Remedies Outline

Remedies Outline – Glesner-Fines

I. Chapter 1 – Basic Remedial Tools
A. Types of Remedies
1. Coercive Remedies
a. Injunction or specific performance
b. Interlocutory relief: (provisional, temporary, not final)
(1) Preliminary injunction – gives the P temp relief pending trial on the merits
(2) Temporary restraining order – immediate relief pending the hearing on the preliminary injunction
(3) These 2 types of interlocutory relief is to preserve status quo to prevent irreparable harm
c. 3 Types of Injunctions in Addition to Preventative Ones:
(1) Restorative injunction – correct the present by undoing the effects of a past wrong
(2) Prophylactic injunction – safeguard a P’s rights by directing the D’s behavior so as to minimize the chance that wrongs might recur in the future
(3) Structural injunction – involvement of the cts in the institutional policies and practices of the D entities (school desegregation order)
2. Damages
a. To compensate P’s for losses sustained in violation of their rights
b. P must establish both claim in substantive law and the entitlement to damages
(1) Substantive law – the positive law which creates, defines and regulates the rts and duties of the parties and which may give rise to a cause of action
c. Problem of measurement
d. Limitations on damages – not too remote, speculative, or uncertain
e. Limitations on the types of losses
f. Punitive damages – intended to punish and deter the wrong doer
3. Restitution
a. To restore property to its rightful owner by returning P to a position held before a wrong, or to disgorge from a D any unjust enrichment obtained by the wrong to the P
b. Goal is not a compensatory one
c. Measurement of restitution is the D’s gains rather than the P’s losses
d. Substantive restitution – the entitlement to a restitutionary remedy
e. Remedial restitution – the measurement of that remedy
4. Declaratory Remedies
a. To obtain a declaration of the rights or legal relations b/w the parties
b. Often used to determine the constitutionality of a statute
c. Fed and State statutes say it is to be liberally administered
d. Nominal damages – awarded when a P establishes a substantive claim but cannot establish damages
e. 7th Am – there is a right to a jury trial in legal cases but not in equitable ones
B. Remedies at Law and in Equity
1. Equity refers to a system of jurisprudence distinguishable from the system “at law.”
2. In most American jurisdictions, there has been a merger of law and equity.
3. Equitable Remedies – flexible coercive orders such as injunctions and specific performance orders and some restitutionary remedies such as constructive trusts or rescission and restitution in contract.
4. Damages – the most prevalent legal remedy
5. 7th Am – right to a trial by jury for causes “at law”
a. Seeking only equitable remedies may be tried by judge and not jury
b. Mixed claim – legal issue tried first by jury and then equitable may be tried only by the judge
c. Does not apply to states
(1) Legal remedies – trial by jury
(2) Equitable remedies – no jury
C. Introductory Remedies Problems
1. Legal Remedies – first consider the damage fully in one sense and then determine alternative measures. Then consider the damage fully in another sense and alternative measures
a. Consider both the appropriate measure of damages and the kind of evidence that the P’s should have to produce to support their claim
2. Equitable Relief – consider whether the court should issue an injunction or specific performance
a. Consider whether it would matter if the cost of removing the problem would exceed the value of the land
3. Dividing up the world of Law:
a. Rights
b. Remedies
c. Procedure
4. In the past the right, remedy and procedure would all be the same
a. Ex: RightàDebt; RemedyàDebt; ProcedureàDebt.
5. In the past if you couldn’t get it by law you could try to get it by Equity:
a. You would plea “for the love of god and by way of mercy”
b. You could get whatever remedy the chancellor was willing to give you and whatever procedure the chancellor was willing to give you
6. Today most everything has changed
a. Rights – Contracts, Torts, Restitution (substantive right) – right comes b/c someone else had a benefit or gain at your expense
b. Remedies – Damages, Injunction, Specific Performance, Restitution, Replevin
c. Procedure – Civil procedure, criminal procedure
7. What does the client want out of this dispute?
a. In Specie (return the same type of good as was borrowed or taken; Ex: money)
(1) Replevin – want the property back
b. Substitutional
(1) Money
c. “Made right”
d. Punish the other person – revenge
e. Apology
8. Who do you want it from?
9. Process of forming this into a legal dispute
a. Naming – what happened
b. Blaming – who do you want it from
c. Claiming – what do you want
(1) Not everyone makes a claim/demand that it be made right
10. What is a good claim or demand letter?
a. Justification
b. Name the injury (Naming)
c. Describe why they are a fault (Blaming)
d. Make your demands (Claiming)
11. What are the other remedies if your demand letter fails besides making a legal claim?
a. Self-help
b. Negotiations
c. Mediation
d. Police – criminal law
e. Animal Control – administrative law
f. Civil
g. Counseling
D. Remedies: Who Decides
1. Who decides? – The relationship of Right and Remedy
a. Attorneys and clients
b. Judges and Juries
2. Discretion in the system
a. There is a great deal of discretion built into both judicial and jury decision making
b. Chicago Jury study
(1) In assessing the damage $$$, juries are influenced by liability and the strength of the substantive case
c. Things that limit the discretion of the juries:
(1) Legislative caps on the damages
(2) Judge can reverse it or take it away from the jury
(3) Remittitur – judge can lower damages
(4) Additur – judge can increase damages (not allowed in federal court )
(5) Jury instructions and jury forms
d. Do judges exercise discretion? (you can always waive your right to a jury trial)
(1) Judges have broader range of discretion
(2) Judges are human and are influenced by many factors
e. 3 Areas Where Discretion Operates:
(1) In the scope and nature of the right
(2) In the availability of the remedy
(i) Seen most powerfully in the operation of equitable remedies – (you never have a right to an equitable remedy in a common law course of action – judge decides)
(3) In the measurement of the remedy
(i) Discretion in assessing that measurement (how much is old underwear worth?)
3. Courts v. Legislature
a. What is the power of the court s to alter a statutory remedy?
(1) Focus on Statutory language
(i) Plain language leave room for interpretation?
(ii) Is the statute intended to provide the exclusive remedy?
(iii)Does the statute provide interpretive guidance?
(2) Nature of the right
(i) In derogation of common law (strictly construed)
(ii) “Public” or “private” (public rights more broadly construed)
(iii) court s view of the right (public policy need, political implications)
(3) Nature of the alteration
(i) Expansion of remedy (e.g. additional types of damages)
(ii) Different type of remedy (e.g. equitable v. legal)
(iii) court ’s view of its power in declaring remedies
4. Legislature v. Courts
a. What is the power of legislatures to alter remedies for common law rights?
(1) Statutes can modify remedies available for existing rights
(i) Limits on remedies (types, amounts, etc)
(ii) Procedural or Substantive prerequisites
(iii)Substitute compensation systems
(2) Legislature can create jurisdictional limitations (e.g., Norris LaGuardia Act) which will be narrowly construed.
(i) Why would this be done? To restrict the court s from deciding certain cases;