Remedies Outline

REMEDIES OUTLINE

CHAPTER ONE- Intro

I. What is a remedy: anything a court can do is a remedy. Think of remedies as tools in a litigators kit; what remedies are available in the given situation, and which one is the most appropriate.

-Transsubstantive, and involves both substantive law and procedural considerations.
-Remedies determine the consequences of violating the substantive or procedural law.
-For every violation of a right, there is a remedy; however, keep in mind that the violation of the right, and not the injury give rise to the remedy.
Definition: Remedies are the means by which substantive rights are given effect.

For this course, we assume that liability has attached, now WHAT CAN WE/THE COURT DO ABOUT IT?

Inventory of Remedies:
1. compensatory: designed to compensate plaintiff for harm they have suffered (most important one is damages: a sum of money designed to make plaintiff as well off as if he never had been wronged)
2. preventive: prevent harm before it happens, so compensation never arises.
a. Coercive: the injunction, which is an order from the court to litigants ordering them to do or refrain from doing some specific thing. (eg. Ordering a neighbor to stay off of one’s lawn). Other examples would be a specific performance decree ordering a defendant to perform a contract. Other preventive remedies that are not labeled injunctions: writ of mandamus, prohibition, or habeas corpus.
b. Declaratory: authoritatively resolve disputes about the parties rights, but they do not end in a direct order to the defendant. They prevent harm to litigants by resolving uncertainty about their rights before either side is harmed. Declaratory judgment is the most important. Distrinction between coercive and declaratory is one of form, if declaration is not enough, the court will turn to coercion.
3. restitutionary: designed to restore to plaintiff all that defendant gained at plaintiff’s expense. In some cases restitution and compensation are identical. Commmonly, restitutionary remedies reverse mistaken or voidable transactions, restoring both sides to their original position. Distinction between compensatory and restitutionary is which side are we focusing the amount on? Defendant or Plaintiff? Profits for conscious wrongdoing is another restitutionary remedy.
4. punitive: are designed to punish wrongdoers. Consider statutory reform.
5. ancillary: designed to aid other remedies. Eg. Costs and attorney fees or punishment for contempt. When a defendant doesn’t pay willingly, an ancillary remedy may be used to further enforce the judgment.

TWO MORE BASIC DISTINCTIVE CATEGORIES OF REMEDIES:
1. Substitutionary Remedies: plaintiff suffers harm and receives a sum of money. Compensatory damages, attorney fees, restitution of the money value of the defendants gain, and punitives.
2. Specific Remedies: seek to prevent harm or undo harm, so that money is not necessary. Either by preventing harm to plaintiff, repair the harm in kind, or restore the specific thing plaintiff lost. Include, injunctions, specific performance, restitution of specific property, and restitution of a specific sum of money

Example to illustrate the difference: sale of defective goods. Substitutionary remedy would be damages, measured by the difference between the value of the goods as promised and the value of the goods as delivered. Specific remedies would be either specific performance or cancellation. Specific performance will give him the goods that fully conform to the contract in exchange for his money. Cancellation will give him a full refund of the price-restitution of the sum of money-in exchange for his returning the goods.

So, substitutionary relief does not give pla either 1)what he started with, or 2)what he was promised, but instead he gets defective money to compensate for the defective deal.

Specific relief seeks to avoid any type of valuation of the loss by giving the plaintiff the very thing he lost.

LEGAL V. EQUITTABLE REMEDIES: not always a sensical distinction.
-Most legal remedies are substitutionary, and most equitable remedies are specific, but there are exceptions to both.
-Damages, both compensatory and punitive are usually legal
-Injunctions and specific performance are usually equitable; however, mandamus, prohibition, and habeas are legal.
-Declaratory judgments are statutory and don’t fit either category.
-Restitutionary remedies are both legal and equitable.

General Rule: a plaintiff cannot have an equitable remedy if the legal remedy would be adequate. However, this rule does not have the bite it once did.

WHY DO WE AWARD REMEDIES?
II. Economic Theory: we punish in order to adjust incentives. People will violate the law when it’s efficient, they won’t violate the law when it’s not efficient. Under the economic theory, voluntary transactions are assumed to be efficient, and involuntary transactions are not efficient and are unjust. The defendant has a free choice. Some individuals will obey the law only if the consequences of violation are more painful than obedience.

Law and Economists talk about the efficient level of expenditure of enforecement and the efficient level of violations. Remedies are simply a way to adjust incentives

III. Corrective Justice Theory: we remedy to correct an injustice; which restores plaintiff to their rightful position and punishes defendant for what he has gained.

CHAPTER 2- COMPENSATORY DAMAGES

The Rightful Position: redress the wrong by creating the situation that would have existed had the wrong never occurred. (not always easy to determine)

United States v. Hatahley

Rule of Law: an award for damages based on the commission of a tort must be based on the principle that the injured party must be restored to the same position he was in had the tort not been committed.

Facts: Gov’t tortiously rounded up and sold farm animals owned by Hatahley and other Indians. The district court determined a set amount for each animal, and multiplied that amount by the number of animals for each plaintiff.

Court Response: By making a blanket damage determination, the court failed to consider the damages actually incurred by each plaintiff. Plaintiffs had different levels of economic damages, and different levels of mental distress and should be remedied accordingly.

The rightful position is an inexact science.

Other considerations in this case:
-Corrective Justice Theory: give each plaintiff the cost of the animals that were taken.
-Economic Theory: the right level of damages is the level that would force the horses to be round up and the owners to be identified.
-Consider consequential damages caused by losing the horses; Indians couldn’t round up their cattle without horses.
-In response, mitigation problem, because the Indians could have bought other horses in the meantime and avoided some of the damages.
-Consider offsetting benefits: do plaintiff benefit at all from not having the horses?
-This case represents the essence of compensatory damages and the rightful position. “But for” defendants wrong.
-What is the correct way to restore plaintiff? How precise does it need to be?

Corrective Justice v. Economic Theory and Rightful Position
-Corrective Justice: pla should not suffer because of the wrongdoing of another, and if we restore him he will not suffer.
-Economic: the purpose of the law is to maximize the value of conflicting activities. This view believes that the law should encourage profitability, even when the activity harms others, as long as the violator pays for the damages. After taking payment of damages into account, if the activity is still profitable, it is said to be efficient.
-The function of compensatory damages is to force law violators to take account for the harm they inflict. Damages should be set exactly equal to harm inflicted, and if the illegal act’s expected profit exceeds the expected damages, then the actor should go ahead.

One Satisfaction Rule: plaintiff may be entitled to multiple legal theories and against multiple defendants, but he is entitled to only recovery for each damages.

VALUE AS THE MEASURE OF THE RIGHTFUL POSITION
-How do we measure the value that gets the pla to the rightful position?
-Defendant is only required to make plaintiff whole in the least expensive way.

United States v Fifty Acres

Rule: Just compensation must be measured by the market value of the property at the time of the taking, unless market value cannot be determined.

Facts: United States condemned land. Market Value of the land was $225,000, but the replacement cost to get an equivalent facility was $725,000.

Court: Fair market value is the correct measure of value in a 5th amendment takings case, unless it w