The Limits and Legitimacy of Recovery: Whose Rights May Be Sacrificed?

Abstract

This volume asks how to distinguish cases in which a creditor's non-recovery is a failure of relief from cases in which it results from protecting other rights. Effectiveness does not mean unlimited expansion of the amount recovered. Recovery that exceeds the statutory limits set by the application, subsistence, non-parties, the scope of damages, and public welfare must be separated from legitimate blocking and from gaps in the record. The path to relief opens where the blocking norm, the applicable facts, and the protected countervailing interest are connected so as to explain the reason for the non-recovery, and closes where another statutory right actually applies so that the desired remedy, such as expanded execution, binding non-parties, or a stay, cannot be permitted. The six sections address, in turn, the maximization of relief and the application, non-recovery remaining because of subsistence protection, the rights of persons who did not participate, disadvantages outside the scope of damages, individual relief and public welfare, and legitimate blocking and the state of not knowing. The strongest counterargument is as follows. Putting the protection of other rights first may rationalize the non-recovery of those whose rights have already been infringed. Collection, management of performance status, closure performance scores, operation of verification systems, and cost redesign are not addressed in this volume.