Rivalrous Remedies offers a novel theoretical account of chronic underenforcement. Its primary contribution is to explain and systematize an enforcement phenomenon in which courts and legislators employ an untheorized device. Rather than sanction wrongdoers directly, judges and lawmakers adopt doctrines and tools that deter misconduct by granting a legal advantage to the wrongdoer’s rival, such as a business competitor or litigation counterparty. This institutional design of “rivalrous remedies” regulates behavior indirectly and empowers rivals. As such, these remedies possess significant potential to outperform typical remedies. If overused, however, the benefits may convert to intolerable risks, especially in particular markets. But the benefits are alluring, including benefiting victims while not sanctioning wrongdoers or advancing victims’ benefits without requiring court processes. This arena is ripe for this rich scholarly treatment. Ultimately, the potential promises are worth the reader’s thoughtful consideration.
The reframing of focus is core to the article’s argument. Again, rivalrous remedies focus on conferring benefits to a wrongdoer’s rival. By shifting enforcement away from wrongdoers, and in some instances, away from courts, rivalrous remedies hold a novel path worthy of deeper exploration and application. This work starts by challenging the traditional remedial dichotomy: equitable injunctions stemming from property rules versus monetary damages tied to liability rules. While this conventional property-liability conception, famously advanced by Calabresi and Melamed, has proven extraordinarily influential, the Rivalrous Remedy authors persuasively show that the binary approach overlooks an important middle ground unexplored. In many settings, transaction costs are high, damages are difficult, if not impossible, to quantify, and immediate victims lack the incentives or capacity to vindicate their rights. It is no wonder then that, in such circumstances, classic remedies regularly fail.
Rivalrous Remedies fills this gap. It pivots from tools that operate directly on the wrongdoer to those that operate indirectly by empowering rival competitors and other strategically situated rival actors. Deterrence remains the goal, but operates not by the wrongdoer’s fear of injunctions or fines, but instead by the prospect that misbehavior will bolster an adversary’s position. This conceptual reframe is elegant and compelling. It explains chronic underenforcement and offers new institutional design opportunities to advance solutions that will empower rivals and confer benefits.
The trans-substantive nature of remedies requires breadth of knowledge on underlying rights enforcement. This article unlocks the far-reaching impact by showing a broad spectrum of applications from intellectual property to family law, from defamation to consumer protection, and from antitrust to qui tam actions. Accordingly, the authors show that rivalrous remedies are not marginal curiosities but rather a recurring feature of the legal landscape.
For example, the article’s exploration of the misuse doctrines of intellectual property is fascinating and effective. The misuse doctrines center on harms that are difficult to prove and monetize, yet the doctrines garner significant criticism as incoherent, overbroad, and draconian. By situating the misuse doctrines within the rivalrous-remedies conception, the article uncovers the institutional logic: misuse doctrines address underenforcement by permitting competitors to discipline rights holders who overreach in ways that harm diffuse third parties. The authors thus re-catalogue existing caselaw and explain the effectiveness of such alternative techniques.
In the civil procedure context, the authors demonstrate that rivalrous remedies confer second-mover advantages that deter excessive litigation behavior. This insight resituates longstanding debates about fairness and efficiency of procedural doctrines and litigation strategy. The authors reveal a coherent logic rather than ad hoc judicial practice. Examples within family law showcase the versatility of the framework, such as when the court confers the benefits of added visitation to a rival rather than punishing the alienating parent. This approach aligns incentives with protecting the best interests of the children.
The authors are careful not to overly romanticize rivalrous remedies. They carefully assess limits and risks. For example, rivalrous remedies can over-deter, foster strategic abuse, and garner spillover harms to third parties. The article provides caution on the proper context for rivalrous remedies to work best, including appropriate market structure and alignments of private incentives and public goals. The article offers a useful visual with a “remedies grid” that maps enforcement mechanisms along the dimensions of who enforces and how enforcement occurs. With this guide, courts and policymakers can appreciate that rivalrous remedies are not a panacea but rather a panel of tools that vary depending on the context and degree of self-execution, judicial oversight, and proximity to victims. This nuanced approach enables the article to suggest tailored normative guidance as some rivalrous remedies should be constrained, others recalibrated, and still others combined with conventional relief.
Another intriguing component of the article is its application of the rivalrous-remedies framework to emerging problems in consumer protection. The proposal to recognize a trade secret misuse doctrine—and revive a trademark misuse—to advance consumers’ rights to repair is both novel and persuasive. They compellingly argue that existing enforcement mechanisms fail because consumers and small repairers lack proper incentives to litigate against intellectual property overreach. By contrast, empowering repeat-player rivals such as independent repair companies could meaningfully shift behavior, reduce waste, and promote competition. This proposal exemplifies the article’s broader methodological contribution: rivalrous remedies are not merely descriptive artifacts, but a systematic feature of institutional design ripe for remedying persistent underenforcement in complex modern economies.
Overall, Rivalrous Remedies meaningfully contributes to remedies theory and offers valuable practical insights. Like the best of remedies scholarship, this work overcomes silos and invites scholars to rethink enforcement beyond binary traps. The proposed framework will add to the scholarly dialogue and influence decision-makers. It offers concrete, practical suggestions for courts confronting rivalrous remedies. Judges and scholars will appreciate this article’s novel frame for understanding—and enhancing—the law’s answer to habitual underenforcement. Only then will rivalrous remedies that empower rivals begin to offer jurists another useful tool to address and deter harmful behavior. Such efforts to increase judicial capacity to address ills more efficiently and effectively warrant serious attention.
