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Valparaiso University School of Law
Lind, JoEllen

Professor Lind

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.
§ Pre

Ø Under this analysis: We let the harm happen, then compensate the P by giving him $
Ø Considered a substitutionary remedy b/c we substitute money in exchange for the P’s rightful position
o Goldilocks theory: not too much…not to little…but just right!

Ø Restoring Plaintiff to His Rightful Position
o U.S. v. Hatahley
§ Family of Indians owned livestock that grazed on public property—their livestock was taken away without notice and sold to glue factory—this amounts to trespass to chattels
§ This case demonstrates that “P’s rightful position” should be determined by the position he would have come to but for D’s wrong—this is the essence of compensatory damages.
· Here, P’s rightful position includes the mental distress from the taking and killing of their animals.
§ Importance of this case:
· Damages are supposed to be individualized—i.e. the P herself
Damages must be proved with adequate certainty