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University of California, Hastings School of Law
Levine, David I.

Remedies Outline, Levine, Spring 2014:

Chapter 1: Introduction to the Law of Remedies

A. General Approach to Crafting Remedy:

1. Choices in identifying the appropriate remedy:

a. Identify the remedy’s goals:

i. To declare the parties’ rights and establish who was right/who was wrong’

ii. Restore the plaintiff to plaintiff’s rightful position; i.e., where he would have been if the defendant hadn’t violated the law;

iii. Restore the defendant to defendant’s rightful position; i.e., where he would have been if he himself hadn’t violated the law;

iv. Punish the defendant.

b. Identify the appropriate remedy between specific and substitutionary remedy:

i. Specific: achieves the remedy’s goal in kind – gives the plaintiff exactly what he is entitled to (i.e. stop the nuisance).

ii. Substitutionary: gives the plaintiff a substitute remedy – usually money. This is supposed to be equal to the value of the plaintiff’s entitlement.

c. Figure out how to implement the first two choices in crafting the remedy. I.e. how do much money do we give plaintiff or what exactly was the plaintiff’s rightful position?

d. How do we enforce the remedy? What do we do if defendant doesn’t cooperate?

2. Types of remedies:

a. Injunctions

b. Declaratory judgments

c. Punitive damages (and other sanctions)

d. Compensatory damages

e. Restitution

f. Attorney’s fees.

B. Private and Public Law:

1. Professor Chayes argues that a new model of civil litigation has been emerging and the courts have assumed a new role in light of the nature of the rights the courts are enforce and the kinds of remedies they are using.




bipolar (litigation was winner-take-all battle)

Traditional adversary relationship is suffused and intermixed with negotiating and mediating process at every point

retrospective (controversy is about an identified set of completed events (whether they occurred, and if so, with what consequences for the legal relations of the parties))

Remedy may be prospective – ex: “avatars of public law litigation” – school desegregation, employment discrimination, and prisoners’ or inmates’ rights cases. Antitrust, securities fraud, bk, consumer fraud, etc.

right and remedy are interdependent (scope of the relief is derived more or less logically from the substantive violation under the general theory that the plaintiff will get compensation measured by the harm caused by the ∆’s breach of the duty – in k, by giving π the money he would have had absent the breach and in tort, by paying the value of the damage caused)

Trial judge has become the creator and manager of complex forms of ongoing relief.

lawsuit is self-contained episode (impact of litigation is confined to the parties)

Party structure is sprawling and amorphous, subject to change over the court of the litigation

the process is party-initiated and party-controlled (the case is organized and the issues defined by the exchange between the parties, they only develop the facts of the case).

Judge is dominant figure in organizing and guiding the case, and he draws for support not only on the parties and their counsel, but on a wide range of outsiders (experts)

3. Relevant statements:

a. “Perhaps the dominating characteristic of modern federal litigation is that lawsuits do not arise out of disputes between private parties about private rights. Instead, the object of litigation is the vindication of constitutional or statutory policies.”

b. Equitable relief is increasingly important – it’s no longer only awarded in extraordinary circumstances.

c. An injunction is a far greater constraint on activity than the risk of future liability that is the issue in a damage remedy. Furthermore, it’s continuing and the courts can later come to court and ask for enforcement or modification of the original order in light of changing circumstances.

d. With a remedial approach of equity there is more of a comparative evaluation of the competing interests of the plaintiff and the defendant and therefore it represents an alternative to a winner takes all approach.

e. The centerpiece of the emerging public law model is the decree. The decree seeks to adjust feature behavior not to compensate for past wrong. It provides for a complex and ongoing regime of performance rather than a simple one-way transfer. It also prolongs and deepens, rather than terminate, the court’s involvement with the dispute.

C. Where There’s a Right, There’s a Remedy?

1. Wait controversy judges try to declare only those remedies that have already been established in the law and address within the power of the court to apply. What makes a right meaningful is the existence of a remedy at law. Furthermore, there must be a remedy for every violation of a right. Justice Marshall called this the very essence of li civil liberty.

2. Purposes of rights:

a. Define social relations;

b. Promote well-being in the broadest sense;

c. Secure the dignity and integrity of humans;

d. Enable people to grow, to develop, to fulfill their aspirations, and accumulate necessary material goods;

e. Help treat people equally;

f. Promote order and predictability, thus enable people to act upon reasonable expectation in managing their affairs.

3. But the problem is that designing a remedy is far from a mechanical process – designing a remedy for any particular wrong is an exercise judgment and discretion.

4. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics:

a. Facts: Petitioner’s complaint alleged that agents of the Federal Bureau of Narcotics acting under claim of federal authority entered his apartment and arrested him for alleged narcotics violations. But he claims that there was no probable cause and there was excessive force used.

b. Issue: Whether a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.

c. Analysis:

i. Yes. An action for damages may be brought against federal agents acting under the color of their authority but acting unconstitutionally – BIVENS REMEDY.

ii. Clearly, those who have their rights violated under the Fourth Amendment by a federal agent require protection under the Constitution. The Court has consistently ruled that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” The Fourth Amendment, however, does not provide any monetary damages for injuries suffered as a result of a federal agent acting unconstitutionally. However, when there is a general right to sue under a federal statute, a court “may use any available remedy to make good the wrong done.” Petitioner is entitled to a cause of action and to recover monetary damages.

d. Harlan Concurrence:

i. “Federal courts do have the power to award damages for violation of constitutionally protected interests and I agree with the court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the 4th amendment.”

ii. The question of the judicial power to grant Bivens damages is whether the power to authorize damages as a judicial remedy for the vindication of a federal constitutional right is placed by the constitution itself exclusively in congress’ hands. The court has authorized a damage remedy where it believes it is necessary to effectuate the underpinning congressional policy even when the statute lacks any express authorization of a damage remedy.

iii. “I do not think that the fact that the interest is protected by the constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional authorization.”

iv. In Bivens’ situation, the exclusionary rule is irrel

v. Robbins: plaintiff alleged that federal agents had engaged in a series of vindictive and extortionate acts in an attempt to force him to convey an easement across his land.

i. “Even in the absence of an alternative, a Bivens remedy is a subject of judgment: ‘the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however to any special factors counseling hesitation before authorizing a new kind of federal litigation.’”

· Keep in mind: there are almost no Bivens claims, only four ever (4th and 8th amendment constexts).

· Also keep in mind, federal courts CAN enjoin continuing violations of the constitution even though congress has never specifically authorized them to do so.

ii. Can congress prohibit federal courts from granting a remedy for constitutional violations?

· Zehner v. Trigg: Prison Litigation Reform Act: congress prohibited prisoners from bringing a federal civil action for mental or emotional injury suffered while in custody without showing of prior physical injury. The court applied this to prisoners who had been exposed to asbestos but had not suffered any physical injuries. The court explained that other prisoners currently being exposed to the asbestos could seek injunctive relief and the same plaintiffs could sue for damages if they actually suffered from asbestos-related illnesses. Because these remedies remain, it’s constitutional.

6. A Digression – Remedial Choice in the Statutory Context:

a. Remember:

i. Jurisdiction: whether the federal court has the power to hear a case;

ii. Standing: whether the plaintiff is sufficiently adversary to a defendant to create a case or controversy;

iii. Cause of Action: whether particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court;

iv. Relief: the question of the various remedies a federal court may make available.

b. Sometimes congress can pass legislation making a conduct a crime but say nothing about whether those whom the conduct injures may sue for damages, injunctive relief, or any other remedy. To infer a private cause of action, a court must examine 4 factors (Cort Test):

i. Was the statute enacted to benefit a class, of which the plaintiff is a member?

ii. Did the legislature intend to create a private right of action?

iii. Is implication of a private right consistent with the legislative scheme?

iv. Is this an area of law traditionally left to state control?

c. California v. Sierra Club, court explained that evidence of congressional intent is clearly the critical factor – third and four factors of Cort test need not be considered if congressional intent is clear.

d. Difference between a 42 U.S.C. §1983 action and an implied cause of action for violation of a federal law:

i. Once a plaintiff demonstrates that ta statute confers an individual right, the right is presumptively enforceable by §1983. This is because §1983 generally supplies a remedy for the vindication of rights secured by federal statutes. But not every federal law does.

ii. When the text and structure of a statute provides no indication that congress intends to create new individual rights, there is no basis for a private suit, whether under §1983 or under an implied right of action.