The next edition of Ames, Chafee, and Re on Remedies is off to the publisher (Foundation) for next fall, and I'm going to write a series of posts about the revision. Who is the audience for these posts? Well, I expect law students will be very interested in what goes into a casebook revision, especially given the cost of casebooks. Law professors who teach Remedies will be interested, as well as those who might teach Remedies soon. If you're a practicing lawyer and want to know what is on the cutting edge of remedies thinking, this will be of interest for you. (Think of it as CLE that's to the point but, alas, without credit.) If you're just interested in some of the philosophical choices behind casebooks–the tradeoffs between different models–then this may interest you as well. And if you wish you'd taken Remedies in law school, this is a plate of hors d'oeuvres that might whet your appetite to study it for yourself.
Let me start with a word or two about this casebook. It started in 1902 as Cases on Equity Jurisdiction by James Barr Ames, dean of Harvard Law School. It's had some illustrious authors, including Zechariah Chafee, Sidney Post Simpson, Edward Re, Ted Eisenberg, and Emily Sherwin. It was an equity book until 1982, when damages and restitution materials were added by Judge Re. Its current title–Ames, Chafee, and Re on Remedies–dates to 2012, when Professors Eisenberg and Sherwin became the editors. The upcoming edition will be the fourth edition under this name. And it's the third edition that I've been on.
There are lots of good remedies casebooks, with a number of different approaches. Instead of doing head-to-head comparisons, I'll highlight three things that distinguish this book. This will set the stage for the discussion of the revisions in the next post.
First, Ames, Chafee, and Re on Remedies is built on the premise that the law of equity matters today. That was an easy point to make when Dean Ames first published his equity book in 1902. Yet there were premature announcements of equity's demise in the late twentieth century. But now, in 2024, it is becoming increasingly difficult to deny the importance of equity to the work of the federal and state courts.
This point is abundantly clear from the U.S. Supreme Court's docket–about once a year for the last two decades there has been a case in which the Supreme Court has reaffirmed the importance of traditional equitable principles. Equity is relevant in many of the Supreme Court's standing cases (a point Ernie Young makes here). It's at the heart of the debate about the national injunction. And the Court just granted cert in another equity case, Starbucks Corp. v. McKinney. The law of equity is critical to Delaware's Court of Chancery, and thus to corporate law generally. And the explosion of scholarship on equity in the last five years–including the publication of Henry Smith's Equity as Meta-Law and the Notre Dame Law Review Symposium on federal equity–show that the trend is not abating.
So this casebook makes equity central to the subject of remedies. In chapter 1 there are notes and cases introducing equity. Then, after the sections of the book on damages and legal restitution, there are ten chapters on equitable remedies:
CHAPTER 9 The History of Equity
CHAPTER 10 General Principles Governing Equity
CHAPTER 11 Injunctions
CHAPTER 12 Measuring Injunctive Relief
CHAPTER 13 Accounting for Profits
CHAPTER 14 Constructive Trust and Other Proprietary Equitable Remedies
CHAPTER 15 Specific Performance of Contracts
CHAPTER 16 Equitable Rescission, Reformation, and Cancellation
CHAPTER 17 Equitable Compensation
CHAPTER 18 Equitable Defenses
Second, this book is 100% focused on teaching and learning. It is not a reference book, and will not be a good substitute for a treatise. This especially affects the choices about notes. They don't describe lots of permutations and qualifications for the doctrine. And you won't find citations to most of the great new remedies scholarship (to all who are writing that scholarship, sorry!). The center of attention is cases that are great for teaching and learning, with the notes as supporting cast that never steal the limelight.
Third, this book has a stronger private law orientation than many remedies casebooks. This can be seen in how the book starts–the chapters on damages come first, then the chapters on legal restitution, then the chapters on equity. That fits the conceptual primacy of damages, as well as their central role in contract and tort. This private law emphasis also shows up in how many of the doctrines are taught. Often a contract case is paired with a tort case, so students can see the same doctrine from two different angles, and get to see how the tort or contract setting makes a difference. There is a chapter called "Remedies Against the Government," including Bivens and desegregation. But this is a different approach from books that start with public law remedies.
I think both approaches are sound. But in my view public law remedies are built on what we might call "private law microfoundations." So it makes more sense to put the private law settings front and center. Remedies were first developed by courts of law and equity for cases in what we would now call tort and contract, and then those remedies were redeployed in public law settings. A student whose pedagogic progression tracks the doctrinal progression is going to be more attuned to how the translation of private law remedies to public law remedies brings new stress points and questions. And it's great preparation for vast swathes of litigation practice, from corporate law to personal injury to ERISA.
So what's in this revision? Stay tuned.
The post Remedies Casebook Revision: Behind the Scenes appeared first on Reason.com.
