The Law of Remedies: A Prospectus for Teaching and Scholarship

Abstract

In 2009, Oxford University introduced a new course titled ‘Commercial Remedies’ to its post-graduate course list, taught by a team of remedies scholars: Andrew Burrows, James Edelman, Edwin Peel and Charles Mitchell. The course description is a classic statement of what has been covered in remedies courses taught in both Canadian and US law schools for some time, although it excludes damages for personal injuries, a subject often taught in North American law school remedies courses. In Canadian law schools, courses on the law of remedies have been offered in the basic LLB and JD programs for at least thirty years.1 In Australasia, I am personally aware of remedies courses being offered at Melbourne University and the University of Western Australia in the 1980s, and in Auckland University in the 1990s. Clearly, throughout the Commonwealth the systematic study of the law of remedies has come of age; that it should have a longer history in Canada is no surprise. Canada’s proximity to the United States has always brought with it greater exposure to the jurisprudential currents that power the US legal system. Chaim Saiman,2 and David Partlett and Russell Weaver,3 writing on the paucity of doctrinal development of the law of restitution in the United States, attribute this phenomenon to the American enthrallment with the legal realist movement and its elevation of policy analysis to explain the true underlying basis of legal decision making. Doctrine is eschewed in favour of public policy analysis over the role of property, contract and tort law. I believe a similar explanation may lie to account for the development of remedies courses in North America.