HERIOT_REMEDIES_SPRING_2012
INTRODUCTION
The Role of Remedies:
· Remedy—General Notes:
o Remedy: Anything a court can do for a litigant who has been wronged or is about to be wronged
§ Remedies law à determines consequences of violating legal prohibitions
o 2 Common Remedies:
§ 1) Judgments that entitle Ps to collect sums of money from D’s (damages)
§ 2) Orders to Ds to refrain from their wrongful conduct or to undo its consequences (injunctions)
o Process:
§ 1) Court decides if P wronged under substantive law that governs rights and duties
§ 2) Court conducts inquiry in accordance w/ procedural law
§ 3) Remedies = substantive (but distinct from substantive law) and sometimes blur into procedural
· Questions of Remedies:
o Assume D’s conduct is unlawful and ask the following:
§ 1) What does P get?
§ 2) How much does P get?
§ 3) Why does he get that instead of something more, or less, or entirely different?
Class Notes:
Historical Remedies:
· Sexual Harassment:
o Possible remedies for sexual harassment cases à Pcould get back-pay or an injunction
o Back-pay was not typical case
o Injunction demanded that person was hire or an injunction that said stop sexually harassing so and so
o In 20th century, Supreme Court ruled that P’s of sexual harassment could sue and receive emotional distress damages
o Completely changed dynamic of substantive law à went from few cases b/c of unhelpful remedies to lots of cases
· Prisoner:
o Act requires prisons to accommodate religious needs of prisoners (prison might have to come up w/ resources to celebrate Hannakah – provide a manorah)
Classifying Remedies:
· Important Categories of Remedies:
o 1) Compensatory remedies
§ Designed to compensate Ps for harm they have suffered
§ Ex: Compensatory Damages à sum of $ designed to make P as well off as he would have been if he never had been wronged
o 2) Preventative remedies
§ Generally à Preventative remedies are designed to prevent harm before it happens (compensation issue never arises)
§ a) Coercive remedies
ú Most important coercive remedy = injunction
ú Injunction = personal command from a court to litigants, ordering them to do or to refrain from doing something
ú Specific Performance Decree = ordering D’s to perform their contract (a specialized form of an injunction)
ú Other specialized performance decrees (injunctions): writs of mandamus, prohibition, and habeas corpus
§ b) Declaratory remedies
ú Generally à Authoritatively resolve disputes about the parties’ rights, but they do not end in a personal command to D
· Prevent harm to litigants be resolving uncertainty about their rights before either side has been harmed by erroneously relying on its own view of the matter
· Declaratory judgment = most important declaratory remedy
ú Ex. Court decides who owns some piece of property
o 3) Restitutionary remedies
§ Generally à Designed to restore to P all that D gained at P’s expense (sometimes identical to compensation); puts P in original position
ú Award to P the profits D earned by conscious wrongdoing, even if those profits exceed P’s damages
o 4) Punitive remedies
§ Generally à Designed to punish wrongdoers through civil (as opposed to criminal) means
o 5) Ancillary remedies
§ Generally à Designed in aid of other remedies
§ Types of Ancillary Remedies:
ú 1) Costs and attorneys’ fees
ú 2) Means of enforcing the primary remedy against a recalcitrant D
ú 3) Means of securing the possibility of later enforcement when recalcitrant is anticipated (à Contempt is ancillary to coercive remedies)
§ Specific Examples of Ancillary Remedies:
ú 1) Writ of Execution: Sheriff seizes D’s property, sells it, and uses proceeds to pay P’s judgment
ú 2) Receivership: Court manages assets pending litigation and appoints a receiver to manage the asset
Substitutionary and Specific Remedies:
· Two Basic Categories of Remedies:
o #1—S
oices
COMPENSATORY DAMAGES
A. Basic Principle: Rightful Position (pg. 11)
· Notes on the Basic Principle:
o The But-For Principle:
§ Hatahley’s Rule: Fundamental principle of damages is to restore the injured party as nearly as possible to the position he would have been in but for the wrong (but for the wrong)
o The Rightful Position:
§ P’s rightful position = position he rightfully would have come to but for D’s wrong
o Corrective Justice:
§ Traditional argument for restoring P to her rightful position is based on corrective justice
§ P should not be made to suffer b/c of wrongdoing and if court restores P to her rightful position, P will not suffer
o Efficiency:
§ Another justification for the rightful-position rule
§ In most contexts purpose of law is to maximize value of conflicting activities à Economists view individual profit as good proxy for societal value b/c a seller or investor can make a profit only by persuading someone else to pay him more for his product, service, or capital than he has spent to produce it
§ Law should encourage profitable activity, even activity that harms others and incurs liability for breach of contract
o Proving Damages:
§ Juries don’t have to give reasons for their judgments and they are generally upheld but even general verdicts require some evidentiary theory that enables judges to explain how the jury might have calculated its number
o The One-Satisfaction Rule:
§ Idea that P cannot recover the same item of damage more than once
§ Therefore if P collects a judgment from 1 D, he cannot collect it again from any other