Remedies Outline

Remedies – Prof. Nelson Fall 2012
Remedies: Public and Private 5th Edition
 
Introduction:
Country Lodge Hypo: 
 
      cider mill releases apple mash into the river
      the wastes costs Country Lodge – $10,000
      it would cost the mill $20,000 to fix
 
      Possible Remedies
·         Injunction – court order to do something or refrain from doing something
o   Stop dumping
o   Clean it up 
 
·         Compensatory Damages – to compensate P for their losses
 
·         Attny Fees
 
·         Punitive Damages – meant to punish
·         When punitive damages are present D is put in a worse position that his rightful one, and the P is put in a better position than his rightful one.
·         Civil Penalties – have the deterrence effect, put the D in a worse position, but the P is not put in a better than rightful position – P doesn't get the $$
·         Q's to ask if appropriate
·         Intent
·         Can they afford it/ put them out of business
·         Amount of the harm done – to how many people
·         Severity of the harm
 
·         Make them pay for the clean up
 
·         Declaratory Judgment – assigns liability
·         Then can sue on that finding of liability. Two step process
 
·         Restitution – give back what you took
·         Puts D in their rightful position
 
·         Specific – address the specific wrong
·         Achieve the remedy's goal in kind, by giving the P the exact thing to which he or she is entitled to.
·         Typically injunctions
·         Can not give a specific remedy for a past harm – “toothpaste in the tube”
 
·         Substitutionary – typically an award of $$ equal to the value of the P's entitlement.
 
 
 
Is the goal to put the P or D in their rightful position?
Specific Remedies for Future Harm
Sub Remedies for future harm
Sub remedies for past harm
P's rightful position – if they didn't have to suffer the pollution – the position but for the pollution  
 
Harm – polluting the river
 
Spec Remedy – injunction to stop polluting, and clean up the river 
 
“Specific” to the actual violation.
 
Goal – stop the harm from continuing
10,000 per year of discharge
 
– can address thru an order – “don’t discharge thru the pipe in the future” 
 
 
 
 
 
Goal – compensate for future losses
$$ for the income lost – 10,000
 
 
 
 
 
 
 
Goal – compensate for the past losses
D's rightful position – if they hadn't polluted illegally
 
Inj – don't discharge
 
Inj – clean up
$$ – 20,000 a year they are not spending the 20,000 to clean up the river
Make D Pay 20,000
– ill gotten gains of polluting
– could award Country the 20,000
Punishment
 
 
 
Punitive Damages – would put the P in a better position then they would have been.
 
Puntive Damages – nuisance
 
Civil penalties – from the clean water act
 
Criminal penalties –
 
Civil penalties – goes to the gov't
Enforcement of remedies
 
Contempt –
 
Civil contempt – subsitutionary civil contempt – make the P pay for not complying
 
Coercive contempt – fine or jail the party until they agree to comply
 
Criminal contempt – if violating willfully
Exaction – take the mill, sell it, and use the proceeds to pay the award 
 
Attachment – put a lien on property held
 
Garnishment – wages are garnished
Exaction, attachment, garnishment
 
 
      The goal of the remedy can dramatically change the remedy – in this ex. 10,000 vs. 20,000
      Was the act done with malice?
      Are we using the remedy to deter, punish, or compensate – or all three
 
      The goal of the remedy – is assigned by the type of claim
      What law creates the liability and thus the remedy?
      Common law vs. Statutory
      The remedy will often be delineated within a statute for the violation of that statute
      Compare the available remedies to pick the best one
      Preemption – If there is a direct conflict between state and federal law – fed law wins 
 
      Then have to consider limitations of the remedial relief
——————————————————————————————————————————-
 
 
Does every Legal Remedy have a right?:
 
Marbury vs. Madison:
      “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
 
Bivens: the story of the druggie who's house gets raided
      P's apartment is raided by Narcs – Fed Bureau of Narcotics.
      P's claim is no warrant, and no probable cause – 4th Amendment. Violation
      Issue: Is there a private cause of action against the Gov't for the violation of a constitutional right?
      D's Arg: This is the wrong kind of claim for this violation.
       Privacy is provided by state law – this is a state tort claim
      P's claim is thus not cased on fed law
      Well Pleaded Complaint
      Holding: Yes
      Rule:  There is a private cause of action for the violation of a constitutional right by a federal agent acting under the color of his authority.
 
      Relies on Marbury vs. Madison – the gov't has a duty to ensure an individuals rights, and thus liability arises if they are violated
      Tort law is not good enough to protect these rights
 
      Dissent:  Harland says the issue is who should fashion the remedy – court or congress
      D's arg is that the remedy is left to Congress, so if they haven’t instituted one, there isn’t one
      § 1983 – gave trad remedies to the courts for state officials violating Con Right/Laws
      Could evidence Congress intentionally not providing a remedy for the violation of Con laws by a Fed actor
 
 
Scheiker: the story of the denial of SS benefits
      P's SS benefits get denied
      This case is over the losses incurred while benefits were being denied
      Bivens action – this is a due process violation, violation of my Con Rights
      In this case – the remedy was provided by statute
      Congress laid out the specific remedy, and specific method for recovering that remedy
      P ends up in less than a rightful position – doesn't overcome the fact that the remedy was statutorily delineated.
 
            Rules: – fill in from others – end of the day – 8/23
 
      Fed statutes – if you have a right of action, procided by the legislature, and there are no limitations on the remedy – then the court generally has the full panoply of Trad remedies
      If it is not clear if there is a cause of action – the court will not assume one
      Presumption there isn’t a cause of action
      Factors for determining if there is one
      Was the statute enacted to benefit a class, of which