretrial publicity, there are six kinds of judicial remedies at the
disposal of judges: voir dire, change of venue, change of veniremen, continuance, admonition,
sequestration.[2]

In English and American jurisprudence, there is a legal maxim (albeit one sometimes honored
in the breach) that for every right, there is a remedy; where there is no remedy, there is no right.
That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim
was first enunciated by William Blackstone: "It is a settled and invariable principle in the laws
of England, that every right when with-held must have a remedy, and every injury its proper
redress."[3][4] In addition to the United Kingdom and the United States, legal remedy is a
concept widely practiced in the legal system of a variety of countries, though approached
differently.[5]

Three Types of Legal Remedy In Common Law Systems

There are three crucial categories of judicial remedies in common law systems. The legal
remedy originates from the law courts of England and is seen in the form of a payment of
money to the victim, commonly referred to as damages or replevin. Damages aim at making
up the harm that a breaching party has committed to the victim. In the history of the English
legal system, the legal remedy only existed in the form of monetary relief, and therefore the
victim must petition through a separate system if he or she wanted other forms of
compensation. Although the courtrooms and proceedings have been integrated, the
distinction between requests for money versus action is still present.[6] Non-monetary
compensation refers to the second category of judicial remedies—equitable remedies. This
type of remedy comes from the equitable jurisdiction developed in the English Court of
Chancery and Court of Exchequer. Declaratory remedies make up the third category of
judicial remedies. Different from the other two categories, declaratory remedies usually
involve a court's determination of how the law applies to particular facts without any
command to the parties.[7] Courts give declaratory remedies about many different kinds of
questions, including whether a person has a legal status, who the owner of a property is,
whether a statute has a particular meaning, or what the rights are under a contract.[7] While
these are three basic categories of remedies in common law, there are also a handful of
others (such as reformation and rescission, both dealing with contracts whose terms need to
be rewritten or undone).

Legal Remedies (Damages)

Compensatory Damages

Compensatory damages are paid directly to the claimant to compensate for loss and injury
when the defendant is proven to be liable for breach of duty or committing wrongful acts. In
cases where the claimant has suffered ascertainable costs, it is easy to determine the
amount of compensatory damages. In other cases where the liability results from the
defendant failing to perform a service, it is necessary to calculate compensatory damages by
inquiring how much it would cost for a third party to provide the same service. However, the
court takes into account when the non-breaching party makes savings or profits because he
or she is involuntarily relieved from the responsibilities specified in a broken contract. If the
non-breaching party makes gains from alternative arrangements, compensatory damages are
equivalent to his or her loss subtracted by the gains made from the substitution.[6]

Consequential Damages

Consequential damages, also known as special damages, are intended to compensate for
the indirect consequences incurred by the defendant and are sanctioned on a case-by-case
basis due to their specificity. Lost profits make up a common type of consequential damages
in contract laws. When the party breaching a contract causes the plaintiff to lose profits, the
money is recoverable if the plaintiff can prove its ascertainment and trace it to the wrongful
conduct of the breaching party, which can be extremely difficult.[8] Moreover, legal expenses
including the ones generated by bringing a lawsuit against the breaching party to attain legal
remedies do not count toward consequential damages and be charged from the defendant,
unless stated in the contract otherwise.[6]

Punitive Damages

Punitive damages are different from other types of damages because their main purpose is
to punish the defendant and deter him or her and many others from engaging in similar kinds
of unlawful conduct in the future.[8] The maliciousness and willingness of the defendant to
carry out certain wrongful acts are typically what compel the court to impose punitive
damages. Since the intention of punitive damages is typically not to compensate the plaintiff,
it is often that only a part of it would be awarded to the plaintiff at the discretion of judges
and that they serve only as complements to compensatory damages.[6]

Incidental Damages

Incidental damages, closely associated with compensatory damages, are costs used to
prevent further losses that result from the breach of contract on behalf of the nonbreaching
party. For example, a company breaches a hiring contract that it signed with a prospective
employee. The expenditures that the employee spent searching for another job are an
element of incidental damages.[6]

Nominal Damages

The plaintiff is entitled to receive nominal damages in cases in which he or she suffers no
actual harm or is unable to prove harm.[6] Although the amount of nominal damages is
typically small, the plaintiff can use the award of nominal damages as a justification to plead
for punitive awards or appeal a violation of his or her rights that form the basis of the lawsuit,
common in cases involving constitutional rights.[8]

Liquidated Damages
Liquidated damages refer to a predetermined amount of money that must be paid by the
breaching party, and they are fixed numbers agreed upon by both parties during the formation
of a contract. Courts enforcing a liquidated damages provision would consider the
reasonableness of its amount, specifically if it approximates the amount of actual damages
caused, and the ascertain. Failing to meet this condition would turn liquidated damages into
an unenforceable penalty that inequitably benefits the party receiving liquidated awards.[8]

Statutory Damages

In certain cases, a statute dictates the amount of damages, rather than the calculation of the
harm or loss endured by the plaintiff. The Fair Debt Collection Practices Act would charge up
to $1,000 for every violation of its provision, which is an example of statutory damages.
Treble damages is a type of statutory damages in which the amount of compensatory
damages awarded to a plaintiff can be tripled given the warranty of a statute.[8]

Equitable Remedies

There are three characteristics of equitable remedies that differ from damages. First, the jury
is not used in cases involving equitable remedies. Second, in sanctioning equitable remedies,
the court does not make decisions based on precedents but tends to rely on the justice that
needs to be served. Third, equitable remedies are not monetary. Rather, they include actions,
properties, etc., that the court orders the defendant to perform in order to bring both parties
in a lawsuit back to the position in which they were prior to their contract.[6]

Injunction

Injunction is a court order that coerces the defendant to take specific acts or refrains him or
her from engaging in certain actions, i.e., breaching a contract.[9] In the U.S., injunction is the
most common type of equitable remedies, and failure to comply with an injunction can lead
to results ranging from fines to imprisonment.

Accounting for Profits

Accounting for profits is an inquiry into the amount of gains that the defendant benefited
from his or her wrongs. Accounting is more commonly practiced in cases against a fiduciary
or breach of contract in which the ascertainment of the defendant's profits is important.[9]

Constructive Trust

Constructive trust is enforced in situations where the possession of a property by the

defendant unjustly enriches him or her, and therefore the court decides to grant the
ownership of the property to the plaintiff.[9]
 Equitable Lien

Equitable lien is applicable when the defendant used unjust funds obtained from the plaintiff
to make improvements to his or her property. By granting the plaintiff a security interest in the
property of the defendant, it guards the right of the plaintiff to have the funds returned from
the defendant.[9]

Subrogation

In a subrogation case, the property that belongs to the plaintiff from a legal standpoint is
used by the defendant to repay the debt to a third party. Subrogation entitles the plaintiff to
the rights as the third party against the defendant.[9]

Specific Performance

Specific performance refers to the court compelling the defendant to perform certain
actions.[9] This type of equitable remedy is limited in scope because in contract laws for
example, issuing specific performance would require the property that gives rise to the
lawsuit to be unique, or that it is more practical for the defendant to compensate the plaintiff
by paying for compensatory damages.[6]

Reformation

Reformation, or referred to as rectification, is when the court practices remedies by

correcting the writings of a contract. Under two circumstances, reformation applies either
when (1) the writing does not reflect the agreement made between the parties, or (2) one
party signed the contract in the first place because he or she was manipulated by the fraud
planned and executed by the other party.[9]

Equitable Rescission

Equitable rescission gives the innocent plaintiff the right to undo or rescind a contract when
he or she entered the contract as a result of fraud, misrepresentation, etc., or when the
contract has been breached by the other party. To restore the situation to what it was before
the contract, both parties need to return what they have received from the exchange.[9]

Declaratory Remedies

Declaratory remedies, or declaratory judgment, do not belong to the category of damages or

equities. They are legal determinations made by the court to address ambiguity or disputes
without sanctioning an action or practice against the parties involved. Declaratory remedies
serve to affirm the validity of the claims and requests made by the plaintiff, accompanied by
injunction in selective cases at the discretion of judges or juries.[10] Declaratory remedies are
a component of preventive adjudication because in cases that demand only declaration, no
actual harm or loss has been incurred by the plaintiff.[7]

Trial-Level Remedies for Pretrial Publicity

Pretrial publicity can lessen the effectiveness of jurors in ways such as presenting
incriminating information or arousing blind emotions, which significantly influence the
outcome of trials and damage their fairness.[11] As technologies develop, the prevalence of
mass media makes legal information more accessible and thus poses a larger threat to the
process of adjudication. Trial-level remedies are designed for judges to mitigate the impact
of pretrial publicity without infringing the freedom of expression for the press.[2]

Voir Dire

Voir dire, which means "tell the truth" in French, refers to a process in which attorneys and
judges conduct interviews with potential jurors to discover their bias and rule out the ones
who cannot be impartial. The selection procedure usually starts with a written questionnaire
before questioning. In the process of questioning, both parties have the right to excuse
potential jurors through challenges for cause. An attorney must convince the court with
legitimate reasons to eliminate a potential juror. Another method to screen out a member
from a pool of jurors is to use peremptory challenges, which cannot be rejected by the judge.
However, attorneys can only use peremptory challenges for a limited number of times.[2]

Change of Venue

Change of venue is to relocate the trial to another area in the same state that has presumably
received less exposure of information regarding the case.[2]

Change of Veniremen

Instead of moving the location of the trial, the court can also import jurors from a distant
community, where less coverage has been given to the case.[2]

Venir is a French word meaning "to come."

Continuance

Continuance is to postpone the trial on the grounds that the prejudice of jurors would reduce
as they forget much information about the case from media. The delay also results in the
defendant spending additional time in jail or that it may attract more media attention and
drive up the publicity of the case.[2]

Admonition

Admonition utilizes the effectiveness of the instructions of the judge to the jurors and the
jurors' obedience. By giving a panel of jurors instructions such as make verdicts solely based
on the evidence presented in the court, the judge seeks to diminish the influence of mass
media.[2]

Sequestration

For high-profile cases, the jurors are isolated until the case is closed. They would be housed
in together while their access of all forms of media and technologies is either screen or
restrained.[2]

Case-by-case versus Announced

Remedies can be, and in American law usually are, determined case by case, and take into
account many different facts including the amount of harm caused to the victim. Remedies
can also be determined in advance for an entire class of cases. For example, there can be a
fixed fine for all violations of a legal rule, regardless of how much harm was caused in a
particular case.[12]

Application of Legal Remedy in Different Jurisdictions

Monetary compensatory damages, along with injunction, are most commonly used in the
United States. Similar to the U.S., the courts in the United Kingdom tend to award monetary
compensatory damages in tort cases. However, punitive damages are not applicable in the
legal systems of the U.K. and Japan or the contractual cases in Australia and occupy a
limited but expanding scope in the People's Republic of China. In European states, the type of
remedies, including the character and amount of damages, are determined on a case-by-case
basis through factors such as the location where the illegal conduct caused damages. The
enforcement of legal remedies can be difficult in international litigations as the law in one
jurisdiction does not apply to another.[5]

See also
Examples

Damages or legal remedies, which may include:

Compensatory damages

General damages

Special damages

Consequential damages

Incidental damages

Expectation damages

Reliance damages

Punitive damages

Nominal damages

Liquidated damages

Statutory damages

Treble damages

Award of attorney's fees

Equitable remedies, which may include:

Injunction

Accounting for profits

Constructive trust

Equitable lien

Subrogation

Specific performance

Reformation/rectification

Equitable rescission

Restitution

Declaratory remedies

Categories
 Adequate remedy

Civil remedy

Cumulative remedy

Civil and political rights

Election of remedies

Equity

Equitable remedy

Extraordinary remedy

Habeas corpus

Joinder of remedies

Provisional remedy

Remedy over

References

1. "Judicial remedy – National Action Plans on Business and Human Rights" (https://globalnaps.org/is
sue/judicial-remedy/) . globalnaps.org. 2017-11-03. Retrieved 2020-01-25.

2. R. Pember & Calvert, Jon & Clay (2014). Mass Media Law. New York, NY: McGraw Hill Education.
ISBN 978-0077861421.

3. 1 William Blackstone, Commentaries on the Laws of England 23

4. See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162–163 (1803).

5. Skinner, Gwynne; McCorquodale, Robert; De Schutter, Olivier (December 2013). "The Third Pillar:
Access to Judicial Remedies for Human Rights Violations by Transnational Business" (https://static
1.squarespace.com/static/583f3fca725e25fcd45aa446/t/58657dfa6a4963597fed598b/148304639
8204/The-Third-Pillar-FINAL1.pdf) (PDF). The International Corporate Accountability Roundtable
(ICAR).

6. "Remedies" (https://saylordotorg.github.io/text_law-for-entrepreneurs/s19-remedies.html) .
saylordotorg.github.io. Retrieved 2020-01-25.

7. Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review. 77: 1275, 1281.
SSRN 1483859 (https://ssrn.com/abstract=1483859) .

8. "Damages 101 | News & Insights" (https://www.agg.com/news-insights/publications/damages-101-

06-07-2016/) . Arnall Golden Gregory LLP. Retrieved 2020-02-12.
 9. L. Bray, Samuel (2016). "The System of Equitable Remedies" (https://www.uclalawreview.org/wp-co
ntent/uploads/2019/09/Bray-63-3.pdf) (PDF). UCLA Law Review. 530: 553–557.

10. Ritchie de Larena, Lorelei (Summer 2008). "Re-evaluating Declaratory Judgment Jurisdiction in
Intellectual Property Disputes" (https://www.repository.law.indiana.edu/ilj/vol83/iss3/5) . Indiana
Law Journal. 83 (3): 958–995.

11. Kramer, Geoffrey P.; Kerr, Norbert L.; Carroll, John S. (1990-10-01). "Pretrial publicity, judicial
remedies, and jury bias". Law and Human Behavior. 14 (5): 409–438. doi:10.1007/BF01044220 (http
s://doi.org/10.1007%2FBF01044220) . ISSN 1573-661X (https://www.worldcat.org/issn/1573-66
1X) . S2CID 143651824 (https://api.semanticscholar.org/CorpusID:143651824) .

12. Bray, Samuel L. (2012). "Announcing Remedies". Cornell Law Review. 97. SSRN 1967184 (https://ssr
n.com/abstract=1967184) .

Further reading

University of Toronto Law Journal special issue (https://www.utpjournals.press/toc/utlj/6

9/supplement+1) on legal remedies for human rights violations

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