REMEDIES – Cardi
Chapter 1 – Introduction to Remedies
1) Distinction Between Legal and Equitable Remedies
I) In rem
II) Substitutionary remedies, usually with damages
III) Enforced by sheriff seizing assets
IV) Jury trial in general
V) More rule-based. Fairness over time. Less discretion for judges.
VI) Always available
I) In personam
II) Specific remedies
III) Enforced by contempt of court (go to jail, pay a fine)
IV) No jury trial in general
V) Always have kind of emphasis in fairness
VI) Only available if no adequate legal remedy
Chapter 2 – Specific Equitable Remedies
1) Introduction to Basic Terms
a. Mandatory – Do something now or take this course of conduct/Affirmatively do something in the future. Disfavored by the courts.
b. Prohibitory – Stop doing something now
I) Note – Most injunctions can be worded either mandatory or prohibitive.
c. Preventive – Don’t do something in the future
d. Reparative – Repair or restore an existing right
e. Structural – Submit to structural overhaul by the court.
2) FRCP 65 and Provisional Injunctions
a. Preliminary Injunctions (PIs) – Necessary to preserve status quo or prevent the injury during the trial. Lasts until the trial is concluded. Courts ask will harm happen before the trial.
I) Notice is required
II) Evidence entered is automatically admitted into trial evidence
III) Bond required – Posted by the person requesting it. There to protect the interest of the enjoined person to having been wrongfully enjoined.
IV) Adams v. Baker (Variation of the Clinton TRO test.)
1. A party seeking a preliminary injunction must establish
a) A substantial likelihood that it will prevail on the merits,
b) That it will suffer irreparable injury unless the injunction issues.
I. Note – When there’s a constitutional violation, irreparable harm has already been proven.
c) That the threatened injury to the moving party outweighs whatever damage the proposed injunction will cause the opposing party, and
d) That the injunction would not be adverse to the public interest.
2. Can’t get damages and an injunction both for future injuries. Can’t have both for one injury.
3. Note – Always look to what exactly the court is considering to be the “status quo.”
b. Temporary Restraining Orders (TROs) – Emergency injunction. Hurry up and give it to me or else I’ll be really hurt! Can be requested right with the complaint when filed.
I) Might be granted ex parte. Requirements for the movant:
1. Demonstrate risk of immediate AND irreparable injury (two requirements) loss or damage. (requirement in general. Not necessarily ex parte)
2. Have to
at of irreparable harm to the movant
b) The state of balance between this harm and the harm to be suffered by the nonmoving party if the injunction is granted,
c) The probability that the movant will succeed on the merits, and
d) The public interest.
2. Court wants to resolve the claim in one action. A wrong that keeps going can’t be compensated for now because won’t know how many people will be hurt in the future.
II) Note 1, p. 31 – Some federal jurisdictions do not require a showing of irreparable injury, but do require adequacy of a legal remedy in considering issuance of a Permanent Injunction (PermI).
1. Note – This won’t work with TROs or PIs because Rule 65 requires a showing of irreparable harm. Federal court can’t get rid of it.
2. Posner – Suggests that irreparable harm is not interchangeable with inadequate legal remedy. Cutting off an arm is irreparable harm, but damages are awarded for that all the time. Adequate remedy.
III) Note 2, p. 31 – Some jurisdictions take into account whether PermIs would entail continuing supervision by the courts. Mandatory injunctions are less easy to get that than prohibitory injunctions.