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

Levine | Spring 2011
Introduction to the Law of Remedies
·         Ancient approach:
o   Hammurabi – automatic/predictable – still exists today
o   10 Commandments – precise, but doesn’t address remedies
·         When no remedy specified, judges rely on CL
o   when code specifies remedies, but there is no exact match to the wrong at bar, may import a remedy from another area of law (ex: torts, Ks)
A General Approach to Crafting a Remedy
·         2 kinds of remedies
o   specific – gives π the exact thing to which he is entited
§  ex: remedy in nuisance case is to restore π to rightful position à therefore, stop the nuisance from happening
o   substitutionary – gives π a substitute, usually an award of money equal to π’s entitlement
Private Law and Public Law
Country Lodge v. Miller
·         Apple mash in river near hotel – alternative means of disposal would cost $20k
·         PRIVATE – consider how to enforce
o   purely retrospective – what happened on that day?
o   close interdependence x the right and the remedy
§  ex:what was value of the car?  how much did π lose in wages?
o   terminal – once it’s over, it’s over
o   run by the parties, esp. post-judgment where there ≠ case management
·         PRIVATE – types of remedies
o   injunction – looking forward as a prospective measure
o   damages – looking backward, clean-up cost, lost profits to damaged party
o   restitution – that’s how much she saved, so it’s unjust enrichment
o   punitive – deterrence
o   criminal/regulatory sanction
·         PUBLIC – some view public law as legislation from the bench – others view it as necessary to preserve constitutional rights
o   lots of parties
o   establishment of rights = retrospective but remedy usually prospective – how do we prevent wrong from repeating itself, rather than what should be done for the individual who was harmed
o   the right and the remedy ≠ always connected
o   case ≠ self-contained
o   aggressive post-judgment management
·         PUBLIC – types of remedies
o   other parties – possible class actions – injunction?  – think about the parties as you fashion a remedy
o   Damage to Δ – if we close the apple orchard, maybe we will destroy a whole down
o   violation of statutes – might add or subtract from your remedies
§  congress might decide that the courts ≠ determine your remedy
o   officials’ responsibility – if the plant is in a city, what do you do to the city?  what if the city council does nothing?  what can the judge do?
o   resources – if it’s expensive, how is the judge supposed to get expertise/resources to enforce the remedy?
Wyatt v. Stickney
·         major mental health public law case, lasted over thirty years, involved more than 50 published opinions, had huge impact on state/national law/public consciousness re: mental health issues, influenced mental health codes/regs
·         critics find it troubling b/c seen as legislation from the bench
Where There’s a Right, There’s a Remedy
·         Generally, courts have full power to craft remedies – sometimes difficult esp. in public law context where remedy can be complex
RULE: where something (here, the 4th Amt) establishes a right, the court should be allowed to use traditional remedies to compensate for violation of that right, absent special factors counseling hesitation
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics
6 agents engaged in 4th Amt violation.  Brennan: $ damages available absent congressional declaration forbidding $ damages to people injured by violation of 4th Amt
RULE:  Courts will not create a Bivens remedy when Congress has specified an appropriate remedy – this is a special factor counseling hesitation
Schweiker v. Chilicky
Respondents were on SSDI and going through a review process which resulted in their benefits being terminated – Congress during the next election cycle fixed this problem by amendments.  O’Connor says this is a special factor counseling hesitation.
·         Note: Bivens coas are very rare, and can only be leveled against a federal official, not an agency.
·         Expressly no Bivens remedy available – the PLRA denies prisoners certain damages and remedies for mental or emotional injury suffered in custory unless there was a physical injury associated with it. 
·         48 USC §1983 expressly provides a private right of action vs. state agends acting under color of law who violates a citizen’s federal rights.
o   when congressional statute fails to specify who suffers from its violation that can assert a coa, the court determines whether statute confers a private right of action through 4 factors
§  1) was state enacted to benefit a class of which π is a member
§  2) did legislature intend to create a private right of action?
§  3) is implication of a private right consistent w/ legis scheme?
§  4) is this an area of law traditionally left to state control?
o   if there is a private right of action, then the court has the power to give traditional legal remedy.
The nature, Availability and Scope of Injunctions
·         injunction = equitable remedy ($ judgment = legal remedy), ordering someone to do or not to do something.
·         violation of injunction results in contempt of court à 3 possible consequences
o   1) compensatory civil contempt:  contemnor monetarily compensates π and may have to pay π’s atty fees
o   2) jail/confinement until compliance
o   3) criminal contempt – contemnor is judged guilty of a crime and a sentence is imposed
·         To get an injunction, must establish
o   1) likelihood of harm
o   2) no adequate remedy at law
o   3) practicality of enforcement
·         2 types of injunctions
o   Preventative injunctions prevent wrongs – these are easier to justify
o   Reparative injunctions seek to eliminate the effects of past wrongs
·         Balancing the equities:  Courts sometimes must grant injunctions that fall short of π’s rightful position or deny injunctive relief altogether if an injunction would impose undue hardship on Δ.
RULE: courts must not aim to give πs more than rightful position, but injunctions may achieve more than rightful position as long as it’s not the aim.
Mt. Healthy City School District Board of Ed. v. Doyle
teacher acted up (obscene gesture @ students, complained re: dress code on radio) and was denied tenure as a result.  Trial judge held for Doyle and reinstates him as remedy, effectively giving him tenure.  SCOTUS reverses b/c remedy put him in a better position than he would have been in

arm prong
o   class action – increases potential to injurty to 100% since at least one class member is likely to be harmed
o   provide stats showing threat of harm – must prove that the threat to π is greater than it is to the general population
o   allege unequal treatement – court is more generous w/ re to standing in affirmative action cases like Adarand (construction contracts)
·         if you bring claim as an individual claim, the injunction will be for you only
o   Meinhold – injunction for guy forced out under DADT only applied to him, so only he was allowed back in
o   Lujan – just b/c you have standing w/ re to one parcel of land doesn’t mean you have standing w/ re to other parcels
o   Lewis – claim re: access to books in AZ prison system – court issues systemwide injunction but thrown out on appeal b/c even though πs had standing re: their own facilities, they didn’t have standing for nationwide system
RULE:  π must prove inadequate remedy at law 
·         Legal remedy is inadequate when no damages are available.  Damages ≠ available when:
o   harmful policy is implemented by an immune gov’t official
o   judgment-proof Δ
o   new business – can’t show lost profits
o   the threatened property is unique – can’t show monetary value
o   multiplicity of suits  will be prevented by injunction
o   irreparable injury like death
o   specific performance is the only appropriate compensation
·         Statutes may eliminate the “inadequate remedy at law requirement, or can specify when a legal remedy is inappropriate
RULE:  A judge won’t issue a court order unless the judge is convinced of its enforceability.  π’s proposed injunctive order must clearly state its demands such that enforcement is clearly feasible.
Balancing the Equities
·         Balancing the equities sometimes results in awarding less than π’s rightful position
o   judge must consider whether there are factors that make it unfair to enjoin the Δ
o   A court should deny permanent specific relief if:
§  1) it imposes hardship on Δ which is
§  2) substantially disproportionate to the disadvantage of π receiving only substitutionary relief
o   courts generally require Δ to show that his hardship is much greater than the benefit of granting the injunction
Granting less than rightful position
·         3 contexts for granting less than rightful position
o   1) common law context
o   2) constitutional context
o   3) statutory context
RULE:  When π is entitled to an injunction, we consider the interests of other parties, sometimes resulting in either less than or more than rightful position