The Distance Factor in Remedies

ABSTRACT This article proposes a new classification of legal remedies that cuts across existing classifications. It argues that all remedies involving the transfer of resources are positioned along a continuum from close to remote, which determines their “distance factor.” The basic distinction is between remedies provided directly by the injurer to the injured and remedies that are provided through third parties. The article presents the results of two original, preregistered experiments designed to examine the effect of the distance factor on perceptions of, and preferences for, various remedies from the perspectives of both the injured and injurers. The experiments reveal that even when the remedy is monetary, both injured and injurers prefer the remedy with the smaller distance factor. Specifically, both parties believe that direct compensation leads to better outcomes than payment via a third party with regard to rectifying the harm done, granting satisfaction to the injured, treating the injured and injurer with respect, improving the bilateral relations, and increasing the injurer's sense of responsibility for the harm. These findings are relevant to the various goals that the law wishes to promote, such as corrective justice, economic efficiency, or distributive justice. They vindicate the importance of private law, offer a more attractive justification for it than the one offered by Civil Recourse Theory, and support pluralism in remedial modes.