Remedies and Rights

Caprice L. Roberts, Savannah Law School, has published Remedies, Race & Civil Rights in the Old South.  Here is the abstract.

The central thesis of my larger body of scholarly work is that remedies shape rights. In this article, I argue that remedies shape civil rights. The law sometimes offers inadequate protections for redressing injuries. This shortfall is especially true for civil rights. Barriers — from immunity doctrines to constitutional limitations on monetary awards — block redress for civil rights. Such obstacles and gaps are not rare but flow with ease like the waters along the Georgia coast where aggrieved blacks have lived this shortfall from the time slave ships docked in 1755. Often the remedy that will best right such wrongs is an equitable remedy such as an injunction. Money may compensate as far as it can, but often cannot rectify the harm. For abridgement of certain rights, money alone will not suffice: it does not undo the vestiges of slavery. Undoing vestiges requires unshackling lingering chains. Those chains block equality and identity. Laws coupled with custom, rooted in inequality, blocked access to life’s basic services and amenities, denying individuals the ability to shape their own identity. Equitable remedies restore property rights and secure access to constitutional as well as other legal rights. Equity plays a vital role in vindication and advancement of civil rights. Equitable remedies in this arena, however, are forceful, complex, and difficult to effectuate. Ideally the very existence of the threat of equitable remedies coupled with the proof of constitutional violation leads to a consent decree under which the aggrieved and the government agree to relief mirroring a complex injunction. Otherwise, judges must exercise wise discretion to shape the equitable remedy: they must advance the right as far as reason will permit. However obtained, equitable remedies shape civil rights.

Download the paper from SSRN at the link.