Spring 2007
Remedies Outline
A remedy is anything a court can do for a wronged or potentially wronged party. The law of remedies is both substantive and procedural.
Types of Remedies
Legal (right to jury trial) Equitable (no right to jury trial)
Compensatory damages Injunctions
Punitive damages Specific performance
Writ of Mandamus Receivership
Writ of Prohibitions Bill to Quiet Title
Writ of Habeas Corpus
Neither Legal or Equitable
Declaratory judgments
Not classified either way. The older, more specialized declaratory remedies are generally equitable.
Restitutionary judgments
Are in both legal and equity courts, some in both.
Compensatory remedies
Are designed to compensate the plaintiff for harm they already suffered.
A sum of money designed to make the plaintiff whole, and return the plaintiff to his original position or “rightful position.” Potential value of particular suit.
Note: The amount of damages is measured by Plaintiff’s loss.
Restitutionary remedies (disgorge D’s gain)
Are designed to restore to plaintiff all that the defendant gained at plaintiff’s expense. The purpose of restitutionary remedies is to deprive D of profit. But, in some cases, restitution and compensation are identical.
Note: Restitutionary remedies measure P’s recovery by D’s gain.
Type of restitutionary remedies:
(1) Quasi-contract
(2) Constructive trust
(3) Equitable lien
(4) Accounting for profits
(5) Rescission
(6) Subrogation
Preventive remedies
Are designed to prevent harm before it occurs, so that the issue of compensation never arises.
Coercive remedies
Immediately in contempt of court if disobeyed.
(1) Inj
execution, the sheriff will seize D’s property, sell it, and use the proceeds to pay P’s judgment.
(5) Garnishment
The court will order people who owe money to D to pay P instead; payments will be applied to the judgment.
(6) Receivership – the court appoints a receiver to manage assets of the parties pending litigation. Receivership is unusual and expensive; can be used as an extraordinary collection device after judgment, but is never an end in itself. It is always ancillary to some other remedy.
Substitutionary
Plaintiff suffers harm and receives a sum of money. P gets neither what he started with (his money), nor what he was promised (goods). The sum of money he receives is based upon a fact finder’s valuation of his loss.
Specific
Seek to avoid this exchange: aspire to prevent harm or undo it, rather than let it happen and then compensate.
Note: Two views: substantive law forbids the breach of it, or the law forbids nothing (it merely specifies the consequences of various choices: encourages a profitable violation).
