REMEDIES OUTLINE– SPRING 2003
I. Introduction and Overview
1. Structure of course: Injxt, Damages, Restitution, Declaratory Judgments (DJ), Torts, K’s.
2. Theme: every wrong has a remedy.
3. Legal History:
a. Merger of cts of law and equity: 1 ct to hears both equitable and legal matters.
i. Distinctions b/t case as law and equity:
1. Jury: only in law action.
2. “Inadequate remedy at law”: Have to show to get equitable remedy i.e. show $ is inadequate.
3. Enforcement of orders: law/parties and equity/ct.
4. Discretion in Equity: Equity ct has discretion in ordering remedy unless statute says otherwise, law ct doesn’t.
4. Overview: Legal: SS= S:CNPM, S: S, K. Equitable:T:I, K:SP, R, R. Rest: QK, CT, EL, DJ.
a. Legal Remedies:
i. Substitutionary Remedy: sub for something lost or harmed. Biggest = $$.
1. Compensatory Damages: compensate the P for the harm or the loss.
a. General Damages: part and parcel of c/a = have this c/a have these damages. “Flow as natural from the harm.” Always in contemplation of the parties.
b. Special Damages: some P’s may have this; not all. Must be pleaded and proven specifically.
i. Hadley v. Baxendale: have to show damages w/in contemplation of the parties.
2. Nominal damages: tend to justify the c/a. When proof problems but want to award P. Vindicate wrong.
3. Punitive Damages: punish. Focus on D’s actions.
4. Measurement goal: comp but not over-c. diff w/ K or tort.
a. Tort: “Make P whole.” Pre-tort condition. Backward looking.
b. K: put non-breaching party in position had K been performed. BOB/Expectancy/Reliance. Forward looking.
ii. Specific legal remedies: remedies wrong specifically.
1. Statutory: deal w/ a particular c/a.
a. Legal Replevin: P gets back PP property that is taken.
b. Ejectment: P gets possession of RP
2. K:
a. Liquidated damages: parties set by agreement the specific remedies they want should there be a breach.
b. Equitable Remedies:
i. Tort:
1. Injxt. keep tort from occurring or occurring again.
2. Equitable Replevin:
ii. K:
1. Specific performance:
2. Reformation:
3. Rescission:
c. Restitution – look at D: how was D unjustly benefited & enriched.
i. Legal Restitutionary causes of action and remedies: Quasi-K
ii. Equitable Restitutionary causes of action and remedies:
1. Constructive trust
2. Equitable lien
d. Declaratory judgment: declaration of rights but no relief.
II. Equitable Remedies
A. Introduction to Injxt: (remember injxtless does not necessarily mean remediless).
Characteristics of Injxt’s (TRO’s, Prelims, Permanent): R/M IRAL IH D B P/F TI PR E
Rights/merits/underlying wrong: the remedy once you have a cause of action. Must have an underlying c/a to get an injxt. Do you have all the elements?
Inadequate remedy at law: $ won’t compensate P or its not what they want.
Irreparable Harm: tied w/ IRAL i.e. that may be enough. S
ean have an adequate remedy at law.
a. TRO:
i. Purpose: freeze status quo for short period to gather evidence for hearing on prelim.
ii. Balance: harm to P if it granted v. harm to D if it is.
b. Preliminary injxt (interlocutory injxt):
i. Purpose: keep D from doing something until we get to full trial. Longer period of time need stronger evidence.
ii. Balance: same but longer time period i.e. time frozen till trial = bigger burden.
c. Permanent injunction:
i. Balance: same but infinite period. Need strongest evidence.
B. TRO’s: issued prior to trial on merits. Freezing the status quo for time to develop evidence till fuller hearing.
1. Substantive Req’s:
a. P has to show likely success on the merits= more than no chance but less than total success, more than just allegations or speculation, like a PF case. (Clinton).
i. May have to show more in employment context b/c asking for coerced relationship. (Ahmad)
b. + IRAL, IH, D, B, P/F, TI PLUS
c. Emergency Situation: something has happened and we need the injxt right now.
2. Procedures and Standards for Issuing TRO’s:
Notice: P has to give D notice that they are going into ct seeking a TRO.
