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

Public Law remedies
PRIVATE – Think about “How do we enforce this?” Types of remedies:
Injunction – looking forward, as a protective measure
Damages – looking backward – clean up costs
Restitution — Take the $20,000 from you – that’s how much they would have saved. This is the unjust enrichment.
Punishment – punitive award over and above other damages.
Criminal or regulatory sanction – environmental laws
Other parties
Damage to Δ: If we close down the apple orchard, maybe this will destroy a whole town, whose economy is based on this plant.
Violation of statutes
Officials’ responsibility:
“No special factors counseling hesitation” (p.13) = we have this power, and there’s no reason for us not to choose this power. Very judicially centered idea (pro-judge).
Exclusionary rule also fall under the “arising under” authorization. If we have authority to grant that remedy (which is equitable), we must also have authorization to grant a damages remedy(legal remedy).
Judicial Competence
If this was a standard state court case – we would be converting these injuries to a damages award for false imprisonment/false arrest, IIED for Bivens and his family, battery, assault, trespass to land, privacy, defamation.
§1983 is directed to state officials (“under color of state law”) – so if this were state officials instead of federal officials, Bivens would have statutory cause of action in 1983. à remedy: reinstatement with back pay.π’s rightful position – and define this as narrowly as possible. Therefore, only give him the opportunity to get a non-tainted review: re-evaluated without the radio station incident, to see if he can get a job.π’s rightful position is. It’s a paradigm: if we have a problem in the police department, there’s a lot of possible solutions, judicial and political. But court can’t enact regime change on their own.
2. Dissent argues:
a. There is some link – this conduct doesn’t happen absent tolerance from the top, even without direct evidence. Like Res ipsa loquitur problem – no one will claim responsibility, but is the inferences of causation enough for us to impose liability to ∆s?
b. Remedy is low maintance anyway.
3. In Newman v. Alabama (p53) – overcrowded prison, with plan to fix it that includes more than constitutionally required amenities. HELD: ok to have more than just those that satisfy physical, emotional and mental needs but also jobs, education, transition program b/c no real burden.
a. Remedy too expansive under Rizzo? Court said it’s ok because it’s for the past harm done.
b. Preventative vs. reparative injunctions –
i. Preventative – to stop a wrong from occurring in the future.
ii. Reparative / retrospective – because of wrongdoing in the past, you’re seeking to right the wrong.
iii. Here, Can’t really limit the remedy to those who suffered in the past, because those who come in later are also entitled to constitutionally required prison.
π– π’s rightful position. Evidence includes explicit threats or past violations. It’s a traditional equitable requirement, and quite hard to meet. Other requirements are not as hard, especially if you’ve met imminence.Δ had capable of doing the clean up.
b. 3P do clean up, and
Δ pay. This will be legal relief.π back in rightful position. This is the most common type
b. Judgment proof or immunity from damage defendant – even though damages, can’t save oneself.
c. Multiplicity of suits – the cost of getting a suit each time, so can go down injunction road.
d. Damages hard to estimate
e. Morally repugnant injury – ex. intentional injury to
π’s property
3. Given that we have merger of law and equity, why do we bother?
a. Scholarship to support doing away with this requirement: See Laycock, Death of the irreparable remedy rule – sample of study that advocates that there may be some good reason to give equitable remedy instead of legal. See also Schwartz, A case for specific performance.
Goes back to the law and equity thing, we prefer to give legal remedy. there needs to be reason to fear the ∆ will trespass on : what we’re use to adjudicating is within the competence of the court. Courts happen to be quite good at, so the court has authority. If it’s something expensive, how is the judge suppose to get expertise and the resources to do it?If the plant is in a city – what do you do to the city? What’s the city suppose to do if you have to close down the whole treatment plant? What if city council decide to do nothing? What can a judge do then? – might add or subtract from your remedies. Congress might decide that the courts do not determine your remedy. –possible class action. (injunction?) Think about the parties as you fashion a remedy.– suing the government. Implicit federalism, separation of power issues (Con Law 1 and Fed courts).s – we jump around, like in civil pro. Focus on principals of granting remedy, not in remedies for particular matters.– civil procedure (pretrial), evidence (trial), and remedies (post-trial). It’s what you will get in the end – know what you want early so you can turn your prayer in the complaint into what you will get.
Professor David Levine
Introduction to the Law of Remedies.
The Nature, Availability and Scope of Injunctions.
d. The Nature of an Injunction
i. Injunction – equitable remedy, an order directing a person to act or refrain from acting in a specific way. (Money judgment is legal and not an order or directed at a specified person)
ii. Violation of injunction = contempt of court
e. Plaintiff’s Rightful Position as the Measure of An Injunction –GOAL of an injunction
i. Π’s rightful position – Doyle: teacher not renewed employment for many horrible behaviors (mixed motives), but among them was the consideration that he voiced his opposition to a local radio station about the school dress code. District court held this was a “substantial part” of the decision
1. SC says reinstatement is too much (not rightful position)- would mean rehire with tenure! Our goal is to give
2. Still getting too much? Remand back to District court – Board of Education has to explain and demonstrate they would not have re-hired him. If it’s a true total demand, then send it back to school district to just strike out the one unconstitutional sentence.
a. Remand remedy – very common, especially at the appellate level. Sometimes this is the best way, and all you will get when suing an agency.
i. Even though we return them to the same decision maker.
ii. We trust government actors to redo the process, having been instructed of the mistake they made.
3. Racially-biased Elections
Ex. Bell v. Southwell- new election, even though votes were 3X less than margin of victory, because:

didn’t see the need for a remedy against federal officials. Harlan (concurring): we need authorization; authorization comes from 28 USC §1331(a): general grant of “arising under” federal question of law. (Very generalize grant). Federal courts have jurisdiction to hear cases that arises under federal statutes and the Constitution. Here, it arises under the 4th amendment.Brennan (majority): Despite no declaration on behalf of Congress, there’s plenary power to create a remedy. Powerful judicial power. Goes back to the rhetoric that if there’s a right, there’s a remedy.
ii. Express – no Bivens remedy:
iii. Implied – no Bivens remedy:
Unlike the military or employment realm, where Congress’ power is plenary – social welfare is area where courts are competent.Brennan is asking us to look to see if Congress really looked at the conflicting needs, and address these specific people’s needs.That’s not what he meant by “special factors” – Congress knowing about the wrong and failing to address them not enough. Congress created a remedy for future remedies, and Congress didn’t address the past mistakes.
Brennan (dissent) – O’Connor (majority): great reluctance to give judicial power. Points out that Congress has put in a scheme, we should show deference to Congress. Cites the “special factors language” –since Congress has acted anywhere within the vicinity of giving a remedy, we should not mess with it.
iv. Since Bivens, Courts have been pretty hesitate in giving Bivens remedies- instead look to other things such as 1) State courts can do the same thing; 2) Private right of action – pretty straightforward, look at text.
Schweiker v. Chilicky (p.21) – Social Security Reform Act of 1980 incorrectly denied over 200,000 people. In 1984, rules change so they can still keep their benefits during appeal. Implied remedy that you also get money back for 1980-84? Prison Litigation Reform Act: (p.19, note 5): good example of the courts cutting back – limiting certain damages awards for prisoners’ rights.Range of views on judicial power – Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (p.11): 4th amendment violation against Mr. Bivens. Usually, under the 4th amendment, the remedy is the exclusionary rule – but Bivens seeking damages here. Three views:
Not always as clear as the maxim makes it out to be.
4. Constitutional and Statutory Violations on Inadequacy requirements – it’s a convention the courts follow, and some statute change this jurisdiction. Constitutions and statutes can 1) dictate choice between injunctive and legal relief; 2) set aside inadequacy requirement; 3) grant injunction without regard to the inadequacy requirement; 4) provide that inadequacy rule should apply.