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Remedies
Southern Illinois University School of Law
Gross, Leonard

REMEDIES OUTLINE
 
PART ONE: WHAT THE REMEDIES ARE:
I.       VALUES, GOALS AND MECHANISMS:
A. REMEDIAL GOALS-THE VALUE JUDGMENTS:
1.      Strong Interest Requirement: “the law disregards trifles” is applied where even though a legal right has been violated, the injury to P and to the public is slight.
a.      Ex-consumer fraud: like with opening mail that says you win a watch.
2.      Judicial resource limitation: courts must consider to a great extent the time and effort it will take to administer and enforce the remedy.
3.      Is a Judicially Imposed Remedy Feasible: cause of action will arise when a court can construct a means for insuring P is adequately compensated (must be some sort of standard for a jury to use).
a.      Ex-wrongful life: general damages aren’t available because it’s too difficult to determine the loss between living and not living (but special damages are).
4.      Value Judgments in Determining the Form of Remedy: where there is a legal right, there is also a legal remedy by suit, whenever that right is invaded.
a.      Ex-writ of mandamus: writ of mandamus is proper in denial of judgeship because it’s too difficult to measure the loss in not getting the job.
B. PUBLIC AND PRIVATE REMEDIES:
1.      Should There Be a Private Remedy: if Congress evidences an intent to occupy the given field, any state law falling within that field is preempted.
a.      Note-clear intent: Congress must make it clear that it intends to preempt an area of law (courts aren’t in favor of congressional preemption).
2.      Implying a Private Remedy in the State and Federal Courts: private damages actions are available where persons had adequate notice that they could be liable for the conduct at issue.
a.      Implying a private cause of action based on federal statute:
1)      Test: private right of action in state courts will be implied based on a federal statute if:
a)      P is member of class for whose benefit statute was enacted;
b)     It is consistent with underlying purposes of statute to imply private cause of action (key in recent years and courts are less likely to imply a private right).
c)      P’s injury is one that statute was designed to prevent; and
d)     It is necessary to provide adequate remedy for violations of statute by implying private cause of action.
2)      Additional factors:
a)      Administrative or prosecutorial expertise: if there is great need to rely on administrative or prosecutorial expertise, courts are less likely to imply a private cause of action.
b)     Objective of statute: evaluate the potential impingement of private remedy on the objective of the statute.
c)      Enforcement of statute: evaluate the potential impingement of private remedy on enforcement of the statute.
d)     Protectability of right: evaluate the protectability of the right if private enforcement of the statute isn’t allowed (like difficulty in preventing insider trading if SEC didn’t imply a private cause of action).
e)      Limited role of federal courts: courts are more willing to imply private rights of action from state statutes because federal courts are courts of limited jurisdiction (get power from Constitution and Congress).
b.      Implying a cause of action from state statute:
1)      IL factors: private right of action in state courts will be implied based on a state statute if:
a)      P is member of class for whose benefit statute was enacted;
b)     It is consistent with underlying purposes of statute to imply private cause of action (easier to meet than showing congressional intent).
c)      P’s injury is one that statute was designed to prevent; and
d)     It is necessary to provide adequate remedy for violations of statute by implying private cause of action.
3.      Timing and Enforcement of Public and Private Remedies: two concepts of concern:
a.      Doctrine of primary jurisdiction: courts tend to favor allowing an agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.
b.      Exhaustion of administrative remedies: if an administrative remedy is provided by statute, claimant must seek relief first from the administrative body before judicial relief is available.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
II.    DAMAGES:
A. TYPES OF DAMAGES:
1.      Compensatory: an award of money to compensate for loss of injury (substitutionary remedy-money for damages).
a.      Tort cases: objective is to make P whole by awarding sufficient money to indemnify him for loss.
b.      Contract cases: objective is to compensate for loss and protect P’s expectation interest by awarding $ equivalent to what he would’ve received if contract had been performed.
2.      Nominal damages: award of money granted when P’s right has been violated, but no loss sustained, or the extent of injury cannot be measured
3.      Punitive damages: award of money in addition to compensatory damages to punish D for willful, wanton, or malicious conduc

cal malpractice: under the all or nothing approach, person with 20% chance of survival gets nothing, but under the alternative he collects.
3.      Avoidable Consequences (mitigation of damages): party may not recover for losses that could have been avoided by the use of reasonable means (objective).
a.      Note-additional operation: must look at whether reasonable person would’ve had it, but don’t have to invade religious belief (eggshell P).
4.      Special Damages Must Be Pleaded: special (as opposed to general) damages must be pleaded to provide D with adequate notice of liability.
a.      General damages: damages that so naturally arise from the wrong that D is on notice that they will be claimed and need not be specially pleaded.
b.      Special damages: losses which cannot be presumed or estimated simply because a wrong has occurred; they are unique or “special” to P and must be specially pleaded.
C. AGREED REMEDIES:
1.      Liquidated Damages: agreement, made in advance of breach, fixing the damages is not enforceable unless:
a.      Difficult to ascertain: harm caused by the breach is one incapable or very difficult of accurate estimation.
b.      Reasonableness: amount fixed is a reasonable forecast of just compensation for the harm caused by the breach.
1)      BOP: burden of proving unreasonableness is on the party challenging the liquidated damages clause.
2.      Effect of valid liquidated damages clause:
a.      Actual damages need not be proved: where a liquidated damage clause is enforceable, actual damages need not be proved.
1)      Where damages required in liquidated damages clause: nonbreaching party can argue waiver and estoppel to get clause enforced or argue that there were some actual damages.
b.      No duty to mitigate: nonbreaching party has no duty to mitigate the damages (i.e., avoid the consequences).
c.       No distinction between consumer and commercial contracts: both are treated equally, although consumers frequently don’t negotiate them.