Course Overview
I. Basic Remedial Q is “where would the parties be but for the violation of law?”
A. Compensatories seek to get P enough recovery to permit P to buy way back to original position
1. Where this is too difficult as in case of pain and suffering, cts allow reasonable compensation
B. Preventive Injunctions want to keep P in rightful position to start with and avoid any harm
C. Reparative Injunctions want to restore P to rightful position
1. In equity, chancellor has broad discretion to do justice. This view disfavored by current Sup Ct which keeps writing rightful position opinions
2. Scope of equitable relief is analog to measure of damages in compensation cases
3. Specific performance decrees are just special form of injunction w/remedial Qs similar to injunctions
D. Choosing Remedies
1. Choice between compensation and specific relief
2. Should choose on the front end–must decide what you want and what think can get
3. Must show something wrong with damage remedy to get equitable one
E. Declaratory Remedies
1. Analogous to preventive inj. b/c trying to prevent harm before it happens
F. Restitution
1. Trying to put D back to rightful position
2. Designed to reverse transaction
G. Punitive Remedies
1. Don’t restore anyone to any position
2. Nonremedial in sense of undoing harm or taking away D’s unjust gain
H. Contempt
1. Remedies mean nothing w/o enforcement power
II. Conflict Between Economist and Ethicist in Remedies
A. Economists seek the just right level of violations and compensation
B. Ethicists seek to eliminate all violations and get the victim complete compensation+
III. Ps should ask
A. Are there measurable damages?
B. What is most lucrative way to measure?
C. Is there other harm that can still be prevented?
D. Go down list of remedies
IV. Ds seek cheapest possibilities from above list
CHAPTER 1: INTRODUCTION
THE ROLE OF REMEDIES
Remedies give meaning to obligations imposed by the substantive law. Remedies are deemed substantive, not procedural, by S.Ct.
CLASSIFYING REMEDIES
Compensatory Remedies
Designed to compensate P for harm suffered. Most important form is compensatory damages, a sum of money designed to make P as well off as he would have been if he never had been wronged.
Preventive Remedies
Coercive Remedies
Designed to prevent harm before it happens. Usually an order to do or refrain from doing something. Specific performance decree is a specialized form of injunction ordering Ds to perform their K. A D violating a direct order from a court is guilty of contempt. The direct order and the potential for punishing disobedience distinguish coercive remedies from declaratory remedies.
Declaratory Remedies
Authoritatively resolve disputes about the parties’ rights but they do not end in direct order to D. Declaratory remedies prevent harm to litigants by resolving uncertainty about their rights before either side has been harmed by erroneously relying on its own view of the ma
rticular wrong — don’t award damages for other wrongs, such as previous injustices against the Navajos (due process).
· Compensatory damages substitute $$ for what Plaintiff lost. Work best for fungible goods that are easily replaced.
Rationales for Rightful Position
Corrective Justice:
Correct the wrong by undoing its effects. Neither allow D to escape with benefit nor allow P to escape with windfall. Focuses on P. Seeks to minimize violations.Hatahley: $300 is right; it undoes the wrong, restores just equilibrium, makes up for wrongful loss, takes away any wrongful gain.
Economic incentives:
Focuses on giving D the right incentives to obtain an efficient number of violations. Thus, it’s ok to harm others as long as you take into account the harm inflicted. Damages should equal harm inflicted as closely as possible to ensure incentives are accurate so that society experiences a net gain. Hatahley: correct amount would set incentives so that D rounded up the horses and identified the owners rather than slaughtering them.Problem: Do we want gov’t to steal an efficient number of horses?
Precision:
The more precision a court requires for proving RIGHTFUL POSITION, the greater likelihood that plaintiff will not be able to prove damages and will thus go under-compensated.
One satisfaction rule:
P may be entitled to judgment on multiple legal theories & against multiple Ds, but he is entitled to only one recovery no matter how many D he sues. Pro tanto: dollar for dollar reduction for settlement. Proportionate Fault: reduce by settlers % fault. Requires special jury question.
