Anderson_Remedies_Fall_2009
CHAPTER 1: INTRODUCTION TO THE LAW OF REMEDIES
Liability = determination that D is legally responsible for some harm to P
Remedy: Action to be taken in response to the harm
A. A GENERAL APPROACH TO CRAFTING A REMEDY
1. Introduction to the Law of Remedies.
1. Remedies: what is it?
o Process – 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.
o Trans-substantive – Courts tend to fashion remedies specific to certain rights. For example, there are remedies for trespass, breach of contract, civil rights violations, etc. Alternatively, there is a method whereby remedies cut across substantive areas of law, i.e. remedies are fashioned according to transsubstantive principles.
o .Public Law remedies (Chayes) – Suing the government. Implicit federalism, separation of power issues – Increasingly, the traditional law suit is being replaced. Instead of private parties adjudicating private disputes, the object of litigation is often the vindication of constitutional or statutory policies. This emerging model is called public law litigation. Party structure is sprawling and amorphous and can change over the course of litigation. The judge has become the creator and manager of complex forms of ongoing relief – remedy is not obvious, well established. The importance of equitable relief (e.g. injunction) is ever more common. Litigation, far from being retrospective, involves considerations of future probabilities, and there are alternatives to the winner-take-all types of decisions traditionally issued by courts. Right and remedy are disconnected. The form of relief is fashioned ad-hoc. The centerpiece of the emerging public law model is the decree, which seeks to adjust future behavior, not compensate for past wrongs – this prolongs court involvement in a dispute which may require ongoing observation/enforcement. Judge often lays out rules governing the litigation, whereas traditional suits are party initiated and controlled.
§ Private law and public law litigation lie at opposite ends of a spectrum with most litigation occurring somewhere in the middle. Public law is concerned with public impact and private law is concerned only with the parties before it. Some view public law as legislation from the bench and others view it as necessary to preserve constitutional rights.
2. The Choice of a Remedy (p.1-9)
i. When no remedy is specified in the legal code, judges rely on precedent in forming the remedy. A regression to the mean occurs. When a code specifies remedies, but a judge can’t find an exact match to the litigated wrong, he must find similar wrongs and formulate a remedy.
ii. Critical choices in identifying the appropriate remedy:
1. What is the Remedy’s goal – 4 kinds:
a. Declare the rights of the parties
b. restore P to rightful position (compensation)
c. restore D to rightful position (restitution)
d. Punishment of defendant for doing wrong
2. Should the remedy be specific (giving P exact thing they are entitled to- e.g. return of property) or substitutionary (e.g. money damages)?
3. How to implement remedy? If, for example, the appropriate remedy is returning the P to her rightful position, how does the court determine what P’s rightful position is, or how much money is an appropriate substitute?
4. How should the remedy be enforced? Are we looking to prevent harm in the future or compensate for past harm?
iii. Types of relief
1. injunctions
2. declaratory judgments
3. punitive damages
4. other sanctions
5. compensatory damages
6. restitution
7. attorney fees
Specific Remedy- Future Harm
Substitutionary Remedy- Future Harm
Substitutionary Remedy- Past Harm
Plaintiff’s Rightful Position
Order to stop the violation- injunction
Order to clean up (w/o that either CL pays to clean it up or puts up with it until it goes away by itself)
$10k a year going forward
$10k in damages
Defendant’s Rightful Position
Ditto (from above)
$20k a year going forward
$20k in damages- M’s rightful position was to spend the $20k, dispose of the mush and not create the waste in the first place
Punishing a Defendant for their Conduct
Punitive Damages
How to Enforce the Remedy
Contempt – primary
Attachment- garnishment
B. PUBLIC AND PRIVATE REMEDIES
1. Public and Private remedies (Country Lodge problem on p. 4):
a. PRIVATE – think about “How do we enforce this?” Types of remedies:
i. Injunction – looking forward, as a protective measure
ii. Damages – looking backward, clean up cost, lost profits to damaged party(s)
iii. Restitution – Take the $20,000 from you – that’s how much they would have saved. This is the unjust enrichment.
iv. Punishment – punitive award over and above other damages.
v. Criminal or regulatory sanction – environmental laws
b. PUBLIC –
i. Other parties –possible class action. (injunction?) Think about the parties as you fashion a remedy.
ii. Damage to Δ: If we close down the apple orchard, maybe this will destroy a whole town, whose economy is based on this plant.
iii. Violation of statutes – might add or subtract from your remedies. Congress might decide that the courts do not determine your remedy.
iv. Officials’ responsibility: 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?
v. Resources: If it’s something expensive, how is the judge supposed to get expertise and the resources to do it?
2. “Where there’s a Right, there’s Remedy” (p.10-32) “is a singularly unhelpful maxim.”
a. It is generally taken for granted that courts have the power to craft remedies, but this is sometimes difficult, especially in Public Law cases since the remedy may be complex.
b. Range of views on judicial power to decide the appropriate remedy –
c. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (p.12):
i. Focus; empty and hollow to characterize something as a right if the person who has the right has no legal remedy to enforce it.
ii. 4th amendment violation against Mr. Bivens. Usually, under the 4th amendment, the remedy for illegal search and seizure is the exclusionary rule – state tort remedies exist, but Bivens seeking damages for constitutional violation here. Three views:
1. Brennan (majority): A money damages remedy is available absent a congressional declaration forbidding a money damages remedy to persons injured by a federal officer’s violation of the 4th Am.
a. Tort remedy inappropriate since the 4th Am. would apply even in a state that did not provide tort remedies for a case like this.
b. “No special factors (narrow use) counseling hesitation” (p.14).
c. Historically, damages are the ordinary remedy for invasions of personal liberty interests. This court has always had the authority to provide such a remedy. Nobody questions this court’s power to provide injunctive relief; we have an equal power to create a damages remedy.
2. Harlan (concurring): we need authorization; authorization comes from 28 USC §1331(a): which grants federal courts federal question jurisdiction. Federal jurisdiction would be pointless if the court didn’t possess the power to craft a remedy.
a. Prolly can’t do this for all constitutional violations- 4th am rights are very close to tort rights like false inprisonment and trespass so judges have a background of experience of how to deal with it
b. Our authority to grant an equitable remedy implies that we also may grant damages when an injunction won’t suffice.
c. Judicial Competence: Courts possess expertise in crafting remedies.
d. 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.
3. Dissents (Burger, Blackmun, Black): Congress must grant remedial authority to the Court before money damages can be provided for a federal agent’s Constitutional violation. Under § 1983, Congress created a remedy against state officials; by negative implication we can infer that a similar remedy against federal officials is not permissible. Only Congress has this power!
3. Implied – no Bivens remedy: Schweiker v. Chilicky(p.20) – Citizens were incorrectly denied social security benefits and suffered. Congress specified remedial measures for the victims.
a. O’Connor (majority): The Court won’t create a Bivens remedy “when the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration.” There are “special factors (broad use) counseling hesitation.” Congress’ has specified the appropriate remedy. The Court can’t promulgate additional remedies (e.g. money damages) even when Congress’ remedial measures are insufficient to fully compensate P. Cautious as to extending Bivens:
i. Chappell v. Wallace, U.S. 1983 – Bivens remedy denied to enlisted military personnel injured by a superior officer’s unconstitutional actions. Special factors counseling hesitation:
1. Nature of military life requires servicemen in positions of authority to be safe from litigation.
2. Congress has exclusive constitutional authority over the military justice system.
3. Absence of statutory relief for a C’l violation doesn’t imply that courts should award $ damages against the officers responsible for the violation.
ii. Bush v. Lucas, U.S. 1983 – Refusal to create a Bivens remedy for a 1st
must begin with a careful definition of the P’s right. Ask yourself, when considering an injunction, “What is the P’s right?”
b. P’s rightful position –
i. Mt. Healthy City School District Board of Education v. Doyle (p.37): teacher (Doyle, P) was denied renewal of employment contract for many reasons, one of which was that he voiced his dissatisfaction about his employer’s policies to a local radio station. The district court held that D must renew Doyle’s K since D’s decision not to renew Doyle’s K was “substantially” based on Doyle’s radio show appearance (aka his conduct) and give him back pay.
ii. The P’s rightful position is the aim of an injunction. The framing of an injunction must begin w/ a careful definition of P’s right. Doyle could have been fired for any or no reason prior to the radio station incident; his decision to publicly air his grievances on the radio should not confer upon him a right he would not have had absent the exercise of his Free Speech right.
1. P’s rightful position pretty clear: entitled to a fair decision, not a job.
2. Compelling D to renew Doyle’s contract would unjustly enrich Doyle because D may not have renewed Doyle’s K even if Doyle had not appeared on the radio show.
3. Even if the protected conduct had heavily influenced D’s decision not to renew Doyle’s K, a decree mandating renewal would not be the appropriate remedy. The constitutional principle is vindicated so long as P is placed in no worse a position than if he had not engaged in the conduct.
4. Remand – if D can show that he would have abstained from renewing P’s K absent the radio incident, P is not entitled to a new K.
a. On remand, district court found D would not have rehired P.
iii. The most precise remedy (the one putting Doyle in the position to which he was most entitled) would have been to let the school board reconvene and make an employment decision about Doyle absent the 1st Am. issue, but for obvious reasons (school board isn’t objective) this remedy is inappropriate.
c. Remand remedy – very common. A remand is a do over.
i. In judicial review of agency action, a court’s determination that the agency committed an error is like a liability judgment in a civil suit- ordinary remedy is a remand to the agency for a proper reconsideration.
1. Remand Remedy v. Reversal: Fueled by the position of RIGHTFUL POSITION
a. Matter of substance: Successful complaint might not gt what it wants, insead will get a reconsideration theoretically free from error
b. Matter of procedure: decide doubtful cases by the governmental entity originally charged with making the decision instead of a court.
ii. When a government agency (e.g. EPA) is sued for making a wrong decision, the court will most often remand to the agency with the expectation that the agency will get it right the second time around. Only when the court is certain of how the agency would have decided in light of all the evidence will the court issue an injunction rather than remand.
1. Exception: When a federal agency deprives a worker of a right due to a decision based on unlawful grounds, the congressionally mandated remedy is not remand to the agency, but rather de novo consideration by a court. This rule also applies to non-government employers.
d. The Civil Rights Act of 1991 declares that a remedy is available for any employee who is harmed by a decision based race, color, religion, sex, or national origin even if other (legitimate) factors motivated the decision. If the D can prove that the same decision would’ve been made absent the inappropriate consideration, damages are limited to injunction, declaratory relief, atty. fees, and costs.
e. Hopwood v. Texas, 5th Cir. 1996 – When non-minority applicants sued under equal protection when the university they applied to had an affirmative action program, the court denied them an injunction because the university was able to show that the students would not have been admitted even if the affirmative action program were not in place.
