The vast majority of practicing lawyers do not really understand restitutionary remedies and why such remedies can be extraordinarily useful in certain circumstances. The following analysis focuses on the strategic value of the use of restitutionary remedies. First, this article briefly describes a “functional” system for classifying remedies, a system that focuses on the “what” and the “why” of remedies. Then, the analysis emphasizes the difference between the why of compensation and the why of restitution. Finally, the analysis describes three different categories of “strategic” reasons for differentiating between restitutionary and compensatory remedies. The first category involves the amount of possible remedy. In this category this article discusses, among other things, “losing money” contracts, timing issues, economic profiteering, and, of all things, “intangible gains.” (In this last context, incidentally, the analysis addresses a very important modern topic in the law, sexual exploitation in non-employment situations.) This article then turns to procedural issues involved with obtaining restitutionary and. compensatory remedies. Lastly, the analysis describes differences between restitution and compensation in connection with the enforcement of remedies, that is, in connection with the methods that lawyers use to turn abstract judgments into concrete things.
Paul T. Wangerin,
The Strategic Value of Restitutionary Remedies,
75 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol75/iss2/3