In the fall of 2020, the first draft of Restatement of the Law Third, Torts: Remedies was produced and the first project meeting was held. This project was launched along with two other Torts projects, Defamation and Privacy and Concluding Provisions, which once complete will be part of the nine-book collection that will be the entirety of the Restatement of the Law Third, Torts.
Once approved by the ALI Council and membership, this project will supersede the remedies Sections of Restatement Second, Torts. The Restatement Second recognized compensatory damages, injunctions, and other remedies as appropriate in particular cases. The Restatement Third reorganizes, consolidates, and expands the Restatement Second’s discussion of remedies.
The below is excerpted from Comments of § 1 of Preliminary Draft No. 1 (Oct. 2020), titled “Introduction: The Right to a Remedy.” This Section is much like an index section, providing a preview of what is to come in this project.
This Restatement puts liability issues to one side, assuming that plaintiff can prove defendant’s liability (or, in the case of preliminary injunctive relief, likelihood of liability). Similarly, this Restatement does not take a position on the question of whether a jurisdiction should recognize specific torts discussed in this Restatement, but considers only the appropriate remedy and the scope or measure of that remedy if the jurisdiction recognizes a specific tort. Illustrations describe conduct that causes or threatens harm and creates the need for a remedy, and the Illustrations assume that the conduct described is tortious. Often the tort will be obvious. But when the assumed tort is not obvious, this Restatement takes no position on whether the conduct is or should be a tort. Other parts of the Restatement Third, Torts, consider the standards for liability.
It is common to speak of liability rules as “substantive” when contrasting liability rules with remedial rules. This casual usage rarely causes any serious confusion, but it is not accurate, because the law of remedies is also substantive. Except for a few details in the law of preliminary relief, remedies law is no part of the procedural rules by which disputes are litigated. What and how much a plaintiff recovers is part of the plaintiff’s substantive entitlement and not simply a rule for processing disputes. The law of remedies determines the practical extent of plaintiff’s rights and of defendant’s liabilities, and a plaintiff’s rights under liability rules are meaningless without effective remedies. As many cross-references in this Restatement may suggest, the line between remedies law and the rest of the substantive law is often unclear or disputed. When it is necessary to distinguish remedies law from the rest of the substantive law, this Restatement will refer to liability rules, the law governing liability, or similar formulations.
The most common tort remedy is compensatory damages. Given their frequent use in tort litigation, compensatory damages take up a major portion of this Restatement. Compensatory damages are the dominant remedy in tort because torts often occur suddenly (as with most personal injuries), or they proceed in secret before the potential plaintiff discovers what has happened (as with most frauds and latent injuries from harmful substances). Either way, a potential plaintiff often lacks sufficient warning to obtain an injunction before the tort occurs. But when a tort is continuing or repeated, or in other circumstances in which a threatened tort can be anticipated, an injunction against the defendant is an important remedy. And some torts can be reversed, as when converted or misappropriated property is returned to its owner in replevin or pursuant to an injunction.
Many torts are profitless to the defendant, and without some benefit to the defendant, restitutionary remedies are inapplicable. Punitive damages are exceptional, aimed principally at punishment and deterrence. The remaining tort remedies are specialized, or beneficial to a plaintiff only in limited situations. These various limitations leave compensatory damages as by far the most common and most important tort remedy.
Although compensatory damages are the most common remedy in tort, this Restatement also considers other appropriate remedies for tort liability.
Injunctive relief seeks to prevent future harm, including the continuing effects of a tort committed in the past. Courts enforce injunctions through the contempt power, which is used to coerce defendant’s behavior or compensate plaintiff for violations of the injunction. Declaratory judgments declare the rights and responsibilities of the parties. Declaratory judgments are implicitly coercive, because the court can follow through with an injunction if necessary.
Nominal damages are awarded to vindicate a right without regard to actual damages; they function like a declaratory judgment with respect to past events. Punitive damages award more than the sum needed to restore tort victims to their rightful position (see § 2); they are designed to punish wrongdoing and to provide greater deterrence than compensatory damages alone.
Restitutionary remedies are generally measured by an intentional tortfeasor’s unjust enrichment from the wrong. These remedies are attractive to a plaintiff when the defendant’s provable profits exceed the plaintiff’s provable damages, or when the plaintiff has a restitutionary claim to recover specific property. A plaintiff generally seeks restitution of a defendant’s profits only in these circumstances, with the result that when restitutionary remedies are available, they often award more than the recovery available or collectible as compensatory damages. The principal goal of these restitutionary remedies is to ensure that conscious wrongdoers do not profit from their wrongs. Restitutionary claims to specific property are generally administered through equitable remedies such as constructive trust or equitable lien, which give the successful plaintiff a priority in bankruptcy.
Courts may award some remedies, such as punitive damages, in addition to compensatory damages; neither the purpose nor the measure of punitive damages duplicates the purpose or measure of compensatory damages. Other remedies may be duplicative of or inconsistent with compensatory damages. An award of nominal damages is duplicative of an award of compensatory damages for the same tort, and its declaratory purpose is fully served by the award of compensatory damages. Similarly, it would be improperly duplicative for a court both to enjoin future tortious conduct and also to compensate plaintiff with compensatory damages for expected losses from the threatened tortious conduct that is now enjoined.
Compensatory damages are substitutionary; they offer a sum of money as a substitute for plaintiff’s true rightful position, a position in which the plaintiff had not been injured in the first place. Specific remedies also aim to restore plaintiffs to their rightful position, or to preserve threatened plaintiffs in that position by preventing the tort. These remedies seek to restore or preserve the rightful position in kind, rather than with an equivalent sum of money. These specific remedies include injunctions against threatened or continuing torts, injunctions to undo or repair the consequences of a tort, restoration of specific property, declaratory judgments, and constructive trusts and other specific restitutionary remedies.
Some courts and commentators refer to the award of a wrongdoer’s profits in restitution as “damages,” or as an alternate measure of damages. But that usage is both inaccurate and confusing and will never appear in this Restatement. The award of a wrongdoer’s profits, or any other restitutionary remedy, is fundamentally different from compensatory damages. In some forms, such as disgorgement, restitution is an alternate monetary remedy, but it is not an alternate measure of the plaintiff’s damages. Some restitutionary relief is specific (and traditionally available from courts of equity), and results in the plaintiff obtaining an interest in property to which defendant holds title, such as through a constructive trust.
Unlike compensatory damages, the award of punitive damages is not a measure of the plaintiff’s rightful position. But the term “damages” is not confusing in this context, in part because it is so familiar and well understood, and in part because speakers and writers who mean punitive damages never use the word “damages” without the modifier “punitive.”
Because remedies issues arise only if the injured person chooses to sue, after the parties are in court and generally after liability has been established, this Restatement will generally refer to “plaintiff” and “defendant” rather than to “an actor” and similar formulations common in many other Restatements.