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Remedies
University of Alabama School of Law
Brophy, Alfred L.

 Paying for Harm: Compensatory Damages

I.                    The Basic Principle—Basic prefatory material
a.       The two most common remedies are judgments that plaintiffs are entitled to collect sums of money from defendants (damage awards), and
b.      Orders to defendants to refrain from their wrongful conduct, or to undo its consequences (injunctions)
c.     
a.       The central questions are these:
i.      What does the plaintiff get?
ii.      How much does he get?
iii.      Why does he get that, instead of something more, or less, or entirely different?
More importantly, remedies law is the means by which substantive rights are given effectClassifying Remedies
d.      (1) Prospective v. Retrospective relief
i.      Example Case: Imagine a case where a construction company is known to take soil from land not belonging to them
1.       One option—prospective injunctive relief
a.      why? It might be cost effective for the construction company to take the soil, and pay you the market value for it. The judge might grant an injunction because the company has shown a propensity to take the soil which is not theirs, and is likely to continue doing so because of the economic efficiencies involved (this is a corrective justice type explanation                         
b.      Why not? The judge might see allowing the construction company to take the soil as economically efficient, even though the result is a sort of private eminent domain (this is an economic justification that puts assets to their highest value use)
i.      The company taking the soil would argue that there is an adequate remedy at law—damages—which precludes an injunction
1.      Also, remember, courts have to administer injunctions
2.      Cf. Retroactive relief
a.       Three options
i.      Put back the same soil
ii.      Truck in other soil
iii.      Pay damages
b.      Money damages would be measured as the difference in the FMV of the land, Cf. Garland v. Peevyhouse
i.      Or, they could be measured by the cost of trucking in new soil
c.       Note, the difference in the FMV of the land is likely to be small, but the landowner wants his property restored—hence, the diff in FMV will nto put him in his rightful position, it will, however, tend to put respirces to the most efficient use
3.      Hence, it is fairly safe to say that, generally, “value” is an objective concept, conceived of by the market, not the individual.
e.       Most importantly:
i.      Compensatory remedies—designed to compensate

                                   v.      Ancillary remedies—designed to aid other remedies
1.      e.g. costs and attorney’s fees
2.      Also, the means of enforcing the primary remedy against a recalcitrant defendant–contempt
f.        Substitutionary and Specific remedies
i.      The most fundamental distinction in remedies:
1.      With substitutionary remedies, the plaintiff suffers harm and is compensated with money
2.      Specific remedies seek to prevent harm—or undo it—rather than let it happen and compensate for it. To prevent the harm to the plaintiff, repair the harm in-kind, or restore the specific thing plaintiff lost
ii.      Note on the difference:
1.      in the case of substitutionary remedies, the plaintiff who recovers gets neither what he started with, nor what he was promised. He gets a breach, and money to compensate for the breach. Second, the sum of money he gets is based on a fact-finder’s assessment of his loss. The relief is substitutionary both in that the sum of money is a substitute from the rightful position, and the less obvious sense that the fact-finder’s valuation of the loss is substituted for the plaintiff’s valuation. Specific relief seeks to avoid these both by giving the plaintiff the very thing he lost, if he wants it