By Zaena Ballon
AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of sections and information on how to join, please visit www.aals.org/sections.
As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Remedies.
Chair: Jorge L. Contreras, University of Utah, S. J. Quinney College of Law
Chair-Elect: Caprice L. Roberts, Louisiana State University, Paul M. Hebert Law Center
The AALS Section on Remedies promotes the communication of ideas, interests, and activities among members of the section and makes recommendations to the association on matters concerning remedies.
Why did you join the section on remedies?
JC: I joined the section years ago after a colleague, who is also involved in the intellectual property section, invited me.
CR: From the very beginning of my teaching career, I knew I would teach remedies. Doug Rendleman was my mentor in the field, and he made it clear that attending the AALS Annual Meeting was essential in my first year of teaching. I have a memory of Doug at the Annual Meeting, where I saw him on the escalator with everyone waving at him because he had forged many friendships at AALS. When he saw me, he said, “You are coming with me to all the events.” Given that I was already teaching and planning to write about remedies, I made it a priority to attend all the Section on Remedies programs from the very beginning.
Why did you decide to join the section’s leadership?
JC: I joined because I received an invitation, since I produce a fair amount of work in the remedies area on the private law side. I’ve edited a couple of books and written numerous articles. Unlike Caprice, I don’t teach remedies. My law school doesn’t offer it, so I thought it would be interesting to try to understand the field more systematically by being involved in the Section. That has proven to be valuable to my perspective on the topics that I study.
CR: I’m an early devotee of the concept of remedies as a field, so I wanted to be a part of the leadership because we’re always trying to ensure that it’s a very interdisciplinary section given the transsubstantive nature of the remedies course. We’re trying to entice other people who are writing in subjects that could have underexamined remedial angles or who might consider teaching the course as a logical companion to other courses they teach. This is my third time serving as a chair, so very early on, I worked to ensure inclusivity. This time, I was asked to chair, and I’m happy to do so because it’s essential to maintain an invigorated section that is also very welcoming to newcomers.
JC: Caprice was an absolute lifesaver last year. I was chair-elect of the Section last year. Our chair had medical issues and was unable to continue chairing the Section, or go to the Annual Meeting. Caprice really stepped in and saved the Section, as well as our Annual Meeting panels. Her reward and penalty for doing that was that we asked her to come back onto the board as the chair-elect again. The Section really owes her a considerable amount.
What is your section’s leadership structure?
JC: This is a straightforward section. We have a chair and a chair-elect and then an advisory board.
CR: In the past, we have occasionally had more formal mentorship pairing opportunities, but we’ve always maintained a simple structure. We are looking for new people to join the executive committee and ensure that we’re rotating. It typically isn’t just a couple of people who are serving in the leadership roles. We strive to bring in new voices and individuals who are relatively new to teaching. We get them in early, and then they will take the section seriously and become part of the leadership.
What do your members research and teach?
JC: I find remedies as a field increasingly interesting because it touches virtually every substantive discipline. My own perspective on intellectual property is that there’s considerable interest in remedies. I’ve edited two separate books on injunctive relief in patent cases. It might sound narrow, but there’s a vast number around the world on that topic alone.
There is a lot of interest in remedies from intellectual property, but also, contract law, torts, and property — all of them involve significant and complicated remedial issues. Antitrust law has significant remedial issues, especially today, with potential company breakups, which are referred to as structural remedies. It really runs the gamut, and that doesn’t even touch the public law piece.
CR: It’s one of the most fascinating things about our Section that we’re cutting across all different kinds of areas. Previously I mentioned interdisciplinary as a focus, but obviously, each professor sometimes has deep expertise in certain fields, and our panels will focus on those, like intellectual property. We’ve had fabulous coordination with the intellectual property section and done some fascinating programs that are very in-depth.
Though our professors align on a set of private law topics including contracts, torts, property, and, sometimes, intellectual property, we get all sorts of expertise. I write about remedies treatise, I have extensive knowledge about the private law side but remedies is vital to public law as well. I’m currently teaching on the public law side, and we have had a whole set of professors over the years who specialize in constitutional law, federal courts, administrative law, and occasionally immigration.
There was a period when we alternated between private law and public law over the course of a year. We delved into an insurance law topic for one year, and then the following year was the whole fate of the nation. What’s happening now, in terms of what we write about, we have some individuals who are very focused on proper judicial roles. There’s a divide between those who tend to write more on the law side versus the equity side. Some people will be writing about specific things — damage caps, for example. Others focus on the nationwide or universal injunction controversy, including judicial discretion, remedial scope and separation-of-powers concerns.
How does your section support the scholarship from your members?
CR: Years ago, we used to have a website, in addition to the Section list, which was initially the way that we would connect people. There was a lot of idea-sharing in terms of draft swapping as well. There’s a great interest in syllabi swapping, and the Section hosted a pedagogical panel a couple of years ago. The syllabi swap was a bonus in addition to a substantive panel, and there’s a lot of hunger for that.
On the writing side, we had a mentor program a few years ago, but most recently, we held a Work-in-Progress (WIP) session. We did a pedagogical panel, and then we also had a separate panel of people who had sent in WIP papers that were junior scholars, and we matched them up with commentators. I like to shine a light on junior scholars writing in the remedies area to bring attention to their work. Whenever I hear from attendees at our panels who are newer, I’ll look up what they’re writing right now and see if we can showcase it. Furthermore, many of us serve on the Social Science Research Network list to ensure that we’re including new scholarship that’s available and encouraging people to subscribe to SSRN for access to remedies articles. I’m also an editor for the Journal of Things We Like (Lots) (JOTWELL). I’m curious if other members of the AALS section are, but that’s always an opportunity to showcase our members’ work.
Additionally, since we’re such a friendly section, I often invite people from AALS to attend other programs like the Southeastern Association of Law Schools (SEALS) conference, Domestic Remedies Colloquia, and the annual International Remedies Forum, co-hosted by several institutions and rotating between France, Budapest and other countries. AALS and SEALS are great places to start participating.
What are some important conversations happening right now in remedies?
JC: On the intellectual property side, many relate to injunctive and exclusionary relief in cases involving patents, dating back to the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, which established the current judicial framework for awarding permanent injunctive relief in patent cases. That case made it more challenging to obtain a permanent injunction, and then a couple of years later Winter v. NRDC added preliminary injunctions to that mix as well. There have been legislative and litigation efforts to overturn these cases. For example, legislation proposed, called the “RESTORE Patent Rights Act,” was introduced last term and reintroduced this term; it would effectively override the Supreme Court’s eBay decision. I testified before the Senate Judiciary Committee about that bill last December, and many of us in the field have written about it; it’s a vigorous debate.
These issues are truly global, with large-scale patent litigation these days conducted in dozens of different jurisdictions simultaneously. Hence, the remedies awarded in any given jurisdiction are essential, especially if they’re injunctive. There is a lot of forum shopping, a lot of what we call the “race to the courthouse” as different parties try to take advantage of different remedies offered in different jurisdictions, since different jurisdictions have different rules for awarding injunctive relief.
Germany, for example, has traditionally been a go-to jurisdiction to get an injunction in a patent case. We now have something called the Unified Patent Court, which is a European-wide court that has some holdouts that haven’t joined, like Spain, but primarily covers all of Europe. China is also very active in this area. You have smaller jurisdictions getting into the mix by offering easy injunctive relief. Colombia, for example, is a small jurisdiction. However, it will grant a preliminary injunction in a patent case on a motion with zero factual pleading, so it’s an incredibly complicated global chess game that gets played out. There are lobbying efforts in all the different countries to try to adjust or harmonize the remedial offerings, and those have gone nowhere. It’s quite complicated and quite controversial.
In the US, we have not one but two different jurisdictions where these cases are heard. The federal courts, but then the International Trade Commission (ITC) has its own unique statutory remedial structure with exclusion orders that can be either limited or general, and the ITC doesn’t have to follow the eBay case. There’s legislation pending there as well. Last summer, I testified before the House Judiciary Committee about ITC’s extraordinary powers and inconsistencies in the system.
Additionally, there is an increasing number of patent-related cases being brought in state courts. You would think under the US code that patent cases are restricted to federal courts, but these cases can be brought in state courts if they involve contractual licensing disputes. State courts are issuing jury verdicts that are basically thinly-cloaked patent damages awards. I submitted an amicus brief in a Texas case a couple of months ago on that very question, so there’s a lot in my corner of IP law.
CR: We could discuss for hours all the different things happening in field. I took over Dan Dobbs’ treatise on remedies. The last edition was published 25 years earlier, so I had to update these massive areas, including everything about injunctions. We’re talking beyond intellectual property, but every single kind of case, because of the eBay opinion that we discussed. There are still many, many circuit splits on how to do the tests, and of course, those are just federal cases. States have all kinds of variations and other considerations that come up in equity, but the idea of not having an automatic yes or no is how we see the big takeaway. There have been several professors writing in those areas.
The topic of national injunctions has been under considerable amount of controversy, also referred to as universal or nationwide injunctions. The Senate held a hearing on this topic — Professor Steve Vladeck and Professor Sam Bray testified with differing opinions about the concerns of forum shopping and whether there ought to be some congressional restraint on how those judges decide or how those cases are brought before the court.
Part of what the executive orders have done on injunction bonds is something that I’m making sure people watch, because there have been plenty of civil rights cases where judges have waived the federal rule that civil procedure requires, which is a security for an injunction in case it’s erroneously decided. The executive order essentially states, “We’re going to take that federal civil procedure very seriously.’ We’re going to make sure that judges don’t say a nominal amount or a zero amount, and we’re going to go after it and litigate it, and then we’re going to seek attorneys’ fees.”
There’s an interesting item coming from the presidential administration in terms of rhetoric and a warning bell, as well as how litigants might perceive the move. The other significant areas obviously connect to the executive branch right now, which are rule of law issues. I’m getting a lot of media calls and amici brief requests about public law remedies — whether injunctive or reinstatement types — that have been going on with some of the DOGE activities. I’ve had scholars who were in employment law say, “I know nothing about remedies. Please explain this to me. What are the emergency types of relief that can be requested? How structural can the remedies become if they’re looking over a whole agency? What’s the fallout on the administrative law deconstruction efforts?” With many emergency motions, people often realize they need to have some remedies. They need to learn more about it in their own field, which is a crucial step to take.
Furthermore, there are things such as writ of mandamus and writ of prohibition. All of those could come into effect. Contempt is something most of us spend a lot of time teaching, and it’s only taught in the remedies course. We teach the basics and the theory behind how contempt works, how its various classifications matter, and what happens if parties do not follow judicial orders.
Of course, that doesn’t mean there aren’t advancements in the monetary world. There are plenty of remedies in that lane, restitution, and unjust enrichment as well. Some are equitable, while others are legal. We have scholars writing about those. I have written a lot about disgorgement, which overlaps with the intellectual property world. Disgorgement is rooted in unjust enrichment theory and focuses on the defendant’s profits as opposed to plaintiff’s compensation. There are different remedial goals and a lot of exciting things happening.
Lastly, I would also add habeas corpus since it is both a right and a remedy. Sometimes it’s called the “Great Writ” or the privilege of habeas corpus, but the Latin meaning is “release the body.” A lot of famous due process cases have already happened. For example, the Guantanamo set of cases. All of those are incredibly relevant in this moment. There are amicus briefs, media reports, and congressional hearings where remedies scholars are ensuring that people understand the full range of remedies and all the options available. However, it’s obviously vital whenever people think their rights might be challenged or under threat.
What about US states that have caps on non-economic damages? Do these caps on damages violate the right to trial by jury?
CR: It depends on how the statutes are written. I gave talks about this, many years ago, to bar associations, and they wanted to know all about tort reform, all about what was happening, and what the constitutional challenges were for them. Those were doing tort law, who typically aren’t that familiar with all the ways the US Constitution applies to these remedies issues. That was the fascinating part. Obviously, there is a Seventh Amendment right to a jury argument that has been the most successful in challenging tort reform legislation, though not always.
Nestlehutt is a famous case on that, but part of it is how much time the legislature spent coming up with their findings of fact and making it a very good statute. Good, thoughtful, and narrowly tailored? Maybe they don’t all go under strict scrutiny, but the idea that they’ve given some thought is a means to achieve the goal that they have. However, sometimes, if it’s a flat cap, and that’s what I’m getting at, if it’s a flat cap versus a cap that has a scale, flat caps can be arbitrary and capricious and violate the right to a jury trial. There is some validity to those rulings, but typically, legislatures revisit and tweak or amend them, resulting in something constitutional.
There’s a way to achieve the goals of caps, but the other big piece is whether they apply to all the harm or just the non-economic injuries, or what they call the intangible injuries. Suppose it’s all the economic harm. In that case, there have been some plaintiff-side victims who are the most egregious, not just egregiously, but the most heavily damaged or harmed, and yet they’re getting capped at the same amount as someone who is in a much lighter injury status. That person will get their full recovery. There was a case in Wisconsin about that, and they did a “rational basis” test with teeth to be more skeptical of these clauses. They created an extra tier of scrutiny somewhere between rational basis and intermediate scrutiny. There’s much to examine, but it’s not easy to say yes or no to caps.
In 2024, the US Supreme Court ruled that there is a three-year statute of limitations deadline to file a claim on copyright. There is no time limit for monetary recovery. How is this ruling beneficial to the plaintiff’s claim and copyright infringement in the future?
JC: It’s beneficial for plaintiffs because there’s no limit on the time over which they can collect damages. The ruling is based purely on textual statutory interpretation. Admittedly, the statute is not written very well. I doubt that this is what Congress intended when they drafted the limitations period in the Copyright Act, because that’s not how the limitations period works. For example, in patent cases, it would be straightforward to amend the statute to tie the damages to the three-year period, but this is a very recent case, so that hasn’t happened yet. The apparent impact of the ruling is that the damages can be high, exceeding what accrued over the three-year limitation period.
It all boils down to the so-called “discovery rule,” a tort concept that determines when the statute of limitations begins to run in a tort-type case. Is it when the tort occurs, such as when it’s committed or when it is discovered?
This comes up in medical malpractice: A surgeon leaves a sponge in your abdomen, and you don’t even realize that until 20 years later, when you have another surgery, long after the tort statute of limitations has run. However, you do have three years or whatever period from when you discover it, and the damages you collect are those that occurred since the tort was committed. Except copyright often lasts over a hundred years, and infringements can have been going on for an extremely long time before discovery. The real question that the Supreme Court should have addressed, and that some of the justices wanted to address, was whether the discovery rule should apply in copyright cases at all.
However, that question was not well pleaded in this case, so they deliberately avoided it, simply stating, arguendo, that the discovery rule applies. The statute does not talk about limiting the scope of damages. They could have read that into the statute, as this is how the Patent Act works, and there are numerous cases in which those two companion statutes are read to inform one another. But with a highly textualist court today, they were not willing to take that leap. We have a bizarre decision that will soon be clarified by the Supreme Court, either by overruling the discovery rule in copyright cases or by Congress revising this statute, because a plaintiff has only three years to bring their case. Then they can claim a hundred years’ worth of past damages, but that seems weird.
CR: To add on to this topic, because I do pay attention to those rulings, due to my interest in a discouragement-type remedy, which exists in the copyright world — there’s also the famous Feltner case, which is where Justice Thomas engaged in a historical reading of the copyright statute to go back to the Statute of Anne as to whether there was a jury trial right for statutory damages under the Copyright Act, then adding Petrella, the case about the unavailability of the equitable defense of laches for copyright damages’ claims. Stone is another related case that I teach, about Hank Williams Jr., where someone claimed that they were his daughter, and that’s now been admitted.
Every act of infringement is a separate act so that you can count them individually. In Feltner, there were 440 acts, and something similar is going on in Stone. Then she had to fight on laches grounds for her equitable claims, but also on statute of limitations grounds for the at-law claims that she brought. She had multiple pieces of litigation where she was fighting against the estate, and ultimately, they said there’ll be a new clock that sort of runs based on the discovery. Sometimes that reopens more remedies as well, and then if equitable claims are being brought, you have laches instead, which is not a strict time bar. That might be worth knowing about other types of remedies being requested, such as constructive trust, for example, which would be equitable.
JC: The IP statutes have pretty much screwed up the limitations. The Patent Act has a clear six-year statute of limitations. We’ve got this now with copyright — three years on the action and unlimited on the damages. With the Lanham Act and trademark, there is no statute of limitations at all. They just forgot it, which leaves parties to rely on the equitable doctrine of laches, which then looks to state trademark statutes of limitations, which causes a mess in the field.
At the 2025 annual meeting, the section hosted a program about private and public remedies. What themes did that session address?
CR: We had several scholars talking about intellectual property and types of overlap, including rethinking the eBay factors. We discussed thorny issues in remedies and copyright cases. Then we had AI remedies, which I haven’t mentioned, but that’s another really hot area. I recently participated in the Harvard and Yale Privacy Law Workshop on Private Law & Emerging Technology as a commentator on a set of papers focused on AI remedies, which many rising scholars, including Christina Lee, are currently examining. On the AALS panel, Tiffany Li led our conversation on algorithmic destruction. We had Deleso Alford, who spoke about the Henrietta Lacks litigation, which is the case involving the immortal cell line. Then I presented on aligning First Amendment remedies with public collective rights theory.
What does your section have planned for the 2026 AALS annual meeting?
CR: We like to collaborate so that people realize the importance of the remedy. Sometimes we’ll do that with Civil Procedure. Sometimes we’ll do that with the Federal Courts, but sometimes we do it with the Intellectual Property Law section. With AI and technology, that’s another way that we could go this year. While a few years ago, we did the pedagogical one because there was demand for it, lately we’ll send something around a listserv to say, here are a few ideas, to gauge people’s interest.
What is your vision for this section this year and years to come? What new initiatives, project-based or ongoing would you like to see a part of this section?
JC: I want the email list to become more of a discussion forum. The Section has a vast membership, but very few active members on the list. Some sections use their list a lot more, because I receive lots of notices from those sections. The discussion list would be a nice way to inform people about opportunities to join amicus briefs, and participate in conferences, and so forth. We can do a better job of using it. I’ve been hesitant because it’s so big, and there are so many people on it, and I don’t want to spam people.
CR: We’ve had years where the discussion list has been more active. Several years ago, I forwarded several amicus briefs, which was great. People would at least read them, and some people would sign on when significant remedies and restitution issues were pending before the US Supreme Court. It would be great because we have a very welcoming section. Another goal is to continue collaborating with other sections, attracting new people, and expanding the community.
How do members get involved in your section?
CR: People interested in the Section can email us or attend one of our programs. Any newcomers are welcome to be a part of the Section. Make sure you get onto the listserv, and they can also be part of the leadership easily. The Section is not one of those groups where a hierarchy owns it. The Section is always open to new mentorship and people joining. Our members share a certain camaraderie that, early on, my mentor told me about, and it proved to be true. Remedies is always looking to have newer voices and people who don’t teach remedies, but who realize they could distinguish themselves by picking a remedies angle in their area of expertise. It’s an easy way to have a unique voice on something.
Anything else to add? Any parting words?
CR: Several years ago, the Section established a lifetime scholarly award. It’s not conducted every year, but it’s certainly something meaningful to the Section, and we try not to make it where every year we’re going to invent something. The Section has had a couple of very distinguished recipients — just decades and decades of service and writing from Doug Laycock and Doug Rendleman. The Section is not doing participation awards this year, but it is another critical thing that we do.