I. CHAPTER 1 – OVERVIEW
1. The study of judicial civil remedies is about what lawyers and courts can actually do to help someone who has been, or is about to be, wronged.
B. Classifications of Remedies
1. Substitutionary versus Specific Remedies
a) Substitutionary remedies occur when P receives money as a substitute for the right violated. Give P money in exchange for an otherwise non-compensable loss. (Ex. lost arm in accident).
b) Specific remedies operate to restore to P the exact item or state of being of which she was wrongfully deprived
c) Specific and substitutionary relief are not necessarily alternatives; it is often necessary to award both specific and substitutionary relief in order to make P completely whole. (ex. award damages for deprivation of item between time lost and when finally returned).
2. The Four Major Remedial Categories
a) Damages Remedies – Damages can be judged not only by loss, but also by benefit conferred to defendant.
(1) Nominal – designed to vindicate P’s rights by making a legal declaration of those rights and providing p with “minimal” compensation.
(2) Compensatory – repay plaintiff for losses suffered, making them whole, in so much as the law is capable of doing so.
(3) Liquidated and statutory – represent efforts to tell courts how much to award or how to calculate a damage award.
(a) Statutory – legislative enactments that specify either an amount or a formula (i.e. three times actual damages).
(b) Liquidated – represent efforts by parties to a contract to specify either an
ive). Coercive remedies are the most effective and powerful remedies wielded by the courts today.
(2) The primary forms of coercive remedies are injunctions, specific performance, and the so-called prerogative writs (e.g., mandamus, prohibition, quo warranto, habeas corpus). When the court orders to do something it is a mandatory injunction. When it orders someone to refrain it is a prohibitory injunction.
(3) The goal or purpose of coercive remedies is to prevent irreparable harm before it occurs.
(4) Subject to all the equitable defenses.
c) Declaratory Remedies
(1) Declaratory relief is neither substitutionary nor specific, in that no court order or directive results from the action. The court simply declares one party’s position to be correct under the law.
(2) The goal or purpose of declaratory relief is simply to provide a judicial declaration regarding the rights, obligations or legal relationship of the parties relating to a specific situation.
d) Restitutionary Remedies
(1) The primary specific forms are quasi-contract, constructive trust, equitable lien, subrogation, rescission, reformation, accounting for profits, ejectment and replevin.
Some are substitutionary (i.e. quasi-contract gives P a monetary equivalent of a benefit conferred by D) and some are specific (e.g., ejectment and replevin give P specific property to which they are entitled).