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SUNY Buffalo Law School
Marcus, Isabel S.

Intro to Remedies
General Approach to Crafting a Remedy: [pg.3] Identify the remedy’s goal [declare parties’ rights, restore plaintiff to rightful position, restore defendant to rightful position, punish defendant for wrongdoing] Specific vs. Substitutionary remedy- Specific remedies achieve the remedy’s goal in kind; Substitutionary remedies give plaintiff a substitute equal to the value of the plaintiff’s entitlement
How to implement through crafting remedy
How to enforce remedy
“The Role of the Judge in Public Law Litigation” pg. 5-8
–          Discussion of changing role of Judges in the legal system, and evolution of the traditional conception of adjudication
–          Defining features of conception of civil adjudication:
1.       The lawsuit if bipolar
2.       Litigation is retrospective
3.       Right and remedy are interdependent
4.       The lawsuit if a self-contained episode
5.       The process is party-initiated and party-controlled
–          Public Law Litigation model proposed
1.       Traditional adversary relationship is suffused/intermixed with negotiation and mediation processes
2.       Judge is the dominant figure in organizing/guiding the case
3.       Judge is creator/manager of complex forms of ongoing relief
4.       Increasing important of equitable relief [no specific performance] 5.       By issuing an injunction the court takes public responsibility for any consequences of the decree
6.       No ‘winner-take-all’ decisionà remedial approach of equity allows alternatives to both parties that can partially safeguard each party’s interests
Function of a Remedy
–          Damages:
o        Compensatory- provides an award of money to aggrieved party to compensate for loss/injury. In Tort the objective is to make the plaintiff whole; Contract objective is to compensate for loss and protect plaintiff’s expectation interest.
o        Nominal- awarded in situations where plaintiff’s right has been violated but no loss is sustained/extent of injury cannot be measured
o        Punitive- sum of money can be awarded in addition to compensatory damages to further punish defendant for conduct that is willful, wanton or malicious and deter such future conduct
–          Restitution:
o        Substitutionary remedies- provide plaintiff with monetary recovery measured by unjust gain
o        Specific remedies- provide recovery of the precise thing wrongfully obtained by the defendant
–          Specific Relief: gives injured party precise performance rather than its equivalent in money
–          Declaratory Relief: Declaratory judgment conclusively determines the rights of parties involved in a contested issue
Legal Remedies- developed through common law are largely substantive and result in judgments for money to compensate for loss/injury. Origin of damages. May also be restitutionary.
Equitable Remedies
–          Characteristics:
o        Specific/direct- orders defendant to personally perform or remedy harm
o        Preventative
o        Discretionary
o        Flexible/fair
o        Enforced by coercive measures directed against the person
–          Equitable Jurisdiction [distinguished from power] – even if the court has equity power, it must also have primary jurisdiction over the subject matter and parties; to grant equitable relief, the court must find that the legal remedies are inadequate
–          Conditions of Equitable Relief:
o        Tort- court must balance the equities and consider feasibility of enforcement
o        Contract- before specific performance can be granted, must:
§         Contract terms must be sufficiently certain
§         Plaintiff must comply with all conditions precedent
§         Enforcement of the contract must be equitable
§         Enforcement must be feasible
–          Special Equitable Defenses
o        Unclean hands
o        Laches- unreasonable delay in bringing an action, such that defendant’s situation has changed to the extent that an additional/unnecessary element would result if suit were allowed. Does not bar a legal claim but can bar a suit before expiration of statutory period
–          Enforcement and Effect of Equitable Decrees
o        Contempt: Civil and Criminal
o        Writs of assistance and sequestration
–          Legal Effect of Equitable Decrees
o        Specific performance of contract for sale of land
o        Decrees affecting land in another state
–          Ancillary Equitable Remedies
o        TRO [temporary restraining order] issued for 10 day period to maintain status quo in order to prevent irreparable harm
o        Preliminary [interlocutory] injunctions- issued after notice and an adversary hearing, purpose is to maintain status quo pending trial on the mer

tion must begin with a careful determination of the plaintiff’s right
–          Consideration of who should do the reconsidering
–          Remand Remedy different from simple reversal:
1.       The successful complainant will not necessarily get what it ultimately wants but rather a reconsideration [substance matter] 2.       Doubtful cases are to be decided by the governmental entity originally charged with making the decision rather than by the court [procedural]  
Rizzo v. Goode pg. 46
–          Police discrimination tactics used, issue with theory of liabilityà police are liableà not upheld as viable reasoning because of Federalism Principles
–          Dissent- majority is too concerned with executive/police branch
–          Applying a ‘personal stake’ requirement to deny sweeping equitable relief sought under Civil Rights Act of 1871
US v. Microsoft pg. 53
–          District Court orders Microsoft to separate its applications because of antitrust laws, Court of Appeals says that the District Court injunction is ineffective
Hecht v. Bowles pg. 55
–          Issue with Emergency Price Controls (§205(a))
–          Administrator wanted an injunction against Petitionerà 205(a) mandates an injunction
–          Important canon of statutory construction: Courts should not read statutes to limit traditional equity practices unless the legislature clearly state that it intends to do so [Hecht applies this canon in refusing to read the EPCA to transfer from the courts to administrator the power to determine whether an injunction is warranted]  
Note on Mootness and Ripeness pg. 60
–          Doctrine of Equitable Discretion- a small or non-existent finding of recurrence will lead to the exercise of equitable discretion/mootness
–          Mootness- constitutional doctrine under which the defendant can get the case dismissed as a matter of right rather than discretion