Ø Classifying Remedies (Brief Overview)
o Compensatory Remedies: compensate P for harm they have suffered
§ Compensatory damages: sum of money designed to make P as well off as he would have been if he never had been wronged.
o Preventative Remedies: designed to prevent harm before it happens so issues of compensation don’t arise
§ Coercive Remedies:
· Injunctions: court order requiring litigants to do or refrain from doing some specific thing.
· Specific Performance Decree: orders D to perform their K (this is a specialized form of injunction).
§ Declatory Remedies: these remedies authoritatively resolve disputes about the parties’ rights, but do not end in a direct order to D.
· Prevent harm to litigants by resolving uncertainty about their rights before either side has been harmed by erroneously relying on its own view of the matter
· Declatory Judgments
o Restitutionary Remedies: restore to P all that D gained at P’s expense
§ Sometimes restitutionary remedies award to P the profits D earned by conscious wrongdoing even if those profits exceed P’s damages
§ Traditionally administered through a variety of devices: quasi-K, constructive trust, equitable lien, accounting for profits, recission, and subrogation.
o Punitive Remedies: designed to punish wrongdoers
§ Punitive damages—in civil cases
§ Criminal Punishment—in criminal cases
o Ancillary Remedies: designed in aid of other remedies
§ P’s court costs & Attorney’s fees
§ A way to enforce the primary remedy against a recalcitrant D or securing the possibility of later enforcement. i.e. punishment for contempt is ancillary to all remedies that end in $ judgments.
§ When D doesn’t voluntarily pay, the means of collecting the $ are: execution & garnishment
· Writ of Execution: sheriff seizes D’s property, sells it, and then uses the proceeds to pay P’s judgment
· Garnishment: court orders people who owe $ to D to pay P instead.
Ø Substitutionary and Specific Remedies
o Substitutionary Remedies: P suffers harm and receives sum of $
§ Includes compensatory damages, attorneys fees, restitution of the money value of D’s gain, and punitive damages
o Specific Remedies: seeks to prevent harm, or undo it, rather than let it happen and compensate for it.
§ Prevent harm to P, repair the harm in kind, restore the specific thing P lost
§ Include: injunctions, specific performance of K’s, restitution of specific property, restitution of a specific sum of $
§ Example: Consider remedies for sale of defective goods
· P’s substitutionary remedy is damages, measured by the difference between the value of goods as promised and the value of goods as delivered.
· P’s specific remedy is specific performance or cancellation. Specific performance gives the P goods that conform to the K in exchange for his payment of price. Cancellation gives him a full refund.
Thus, this example evidences the hallmark of substitutionary relief:
· P who gets damages gets neither what he started with (his money, nor what he was promised—i.e. the goods as promised). Instead he gets defective goods and money to compensate for the defect.
· The sum of money P receives is based on the fact-finders valuation of loss
Specific performance aspires to avoid both of these by giving P the very thing he lost if that is what he wants.
Ø Legal and
of defendant’s wrongdoing, and if we restore P to his rightful position, he will not suffer. To do less would leave part of the harm unremedied; to do more would result in a windfall gain to P. The remedy is always in dollars—substitutionary b/c they substitute $ for what P lost
§ (2) Under the law and economics theory the function of compensatory damages is to force law violators to take account of the harm they inflict. Compensation and corrective justice have nothing to do with this view of damages; the point is to manipulate incentives of potential Ds.
· Economics view of rightful position—believe that the law should generally encourage profitable activity, even activity that harms others, so long as violators pay for damages they cause.
§ One Satisfaction Rule: P may be entitled to judgment on multiple theories and against multiple D’s, but he is entitled to only ONE recovery for each item of damage. Similarly, if P collects from one D, he cannot collect it again from any other. If he settles with one D before trial, other D’s are entitled to credit against any later judgment for same damage. In the past, non-settling D’s got a dollar for dollar credit—the pro tanto rule; or credit can be based on proportionate fault.
Total damages = $2.1 million, apportioned 30% to P and settling D’s, and 70% to non-settling D’s. Non-settling D’s were liable for 70% of the 2.1 million. Under the