REMEDIES FALL 2008 OUTLINE
Two Canons of Construction:
(1) Statutes in derogation of the common law are generally strictly construed.
(2) Remedial statutes generally reflect a legislative intent to amend an area of the common law & shall be construed liberally.
Reynoso’s Canons of Construction:
(1) Any enrichment at P’s expense is unjust enrichment.
(2) The legal system of remedies shall be construed liberally.
(3) If it’s unfair, then you have a remedy.
I. INTRODUCTION TO REMEDIES:
1. SPECIFIC, SUBSTITUTIONARY & DECLARATORY REMEDIES
i. Specific Relief: Requires D to perform legal duty such as performing k or returning stolen property.
ii. Substitutionary Relief: Substitutes money for the specific relief.
iii. Declaratory Relief: Tells people what their rights are but nothing else (know right before breach).
2. EQUITABLE & LEGAL RELIEF
i. Equitable Relief: Involves court order directing D to do or not do something.
— Normally no jury trial.
— D held in contempt if does not comply.
— Usu. specific, but can be substitutionary (back pay in some discrimination cases).
ii. Legal Relief: Judgment stating that P is entitled to some type of remedy, such as damages.
— Jury trial available.
— No contempt power; P must levy execution on the judgment; sheriff seizes assets to satisfy judgment.
— Usually substitutionary but can be specific (legal replevin & ejectment).
3. TORTS, CONTRACTS, & UNJUST ENRICHMENT
i. Tortious Conduct Remedies: Law of torts determines type of conduct society wants to deter.
— Remedy: make the P whole as if no tort / also, punish D.
ii. Breach of Contract Remedies: Law of contracts determines types of promises upon which society can rely.
— Remedy: compensate people for breach w/out deterring commerce.
iii. Unjust Enrichment Remedies: Law of U.E. determines when someone’s gain is unjust & restitution appropriate.
— Remedy: define gain & determine if shd be disgorged.
II. BASIC PRINCIPLES OF SPECIFIC EQUITABLE REMEDIES:
1. OVERVIEW OF INJUNCTIVE RELIEF:
i. Injunction: an in personam coercive order directing D to act or refrain from acting in a specified way.
— Enforceable by the contempt power.
— Must be obeyed, even if erroneous (or unconstitutional), until stayed, dissolved or reversed.
— Specific performance is a form of injunction; also prelim injunctions, TROs, reinstatement orders.
— Courts normally will not issue injunction if remedy at law is adequate.
ii. Prohibitory v. Mandatory Injunction:
(1) Prohibitory: Forbids an act: e.g. do not hit your spouse; do not k. for a job you’re not supposed to do.
(2) Mandatory: Orders an affirmative act or course of conduct: e.g. pay child support; obey regulations.
— Courts will often look at effect of injunction rather than how it’s framed (easy to frame either way).
— CA: mandatory injunction stayed until appeal; prohibitory injunction not stayed.
iii. Preventive, Reparative & Structural Injunctions:
(1) Preventive: Attempts to prevent future harm. E.g., do not pollute; do not collude; do not block path.
— Not proper unless D is threatening to commit a wrong in the future.
(2)Reparative: Requires D to restore P to a preexisting entitlement; repairs a harm already occurred. E.g. rehire fired employee; remove boulder.
— E must show existing right violated but can be restored or repaired effectively.
(3) Structural or Re-structural: Attempts to remodel an existing social or political institution to bring it into conformity with constitutional demands. E.g. integration changes; suits against Sac county jails.
— Public law remedy for serious & pervasive rights violations. Controversial managerial role for judge.
— Trial court usually appoints a monitor or even a temporary receiver to run the institution until compliance.
2. FEDERAL RULE OF CIVIL PROCEDURE RULE 65. INJUNCTIONS:
65(a) Preliminary Injunction:
(a)(1) Notice: Need notice to D.
— Need adversary hearing (usu. w/in 10-20 days after complaint filed).
— Remains in effect until trial court rules on request for perm inj.
— IS Appealable.
(a)(2) Consolidation of Hearing w/ Trial on Merits:Hearing can be consolidated with trial on merits.
65(b) Temporary Restraining Order:
—Notice: May be issued w/out notice if (1) clearly appears from specific facts shown by affidavit or by verified complaint that “immediate & irreparable injury, loss or damage” will result to P before adverse party can be heard in opposition & (2) P’s atty certifies the efforts, if any, made to give notice & reasons why notice shd not be required & [3] P’s atty has duty to tell the law for both sides and the facts that would favor and be against the TRO.
— Shall expire a
ts).
— The future threat of physical injury is a justification for granting equitable relief.
– But if P quits, then asks for injunction to back to work under better conditions, arguing constructive termination, court would be hesitant to issue injunction b/c purpose is to maintain status quo.
— Sometimes courts will issue injunction against criminal conduct [if there is a violation of private right], but to prove inadequacy of legal remedy have to show that law enforcement not doing job.
—Urgency of Need for Injunctive Relief:
– If P waits [e.g. till football season over] to bring action probably shows not an emergency.
– Deprivation of constl rights is itself irreparable harm.
– In trademark infringement cases, likelihood of product confusion is irreparable injury b/c public is being deceived; consumer protection concept.
– Mere loss of money, no matter how great, does not constitute irreparable harm.
(3) Does the balance of hardships tip in P’s favor?
– Big brokerage firms can survive harm whereas employees cannot survive issuance of injunction.
(4) Would the issuance of the injunction be harmful to the public interest?
— Courts should proceed cautiously in issuing ex parte TROs.
– Broker-client relationship is important; clients should choose their brokers, not the brokerage firm.
– Hockey team / urban revitalization /
ii. Ex Parte Procedure:
(1) TRO: Ex parte procedure allowed for good cause when:
– irreparable injury will be caused absent prompt judicial intervention,
– the adversary cannot be contacted, or
– advance contact with the adversary would itself be likely to trigger irreparable injury.
— Examples of emergency circumstances:
– Notice of a hearing will prompt a defendant to destroy records. [Is there a history of D destroying E?]
– Cause unsecured assets to be liquidated in the context of a fraudulent enterprise.
