Remedies Infelise, Spring 1998INTRODUCTION

1. classifying remedies : by their function or their form1. compensatory : substitutionary remedy b/c awards money to πs for harm or loss suffered

1. objectives : (a) tort - make π whole or as well off as he would’ve been if never wronged by awarding $ to indemnify for loss (b) contract - compensate for loss & protect π’s expectation interest by awarding $ equivalent to what π would’ve rec’d if K had been perf

2. preventive : coercive & declaratory remedies are designed to prevent harm before it occurs1. coercive

1. injunction : ct order litigants ordering them to do or refrain from doing something

2. other ct orders : writ of mandamus, prohibition, habeas corpus3. contempt : if Δ disobeys a direct ct order, he can receive escalating

punishment until he obeys, or fixed punishment for past disobedience4. declaratory : authoritatively resolve disputes about parties’ rts w/o awarding

any additional relief; prevents harm by resolving uncertainty about rts before either side has been harmed by erroneously relying on its own view of the matter(1) ex.) declaratory judgment, bills to quiet title, cancellation of

instruments2. restitutionary : restore to π all that Δ gained from misconduct at π’s expense, i.e.,

measure π’s recovery by Δ’s gain, including profit, or compel wrongdoer to disgorge any unjust gain or enrichment1. devices : quasi-contract, constructive trust, equitable lien, acct’g for profits,

injunc, rescission, subrogation, & declaratory remedies (ct reforms, cancels or voids something)

2. specific remedies in restitution : recovery of the precise thing wrongfully obtained by Δ from π, including replevin, ejectment, or mandatory equity decree ordering return of real property

3. punitive : punish wrongdoers for willful, wanton, or malicious misconduct & deter such conduct by Δ & others1. statutory minimum recoveries : authorize minimum recoveries in excess of

actual damages, or recovery of double or triple actual damages4. ancillary : measures such as costs, atts’ fees, or contempt aid enforcement of the

primary remedy against a recalcitrant Δ or secure the possibility of later enforcement when recalcitrance is expected1. means of collecting $ for J: (i) writ of execution: Δ’s property seized & sold

to pay J (ii) garnishment - ct orders people who owe $ to Δ to pay π instead2. receivership : ct manages assets pending litig or appts receiver to manage it

until the parties’ rts are determined2. substitutionary and specific remedies

1. substitutionary : π suffers harm & receives $, including compensatory damages, atts’ fees, punitive damages, or restitution of $ value of Δ’s gains1. characteristics : (i) π who recovers damages doesn’t get what he started w/ or what

he was promised (ii) sum of $ rec’d by π is based on a fact finder’s valuation of his

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Remedies Infelise, Spring 1998loss, not on π’s valuation

2. specific : prevent or undo harm to π, repair harm in kind, restore the thing lost by giving π the very thing he lost if that is what he wants1. include : injuncs, specific perf of Ks, restitution of specific prop or specific

$ sum3. legal and equitable remedies

1. legal : mainly substitutionary , including compensatory & punitive damages, mandamus, prohibition, or habeas corpus1. rt to jury trial only in cases that would’ve been legal before merger of law & equity

2. equitable : mainly specific remedies, including injuncs, specific perf, receivership1. Δ not entitled to equitable remedy if legal remedy would be adequate

3. declaratory Js : not classifed as legal or equitable, but some older & specialized declaratory remedies are equitable

4. restitution : some legal, some equitable, and some both

SELECTION OF REMEDY

4. choosing btwn damages & injunctive relief : π chooses btwn damages & injunc relief at the pleading stage - there’s almost always a price at which π can be made whole, & whatever π chooses in compl is probably the worth of the goods1. irreparable injury rule : cts only grant equitable remedies to prevent irreparable injury if

there’s no adeq remedy at law, i.e., the injury is irreparable at law, Pardee 1. adequacy : a legal remedy is adeq only if it’s as complete, practical & efficient as

the equitable remedy - limits irreparable injury rule, but legal remedy rarely meets this standard, so cts don’t deny specific relief on the grounds of adeq legal remedy1. traditional grounds for holding legal remedies inadeq

(1) rt to jury trial : injuncs are issued & enforced w/o juries, but most πs want juries b/c more sympathetic if liability is unclear & assess damages higher(1) fed rule: all jury issues must be tried before any nonjury

issues(2) legal remedy would req a multiplicity of suits : π would have to sue

repeatedly as Δ engages in continuing courses of conduct(1) legal fiction if 1st substantial damage award resolves dispute

& deters Δ from repetitions, but may be justified if conduct is profitable even after paying π’s damages or damages are too small to pay for the litig

(2) continuing small injury is irreparable b/c it’s small: irreparable may mean esp severe/serious, so small injuries aren’t deemed worth preventing by injunc

2. types of irreparable loss : (i) land & unique tangible prop (ii) intangible rts - civil or environ rts (iii) injury to the person - when anticipatable, emotional distress1. typical case : π compares an equitable remedy that will prevent threatened

injury & $ damages that will compensate for injury after it occurs3. Pardee : trespass by cutting timber on another’s land was enjoined b/c legal

remedies are inadeq to reconvert logs into unique, live, standing trees - pure ex of

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Remedies Infelise, Spring 1998enjoining conduct vs. letting injury happen & assessing damages1. if it’s possible to use $ to replace the very thing lost, then legal remedy is

adeq4. args : (i) injuncs impose greater burden on ct b/c enforced over time, but damage J

is one-time transfer of $ (ii) injunc is greater intrusion on Δ’s liberty b/c orders to do or refrain from conduct, but damage remedy lets him proceed if willing to pay the cost (iii) timing - injunc reqs resol of liability issue before harm occurs, but damages are litigated after harm w/reflection of ct & prep of defense (iv) rule protects rt to jury - π shouldn’t be able to deprive Δ of jury by asking for injunc (v) if there weren’t trans costs, parties would always transfer goods to the party w/the most valuable use, but in practice more efficient possibilities are precluded b/c they aren’t efficient enough to overcome the trans costs of non-perf of 1st K

5. law & economics : (i) where tranx costs are low, injury is beneficial b/c forces parties to deal w/each other & price set in voluntary negots is more accurate (ii) Posner - person who will pay most for goods should get them b/c optimal use is best for society, shouldn’t enjoin most violations of law

6. irreparable injury rule used to expand juris (i) once equit rt est, enforced by equity w/o asking whether a legal rt is just as good (ii) once equity begins to enforce rt or grant remedy, it continues to do so even if the same rt or remedy becomes available at law later

2. irreparable injury and undue hardship : cts may use undue hardship to Δ as another reason to deny specific, equit relief, indep of adequacy of legal remedy - irreparable injury may be insuff grounds 1. difficulty of measuring damages correlates w/difficulty of replacement : if loss is

irreplaceable on an inactive or nonexistent market, & there’s no actual transaction to assess value, its hard to measure the damage - inadeq of legal remedy is probable where loss is irreparable

2. rule : damages are never an adequate remedy for loss of or damage to real estate, whether related to sales, leases, or other claims

3. Van Wagner Adver. : subj matter of K is unique & has no estimated market value if ct can’t obtain suff info about substitutes to calculate award w/o imposing unacceptably high risk of undercompensation on injured party, but legal remedy here was adeq b/c value of billboard space on side of bldg could be fixed w/reasonable certainty w/o imposing high risk on injured tenant, & specific perf would impose undue hardship on new owner of bldg, which Δ wanted to demolish

5. choosing btwn damages & specific performance : if legal remedy is inadeq, ct can award specific perf1. specific perf of Ks : granted for sale of ordinary goods if scarcity, time constraint, or the

sheer size of the K make it difficult or impossible to cover - conditioned on showing of irreparable injury1. Campbell Soup : carrots w/special shape, color, & texture weren’t available on open

market b/c so scarce & other carrots inadeq substitution b/c uniformity of prods was imp, so specific perf would’ve been granted if it hadn’t been unconscionable to enforce K1. rule : $ is an adeq remedy only if it can be used to replace the very thing that

was lost, not something of similar or equiv valud

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Remedies Infelise, Spring 19982. Kaiser Trading : long-term K for cryolite enforced b/c world supply lmt’d & much

of it committed to other long-term Ks 3. Eastern Airlines : jet fuel supply K enforced b/c scarce due to war & embargo -

cover wasn’t impossible, but breach would’ve caused chaos & irreparable damage4. Curtis Bros. : enforced K for sale of tomato crop b/c doubtful that reliable supply

available on open market, as shown by existence of preharvest Ks for sale of crop5. Frame : injunc preserved access to gravel pit jointly owned by π & Δ b/c π had no

other source of gravel - spot market inadeq substitute for owning own supply6. Duval : enforced K for sale of cotton crop after drought caused shortage of cotten7. UCC §2-716 : (1) specific perf of sales Ks allowed where goods are unique or in

other circums (3) once goods are identified to the K by shipping or marking for delivery to buyer, buyer can replevy goods if he can’t cover

2. specific perf where cover is possible : there’s always a replacement source & price at which Δ would’ve provided goods, but may cost a lot to get immed & issues of whether π must pay1. Thompson : (i) K for sale of personal prop isn’t usually equitably enforced b/c

remedy at law is gen adeq, but if chattel is non-purchasable or unique in market & hard to replace, equity will decree specific perf (ii) no other experienced manufs of roll-call equip for st congress, so specific perf ordered or Δ must bear burden & cost of finding alternate supplier

3. replevin vs. injunctions : if goods are irreplaceable, π can get either injunc ordering return of goods or rely on replevin to restore goods, but replevin is riskier & differs from normal cases1. replevin : legal writ to recover goods enforced by sheriff seizing goods & delivering

to π, not to prevent threatened destruction or dispossession, so narrower scope - ex. detinue, claim & delivery, sequestration, bail

2. Brook : prop sought by replevin must be returned if return is possible b/c the defeated litigant doesn’t have an option to relinquish prop or pay its value, only the wronged party can choose alternate remedy of $ J

4. efficient breach of contract : (i) if there’s enough of a scarce resource to satisfy π & Δ, perf & breach don’t change allocation of resources b/c π will be supplied at K price & all others will be supplied at market price (ii) if there’s shortage, damages are inadeq remedy & law allocates resource to party promised it by valid K

6. factors in choosing btwn damages, injunction, or specific performance 1. factors : Δ’s culpability, disproportionality, parties’ relationship, π’s diligence or

acquiescence, whether π made advance compl & how quickly did π warn that conduct was potentially tortious, intrusiveness of trespass, & whether denying relief would be a public/priv benefit, adequacy of legal remedy

2. undue hardship : trad balancing of equities perf & injunc denied if expense & difficulty to Δ makes hardship disprop to any benefit π would derive from injunc, but if Δ’s conduct was intentional, the injunc issues w/o regard to relative convenience or hardship b/c Δ was on notice that conduct was wrongful, Ariola, i.e., defense is unavailable if Δ’s conduct is too culpable b/c Δ isn’t allowed to make his own decis based on willingness to pay1. defense : pary can’t assert as aff’mative claim, only as defense, & significant

culpability of Δ eliminates access to doctrine2. damages : (a) if ct denies an injunc b/c expense of correcting wrong is undue

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Remedies Infelise, Spring 1998hardship, π gets damages instead, but gen inadeq b/c many πs lose an interest in land that’s presumed unique (b) damages are less than the cost of complying w/an injunc

3. intent : cts expand concept to include failure to take adeq precautions or recklessness, Nittrauer, & negligence, Pradelt

4. Ariola : injunc issued against encroaching foundation b/c Δs were on notice that πs asserted rts as to projecting gutters & downspouts, but Δs intentionally trespassed by continuing construction of bldg

5. Boomer : cement plant pouring dust on homes was nuisance, but not enjoined b/c of $45 mill investment & 300 workers employed - πs got $185,000 for reduced value of homes

6. Myers : ct denied injunc, allowing farmer to build levee to protect his land b/c only small chance that neighbor’s land would be flooded in extreme conds & neighbor could then recover damages & renew request for injunc if levee caused more probs than expected

7. disproportionality : under Rst 2d Ks §348(2)(b), πs can recover the cost of completing construction Ks unless the cost is clearly disproportionate to benefit - standard is unreasonable hardship for refusing specific perf1. Peevyhouse : πs weren’t entitled to cost of restoration of land after strip

mining b/c would’ve increased value of land by $300 at a cost of $29,000 - grossly disprop to the lost value (but today public policy to restore strip mined land)

8. bilateral monopoly : granting/denying injunc gives bargaining power b/c parties can only deal w/each other even if ct denies relief1. if ct grants injunc, π gets bargaining leverage & vice versa, whereas damage

remedy fixes a price & parties’ predictions about damage remedy provides basis for bargaining, reduces cost of bargaining, eliminates distributional coseqs of giving one side all bargaining leverage, & eliminates the risk of tearing down the more valuable use if the parties fail to agree

3. burden on the court : difficulty on court in enforcing injunc is a factor - ct balances inadequacy of legal remedy against degree of supervision that would be req’d 1. rule : perf of K for personal servs isn’t aff’matively & directly enforced, even if

unique b/c difficulties in compelling perf make order for specific perf impractical1. Bliss : ct refused specific perf of bldg K provis to have night shift workers

placed on construction proj b/c it would commit the ct to supervising the carrying out of a massive, complex construction K - inapprop b/c of impracticability of effective enforcement of an order to keep specific no of men on the job

2. if parties accept the ct’s decis, they can implement it, but if they aren’t cooperative the ct will have to decide everything, i.e., micromanage

2. ct has discretion to decide when complexity becomes impractical : some rts are more imp than others, so cts go farther to give or w/hold relief to further public interest than if only priv interests are involved

4. constitutional restraints : 1st amend as constraint against specific performance1. rule : equity won’t enjoin publication of defamatory matter

1. preserves Δ’s rt to jury trial : otherwise Δ would be deprived of a rt to jury

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Remedies Infelise, Spring 1998trial on issue of the truth/falsity of speech (but judges more lenient on 1st amend issues)

2. π has an adeq remedy at law : damages will suff recompense π, although so hard to measure that cts allow juries to presume damages & often are much greater than any plausible estimate of actual damage(1) but good prof or personal reputation is unique & damages are hard

to prove or measure accurately 2. Willing : sup ct violated Δ’s st constit rt to free speech by perm enjoining her from

demonstrating against or picketing about π-atts’ prof integrity & reputation & for finding no adeq remedy at law based on her presumed inability to pay $ judgment1. sup ct : if public interest is minimal or non-existent, publication that’s

defamatory & unprivileged should be enjoined - here no substantial public interest to permit Δ’s false accusations of prof conduct & injury to π’s reputation extensive & irreparable if continues

3. prior restraints : no prior restraints on publications1. rule : equity won’t enjoin libel - if other remedies adeq, injunc is invalid

(1) press isn’t punished or held liable in damages for publishing truthful info about a criminal prosec(1) NY Times v. US - injunc void b/c could be criminally prosec

for publishing Pentagon Papers2. rationales : (i) suppresses communication, either directly or by inducing

excessive caution in the speaker before an adeq determination that it’s unprotected (ii) preclude speech that would be protected b/c impossible to know in advance what the speaker would’ve said

3. unprotected speech : (i) reckless or deliberate libel - if statements made in reckless disregard for truth or have no public concern, cts allow J against Δ for compensatory damages, presumed absent proof, plus punitive damages (ii) obscenity - injuncs upheld if there is an adjud of obscenity prior to the injunc, or, if later, after the shortest fixed pd compatible w/ sound judic resol (1) two lines of cases: (a) injuncs against unprotected speech are upheld

(b) injuncs against speech are esp suspect even if the speech is otherwise unprotected

(2) fed rule diff from trad understanding in Willing b/c more a rule against restraints prior to adjud than against restraints prior to publication

4. collateral bar rule : unconstit if an injunc isn’t a defense to a prosec for contempt, so collateral attack on injuncs is barred & an injunc that forbids protected speech must be obeyed

5. public policy concerns : reasons of substantive or procedural policy1. insolvent Δs : maj rule is that Δ’s insolvency is ground for holding damage remedy

inadeq1. policy not to prefer one creditor over others, so cts won’t issue injunc that

harms other creditors by ordering Δ to pay π 1st 2. Heilman : ct refused to enjoin diversion of water from stream on which π

owned water rts b/c π was one of many creditors who sought to elevate his

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Remedies Infelise, Spring 1998own interests, reclaim his assets, & acquire bargaining leverage from selling water back on his terms - legal remedy was inadeq, but it was all π was entitled to

3. cf. Willing : insolvency of Δ doesn’t mean there’s no adeq remedy at law - the remedy itself, not its possible lack of success, determines whether remedy is adeq, so sys is blind as to Δ’s finan wherew/al for compensatory damages, not punitive(1) but (a) damage award is just a piece of paper & doesn’t become a

remedy until enforced by tracking down assets & seizing (b) indigent Δ will persist in defamatory conduct w/knowledge that any $ judgment is unenforceable - adeq remedy at law?

2. personal service Ks : cts refuse to aff’matively enjoin or enforce perf of K by an indiv, including employment Ks1. rationales : (i) inherently difficult for cts to supervise perf of uniquely

personal efforts - but the equiv of specific perf against employers is now routine b/c reinstatement is standard remedy for employees discharged in viol of laws (ii) 13th amend prohibition of involuntary servitude - judic compulsion of servs may viol

2. cts enforce employment Ks against employers by forcing them to reinstate or awarding damages for wrongful dismissal, but can’t enforce K against employee by forcing employee to work for employer

3. anticompetitive covenants : disfavored by cts b/c once employment agmt expires, public policy favors uninhibited competition & freedom of career choice(1) policy interests outweigh employer’s desire to insulate himself from

competition, although entitled to protection from unfair or illegal conduct that causes econ injury

4. Wolf : refused ABC’s request for injunc against sportscaster who violated good faith negot for extension of K clause b/c (i) no existing employment agmt - ended so no implied negative enforcement as during K (ii) no express anticompetitive covenant or claim of special injury (iii) would interfere w/indiv’s livelihood & inhibit free competition where there’s no corresponding injury to the employer except loss of competitive edge(1) ABC has indep rt to pursue monetary damages

5. Thompson : ct rejected Δ’s arg that making them build voting machines as they’d promised would be involuntary servitude b/c Δs could delegate the work to someone else - but searching for someone else was difficult & a form of personal service, just as any K reqs some personal serv

DAMAGES: PAYING FOR HARM

COMPENSATORY DAMAGES

7. basic principle : restoring the injured party as nearly as possible to the position he would’ve been in but for the wrong, Hatahley1. π’s rtful position : position he rtfully would’ve come to but for Δ’s wrong

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Remedies Infelise, Spring 19981. based on idea of corrective justice : π shouldn’t suffer b/c of wrongdoing & he

won’t suffer if we restore him to his rtful position - pt is to manipulate incentives of potential Δs1. conflict of principles : purpose of tort law is to put π in rtful (not necess

original) position, but due process reqs that Δ only pay for harms done in facts before jury

2. Posner : victims should be compensated (a) to help produce the rt level of enforcement activity (b) potential victims who knew they won’t be compensated will take excessive safety precautions to avoid injury1. leaves open possibility of efficient breach/tort - Δ pays only for the damage

done3. one-satisfaction rule : π is entitled to only 1 recovery, so he can’t collect J again

from any other Δ once he collects from 1, & if π settles w/1 Δ before trial, the amt of the settlement is deducted from the verdict, & he can only recover the excess from Δs who go to trial

2. Hatahley : πs were entitled to the replacement cost, or market value, of the animals as of the time of taking + the use value of the animals during the pd btwn the taking & the time they prudently could’ve replaced the animals1. use damages are lmt’d to reparation for the pecuniary loss inflicted by the fed

agents, i.e., the time a prudent person would replace the animals, considering evid of availability of like animals & fact that loss of animals caused (a) difficulty in obtaining & transporting water, wood, food, & game, curtailing of travel for medical care & tribal mtgs (b) difficulty growing crops & gardens as extensively as before (c) reduction of livestock nos b/c unable to maintain & look after as many

2. award for mental pain & suffering must be treated as personal & indiv, not a common injury, & resulting from the wrongful taking of the animals by fed agents

8. value as the measure & means of getting to the rightful position : measure is the value of what π lost, not cost of repair or replacement - giving πs the value of what they lost implements the rtful position by enabling πs to replace the thing they lost, whether they choose to do so or not1. valuation problem : law wants precision & reasonableness as to damages amt b/c (i) if cts

continue to strive for it, will achieve it where possible (ii) fairness & due process - don’t want to award windfall or under compensate for loss, but cts must sacrifice precision to give remedy b/c deters Δ & others from repeating conduct - cts put caps on amts to institutionalize lack of precision1. intangible loss : valuation problem for pain & suffering (a) should individualize b/c

fairer to award more to those who suffer more (b) if impossible to quantify, can avg the amt b/c some compensation is better than none

2. evid of value : price quotes in active market for same/similar prop, estimates of experts, sometimes estimate of owner, depreciated book value

2. fair market value : compensation is measured by the market value of the prop at the time of taking, unless market value is too hard to find or it applic would result in manifest injustice, Fifty Acres1. Fifty Acres : fair market value for sanitary landfill property applied, not cost of

acquiring substitute garbage disposal facility, despite the fact that city had a duty to replace a condemned facility taken by US govt in eminent domain

3. rule : π is entitled to be made whole, but Δ is entitled to have him made whole in the least

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Remedies Infelise, Spring 1998expensive way1. O’Brien Bros : govt was liable for $ to raise wreck of barge sunk in collision

w/Navy vessel + the barge’s value, but wasn’t liable for repair costs b/c it made no sense to spend $43,000 to repair a barge worth only $16,000, even though barges couldn’t be bought at any price during WW2

4. replacement cost : cost is a test of reasonableness : 1. measuring property damage : diminution in market value, but exception for special

purpose property: property of nonprofit, charitable or relig organiz where there’s no active market to determine diminution in market value1. types of measures : (a) depreciated-cost-of-reproduction (b) replacement or

restoration costs - replacement/restoration must be reasonably necess in light of the damage inflicted by Δ, & test of reasonableness used for costs

2. Trinity Church : measure was replacement cost of special value property - Church was entitled to reasonable costs of future repairs for present damage before damages become nonrecoverable, although Church had value only as historical monument, no $ value

2. irreplaceable things may have an identifiable value , i.e., value on market, not value to π, but value may not measure rtful position if there’s a total loss, i.e., the repair costs exceed the damages for the value of the thing1. King Fisher Marine Serv : ct awarded replacement cost of $232,996 for

barge sunk due to towing co’s negl, not $30,000 value of barge b/c experts testified that ideally suited for planned use as dry dock & only 6 similar globally, not for sale; measuring by value to owner is policy decis

2. early replacement : usable life expectancy shortened, so prop must be replaced earlier than it otherwise would; valuation problem, esp if no market value

3. used consumer goods : measure for loss/destruction is replacement cost - straight line depreciation (real, intrinsic, or use value, or value to owner, not market value)

4. sentimental value : gen rule is that value to owner excludes fanciful or sentimental consids, but even nonmarket values are recoverable if sentimental value is the only substantial value of the thing lost, or values verifiable in the market aren’t excluded sentimental values

3. cts award the cost of replacing component parts of a larger whole, where abandonment of the component will require abandonment of the whole1. Ebinger : cooling tower essential to air conditioning sys in govt ofc bldg

5. π can’t benefit from speculation : usual rule for property that fluctuates in value is to value it at the time of loss, but time of harvest applies to damaged crops b/c standard time for valuation doesn’t work when values are unstable & fluctuate1. Decatur Cty : π’s usual practice of holding over the beans until after the next yr’s

planting before selling them was speculation that its market value would be greater at a later date, but such risk isn’t chargeable to Δ, so measure = (crops value before) - (crops value after)

2. approaches for investment securities : (a) value loss at time of the wrong - rare (b) award highest value btwn the time of the wrong & time of trial, filing of suit, or a similar date - favors π (c) award highest value btwn the time π learned of the loss

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Remedies Infelise, Spring 1998& a reasonable time after in which the securities could’ve been replaced - fed cts, NY (d) restitution - way to recover appreciation after the wrong

6. value of lost time or labor costs : difficult to keep records documenting how much time was spent by preexisting employees who spent part of their time responding to probs caused by Δ’s wrong1. Bunn : $500 awarded for unproved but presumed inconvenience of finding another

apt in housing discrimination case2. Convoy Co : award for time employees lost due to defective computer even though

no time records existed, trial was 10 yrs after events, & supervisors estimated how much time they spent & confirmed ea other’s estimates

3. value of a work in progress : costs already expended + profit = value - cost of completion1. two sides of equation are always equal unless the value of thing to be

produced isn’t equal to the cost of producing it

EXPECTANCY DAMAGES

9. expectancy & reliance : reliance usually thought of as interest in recovering out-of-pocket losses, & expectancy as interest in rec’ving the benefit of the bargain - π can elect to recover based on expectancy, reliance, or restitution, but reliance recovery is rare & mainly occur if neither side can prove expectancy1. ways to define : (a) reliance - position π would’ve occupied if he’d never made the K (b)

expectancy - position π would’ve occupied if the K were perf (c) restitution - restore Δ to the position Δ would’ve occupied before the K (focus on Δ)

2. types of cases where reliance & expectance damages are equal : (a) π’s essential reliance is his acts essential to him to perf K (partial perf or necess preps), Δ breaches before complete perf, so π’s expectance is gross expectation interest, or (reimbursement for acts done) + profit (b) reliance is loss of opp to enter similar Ks w/others, & expectance is the same if other opps of similar nature were open to π (c) breach of K results in loss of promised value and some direct harm

1. incidental reliance: reliance other than the essential reliance, or expenses necess to perf the K; incidental reliance raises quests of reasonableness & foreseeability

3. losing Ks : if Δ can prove π would have lost $ from the K that Δ breached, Δ can subtract the expected loss from any reliance recovery that π receives, Rst Ks §3491. Δ wants an expectancy measure if it was a losing K for π, & π wants expectancy if

he would’ve made $10. expectancy damages : for breach of K, expectancy damages try to put π-nonbreacher in as good a

position as he would’ve been had the K been performed, i.e., give him the benefit of the bargain or the profit/gain he would’ve made on performance1. policy rationale : expectancies awarded b/c underlying idea is that people shouldn’t breach

Ks2. measure : difference btwn the price π was to pay & the value he was to get from the

performance, w/a return of any part of the price he already paid, additions for certain collateral or consequential damages & reductions for damages that were or reasonably could’ve been avoided

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Remedies Infelise, Spring 19981. Chatlos Sys : benefit of bargain case where measure of damages under UCC §2-

714(2) = (fair market value of goods as warranted) - (fair market value of goods as accepted)1. Chatlos contracted to buy for $46,000 a computer w/specific capabilities,

but the price to perf such capabilities was $100,000-150,000; Chatlos rec’d a NCR 399/ 656 sys w/o the promised capability & sued for breach of warranty

2. puts sellers on notice to be careful about what they sell2. K price isn’t necessarily the same as market value even if it’s evidence of the value

as warranted, so K price doesn’t control even if relevant to issue of fair market value

3. Texaco v. Pennzoil : jury found P had K to buy 3/7 of Getty Oil for $3.4 bill, but 48 hrs later, G reneged & sold to T; jury valued P’s expectancy at $7.5 bill b/c P’s share of G would’ve included a bill barrels of oil1. args : P didn’t lose anything, & merely failed to gain something, so

shouldn’t get such extraordinary gain, but once jury found K, case fell w/in gen rule that breach is awarded w/expectancy damages

3. lost-volume sellers : if dealers have an unlimited supply of standard-priced goods, the resale to replace a breaching buyer costs the dealer a sale b/c, if the breacher perf, dealer would’ve made 2 sales instead of 1, so breach depletes sales by one, & damages = dealer’s profit on one sale, Neri 1. makes sense when seller agrees to sell something he has only one of b/c any resale

is a sale he wouldn’t have made but for buyer’s breach2. if only reliance is awarded, the law makes it easier to breach b/c less of a

disincentive4. no recovery for impossible expectancies

1. Overstreet : π didn’t recover value of foals lost after using vaccine warranted to prevent disease causing miscarriages b/c didn’t show causation, i.e., warranty induced π not to use another product that would’ve prevented miscarriages

5. expectancy damages are recoverable only in K, not in tort : 1. Smith v. Bolles : b/c this is a tort claim for fraud, not a breach of K case, damages

are the amt that naturally & proximately resulted from the mining stock fraud, i.e., ($ spent) + (interest) + (any other outlay legitimately attributed to Δ’s fraudulent conduct), not the reasonable market value as represented or expected profits1. if stock had value, that amt would have been subtracted

2. contract vs. tort : less recovery in tort than K b/c don’t get profit in tort, unless fraud was intentional & jury awards punitive damages, but amt of punitive damages isn’t precise1. K : π seeks to recover expectancy that’s a product of Δ’s promise &

wouldn’t have existed but for Δ - breach of warranty is actionable even if mistake is innocent & non-negl

2. tort : π expected profits or wages from his own efforts, & Δ interfered to defeat that expectancy - tort is in the nature of a promise & π seeks to collect on an expectancy that wouldn’t have existed at all but for Δ’s promise(1) fraud reqs deliberate misrepresentation or reckless disregard of truth

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Remedies Infelise, Spring 1998(2) lost future wages or lost profits : recoverable in tort & like recovery

of expectancy6. args pro : (a) in credit-based society, expectancy is seen as kind of prop & breach of

promise is injury to prop (b) measure most likely to reimburse π for acts & forbearances that make up his reliance on the K (c) promote & facilitate reliance on bus agreements (d) moral belief that people should keep their promises - compensation based on reliance would assume it’s equally acceptable to perf or w/draw a promise & promisee’s only rt is not to be worse off than if the promise were never made (but promisor is entitled to change his mind) (e) Posner - allows for efficient breach

7. args con : (a) unfairly penalize promisor’s right to change his mind (b) fear of such damages may deter people from entering Ks & reduce the no of value-producing exchanges (c) largely unjustified - indiv whose expectations are disappointed but suffers no pecuniary or other loss shouldn’t get the full worth of the K, esp if expectations were short-lived

CONSEQUENTIAL DAMAGES

11. consequential or special damages : any damages that are consequent upon but distinct from harm that is the direct result of the conduct at issue, Buck 1. limits on consequential damages : (1) certainty - damages must be proved w/reasonable

certainty (2) proximate cause, Hadley (3) avoidable consequences 2. general vs. special damages :

1. Buck v. Morrow : in claim for costs suffered when pasture sold after 2 yrs & Buck spent 5 mos looking for substitute pasture, ct distinguished btwn gen & special damages, so general = (market value of remainder of lease term) - (K price), & special = extra costs & loss incident to temporary holding of cattle while finding another pasture, or the cattle themselves vs. the effect of losing the cattle1. special damages awarded if : (i) π proved loss was proximate result of Δ’s

conduct, so π sustained loss that otherwise wouldn’t have occurred, & wasn’t due to lack of proper care by π (ii) conseq damages were reasonably anticipated by the parties

3. traditional suspicion of consequential/special damages b/c damages are more speculative, less certain, more remote, & more likely to have been avoidable if π had been more diligent - probs of causation, foreseeability, & remoteness are limits on conseq damages1. but damages result from Δ’s wrong doing & not awarding them risks failing to

achieve goal of compensation, so trend is to award them, esp in tort law, & likely in K as well

2. FRCP 9(g) : when items of special damage are claimed in pleadings, they must be stated specifically

3. eminent domain : conseq damages never awarded for eminent domain, Fifty Acres4. personal injury law : special damages are those reduced to a sum certain before trial

- flips the usual def, so special damages are real, provable, & reliably measurable, whereas special damages are speculative & suspect

5. UCC §2-715 : buyer’s damages resulting from seller’s breach (1) incidental - expenses reasonably incurred in inspec, receipt, transportation, care/custody of goods rtfully rejected, any commercially reasonable charges, expenses or

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Remedies Infelise, Spring 1998commissions relating to effecting cover, & any other reasonable expense incident to the delay or other breach (2) consequential - include (a) any loss resulting from gen or particular reqs & needs of which seller at the time of contracting had reason to know & which couldn’t reasonably be prevented by cover or otherwise; & (b) injury to person & prop prox resulting from any breach of warranty

12. consequential damages in tort : under Rst 2d Torts §774A, Δ isn’t lmt’d to K damages in action for tortious interference w/existing K - more liberal rules of tort provide liability for the (a) pecuniary loss of the benefits of the K; & (b) conseq losses for which interference is a legal cause 1. calculation of damages need not be exact : inevitable to have some inexactness in expert’s

educated estimate of damages when prices & costs vary w/locale & type, but the law recognizes a π may not be able to prove damages w/certainty & tolerates such difficulty when attributable to Δ’s conduct

2. Texaco v. Pennzoil : under replacement cost model for damages, Texaco’s tortious interference w/ K caused Pennzoil to be deprived of rt to acquire 3/7 of Getty’s proven oil reserves & incur cost of finding equiv reserves1. agmt wasn’t just simple buy-sell stock trans - Pennzoil &Texaco wanted to buy

Getty to control its reserves13. consequential damages from failure to pay money : where the alleged breach of K consists only of

failure to pay $, remedy for the breach is lmt’d to the principal owed + damages in the form of interest at the prevailing legal rate, Meinrath - no conseq damages where there’s a mere exchange of $1. policy : (a) measure of damages is easy & certain in applic, although may lead to less than

full amt of compensation needed to make π whole (b) allowing assertion of conseq damages claim would make simple K dispute complex & long & involving entire bus empire (c) reluctance to deter litig by imposing liability for asserting one’s rts & making those who lose suits liable for additional conseq damages for failure to pay as soon as claim made

2. Meinrath : π’s conseq loss from unrelated businesses was too speculative to ascertain & too remote from the main injury, caused by Singer’s failure to make payments on sales K as they came due1. claim of foreseeability failed b/c π could’ve bargained to impose liability on π for

failure of other businesses due to nonpayment of K amts by fixing liquidated damages for breach

3. exceptions to rule : for cases where causation is clear & amt is certain - often involve consumers or small businesses in desperate straits from original loss & at mercy of large insurance company1. awarding of unpaid πs the actual interest they paid or failed to earn, instead of the

legal rate, Ma v. Community Bank 2. awarding sufficiently foreseeable damages for breach of K to loan $, St Paul at

Chase3. suits against insurers for bad faith refusal to settle : in Calif, if insurer refuses or

delays in bad faith, knowing it’s liable, π can sue for interest, conseq damages, emotional distress, & punitive damages, Silberg

DIGNITARY & CONSTITUTIONAL HARMS: damages whose value can’t be measured in dollars

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Remedies Infelise, Spring 199814. dignitary torts : include assault, false imprisonment, malicious prosec, intentional infliction of

emotional distress, libel, slander, invasion of privacy, & batterys that are offensive but do no physical harm1. more than compensatory : society saying interest in human dignity so great that recovery

can exceed any plausible estimate of econ injury1. Δ’s motives & nature of conduct affect award : the more outrageous Δ’s behavior,

the more outraged & distressed the victim2. valuation problems comparable to those of pain & suffering: smaller but valuations

no more reliable, & juries only instructed to do what’s reasonable2. right to recover for emotional distress : (1) maj rule - recoverable in tort, not for negl

infliction w/o any other indicia of injury or other breach of legal duty (2) π who suffers phys injury can gen recover for assoc emotional distress (3) bystanders who see loved one injured can recover1. negligent infliction : (i) Kerr - ct refused to recognize gen tort of negl infliction (ii)

Bass - ct allowed recover for negl infliction only if diagnosable & medically significant

2. not compensable in K : but bad-faith breach of ins K treated as tort15. valuing constitutional rights : constit violations are an exception to the certainty req, but in practice

there’s not as much latitude for constitutional violations - so theoretical & difficult to measure that cts en up evaluating the conseqs of the violation & awarding little damages1. substantial deference to jury’s award unless it’s (1) so excessive as to shock the ct’s

conscience - standard is actually much lower (2) out of line compared to other awards in similar cases1. comparison to like cases : (i) 1st case sets the standard & cases that follow are

distinguished (ii) must look at individual & facts b/c impact of constit viol depends on the person - victim who can w/stand pressure of bad situation may not be compensated as well, even if same violation occurred

2. Levka : $50,000 award for emotional trauma & distress, mental & phys suffering, fear, humiliation & embarrassment under §1983 civil rts violation for strip search after misdemeanor arrest was grossly excessive b/c no aggravating circums existed, π had no particular frailties that would make π more susceptible to emotional damage than other women, & jury appeared to have assessed punitive damages rather than compensatory1. remittitur of $25K : remittitur is a procedure where the judges reduce jury verdicts

by giving π a choice btwn new trial & remitting part of verdict, down to the highest amt a jury could’ve awarded w/o triggering remittitur1. rt to jury trial : (i) remittitur doesn’t viol b/c π is given a choice (ii) additur,

or conditionally increasing verdict, violates rt to jury trial b/c adds damages no jury found - only remedy in fed ct for unreasonably low verdict is new trial, although judges can achieve additur on a practical level by threatening a new trial unless atts will settle at a certain amt

2. most πs accept remitturs : new trial is risk & expense & it’s a gamble that 2d jury will come in w/higher verdict than left after remittitur & ct will let it stand

3. Carey : (i) mental & emotional distress caused by denial of proced due process is compensable under §1983, but πs must prove injury was caused by denial of due process itself (ii) damages are tailored to the interests protected by the rt at issue - denial of due

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Remedies Infelise, Spring 1998process should be actionable for nominal damages w/o proof of actual injury b/c rt is absolute & important to organized society1. issue: how to put $ value on rec’ving a hr’g when the outcome would be the same

anyway4. Laje : large verdicts possible even where Carey applied, so ct of apps aff’d $20K for

mental anguish & distress caused by proced viol of discharge w/o hr’g, sep from any harm caused by discharge itself, which was found justified

5. presumed damages : substitute for compensatory damages, not a suppl for award that fully compensates for injury - if injury is likely but hard to quantify, presumed damages may be approp as rough equiv1. Stachura : extended Carey to substantive constit rts & rev’d jury award for viols of

discharged teacher’s rts to free speech & proced due process6. defamation damages : common law presumed substantial gen damages w/o proof b/c very

nature of conduct is likely to cause serious injury to reputation & mental & emotional distress, but Ct has limited rule so presumed & punitive damages are unconstit except as to Δs who publish defamatory matl w/knowledge of its falsity or reckless disregard for truth, Gertz 1. rule : free speech & press clauses of 1st amend limit the liability that can be imposed

on negligent defamers to proven compensatory damages2. Dun & Bradstreet : held Gertz inapplicable to speech that’s of no public concern3. Ct’s attempt to restrict presumed damages has failed b/c (a) juries are quick to find

recklessness (b) emotional distress counts as actual damages, & juries tend to presume emotional distress

4. incremental harm doctrine : reqs factfinders to sep harm to π’s reputation into that caused by protected statements & unprotected statements & compensate only unprotected ones; doctrine is corollary of principle that damage must be the conseq of wrongdoing1. Masson : even in public-figure cases, 1st amend doesn’t req sts to apply

incremental harm doctrine2. Vir Bankshares : false statements in proxy solicitation couldn’t cause

damage if dominant shareholder had votes to do what it wanted whether or not it got any proxies - all the harm was inflicted by the dominant shareholder’s legal voting power, so illegal false statements did no incremental harm

LIMITS ON DAMAGES

16. avoidable consequences doctrine : Δ has the burden of proving the aff’mative defense that he isn’t liable for the avoidable conseqs of his wrongdoing, i.e., π’s damages are reduced by the amt of losses he did or reasonably could have avoided or minimized - related to contributory & comparative negl, but applies in K & non-negl tort as well & mainly applies to consequential, not market, damages1. Rockingham Cty : bridge co’s recovery lmt’d to what it spent before cty gave notice of

cancellation, not work done afterwards2. reasonableness standard : π need not take unreasonable steps to avoid conseqs of Δ’s

wrongdoing

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Remedies Infelise, Spring 19981. cover & gen duty to mitigate damages depend on circumstances : test is whether

buyer acted in good faith & in reasonable manner, regardless of whether hindsight proves the method of cover wasn’t the cheapest or most effective way1. S.J. Groves : subcontractor Grove didn’t have a duty to hire alternate

supplier, Trap Rock, to mitigate damage caused by Δ-Warner’s delay in providing concrete b/c Trap Rock wasn’t certified by the st until late

2. inability to mitigate : ct awards damages if it was financially or otherwise impossible for π to mitigate

2. rule : if both π & Δ had an equal opp to reduce the damages by the same act & it’s equally reasonable to expect Δ to minimize damages, Δ can’t contend π failed to mitigate, & the ct won’t reduce the award of damages Δ could’ve avoided as easily as π1. S.J. Groves : alternative of hiring Trap Rock as supplier was available to

Warner as well as Groves, so Warner can’t claim Groves’ lack of mitigation when it chose not to do the same thing & breached in bad faith

3. rule : when the victim of breach must choose btwn 2 reasonable courses, the breacher can’t complain that one was chosen rather than the other 1. when continuing perf of an unsatisfactory contractor will avoid losses from

engaging others to complete the prof, mitigation may be best served by continuing existing arrangements(1) S.J. Groves : Grove chose to stay w/Warner instead of switching to

Trap Rock or hiring Trap Rock as supplemental supplier3. employment discharge cases : π must use reasonable diligence to find other suitable

employment - π forfeits rt to backpay by refusing substantially equiv job, but need not go into another line of work, accept a demotion, or take a demeaning position1. Ford : not unreasonable for asst prof to take comparable college job 70 mi away b/c

she & spouse applied to out-of-st jobs, showing willingness to move4. personal injury cases : refusal to undergo corrective surgery must be objectively

reasonable, but Δ takes his π as he finds him, even if eggshell π1. Small : manic depressive π’s refusal to undergo low-risk knee surgery was

objectively unreasonable for most people, but reasonable for π who only considered the risks

5. leases : (i) leasee who defaults on rent is still liable for unpaid rent even if the space is relet to another tenant who defaults (ii) minority of sts apply rule to resid & comm leases

17. offsetting benefits rule : b/c Δ’s tort may create benefit as well as harm, principle of restoring π to rtful position reqs that π’s recovery be reduced by the amt of benefits directly, not collaterally, rec’d from Δ’s breach of duty in tort/K1. direct benefit : results from Δ’s breach of duty itself, or is derived from Δ or someone who

acts on Δ;s behalf 2. limits on rule : only some benefits are taken into acct - Rst2d Torts §920 accts only for

benefits to interest of the π that was harmed1. exceptions : Δ’s tort created benefit to π that (i) was common to the community (ii)

affected some interest of π diff from the one harmed by Δ (iii) was of no value to π for π’s own purposes & which π couldn’t effectively reject, or benefit (iv) wasn’t causally connected to the tort or accrues after the pt that tort damages were figured, or (v) occurred after the time of valuation of π’s loss

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Remedies Infelise, Spring 19982. ex) when parents sue for negl perf of sterilization operations, some cts set off the

presumed benefits of parenthood against costs of childrearing, even though such parents may not view an additional child as a benefit

3. remarriage : can eliminate all subseq damages in wrongful death cases b/c new spouse provides new source of finan support, companionship, society, services, etc., but juris that consider remarriage don’t necess assume marriages are fungible

4. collateral source rule : exception to offsetting benefits rule whereby if an injured party receives some compensation for his injuries from a source wholly indep of the tortfeasor, such payment isn’t deducted from damages π would otherwise collect from the tortfeasor, i.e., insurance isn’t counted when damages are calculated1. Helfend : after 80% of π’s hospital bill for auto injuries were paid by ins carrier, ct

rejected Δ’s request to show that π rec’d those ins payments & reaff’d collateral source rule in tort cases where π was compensated by an indep collateral source for which he actually or constructively paid or where the collateral source would be recompensed through subrogation, refund of benefits, or another arrangement

2. policy rationales : (a) indiv who invested in ins premiums should receive benefits, not Δ (b) encourage investment in ins (c) if Δ could mitigate damages w/payments from π’s ins, π would be in position inferior to that of buying no ins b/c payment of premiums would earn no benefit (d) rule is necessary measure to compute gen damages (e) rule lies btwn 2 sys for compensation of accident victims, trad fault-based tort recovery & coverage based on no-fault ins - rule so integrated into sys that abolition would cause probs (f) sources of payment are indep of wrongdoer (although opp to receive such payments is created by wrongdoer) (g) payments are gratuitous or fulfill promise made in exchange for consid paid earlier, & payors are out-of-pocket from Δ’s conduct & should be reimbursed (h) consistent w/goal of restoring victims of wrongdoing to rtful position - π & insurer are made whole & π only pays once

3. double recovery debate : (a) π rewarded for injury, but damages should compensate victim w/o punishing tortfeasor - rule eliminated or restricted in many sts (b) no double recovery - subrogation or refund of benefits on tort recovery means $ shifts from tortfeasor to victim to insurer (c) no double recovery b/c rule partially serves to compensate for att’s contingency fees (d) collateral source rule undermines certainty

4. accident & life policies : like govt social ins pgms, subrogation clauses are rare, so part of loss shifts to 3d party that isn’t reimbursed & π recovers twice1. whole life ins policies : (i) investments w/cash value, not just ins (ii) life is

so difficult to value that meaningless to talk of double recovery (iii) risk insured against is inevitable & only timing is unknown, so insured always collects, & insurer loses present value of premiums & use of proceeds, not face amt of policy

18. certainty requirement : rule requires reasonable certainty about the amt of loss that has been or is likely to be realized in the future & rejects a claim if such proof is absent - mainly applies to consequential damages1. exceptions : no certainty req for pain & suffering, wrongful death, & constit & dignitary

torts2. rule : jury can’t render verdict based on speculation or guessing, but can make just &

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Remedies Infelise, Spring 1998reasonable estimate of damage based on relevant proof, probable & inferential as well as direct & positive, esp where Δ’s wrong prevents precise computation - just b/c ct pinpt amt b/c too difficult to calculate, shouldn’t deny all recovery1. Bigelow : suff evid of conspiracy of unlawful film distribution monopoly to find

inference of discrim damage & suff basis for jury’s computation of damage where Δ’s wrong prevented more precise proof of amt1. fair measure of damages = loss of receipts from unlawful distribution sys

2. jury verdict : fluid standard, not literal req - π must show some injury to recover, but then jury can decide the amt on a reasonableness basis, probably considering culpability, although supposed to be separate from calculation of damages

3. burden of proof : Δ bears the burden of uncertainty & wrongdoing4. policy : (i) avoid incentive to make wrongdoing so complete as to render the

measure of damages uncertain & preclude recovery (ii) Δ should bear risk of uncertainty created by his wrong & not profit from wrongdoing at expense of victim (iii) if use individualized approach to reasonableness, may be more fair but leads to less certainty in the law (iv) limits π’s ability to recover & benefits Δ by reducing amt of exposure

3. special damages : new trend that π must prove damages w/as much certainty as is reasonably possible under the circumstances

4. expert testimony : battle btwn experts & credibility of presentation1. Shannon : no recovery by owner of gas well for producer’s negl in allowing gas to

escape b/c other factors made rational estimate of amt of avoidable waste impossible & π failed to get expert to testify on reasonable estimate of range

2. Brink’s : upheld verdict for NYC for stolen meter $, which went up $1 mill in 10 mos after Brinks replaced w/other co - NY expert controlled for other factors affecting amt collected, Brink’s argued damages were speculative & unknowable b/c of factors

5. lost profits claims : types of evid used include (i) comparisons of π’s profits before & after the wrong, & π’s profits to similar bus unaffected by wrong (ii) expert witnesses1. new trend treats risks of new bus as just one more element, despite the fact that

most new bus fail & impossible to know if bus would’ve made a profit but for the wrong

19. substantive policy goals : remedies implement substantive policies, & any remedial or injunc principle may have to be adapted or lmt’d when applied in the context of a particular substantive violation, i.e., sometimes remedy must be adjusted to fit the substantive theory1. Brunswick : no proof that owners of bowling ctrs lost income b/c bowling equipment

manufacturer acquired & operated bowling ctrs - πs would’ve suffered same loss of market share if ctrs had legally obtained refinancing or had been bought by small cos, & Clayton Act only prohibits M&A w/anti-competitive effects, not all those that cause adverse econ effects1. πs argued that Δ preserved competition by buying defaulting ctrs, thus depriving

them of benefits of increased concentration & less competition, but antitrust laws protect competition, not competitors, & following traditional theory of damages would undercut that theory - π can’t use antitrust laws to show harm from continued competition

2. rightful position : determined according to the circumstances, not blindly or rigidly

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Remedies Infelise, Spring 1998- rightful position in this case isn’t where π it would’ve been but for the wrong b/c that would go against the intent of the Act

2. remedial implications of substantive policy1. Sure-Tan : employer can’t rept violations of the law in retaliation for union activity

- usual remedy is reinstatement w/backpay, but Ct upheld offers of reinstatement conditioned on compliance w/ immigration laws & rev’d award of 6 mos backpay - just b/c illegal aliens doesn’t mean that there’s no remedy for unlawful termination1. rightful position variation : paying aliens a few mos pay probably wasn’t the

position they would’ve occupied, but it was the best that could be done 2. illegal search & seizure : victim is wrongdoer also, but exclusionary rule prevents

harm of imprisonment from illegal conduct so compensation is unnecessary; but rule based on deterring police more than providing remedy for victims

3. discharging atts w/o cause : cts limit K liability of clients who discharge atts w/o cause so att recovers only the reasonable value of his servs perf before breach, not expectancy1. substantive policy consids sometimes invoked generically when ct wants to

w/hold complete relief but can’t explain why

RESTITUTION

20. general 1. basic principle : prevent unjust enrichment by basing liability on & measuring recovery by

the benefit to Δ, not the harm to π1. lmt’g principle : restitution isn’t available to mere volunteers or officious

intermeddlers2. sources of civil liability

availability of restitution

contracts yes, if there’s a transfer of unjustenrichment from π to Δ

torts yes, if there’s a transfer of unjustenrichment from π to Δ

unjust enrichment yes

statutes —

3. restitution is indep of damages, not a sub-set b/c damages can’t be granted for unenforceable Ks1. π chooses unjust enrichment or tort/K damages, depending on which yields a

higher amt2. law of restitution is substantive & remedial : it creates causes of action & provides

measure of recovery, so π may have action in restitution even if more trad cause of

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Remedies Infelise, Spring 1998action available

3. just vs. unjust enrichment : Cardozo test is whether a benefit was rec’d in such circums that the possessor would offend equity & good conscience if allowed to retain it

21. cases where πs seek restitution 1. π conferred benefit in emergency : doctor treats unconscious patient2. Δ is insolvent : if Δ is going to file for bankruptcy, π sues for preference to get the specific

prop & lets creditors fight over the rest, Caldwell 3. π conferred benefit by mistake : π mistakenly paid $ he didn’t owe, 3d party who owes $ to

π paid Δ, π mistakenly improves Δ’s prop 4. π conferred benefit on Δ pursuant to actual or unenforceable K : breach after Δ’s part perf,

deposits, or discovery that K isn’t binding after part or full perf - may be no other claim available besides unjust enrichment1. Neri : party that breached K for sale of boat sued for amt of deposit b/c it exceeded

the amt of damages suffered by Δ from breach, & seller would otherwise be unjustly enriched

2. UCC §2-718 : for sale of goods, defaulting buyer is entitled to restitution of his deposit to the extent it exceeds reasonable liquidated damages or actual damages, & for Ks w/o a liquidated damage clause, buyer receivers 20% of the price or $500, whichever is less1. Vines : similar rules applied to K for sale of real estate

3. UCC §2-708(1) : if buyer breaches K by rejecting goods, seller’s damages = (lost profit) + (incidental damages) - (expenses saved in conseq of buyer’s breach)

5. Δ acquired a benefit from π through an unlawful act : (i) Δ’s gain > π’s loss - if Δ was consciously tortious in acquiring the benefit, he must pay what the other lost, even if more than the benefit, & any profit derived from his subseq dealings (ii) if Δ wasn’t at fault, he isn’t req’d to pay for loss in excess of the benefit rec’d by him & retain gains resulting from dealings w/property1. Olwell : owner of egg washing machine recovered profit gained by Δ from use of

machine once/wk for 3 yrs - π can elect restitution remedy instead of tort where Δ benefited from wrong & π shows he incurred loss from Δ’s benefit like wear & tear on machine

2. Vincent : capt wasn’t negligent for leaving ship tied to dock, but was liable for $500 of damage to repair dock - if Δ isn’t culpable &/or didn’t have time for transaction, it’s more likely the ct will rely on a remedy other than restitution

3. Δ’s culpability : (i) conscious wrongdoer is often liable for all profits, includ those resulting from putting prop to Δ’s more profitable use (ii) Δ who acted negl, in good faith but illegally, or w/some justif insuff to exonerate him is often liable only for the fair market value of the thing taken1. π can choose damages or restitution for tortious acts, & get restitution if act

isn’t suff culpable for damages, such as for erroneous prelim injunc2. culpable Δs overlap those that deliberately bypass the market, despite

having time to transact6. π concedes there’s no K & sues in restitution for the benefit conferred by part perf : after π

disaff’ms void K & sues in quasi-K, ct implies unjust enrichment from the promise to pay for the benefit, even if Δ didn’t gain anything

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Remedies Infelise, Spring 19981. π’s restitution = (reasonable value of perf) - (reasonable value of any counter-perf

rec’d), regardless of whether Δ benefited from the perf in any econ sense, but Δ must’ve requested & rec’d π’s part perf, even if under an unenforceable K, & acts merely preparatory to perf don’t justify restitution1. exception to benefit req : usually injured party who didn’t confer benefit

can’t obtain restitution, only damages for reliance2. recovering more than π lost : if π’s loss is equal to Δ’s gain, Δ’s gain may exceed

π’s loss, & restitution is most attractive to π in those cases1. Edwards : owner of land above cave rec’d restitution of profits earned by

neighbor in showing π’s part of the cave b/c couldn’t profit from wrong3. Farash : part perf under unenforceable K - promisee who part performs at

promisor’s request can recover the fair & reasonable value of the perf rendered, regardless of whether Δ rec’d any real benefit or whether the original agmt is void1. benefit is fictional, & π really recovering reliance, but law frames as

restitution

4. enforceable Kno enforceable K

non-fictional π can sue on the K π can sue in restitution

benefit exists or in restitution

no non-fictional π can sue on the KFarash

benefit exists

22. measure of recovery : ct may restore to π whatever Δ unlawfully acquired from him, some other thing Δ got w/ π’s thing, payment of benefits rec’d from π, etc.1. Δ’s full profits vs. market value : when Δ’s profits exceed the fair market value of the thing

taken, cts vary in choosing full profits earned by Δ from wrongful tranx or some measure of market value

2. breach of losing Ks : reliance damages can’t exceed π’s expectancy, but restitution isn’t subj to such a limit, so π can rescind a losing K & sue in quantum meruit for the value of servs rendered1. exception to rule : if π fully perf & Δ owes only $, π is lmt’d to the K price & can’t

recover restitution - πs may denigrate perf to prove they not finished2. Boomer : ct allowed π-subcontractor to rescind K that would’ve cost $267,000 to

fully perf & sue for the value of the benefit conferred on gen contractor - π recovered the diff btwn what he’d been already paid & what he had spent, whereas he would’ve recovered nothing in reliance damages b/c reliance recovery would’ve been lmt’d by negative expectancy 1. Infelise : wrong result, should’ve been adjustments, not voiding of K

3. K price is admissible evid on the value of the benefit 4. determining who is in breach : depends on whether there was adeq cause for

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Remedies Infelise, Spring 1998termination - parties have incentive to provoke breach b/c then can get out of finishing losing K & get reimbursed for all expenses

5. election of remedies : π can aff’m or rescind K, but aff’mance is irrevocable, so if π sued on the K, orally aff’d its existence, or delayed claim to rescission, restitution may become unavailable, but decis to rescind can be revoked until Δ relied on it, until π recovered what he had given up under the K, or until a J was entered, & cts allow π to plead in alternative1. waiver of tort : once π waives a tort, some cts prevent him from suing for

tort damages - π’s choice is only theoretical2. trend : π held to initial election only if Δ would be prej by change in theories3. UCC §§ 2-720-21 : rejects election of remedies doctrine for sale of goods

3. apportioning profits where profits that belong to π are commingled with Δ’s 1. pro rata approach to apportionment : damages = (gross profits) - (costs of

production) - (profits from non-infringing matl)1. burdens : once π proves gross profits made by Δ from the sale of infringing

products, the burden shifts to Δ to prove (i) its expenses to be offset against its profit, & (i) the portion of its profit attributable to non-infringing factors (1) if Δ can’t meet its burden as to apportioning costs & profits b/c

profits are commingled, the entire profits realized by Δ are given to π, Sheldon(1) rationale : just compensation for wrong & prevention of

unjust enrichment - not a penalty or punishment(2) reasonable approx suff, mathematical exactness not req’d(3) reliance on experts & surveys, but surveys are subject to

manipulation & don’t allow cross-exam of accuser b/c amorphous grp of people

2. Sheldon : contrib of film stars, artistic concepts, & director acct’d for a large part of profits, & the portion attributable to use of π’s © play was very small, so Ct aff’d order for apportionment & fixing of π’s share of net profits at 1/5th

3. Mishawaka Rubber : Δ wasn’t req’d to acct for profits from sales to consumers who weren’t confused by mislabeled TM, but Δ bore almost impossible burden of proving how many such consumers there were(1) allocation of profits : Sheldon allocated profits to factors of

production, but Mishawaka allocated profits to sales4. bought & paid for standard : Δs only get credit for the things they bought &

paid for, not the contrib of their standing & reputation in the indus or the value of Δ’s labor b/c π shouldn’t have to pay for time Δ spent infringing(1) corp officers vs. partners : Δs get credit for labor of corp infringers

& salaries of corp officers, but not for salaries paid to partners5. costs of other factors of production : gen subtracted to determine net profits,

but (a) fixed costs aren’t subtracted - would be incurred anyway (b) variable costs aren’t subtracted if Δ fails to meet burden of proving own costs & allocation of them

6. profits earned as a conseq of the thing taken : profits indirectly allocated to the wrongdoing, Frank Music (allocating part of hotel & gambling profits

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Remedies Infelise, Spring 1998to infr of musical by Vegas hotel revue)

2. incremental cost approach : damages = (gross profits) - (cost of labor & matls directly related to manuf of infringing prods, including items of selling, gen, & admin (SG&A) expense that were increased by production & sale of infringing prod)1. Δ can’t deduct expenses that would’ve been incurred if no infr prods were

manuf 2. rationale : measures the profit derived from Δ’s wrongdoing, w/burden on Δ

to prove those costs that were variable & incurred in offending operation3. USM : (i) Δs failed to prove a contrib to profits of any element other than

use of trade secret (ii) rejected allocation of SG&A expenses by Δs under incremental cost theory & applied Sheldon approach that Δ must pay for their failure of proof (iii) allowing Δ to deduct for income taxes paid on profits makes sense, but rule prohibits deduction for taxes if Δ was a willful, deliberate wrongdoer

23. procedural devices to obtain restitution : quasi-K, constructive trust, acct’g for profits, rescission, equitable lien, subrogation, indemnity, contribution, replevin, ejectment1. quasi-contract : or K implied in law is legal fiction of implied promise to pay for a benefit

or unjust enrichment - π sues for Δ’s gains instead of suing for his own losses1. statute of limitations : longer for K or quasi-K than tort2. writs : (a) money had & rec’d - recovery of $ paid (b) quantum meruit - value of

servs perf (c) quantum valebant - value of goods delivered3. Farash : for part perf under unenforceable K, promisee who part performs at

promisor’s request can recover the fair & reasonable value of the perf rendered, regardless of whether Δ rec’d any real benefit or whether the original agmt is void - device for doing equity

4. recovering more than π lost : (1) acts don’t benefit the wrongdoer (2) π’s loss is equal to Δ’s gain - choice btwn compensatory damages & restitution of unjust enrichment doesn’t affect amt of J (3) Δ’s gain exceeds π’s loss - restitution is most attractive to π then1. law & econ : restitution of profit gained from use of converted prop is

contrary to idea that most efficient use(r) is best2. Edwards : owner of land above cave rec’d restitution of profits earned by

neighbor in showing π’s part of the cave b/c couldn’t profit from wrong3. lost payments/rents : cts don’t like to treat lost payments as damages if there

wasn’t any chance for a real transaction in which payments would’ve been made

2. rescission : cancels a transaction & reverses all benefits exchanged pursuant to it, so parties get back money paid + interest & are released from all obligations under the transaction1. grounds for rescission : (i) fraud - even innocent misrep may be enough (ii)

substantial breach of K - UCC allows rescission for buyers of goods only if breach goes to the whole K (iii) mutual mistakes of fact - mistake must go to basic assumptions & defeat the purp of the K, & some cts must explicitly determine if 1 side agreed to bear the risk of the mistake (iv) unilateral mistake known to the other side (v) duress - party coerced into agmt

2. reqs return of $ + interest : party must pay for the benefit of having had use of the $

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Remedies Infelise, Spring 19983. purposes : deterrence & way of apportioning profits4. Mutual Benefit : upheld rescission of non-smoker life ins policy issued to smoker

who lied in applic - if a fact is matl to the risk, the ins co can avoid liability under a policy if that fact was misrep in an applic for that policy, regardless of whether the parties may have agreed on another contractual arrangement had the critical fact been disclosed1. rationale : contrary result would allow jury to rewrite the terms of an ins

agmt to conform to new facts & reward misrep of facts b/c applicant would have nothing to lose by making matl misreps in applics

2. ins co picked restitution b/c worth more than damages : two options are mutually exclusive b/c suit for damages would aff’m the K, but ins co wants to undo K b/c wouldn’t have entered this K w/this fee sched, but legal fiction to say it wouldn’t have entered any K

5. Cherry : rescission of sale of house after fraudulent concealment of termites allowed buyers to get their $ back & Δs to get house back, w/each paying cash for benefits that couldn’t be returned, like rent for time in house & improvements - restored status quo

6. changes in value : if no relevant values change btwn times of original tranx & rescission, rescission isn’t more lucrative than damages, but rescission allows π to get out of bad bargain & receive windfall if the value of the item has declined since the K was formed - after the fact reallocation of risk1. rescission restores values exactly : if value of item hasn’t changed,

rescission restores status quo & eliminates risk of error in determining value, instead of estimating value & paying diff in cash - may be awarded to avoid valuation probs(1) π may want to rescind even if value hasn’t changed & cts won’t 2d

guess2. improvements : if benefit can’t be returned, party that rec’d the benefit must

pay for it, & no rule bars rescission where disprop improvements occurred - reintroduces valuation quests that rescission is supposed to avoid

3. when Δs no longer have the $ : when π reconveys property to Δs, Δs take subj to equitable lien to secure the refund of the purchase price - if π can’t recover $ any other way, they can foreclose on lien & get the prop after all

4. π can’t knowingly speculate at Δ’s expense : if the prop is the kind that fluctuates in value, πs who want rescission must demand it promptly after learning of their grounds, & not wait until statute of limits is about to expire & sue for damages if value went up & rescission if it went down

7. irreparable injury : cts don’t discuss irreparable injury when they grant rescission b/c π has choice of damages or rescission, but cts may deny rescission b/c the breach isn’t suff imp & damages would be an adeq remedy

8. rescission at law vs. equity : (i) law - π who paid $ or delivered goods could rescind by tendering what he rec’d or sue to recover $ or replevy goods, & could demand jury trial (ii) canceling of instruments for promissory note or securities or compelling Δ to reconvey real estate was relief only available in equity

3. acct’g of profits : restitutionary & unjust enrichment remedy that allows π to recover for the profits due from use of his property

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Remedies Infelise, Spring 19981. fiduciaries : fiduciary Δ must disgorge gains rec’d from improper use of π’s

property or entitlements, & has the burden of proving approp deductions for expenses incurred in reaping those profits 1. burdens : π must make prima facie case of breach of fiduciary duty & gross

profits, & Δ must prove what deductions are approp to figure the net profit2. non-fiduciaries : non-fiduciaries may be req’d to give up their gains & sometimes

their bus profits if the merits show that such an extreme remedy is justified1. ex) TM & © statutes place burden on Δ to show expenses that reduce gross

profits2. profits awarded for TM infr even if there’s no competition btwn the two

products(1) Maier Brewing : competition btwn parties isn’t req’d for acct’g of

profits (1) direct competition - acct’g of profits based on return of diverted profits (2) infr but no direct competition - acct’g of profits based on unjust enrichment deters future infr

(2) even if prods don’t compete, acct’g for diversion of customers alone is insuff to effectuate Lanham’s purp b/c doesn’t protect value of goodwill - purp effectuated only by making deliberate infr unprofitable, i.e., infringer took Δ’s prop as represented by his TM & used it to make a profit, so can’t retain the profit w/o being unjustly enriched

3. Monsanto : acct’g for profits approp b/c injuncs against each violation insuff to deter new violations

3. culpability : cts use discretion to req only willful/deliberate infringers to acct for all profits1. Champion Spark Plug : no infr for sale of reconditioned prods if labeled as

such, Δ’s efforts were reasonable, likelihood of damage slight, & injunc met inequities

4. constructive trusts : Δ who unjustly acquired legal ownership of property, assets, or entitlement assumes the duties of trustee for π, who gets formal legal title, any increase in value, & priority over other creditors as to assets covered by the constructive trust - legal fiction to move assets to person fairly entitled to them1. includes : any kind of identifiable prop or entitlement in Δ’s hands that belongs to π

in equity & conscience, including new prop substituted by Δ by sale/exchange for prop gained from π directly, & prop transferred to 3d persons who aren’t bona fide purchasers

2. trust : device that seps legal ownership & control of prop from beneficial enjoyment - owner conveys prop to trustee, who holds subj to the trust, for benefit of beneficiaries, i.e., trustee is legal owner & beneficiary is equitable owner/beneficial owner/owner of beneficial interest1. used to avoid taxes, probate, or creditors, or provide prof $ mgmt,

consolidate control, or divide the beneficial interest among multiple beneficiaries

2. trustees : can collect fees for servs in amts approved by ct, but can’t profit in any other way & must acct for mgmt & for any profits earned w/trust assets

3. characteristics : (a) identifiable assets of trust equitably belong to π-beneficiary (b)

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Remedies Infelise, Spring 1998can be used to trace the proceeds of specific assets through a series of exchanges (c) used when some or all Δs are insolvent b/c π can reach assets in the hands of 3d parties (d) decis to impose constructive trust is decis to grant restitution of all the wrongdoer’s profits

4. cases involving real fiduciary relationship : employer-employee, family disputes1. family disputes : constructive trust used to restore to rtful owner the

ownership of prop acquired from other family members through undue influence, fraud, murder

5. non-fiduciary relationship cases : constructive trusts are now gen remedy for wrongdoing1. Newton : thieves of bonds held bonds as constructive trustees, trust attached

to new securities bought w/proceeds of bonds, & atts who rec’d securities & sold for cash w/knowledge of theft took subj to the trust & had to acct for profits from sale of trust property

6. Snepp : CIA employee breached duty of trust to employer by failing to submit book for pre-publication review, thereby irreparably harming govt, & nominal & speculative punitive damages were insuff remedy or deterrent against similar security breaches by others - constructive trust was most approp remedy b/c tailors measure of relief to wrong to deter others & only reqs Δ to give up funds/benefits attributed to breach 1. govt couldn’t pursue punitive damages w/o losing the benefit of the bargain

it sought to enforce b/c would have to disclose confid info to prove damages

2. inadeq of legal remedy? probably suff to deter Δ if took all profits 7. beneficiary can sue for acct’g of constructive trustee’s profits , even if constructive

trust isn’t fictively made - but acct’g for profits w/o constructive trust is like an ordinary $ J b/c π doesn’t get preferential treatment if Δ is insolvent1. acct’g for profits can mean all profits, reasonable royalty, or substitute

measure of π’s damages8. irreparable injury rule : constructive trust & acct’g for profits are subj to rule,

butrule is often ignored in constructive trust cases: (a) damage remedy often inadeq anyway b/c unmeasurable or uncollectible (b) if π seeks restitution from solvent Δ, quasi-K often yields same recovery as constructive trust (c) if there are no profits other than the value of the thing taken, damages work as well (d ) some cts req π to use one of the legal remedies

5. restitution of profits from efficient breach of K 1. constructive trust isn’t a remedy for breach of K : many profits of breach aren’t

conferred by π - if Δ breaches K w/π & earns profit on a substitute K w/someone else, the profit comes from the 3d party & can’t be restored to π

2. restitution isn’t awarded for negligence : profits of manuf of defective prods aren’t taken from consumers, consumers already rec’d part of $ req’d to prevent defect in low cost of prod, enrichment from not adding safety devices is hard to measure, & probs of standing & allocating the award1. Posner : accidents should be allowed to occur if it’s cheaper than prevention

3. breach of K cases : Snepp awards constructive trust on profits from breach of K 4. land sale K cases : buyer can compel conveyance of land despite seller’s opp to

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Remedies Infelise, Spring 1998commit efficient breach b/c ct regards land as belonging to buyer from signing of K, not just promised to him, & seller who sells to another sells something belonging to buyer1. corollary of specific perf, which is automatic for land sale Ks: trust attaches

to proceeds of sale to person other than buyer of land in trust for him5. employee viols of confid info or trade secrets: cts may award Δ’s full profits,

reasonably royalty for use of secret, or π’s losses, but often unclear whether cts are enforcing employment K or fiduciary duty created by law

6. covenants not to compete : cts may order Δ to acct for his profits from breach, treat Δ’s profits as evid of profits π lost, or calculate victim’s actual damages based on how many of wrongdoer’s sales the victim could’ve made & victim’s profit margin1. damages are more common than restitution

INJUNCTIVE RELIEF: PREVENTING HARM

24. injunction : court order to do or refrain from doing some particular thing1. types : (1) preventive - prevents future harmful acts & maintains π in rtful position to

ensure he isn’t made illegally worse off (2) reparative - prevents future harmful effects of past act (3) structural - series of preventive & reparative injuncs in single case w/complex fact situation, each indiv order as part of continuing attack on larger, institutional or systemic problem1. all categories prevent future harm, but the future harm avoided by reparative &

structural injuncs is derived from a past wrongful act or instit structure that’s itself wrongful

2. can substitute damages for reparative injunc b/c can let harm occur & order compensation, but can’t always substitute reparative injuncs for damages b/c only damages can compensate for harm suffered prior to ct order & for future harm that can’t be prevented

2. functions : (1) prevent harm & maintain or restore π in rtful position (2) individuate the law’s command, specifying its applic to a particular Δ in a particular situation1. impact of injuncs : parties irreparably injured by doc destruction in any case

involving docs controlled by parties, but can’t issue injuncs at start of every trial b/c (i) harm to Δ who wouldn’t have destroyed docs - disparages Δ & looks bad, esp for public corps (ii) less severe punishment available for Δ who destroys docs (iii) hr’g puts Δ on notice that π considers the docs important so they’d better be there during discovery (iv) case mgmt order - includes order not to destroy docs, so perfs similar func to injunc

3. means of enforcing : takes one viol or serious threat of one to get injunc & a 2d to get any serious efforts at enforcement1. contempt power : civil & coercive civil contempt2. FRCP 37 : authorizes sanctions, including contempt & barring of claims or defense

to which docs are relevant if a litigant violated an order to produce the docs1. no explicit auth for remedy if litigant destroys requested docs before ct

issues order to produce, so some cts stretch the rule or assert inherent power to penalize litigants, but auth to do so is sketchy

3. FRCP 26 : authorizes sanctions for failing to make spontaneous disclosures of all

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Remedies Infelise, Spring 1998docs in party’s control that are relevant to disputed facts alleged w/particularity in the pleadings1. πs are successful in destruction of docs cases mostly when there was a

preexisting duty to preserve the docs, & the Rule may create such a duty in fed ct

4. damages : absent injunc, π’s remedy in common law tort or statutory viol case is action for damages - once π proves one viol, easier to get injunc against any future viols & if injunc issued & violated, π has ordinary action for damages too

5. criminal offense to destroy docs w/intent to prevent a litigant from seeing them - but no prosecs arising out of priv litig

6. evidentiary inference : subj to restrictions that docs would’ve revealed info adverse to the position of the party that destroyed them, but inference isn’t enough to get to jury w/o some indep evid, which makes the inference useless in cases of thorough destruction

25. preventive injunctions : seeks to prevent harm, restore or maintain π in rtful position, & ensure π isn’t illegally made worse off1. ripeness rule : π must make threshold showing that there’s a ripe threat of injury &

preventive order is necessary before injunc will issue - unripe claims may ripen1. presumption that wrongdoers should compensate for all the harm they cause, but

cts don’t believe they should prevent all the harm they may cause2. exception : some cts order all parties not to destroy docs, but orders are generally in

larger discovery orders issued by consent, & not called injuncs to defuse ripeness issue

3. elements : (i) substantial or realistic threat of violation of unlawful conduct (ii) real threat that π will be personally harmed/injured by it (iii) threatened injury is irreparable

4. harm to Δ : gen rule is that π must show real threat that he personally will be harmed by it, but some cts hold that harm to Δ is irrelevant for issuance, & others consider harm to reputation & financial opportunities1. a ground for vacating final J of injunc is that injunc causes undue hardship

on Δ2. L.A. v. Lyons : damage suit ripe, but suit to enjoin future chokings of

arrestees by police unripe b/c Δ couldn’t show any likelihood that he personally would be choked again

5. imminent vs. immediate threats : ripe threats are usually imminent b/c threat of long-delayed harm is likely to be contingent & speculative, but suit to enjoin harm is ripe even if harm isn’t imminent if it’s possible to say w/substantial certainty that a harm will occur eventually & the facts are suff developed for reliable decis

6. constitutional ripeness doctrine : fed cts & most st cts have juris only over cases & controversies, & unripe disputes aren’t a case or controversy1. serves political values : (i) allocate power btwn cts & other govt brs (ii)

avoid premature decis of constit quests (iii) allocate power btwn today’s cts & future cts by postponing resol of some legal issues - serves values of self-determ & adeq rep by ensuring litigant w/personal stake is heard before he & others like him are hurt by a new rule of law, & protects nonparties from litig motivated by ideology or paternalism, not immed self-interest (iv) cts

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Remedies Infelise, Spring 1998make better decis if facts are fully developed - applies to remedial ripeness too

2. propensity req’d : π must show propensity from past conduct that Δ will engage in conduct again1. Humble Oil : mot to prelim injunc denied b/c (a) no evid of past or future threat or

likelihood of destruction/concealment of docs - Δ testified he had docs & wouldn’t destroy them & att offered to exchange during discovery (b) lack of hardship on Δ

2. Marshall v. Goodyear : injunc relief against viols of ADEA were lmt’d to one store b/c isolated discrim discharge by one mgr was insuff enjoin store nat’nwide w/o finding discrim co policy or practice, & only slight evid of discrim in other store1. rule : nat’nal or co-wide injunc is only approp when co policy or practice

viols law3. ripeness & uncertain conseqs : ct can’t issue injunc on π’s subj fears &

apprehensions w/o meeting propensity req b/c too speculative & intangible - need reasonable degree of likelihood that the act will take place1. Nicholson : π’s fears of unlawful activities that hadn’t occurred yet were

insuff to overcome ripeness prob - no injunc b/c no concrete acts or pattern of behavior, no showing of unreasonable or unlawful use of the prop by parolees, & no showing of likelihood that the prospective residents would engage in unlawful activities

2. formulations of req’d degree of certainty : (i) Ga - nuisance & harm must be not merely possible, but to a reasonable degree certain (ii) Ill - does it clearly appear nuisance will necess result (iii) Mich - need showing of actual nuisance or strong probability of result (iv) Ohio - fact that homeless shelter was nuisance at prior location was insuff evid for injunc b/c new dir hired(1) existence of nuisance claims depends on how close π is to alleged

nuisance - must be at least across the st, if not closer3. Jack : any funeral home in a resid area would be a nuisance, no matter how

run, b/c it would depress the residents by constantly reminding them of death

4. Brainard : town dump in resid area enjoined b/c known quantity of attributes as nuisance could be based on experience at a similar dump operated by Δ

5. Mother & Unborn Baby Care : injunc refused for misleading ads b/c fear & possibilities of being misled again insuff to est injury - injuncs are stand remedy against misleading ads, but π is usually govt or competitor, not deceived customer

3. scope of preventive injuncs : fed cts have broad power to enjoin future viols of the same type as past unlawful acts or whose comm’n, unless enjoined, can be fairly anticipated from Δ’s past conduct - scope of past viol determines scope of remedy against future viols1. Marshall v. Goodyear : injunc relief only remedies the conduct before the ct, so

couldn’t go beyond the indiv case of discrim to speculate on Goodyear’s other possible conduct

2. ripeness standard is the same, but injunc is more likely to be issued if it’s more restrictive & tailored, rather than broad request for more relief - need to choose the wrong the judge is most likely to accept to remedy

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Remedies Infelise, Spring 19983. FRCP 65(d) : gives indep ground for objecting to obey-the-law injuncs that merely

copy a statute & forbid all viols by providing that every order granting injunc must set out the reasons for its issuance in specific terms & describe the act(s) sought to be restrained in reasonable detail, not by reference to the compl or other doc1. Payne : obey-the-law injunc against discriminating on basis of color, race or

sex failed to meet Rule 65(d) b/c “discriminating” is too gen a word4. mootness doctrines (a) constit - mootness suff to end case or controversy & deprive ct of

juris (b) equitable - likelihood of repetition is so low that relief should be w/held as a matter of discretion1. rule : claims for damages are never moot - never impossible to compensate for past

harm2. Spomer : Ct dismissed compl to enjoin racial discrim by cty prosec Berbling, who

was succeeded by Spomer, who was substituted as Δ, b/c wrongful conduct was personal to Berbling even while sued in capacity as st’s att, & no charge that ofc policy ofc was to follow alleged intentional practices or that Spomer intended to continue them

3. standard : must show cognizable danger of repeat/recurring damage, mere possibility insuff1. W.T. Grant : actions of dir of interlocking directorates weren’t moot, but

dist ct had reasonable basis for refusing to award injunc relief b/c can’t necess infer indiv proclivity to viol Clayton Act from 3 viols, esp since govt only began systematically enforcing §8 recently(1) factors : (a) expressed intent to comply w/law - stop viols & promise

not to repeat (b) effectiveness of discontinuance (c) character of past violations

4. cf. voluntary cessation of wrongful conduct : variation of ripeness case where Δ says he’ll quit, doesn’t intend repeat the harmful act, & the normal inference from past conduct isn’t true for his case, so anticipatory relief to prevent future repetitions is premature1. WT Grant : voluntary cessation of allegedly illegal conduct doesn’t (a) make

case moot or deprive ct of power to hear & determine case unless Δ shows there’s no reasonable expectation the wrong will be repeated - controversy may remain, Δ may return to practice, public interest in having legality of practices settled (b) deprive ct of power to grant injunc relief - purp is to prevent future viols & can be used even w/o showing of past wrongs, but movant must show relief is necess

2. πs win more voluntary cessation cases than ripeness b/c (i) past violations show propensity & hurts credibility of witness promising not to repeat conduct (ii) past conduct arguably justifies inconveniencing Δ to ensure π is protected

5. individual & class injuncs : maj view is that class certif isn’t necess - injunc in indiv class protects entire putative class b/c Δ will voluntarily comply w/ct’s adjud & ct can issue injunc on behalf of all persons similarly situated even w/o class certif1. restrictive view : ct can enjoin Δ only as to Δ’s treatment of πs actually before the

ct, & there’s no case or controversy as to anyone else - SCt has held that lack of class certif may be fatal if ct that ignores class certif as meaningless formality, &

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Remedies Infelise, Spring 1998something goes wrong w/ named πs’ claims

6. coercive relief at law 1. prohibition : order to inferior ct or quasi-judic agency to prevent it from exceeding

its juris or abusing its auth - similar to injunc against filing/prosec a suit, except (i) ct w/equity powers can enjoin suits in cts that aren’t inferior to it, includ cts of other juris or of law (ii) equity ct won’t enjoin the other ct or its judge - injunc is addressed only to π1. fed cts : writ is called mandamus

2. mandamus : order to a public or corporate official, directing him to perf a ministerial duty1. practical effect is same as mandatory injuncs : either may be available or

only one2. fed statute : grants fed juris over any action in the nature of mandamus to

compel an officer/employee of US or any of its agencies to perf a duty owed to π(1) dist cts : only available in extraordinary circums, where judge

usurped auth or clearly abused discretion & no other remedy is available

(2) app cts : often discusses merits when deciding if clear abuse of discretion occurred, so even if mandamus denied, parties effectively get advis op

3. limits : (i) not available against priv indiv - only compels perf of official duty (ii) duty must be clear & nondiscretionary - ct can’t substitute its policy J for official’s (iii) unavailable if π has another adeq remedy or specific provis for judic rev - discretionary & govn’d by equitable consids

3. habeas corpus : personal order to a Δ holding another in custody, directing him to bring the prisoner to ct & justify his further detention, or the ct will order his release1. constit rt : safeguard against tyranny b/c whenever govt tries to imprison

people w/o charges or trial, writ of habeas corpus prevents imprisonment w/o judic rev

2. further judic rev of criminal convictions is most common use - enables Δs convicted in st ct to get review of fed errors in fed dist cts(1) criticisms : (a) multiple rounds of judic rev expensive (b) not as

essential to liberty as judic rev of imprisonments imposed solely by exec br

(2) limits : (a) pet’t can’t bring claims that seek to make a new rule of law (b) claims barred by proced defaults in st cts & by earlier habeas pet’t that did or didn’t raise the same claim

3. used in child custody cases when indiv w/phys control of child refuses to release

26. reparative injunctions : prevent or ameliorate some or all of consequences/harm of past wrongful act or violation (not the act itself) 1. ripeness : less an issue in reparative & structural injunc cases b/c harm already occurred, so

issue is how much Δ should be ordered to do to undo or avoid further harm to π2. Bell v. Southwell : fed ct used its power to void st election for justice of peace b/c of racial

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Remedies Infelise, Spring 1998discrim during polling & ordered special election to prevent the harm of subjecting πs to waiting out term w/illegally elected official - didn’t compensate for harm already done in damages

3. Cal v. Amer Stores : Ct held divestiture, or injunc ordering sale of acquired stores, was best remedy under Clayton Act, which auth cts to prevent & restrain viols of Act & allows any person or st govts to sue for injunc relief against threat of harm by viol of antitrust laws - merger was already completed, but harm would persist far into future

4. spectrum of equitable discretion for reparative injunctions

Winston < ---------------------------------------------- >

Baileyrightful

prophylacticposition

5. rightful position : in issuing injunc, ct can’t undo harm b/c already done, but does enough to put π back in the position he would have been in absent Δ’s wrongful conduct1. Winston Res v. 3M : 2-yr injunc against use or disclosure of trade secrets was

essentially a perm injunc b/c denied Δ unjust enrichment & put 2 cos in position they would’ve occupied w/o breach of confidence by 3M’s former employees - once 3M got product on the market, need for injunc mooted, but ct wanted to penalize Δ for their conduct1. if wrong is stealing trade secrets, injunc is reparative b/c prevents conseqs

of wrong, but if wrong is selling prods manuf through use of secrets, injunc is preventive

2. UTSA §2 : codified Winston so ct can enjoin actual/threatened misapprop of trade secrets, but injunc ends when no longer secret & only continuesfor additional reasonable time pd to eliminate comm adv otherwise derived from misapprop

3. Stidham : perpetual injunc from use of info for new employer that was acquired while working for π b/c blatant breach of temp nondisclosure agmt justified it

2. formulations of principle that reparative injunc is aimed at restoring rtful position : injunc should restore π as closely as possible (1) to rtful position (2) to rtful position, subj to constraint that injunc shouldn’t make π better off than rtful position (3) to rtful position, subj to constraint that the injunc shouldn’t leave π worse off than the rtful position1. similar to principle that wrongdoer bears risk of uncertainty that his wrong

created - doubts resolved in π’s favor if other consids approx equal b/c better to give π a little too much than not enough

6. prophylactic injuncs : order against conduct that isn’t itself a viol of anything but risk future viol, or monitoring of Δ’s behavior by req’g pdic repts to ct/π or advance approval of future conduct

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Remedies Infelise, Spring 19981. Bailey v. Proctor : cts of equity have inherent power to issue injunc to appt receiver

& liquidate a corp/investment trust where fraud, mismgmt or abuse of trust occured, & juris isn’t defeated by supervening solvency or new ownership - exercise of equitable discretion was prophylactic measure to avoid future fraud, mismgmt, & risk of harm to debentures

2. Marshall : ct upheld order for centralized admin of personnel policy even though act didn’t req it b/c trial ct thought it would result in fewer viols of age discrim act

3. Bundy : ct upheld injunc against further sexual harassment in govt agency through explanation of policy, disciplinary measures, & other means - provis were reasonably designed to protect further harassment, but ordered more than statute reqs

7. equitable discretion : discretion to consider all relevant facts, not discretion for judge to do whatever he wants - gen principles guide discretion in formulating injuncs or other equit remedies1. Winston : represents trad of restoring π to as near to the position he would’ve

occupied but for the viol, but leaves room for discretion2. Bailey : at the extreme, represents trad that once viol occurs & brings case to ct of

equity, chancellor has roving comm’n to do good & see that equity is done w/in his juris

3. Community Renewal Found : ct upheld decree auth repair of bldgs found in viol of bldg or housing codes even if more than necess to correct viols b/c ct is given reasonable discretion to determine the repairs necess & return bldg to econ life & usefulness

27. structural injunctions : restructure instits that are systematically violating the law or whose very structure is unlawful, in light of rule that scope of remedy is determined by the nature & extent of the constit viol1. negotiated remedies : (a) structural cases are often negot w/ legis committees b/c more

likely to work than litigated remedies - ct can’t implement remedy w/o coop of Δs & the staff running the instit (b) instit officials may view injunc as means of getting more $ from legis to correct admittedly unconstit conds

2. sep of powers prob : potential for abuse when life-tenured judge tries to run an entire prison system, housing authority, or school district b/c threat of interstitial lawmaking

3. rightful position vs. equitable discretion : conflict btwn restoring π as close as possible to rtful position under Milliken cases, & more freewheeling approach, using equitable discretion, Swann

4. free-wheeling approach : under Swann, once segreg & Constit viol is found, trial cts may do every thing w/in their equitable discretion to eliminate segreg from all causes, even if the resulting remedy makes πs better off than if there had never been a violation b/c racially neutral plan may not resolve problem1. equality & racial integration & harmony are constit values threatened by econ &

racial disparities, as btwn suburbs & inner cities, so cts can invoke judic auth if constit viol occurs, such as failure of schools to meet aff’mative obligs to desegregate

2. Swann : upheld use of wedge-shaped zones & busing to desegregate sch dist even though designed to influence resid segreg - scope of power to remedy past wrongs is broad & flexible & depends on nature of viol, so ct can fashion remedy to put πs

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Remedies Infelise, Spring 1998in rtful position by going beyond the prob of sch segreg that was before the ct to remedy broader prob1. plan that merely fixed sch segreg wouldn’t effectively address wrong, so

lower allowed to go to root of problem to remedy the wrong - policy of segreg influences short-term composition of student body & promotes segreg resid patterns

5. rightful position : narrower & more conservative view of rightful position than Swann1. Milliken I : dist ct exceeded the scope of approp remedy by imposing interdist

remedy that consolidated sep units to eliminate interdist segreg created by constit violation in one dist, i.e., racially discrim acts, that directly caused significant segregative effect in another dist1. rationales : (i) fundamental limits on remedial powers of fed cts to

restructure operations of local/st govt’al entities (ii) no evid of de jure segreg in outlying dists or interdist viols or effect (iii) remedy should restore victims of discrim conduct to the position they would’ve occupied absent such conduct - disparate treatment only occurred w/in Detroit sch sys, not elsewhere, so remedy lmt’d to that sys

2. White dissent : (i) 14th amend applies to sts so fed cts can remedy st viols of Constit if necess (ii) ct must apply the remedy that achieves the maximum degree of desegreg, includ effects of past segreg, but Ct’s remedy leaves viols unremedied

2. Milliken II : 3-part test for fed injuncs (i) related to the allegedly unconstit condition (ii) designed as nearly as possible to restore victims of discrim conduct to the position they would’ve occupied absent the conduct (iii) acct for interests of st/local authorities in managing their own affairs 1. fed ct orders exceed approp lmts if aimed at eliminating a cond that doesn’t

viol the Constit or flow from a viol, or if imposed on govt units that weren’t involved in or affected by a constit viol

3. Dayton II : Ct aff’d reinstatement of city busing plan based on chain of presumptions that effectively attributed all segreg anywhere in the city to proven acts of deliberate segreg - holding about proof of violations & causal relationships made Dayton I irrelevant

4. collective violations of Constit : rtful position includes power to ensure the obj is achieved1. Hutto : conds of isolation cells & diet considered as a whole to assess constit

- b/c continued viols of cruel & unusual punishment cl found, ct had auth to go beyond earlier orders & address ea element contrib to viol & enter comprehensive order to prevent further inadeq compliance, esp b/c conds producing viol were interdep, little danger of interfering w/prison admin, & dist judge’s long experience w/prob(1) Infelise : empowering opinion for πs, but hard to reconcile

w/Milliken II b/c orders prison to do things diff from what it did before, even though individually those things didn’t violate the Constit

6. rights of 3d parties : to grant full relief, innocent 3d parties who are affected substantially by orders to Δs who violated the law can be subjected to minor & ancillary orders, but not

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Remedies Infelise, Spring 1998to the pt of being restructured, Hills 1. applies Swann rule : once constit viol found, dist ct has broad & flexible scope of

equit powers to remedy past wrongs - all reasonable methods are available to form an effective remedy that achieves the max degree of relief, taking into acct practicalities of situation

2. All Writs Act : authorizes fed cts to issue all writs necess or approp in aid of respective juris & agreeable to the usages & principles of law - applies to unrelated 3d parties

3. Hills v. Gautreaux : ct can order wrongdoer to undertake remedies that go beyond the boundaries of the city where the viol occurred & affect innocent 3d parties - but here no impermissible interference or coercive effect on innocent local govts & suburban housing auth b/c order has same effect as discretionary decis by HUD to use fed statutory powers to contract directly w/priv owners to make leased housing units available, local govt approval no longer req’d 1. cf. Milliken : in Hill, housing authorities violated Constit, but in Milliken,

other school districts hadn’t violated the Constit, even if they were suspicious

2. conflict : Ct doesn’t reconcile principles that if a constit viol is found, (i) ct must tailor the scope of the remedy to fit the nature & extent of the constit viol, & (ii) the scope of the ct’s power to remedy wrongs is broad & flexible

4. In the Matter of Boung Jae Jang : trial ct had inherent auth to enforce order for police to enforce the law b/c part of duties, contempt proceeds against many anon demonstrators was unworkable, & police had discretion as to enforcement in 50 ft limit from Kor store

5. Gen Bldg Contractors Ass’n : ct can order 3d party to remedy fully a constit wrong, even if party didn’t viol any substantive rt of πs, but only if relief ordered is minor & ancillary - no Title VII count brought against employers who must’ve known about discrim & no req that employers rept back b/c of cost 1. remedial powers of fed cts have fund limits, so powers can only be exer

based on a viol of the law & can’t extend farther than req’d by the nature & extent of that viol

6. Morgan : ct can req help from st educ officials who didn’t participate in segreg but who would be helpful in devising remedies, unless high cost is involved

7. Civil Rts Act of 1991 : in employment discrim cases, 3d party employees are bound by decrees if they had notice from any source that their interests would be affected by the decree, or if they were represented by a party to the action 1. only applies to employment discrim cases arising under Constit or fed civil

rts laws, not applic to claims under employment Ks, civil serv law, or st civil rts laws

7. modifying injunctions : modifiable injunc is flexible, incremental working tool that allows judge to make series of orders & adjust them as necessary1. injuncs are subj to modif, but damage judgments aren’t b/c (1) injuncs speak to

future & justice reqs a mech to respond to changing conds - but damage Js may go to future b/c juries calculate inflation (2) costs of continued litig - cts more willing to pay costs for equit remedies (3) injunc that becomes too harsh/restrictive does

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Remedies Infelise, Spring 1998more harm than damage J that’s erroneous - injunc may req socially wasteful conduct or harm Δ more than it helps π, but damage J just causes transfer payment w/o net social conseqs (4) public interests in finality of ct decrees & favoring settlement of litig (5) decrees often in place for extended pds, so likely that big changes will occur, need flexibility to achieve goals of reform

2. modification of decrees : under Rufo’s flexible approach to modif of consent decrees, party seeking modif must est that a significant change in facts/law warrants revis & the proposed modif is suitably tailored to the changed circums1. FRCP 60(b) : ct can relieve a party from a final J, order, or proceeding if (5)

it’s no longer equitable that the J have prospective applic(1) parties can enter into new consent decree after judge tells them what

he’ll approve, or can go to trial (2) consent decrees look like Ks in language w/parties signing their

agmt & judge approving it, but Δ may enter into it w/o any say or power to negot if case is weighted heavily against him

2. Rufo : remanded for dist ct to consider whether proposed modif of consent decree for double bunking in jail is consistent w/stated factors, including what the parties knew going into the decree & what the circums are now - incentive to argue that parties’ views differed going into the decree

3. Rufo inquiry : whether modif is (i) appropriate (ii) tailored to changed circums(1) modif approp : (i) changed factual conds make compliance

substantially more onerous (ii) decrees prove unworkable b/c of unforeseen obstacles (iii) enforcement w/o modif is detrimental to public interest (iv) parties’ oblig became impermissible under fed law (v) statutory/case law changed to make legal what the decree was designed to prevent (vi) decis clarifies the law & shows parties based agmt on misunderstanding of govn’g law

(2) no modif : (i) party relies on reasonably foreseeable events - heavy burden to show decree agreed to in good faith, reasonable effort made to comply, & ct should give relief under R.60(b) (ii) modif would defeat the purp of the decree (iii) mere clarif of law

(3) factors in eval proposed modif to determine whether it’s suitably tailored to the circums - modif must (i) not create/perpetuate constit viol (ii) only resolve probs created by change in circums, to the extent equity reqs, not rewrite decree to conform to constit floor, i.e., Δ can consent to provis that go beyond π’s rtful position, but can’t relitig the minimum constit remedy on a subseq mot to modify (iii) defer to local govt admin to implement modif - finan constraints are legit concern & can be considered in tailoring

4. Swift   grievous wrong standard overruled as to (a) requests to modify consent decrees stemming from instit reform litig, Rufo (b) cases where genuine changes req modif of consent decree (c) decree fails to achieve its central purp & party seeks modifs to achieve that purp, United Shoe Mach. (1) Swift standard : nothing less than a clear showing of grievous wrong

evoked by new & unforeseen conds is req’d for modif

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Remedies Infelise, Spring 19983. modification of school desegreg orders : proper standard for modif is whether the

sch bd complied in good faith w/the desegreg decree since entered, & whether vestiges of past discrim were eliminated to the extent practicable, Dowell 1. sch desegreg decrees aren’t permanent b/c imp to return control of schools

to local auth: judic supervision is lmt’d to the transition to nondiscrim sch2. Freeman v. Pitts : (i) proximate causal link req’d, so illegal de jure segreg

must be the cause of racial imbalance or segreg, not priv choices & demographic forces that cause population change but have no constit implications (ii) causal link is more attenuated w/time, intervening demographic changes, & sch dist’s good faith

28. injunctions against the state 1. ordering tax increases : cts rarely order tax increases, but all instit reform cases order

expenditures that are large & will req taxes or closing of instit if unable/unwilling to run instit constitutionally 1. Missouri v. Jenkins : freewheeling approach to rtful position - fed ct can order local

govt to tax in excess of limit set by st statute if there’s a constit reason not to observe the statutory limit, but this dist ct abused discretion by ordering increase in st income tax & sch dist’s prop tax to pay for prior order to desegreg b/c alternative to tax hike existed 1. authorizing local govt instits to devise & implement own remedies protects

func of those instits & places resp for solutions to probs on whose who created the probs

2. no constit viol : (i) 10 th amend - not implicated by fed ct order enforcing prohibs of unlawful st conduct enacted by 14th amend (ii) 11 th amend - order doesn’t go back in time, but no pt to 11th amend if it’s possible to sue st officials & go so far as ordering taxes to be raised

3. args con : (a) need change in st law or fed ct order to increase prop taxes (b) sep of powers prob - taxation isn’t a judic func (c) imposing higher taxes viols due process b/c it binds an entire class of taxpayers who aren’t parties to the case (d) neutral tax limits don’t viol Constit so no remedy necessary

2. US v. Bd of Sch Comm’ners : ct granted mot of suburban sch dists to order st to pay entire cost of metropolitan sch desegreg plan b/c st was only wrongdoer - payment was in addition to other aid to affected sch dists & didn’t discrim reduce aid as to other dists

2. sovereign immunity law : no retrospective injunc relief may be awarded against the sts, Ex parte Young, but parties can sue st officials & force them to act in a way that looks like retroactive relief against the st, Edelman 1. 11 th amend : judic power of the US shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the sts by citizens of another st, or by citizens or subjects of any foreign st

2. old rule : sts are immune from suit in fed ct by their own citizens as well as those of other sts - total immunity from injuncs & damages threatened ability to enforce Constit against the sts, unless the sts voluntarily made themselves available for suit in st ct, Hans

3. Seminole Tribe : st sovereign immunity is a constit rt of sts that can’t be overridden by Cong enactment of legis under its art 1 powers, so sts can’t be held resp in fed ct

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Remedies Infelise, Spring 1998for viol CERCLA, even though sts are among the biggest class of pollutors - overruled Union Gas

4. ways to enforce rts against sts include (i) raise constit rts as a defense if the govt sues the citizen (ii) suits against officers, Ex parte Young (iii) waiver by st

5. Ex parte Young rule : party can sue st officers in their official capacity (i) to make him exercise or refrain from some power of his ofc, or (ii) sue in his personal capacity to make him pay compensation from his own pocket1. legal fiction : an official acts illegally by using the st’s name to enforce a

legis act that’s unconstit void, so he’s stripped of official character & subj to conseqs of indiv acts(1) args against : (a) if all officers can be enjoined, it’s the same as

enjoining the st (b) if really acting as an indiv, there’d be no 14th amend viol b/c act wouldn’t be st action (c) if sued as indiv, suit would continue against him when he left ofc, instead of automatic substitution of successor

2. personal capacity : official is protected by qualified, not absolute, immunity, so only liable if violate clearly settled law, but suit continues against him personally if he leaves ofc & π can collect from his personal assets(1) Harlow : qualified immunity doesn’t extend to priv Δ acting under

color of law6. Edelman rule : fed cts can award prospective injunc relief against the sts, but can’t

award retroactive money judgment that reqs payment of funds from st treasury - prevents Young from swallowing up the rule of 11th amend 1. Edelman : order for st to pay all welfare benefits w/held in delay in

eligibility process viol 11th amend b/c $ must come from st gen revenues, so order is like $ J

2. limited exception : fiscal payment from st treasuries is permissible if necessary to comply w/ an order for prospective injunc relief, Graham, Goldberg

3. fines for violating injuncs : 11th amend bars $ judgments but not ct use of contempt power to impose $ fines against sts that viol injuncs

4. structural injuncs : possible to get $ from sts in the form of an injunc b/c indirect

5. practical effect on st oblig to comply w/Constit : time lag provided so sts can viol Constit until someone files suit against them & injunc issues b/c won’t have to pay damages retroactively

6. no selective nonretroactivity : any decis applied retroactively must be applied to all other persons whose claims aren’t otherwise barred, Harper

7. waiver by st : sts allow themselves to be sued in st ct b/c a cond for fed funds, but waiver of protection only found if stated by express lang or overwhelming implication, Murray 1. clear statement req applies to legis waivers of st/fed immunity as well as

Cong overrides of st immunity, & is strictly upheld8. other limits on sovereign immunity

1. injunc relief restricted when govt would rather pay damages2. fed interest req’d : alleg that st officers violated st law doesn’t strip them of

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Remedies Infelise, Spring 1998auth & suit is against the st - Young is only justified by a need to vindicate fed rts, & fed cts telling st officials how to comply w/st law would violate st sovereignty

3. attorneys’ fees : once issued, injunc can be enforced against noncompliance w/ sanction of atts’ fees award, Hutto

4. doctrine of discretion to be wrong : decis of st official who is empowered to decide for govt is the govt’s decis, & even if wrong he isn’t stripped of auth & the suit against him is really against the govt, Larson (1) limit to claims against govt, but uncertain scope : some decis are

committed to the officer’s discretion, other to the cts or expressly resolved by statute, & no reliable way to tell which

9. theme in gov’tal immunity law : injuncs are preferred remedy b/c damages (i) are dangerous intrusions into legit operations of govt that need restriction (ii) inadeq if harm inflicted by immune Δ b/c such harm is irreparable injury, Toomer 1. but not all prospective relief is equit & not all retrospective relief is legal

(1) damages not awarded for systemic viols of Constit : injunc is de facto exclusive remedy, w/ no damages or w/sharply lmt’d compensation (1) damages also lmt’d in priv law: statutes limit amt of tort

damages or make them noncompensable even when clearly suffered

(2) but compliance w/injuncs may cost $, esp w/structural injuncs(1) Milliken II : remedial educ order cost $6 mill & was

compensatory in nature, but pgms were part of a plan that worked prospectively to bring about the delayed benefits of a unitary sch sys

2. exceptions : (a) Ks - Cong & most sts consent to suit for damages but assert sovereign immunity as to specific perf (b) tax litig - sts prefer to collect $ & make taxpayer sue for refund, but must provide retrospective remedy b/c payment is before adjud

29. preliminary injunctions 1. cf. perm injuncs : (1) Δ is adjudicated wrongdoer & π is his victim, so π wins unless

hardship to Δ is substantially disprop to the benefit, & sometimes even then (2) sep hr’g for perm injuncs usually not necess b/c leverage gained from issuance of injunc causes most cases to settle - short circuit of due process rts b/c case essentially decided at 1-day prelim hr’g, not in full trial?1. choice to grant/deny prelim injunc may be choice (i) btwn injunc & damages as to

harm that will accrue before trial (ii) btwn injunc & no remedy at all for such harm if π is interim damages is unlikely to be claimed or proven (iii) whether to grant no remedy at all, i.e., victory for Δ (iv) btwn prelim injunc & perm injunc

2. equity vs. law : prelim relief often granted in equity, but nearly absolute rule against granting prelim relief in damage cases

3. standard of review : orders issuing/denying prelim injuncs rev’d only if dist ct abused its discretion or based its decis on erroneous legal premises

4. function of prelim injuncs : preserve the status quo to the time at which litig began, pending a determination on the merits (cf. Lakeshore, rejecting rule)

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Remedies Infelise, Spring 19981. continuous activity : if the status quo is the parties engaged in continuous activity,

& ceasing the activity will cause irreparable harm, a prelim injunc is proper2. last peaceable uncontested status quo is the status quo that counts: Δs can’t avoid

prelim injunc by wrongfully changing the status quo before π has an opportunity to sue1. cts & parties may have diff views of what the status quo is

5. trad criteria : (1) strong likelihood of success on the merits (2) possibility of irreparable injury to π if prelim relief isn’t granted, & (3) balance of hardships favoring π [& (4) advancing public interest] 1. irreparable injury req : (a) disappears in some cases (b) risk of injury must be suff

great & irreparable to override the risk of error & Δ’s rt to due process, so cts often find that damages are adeq remedy for injuries they would consider irreparable after trial1. bankruptcy meets the standards for irreparable injury for interim relief b/c

otherwise a favorable final J is useless, Doran 2. Lakeshore Hills : prelim injunc compelled Δ to remove his black bear from his prop

b/c (i) π has no adeq legal remedy b/c of risk (ii) threat of harm outweighs inconvenience to Δ (iii) π is reasonably likely to prevail b/c covenant restricted residents to household pets (iv) grant of injunc protects the public

6. balancing test : (i) combination of probable success on the merits & possibility of irreparable injury, or (ii) serious quests are raised & the balance of hardships tips sharply in its favor1. sliding scale of success & injury : π who shows he’s likely to win needs to show

less injury1. probable success on merits irreparable injury can show less of

anything else2. balancing of relative hardships in light of relative probability of success, i.e., harm

to Δ if erroneously granted vs. harm to π if erroneously denied - necess b/c wrongdoer not ID’d yet1. cf. perm injuncs : Δ is adjudicated wrongdoer, so π wins unless hardship to

Δ is substantially disprop to benefit, & sometimes even then3. LA Memorial Coliseum Comm’n : rev’d grant of prelim injunc b/c (a) Coliseum

failed to show irreparable injury - lost profits aren’t irreparable b/c compensable by damage award & still had UCLA & USC teams (ii) harm to Δs not balanced against π’s threatened injury

7. Leubsdorf : prelim injunc standard should try to minimize the probable irreparable loss of rts caused by errors incident to wrong decis, i.e., weigh the irreparable injury to each side from an erroneous order by that side’s probability of success on the merits1. P x Hπ > (1-P) x HΔ

1. probability of erroneous denial weighted by the harm of denial to π > probability of erroneous grant weighted by cost of grant to Δ

2. harms to 3d parties can be considered part of public interest, & added to Hπ or HΔ

8. injunction bonds : under FRCP 65(c), to issue TROs or prelim injuncs, π-applicant must pay a bond or equiv security order in the amt deemed proper to ensure π will be able to pay all or some of the damages that Δ incurs if it turns out to have wrongfully restrained or

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Remedies Infelise, Spring 1998enjoined Δ1. bond req is discretionary in fed cts: (i) amt is discretionary & could be made

nominal, so waiving it altogether isn’t diff (ii) πs may not be able to afford injunc bonds b/c insurers care only about the risk that π can’t pay, not the risks of litig, City of Atlanta

2. maj rule : prevailing Δ is entitled to damages on the bond unless there’s a good reason not to require π to pay in the particular case, Coyne-Delany1. rationale : makes law more predictable, discourages seeking of prelim

injuncs on flimsy grounds, & acts as deterrent to πs2. good reason exceptions : (a) Δ failed to mitigate damages (b) π is indigent

(c) change in applicable law - not always a ground to deny costs & injunc damages to prevailing party, but a legit consid, esp if prevailer is a st agency that benefited from a change in the law of its st(1) π’s good faith in bringing action isn’t suff reason to deny Δ costs or

damages on an injunc bond3. damages to Δ must stem from wrongful prelim injunc, not just from litig4. in fed ct, Δs can’t recover atts’ fees for wrongful injunc 5. liability on the bond isn’t equated w/whether the prelim injunc issued

properly b/c otherwise equate likelihood of success w/success3. amt of bond is the limit of damages Δ can obtain from π for wrongful injunc ,

except if (i) π acted in bad faith (ii) π sought restitution, not damages, Coyne-Delany (only narrow discretion to waive req) 1. rationale : (a) if π’s damages are lmt’d to amt of bond, he knows what his

exposure is when ct sets bond, & doesn’t risk unlmt’d liability should Δ win (b) Δ can ask apps ct to increase the amt of the bond

2. π isn’t liable apart from bond, except : (a) liability imposed by st statute (b) π is clearly unable to pay damages - π who gets waiver of bond risks larger cost of forgoing a cap on their liability if the injunc is wrongfully issued (c) some indep ground of liability exists, such as malicious prosec or abuse of process

4. factors to determine amt of bond : (i) potential loss to Δ (ii) finan hardship to π (iii) public importance of the rt being enforced (iv) likelihood of success on the merits (v) fear that req’g security would effectively deny access to judic review

9. temporary restraining orders : func is to prevent irreparable harm that will occur even before a prelim injunc hr’g can be held1. Δ’s options once TRO issued : (i) compliance (ii) defiance (ii) motion to modify it2. types of harm (a) TRO - harm before trial that’s inevitable& irreparable,

considering (i) how severe the harm (ii) risk of error in trying to avoid that kind of harm (b) harm that could be prevented

3. FRCP 65 : notice to adverse party is req’d unless (1) affidavit or verified compl show immed & irreparable injury, loss, or damage will result before the adverse party or its att can be heard in opposition, & (2) applicant’s att certifies to the ct in writing his efforts to give notice & the reasons notice shouldn’t be req’d1. TROs last 10 days from day notice is given & hr’g for mot for prelim

injunc is ASAP2. party restrained w/o notice can appear & move for dissolution or modif of

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Remedies Infelise, Spring 1998TRO on 2 days’ notice to the applicant

3. applicant must find Δ after issuance of TRO to tell him it exists b/c Δ isn’t bound by an order he doesn’t know about - but informal notice may be enough

4. TROs aren’t appealable, although FRCP 65 doesn’t mention4. ex parte TROs are presumptively unconstit unless a showing is made that it’s

impossible to serve or notify the opposing parties & give them an opp to be heard - very rare for judge to allow TRO w/o notice for 10 days1. rationales : (a) value of adversary judic proceed is participation of both

parties in evid & arg - aids judic J, & self help by police prevents that (b) TRO in 1st amend free expression area must be tailored in narrowest terms to meet the exact needs of the case under the Constit & public order, & participation of both sides is necess for that purp - TRO w/o notice is an unconstit sys of prior restraint of expression

2. Carroll : invalidated 10-day ex parte TRO against rally of white supremacist organiz b/c no reason for lack of notif - Δs were present & their ability to move for dissolution of TRO post-issuance couldn’t rescue their planned rally before that(1) case involving expired TRO isn’t moot if the underlying quest or

issue persists & is agitated by the continuing activities of parties(2) Δs who violate injunc order can’t defend contempt charges by

asserting the unconstit of the injunc, no matter how well-founded their doubts as to its invalidity - must seek judic review of the injunc & not disobey it

5. TRO continued beyond 10 days is treated as a prelim injunc & must conform to the standards of a prelim injunc1. rationale : (a) principle of strict limits on the scope of TROs (b) dist ct can’t

shield TROs from app rev by designating them as TROs instead of prelim injuncs

2. Granny Goose : Δ could violate TRO issued w/informal, same day notice after 10 days b/c didn’t exist anymore unless Δ was held to have consented to it

3. Sampson : rev’d TRO enjoining dismissal of GSA probationary employee who was discharged from job pending pursuit of admin appeal b/c no irreparable injury suff to override rule against granting prelim injuncs against the govt in personnel or personal serv Ks (1) factors (a) disruption of ofc & admin process (b) adeq of back pay -

temp loss of income isn’t irreparable b/c adeq compensation available under Back Pay Act (c) no significant loss of reputation b/c admin determ could req agency to conform to reguls

6. hr’g on motion for TRO/prelim injunc : judge can consolidate trial w/prelim injunc hr’g if both parties clearly understand1. scope of hr’g : depends on complexity & urgency of case, no of witnesses &

exhibits - facts must be suff developed to allow intelligent decis, but cts split as to whether findings of facts & concs of law are req’d for TROs, but TRO must at least comply w/Rule 65(d) req for reasons

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Remedies Infelise, Spring 19982. evidence : once admitted at prelim hr’g, can be considered at trial w/o repeat3. affidavits : admitted to est un/disputed facts - when facts are disputed, cts

split as to whether party has strong rt to a hr’g or choice btwn affidavits & live witnesses is discretionary

7. appellate review 1. apps ct reviewing an order granting/denying a prelim injunc can decide the

merits & enter a final J in rare cases where the facts are established or of no controlling relevance, Thornburgh (1) trad view : inapprop to give final J on the merits at the prelim injunc

stage b/c less formal proced & evid is less complete2. no order is appealable before final J

(1) 28 USC §1292(a)(1) & st statutes allow appeals from interlocutory orders granting, continuing, modifying, refusing or dissolving injuncs, or refusing to dissolve/modify injuncs(1) rationale : interlocutory orders (orders before final J) may do

irreparable harm before appeal from final J is heard(2) orders granting/denying TROs : (A) not appealable b/c last

too short a time, judge has heard little of merits, & trial judge can give relief from erroneous order faster than apps ct (B) appealable as final Js when they effectively dispose of the entire case

(2) request for stay or injunc pending appeal : if Δ thinks injunc order is erroneous & will do irreparable harm before appeal is heard(1) judges at all levels can stay an injunc until it can be

reviewed, or issue an injunc until an order denying it can be reviewed

(2) must request stay or injunc pending appeal from dist ct, then ct of apps if denied, then SCt if denied: single judge can act for ct of apps & SCt, but justices informally consult other justices

(3) standard : same as prelim injuncs, w/approp deference to decis below, but SCt considers probability of success on the merits & that 4 justices will consider it imp enough to review

DECLARATORY REMEDIES: preventing harm without coercion

30. declaratory judgments : requests statement of rights before the rights are violated but after some disagreement btwn the parties has made it ripe 1. substitute for injunc , but poor relief b/c reqs 2 actions to enforce: (1) declaratory

judgment, & (2) motion for injunction if decree issued after suit for declaratory judgment is violated

2. constit ripeness req : declarations of status are prohibited - actual case or controversy req’d, although no damages or injuncs are req’d & method of procedure by which fed rts are invoked & brought to final adjud is irrelevant1. burden : movant has the burden of establishing the existence of an actual

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Remedies Infelise, Spring 1998case/controversy

2. Wallace : upheld justiciability of suit for declaratory J that a st gas tax was invalid under the commerce cl as applied to π - but Ct aff’d dismissal b/c tax was permissible burden on interst comm b/c π used gas is an instrument of interst commerce

3. Wycoff : suit for declaration that hauling bus was interst comm wasn’t ripe b/c π didn’t ask for adjud on a rt to do or have anything, or for J that st comm’n lacked power to enter any specific order or take any regulatory step

4. rationale for req : ct is concerned w/substance, not form - award of injunc or other relief isn’t req’d for exer of judic func & sts are free to regul their own judic proced

3. Uniform Act : widely adopted by sts & the basis of fed declaratory J act, 28 USC §§2201-21. §6 : declaratory J may be denied if it wouldn’t terminate the uncertainty or

controversy giving rise to the proceeding1. Dodson : suit for declaratory J that will of living person was invalid wasn’t

ripe b/c it couldn’t be resolved - person could revoke will & write another(1) some st statutes allow declaratory J that one’s own will is invalid

2. §12 : act’s purp is to settle & afford relief from uncertainty & insecurity w/respect to rts, status, & other legal relations

3. no irreparable injury req : under §1, cts can declare rts whether or not further relief is or could be claimed, & under FRCP 57, the existence of another adeq remedy doesn’t preclude a J for declaratory relief in cases where it’s approp

31. declaratory Js & injuncs in the face of threatened suits : Δ who counterclaims for declaratory J presents a claim indep of π’s original charge if the ct has juris to entertain the countercl, Cardinal1. Cardinal Chem. : case/controversy adeq to support juris for declaratory J exists if (a) party

seeks to avoid a scarecrow patent, or potential π who asserts infr claim for $ settlement or control of Δ’s behavior but doesn’t file suit (b) Δ charged w/patent infr counterclaims for declaratory J of invalidity - invalidity claim is indep of infr claim

2. comparison to injunctions 1. injunctions : (a) must prove real threat that conduct is likely to occur (b) potential

Δs can sue to enjoin a potential π from filing suit2. declaratory judgments

1. must prove ripeness, but lower std than for injuncs 2. declaratory J becomes res judicata, allowing π to get an injunc3. uncertainty & actual controversy necess for declaratory J may be less than

the irreparable injury necess for an injunc4. declaratory J often suffices when express coercive threat of injunc is

unnecess3. expense factor : potential Δs seek declaratory Js b/c continuing threat of suit may be more

valuable to potential πs than actual suit for infr & may affect Δ’s behavior1. unconstit statutes : in Wallace, RR sued for declaratory J that taxes were unconstit

instead of w/holding payment & waiting for st to collect b/c probably penalties for nonpayment that would cumulate if litig were delayed

2. constit rts : choice btwn forfeiting asserted constit rts or risking penalties1. Ex parte Young : RR sued to enjoin enforcement of RR rate law- complying

w/law would forfeit constit rts, which are irreparable b/c hard to value & Δ

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Remedies Infelise, Spring 1998is immune from suit, & avoidance of irreparable harm by viol law risked criminal penalties that also inflict irreparable injury

4. link btwn irreparable injury & fed juris : a fed quest in a well-pleaded compl confers fed juris, but a fed defense doesn’t, so a party that wants to litigate in fed ct may have to file its own suit alleging state law viols constit rts - can’t remove to fed ct by defending in suit by st to enforce its law1. fed π can seek prelim injunc to prevent enforcement of st law pending declaratory J

action - dilemma of forfeiting rts or risking penalties shows the req’d irreparable injury

32. declaratory Js & tactical adv : (1) tactics is motive when π sues for declaration about completed event - purp to resolve uncertainty on which future conduct may depend (2) Δ resists declaratory relief if he benefits from prolonged uncertainty (3) forum shopping1. M/V Capt WD Cargill : ct dismissed suit for declaration of nonliability b/c it was based on

motive of forum shopping2. potential personal injury Δ can’t sue for declaratory J of nonliability : π is entitled to

choose forum1. possible exception : declaratory action serves purp other than forum shopping

3. declaratory judgments are dismissed if π has available another action that would immed resolve the controversy, but that action is subj to some obstacle1. Lister : suit for refund of tuition would’ve been barred by sovereign immunity - ct

held st’s immunity can’t be evaded by declaratory suit against univ officials2. New Eng Milk Dealers Assoc : dismissed suit for declaratory J that FDA order was

invalid b/c πs tried to evade 20 day deadline to file pet’t for judic rev of order by filing compl 43 days after entry of order

3. Skelly Oil : dismissed suit for declaratory J on the effect of a Fed Power Comm’n’s order b/c fed juris not created so easily - suit was st breach of K case

4. Transamerica : suit by ins co for declaratory J that killing by insured wasn’t covered b/c it was intentional, not negl as alleged, was premature - insurer had to defend wrongful death claim w/o defending that killing was intentional b/c att has duty to the insured, but can defend under a reserv of rts & refuse to pay J

ANCILLARY REMEDIES

33. enforcing the judgment : many Δs are unable or unwilling to pay judgments, so cts use interlocutory remedies to help implement another remedy, including contempt power, which enforces coercive ct orders1. elaborate system to ensure compliance w/injunctions, but not w/damages

1. harder to police injuncs that involve intangible assets or behavior, not tangible $2. necessary to exercise of cts’ inherent authority - once injunc issues, ct has put itself

on the line & has an interest in obtaining compliance, & society has in interest in ensuring that people do what the ct tells them to do 1. but contempt power is liable to abuse b/c judge alone is responsible for

identifying, prosecuting, adjudicating, & sanctioning the conduct3. amt of Δ’s bond = amt of damages + 50%: Δ goes to bond agency to show

liquidated assests = 1.5x the bond amt & pays 1-2% interest2. options to enforce $ judgment : (1) take judgment & go to every juris where Δ may have

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Remedies Infelise, Spring 1998real property (2) UCC Form 1 - makes Δ’s personal property subject to judgment if no real property is available (3) hire investigators to find bank accts

34. criminal contempt : criminal punishment for past offense that’s not conditioned on future compliance - can begin by notice b/c indictment not req’d, but Δ gets substantially all protections of criminal proced, includ proof beyond a reasonable doubt, double jeopardy protection from sep prosecs for criminal contempt & underlying criminal offense, no sentence beyond 6 mos in jail w/o jury trial, & no fines over $500 w/o jury1. purpose : punitive b/c in public interest to vindicate ct’s authority, & deters others from

viol ct order2. limits to criminal contempt : (i) constit safeguards (ii) st statutes - lmt penalty to nominal

fines or petty jail terms 1. criminal jury trial req’d w/proof beyond a reasonable doubt if (i) ct delays

punishment for direct contempt in the ct until after the trial (ii) indirect contempt outside of ct1. Bagwell : cumulative, per day fines for widespread, ongoing, out-of-ct

violations of injunc by striking union were criminal & entitled union to criminal jury trial - insuff for ct to just announce penalty for future contempts(1) Ct held that fines were criminal b/c union couldn’t reduce or avoid

them through compliance & the conduct occurred outside the ct’s presence, so it didn’t implicate the ct’s ability to maintain order & adjudicate the proceeds

2. mens rea : offense is complete when Δ willfully viols injunc, even if injunc is later held erroneous - even inadvertent viols are civil, but only willful viols are criminal

3. restrictions on ability to hold in jail4. can’t negotiate changes to contempt order after it’s made - prison term is

determinate3. fines : payable to the govt4. plaintiff : criminal contempt is prosec in sovereign’s name, & civil π is complaining

witness who can rept contempt but can’t req ct/prosec to proceed criminally or stop them if he settles the case- loss of control by π

5. collateral bar rule : Δ can’t challenge validity of injunc in prosec for criminal contempt6. 18 USC §401 : fed cts have power at its discretion to punish by fine or prison any contempt

of its auth as (1) misbehavior of any person it its presence or so near as to obstruct admin of justice (2) misbehavior of officers in official trans (3) disobed or resistance to its lawful writ, process, order, rule, decree, or command1. unclear whether statute applies to civil contempt : part of criminal code, limits

power to punish, & doesn’t mention power to coerce or compensate, but SCt has assumed it applies to both1. Penfield : statute auths only fine or prison - Δ can be jailed for civil

contempt or fined for criminal, but can’t be fined & imprisoned for the same kind of contempt by itself

2. Griffin : inherent contempt power derived from Constit that goes beyond §401 - maj suggests lower cts have same power

2. st statutes : may impose more severe limits on contempt sanctions - cts have struck down such statutes for infringing ct’s inherent contempt power

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Remedies Infelise, Spring 19983. if act viols injunc & a criminal statute : (i) 18 USC §3691 - jury trial req’d (ii) 18

USC §402 - punishment for contempt lmt’d to 6 mos jail & $1000 fine, so total cumulative punishment lmt’d, as is ct’s ability to go beyond max statutory punishment by issuing injunc (iii) above statutes don’t apply to coercive contempt & don’t apply when US is the π

7. equity won’t enjoin a crime, but exceptions : (i) criminal prosec is inadeq remedy if penalties are too small to deter or the threatened crime so serious that no viols can be tolerated (ii) criminal penalties are incidental to a primary enforcement proced that’s admin (iii) crime is also a nuisance or tort

8. corps/labor unions : (i) jury trial rts depend on case-by-case determ of seriousness of fine in light of Δ’s finan resources (ii) Norris-LaGuardia Act - deprives fed cts of juris to enjoin strikes, but doesn’t prev fed injuncs against unlawful tactics

35. civil contempt : distinction btwn compensatory & coercive contempt depends on the form of sanctions & proceed, not judge’s purps/motivations or the contempt, i.e., nature of Δ’s act 1. in general

1. purpose : remedial for the benefit of the complainant2. standard of proof : must prove viols by clear & convincing evid, & collateral bar

rule doesn’t apply b/c π isn’t entitled to benfit from erroneous injuncs3. plaintiff : civil contempt is prosec in π’s name & largely controlled by π, so he can

abandon/settle it up to a pt4. special comm’ner : prosec or a member of the bar is appt’d to collect fines in

criminal contempt & in civil when π tries to settle 1. Young : can’t appt π’s att as special prosec b/c conflict of interest - att owes

duties to client that may conflict w/proper exer of prosec discretion2. fed cts can appt special prosec only if US Att declines to prosec

5. fewer restrictions : (i) no restriction on length of prison time (ii) can be imposed in civil proceeding on notice & opp to be heard in hr’g (iii) no req for jury trial or proof beyond a reasonable doubt1. no jury trial for civil contempt proceedings : b/c ancillary to the injunc suit,

so Calif rejects compensatory contempt & reqs filing of ordinary action for damages by π, who may want jury or to avoid req of clear & convincing evidence

2. compensatory : compensates π through $ damages for losses caused by Δ’s past acts of non-compliance or disobedience of ct order - ct reqs evid of damages1. result is money judgment - not even a remedy b/c remedy is collecting $ J2. π can also recover Δ’s profits if profits are an approp measure of recovery for the

underlying wrong3. irony : injunc only issued b/c damages were inadeq remedy - after Δ viols injunc,

injury is irreparable & damages inadeq, but the best the ct can do3. coercive : aid π by coercing Δ into complying w/ct orders in the future by setting out in

advance penalties paid to the govt that the ct will impose if the party fails to comply in the future - ct can impose penalty for past refusal to conform if conditioned on continued failure to obey, or fine a set amt for each day of non-compliance, i.e., Δ is coerced to comply b/c is penalty bigger if he doesn’t1. steps : injunc issued, Δ viols injunc, Δ found in contempt, coercive sanction

announced, ct enforces coercive sanction - but some cts may clarify an order or

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Remedies Infelise, Spring 1998make it more specific before finding contempt, or find Δ in contempt & allow purging of contempt by doing A, B & C, which turn out to be more detailed specifs of the obligs of the original injunc1. difficult to distinguish criminal contempt from civil coercive contempt b/c

most contempt sanctions to some extent punish prior offense & coerce future obedience(1) inquiry : character of relief, not subj intent of st laws (i) criminal -

imposed retrospectively for past act of disobedience & contemnor can’t avoid or shorten prison term by later complying (ii) civil -

2. mens rea : even inadvertent violations of injuncs are civil contempt, but only willful violations are criminal contempt, Blevins Popcorn

3. moderate threats more effective : better if threat isn’t so great that Δ doubts ct’s will to carry it out or there’s no room for further escalation

4. fines must be collected : cts must have power to enforce orders by using coercive, civil sancs, or dignity of law & public respect for judic affected1. Clinchfield Coal : civil coercive fines must be collected - ct has discretion to

force payment even if priv parties settle the underlying civil litig & even if payable to the st or its counties - ct’s auth can be vindicated in subseq criminal proceeds

5. Δ’s wealth : relevant to size of coercive fines b/c ct must decide how much it takes to deter this Δ - fines per day or per viol make it harder to assess ability to pay b/c don’t know how long or many times Δ will viol injunc, so Δ is entitled to reduced fine if it accumulates to unduly burdensome levels

6. prison : simplest form of coercive contempt, used until Δ complies - easier than fines, which accumulate & must be collected later, but disadv is that some injuncs can only be obeyed if Δ is at large, prison is expensive, imprisoning a few leaders creates martyrs, & judges reluctant to jail peons1. no rt to jury b/c Δ can leave whenever he wants by complying2. prisonment can only be used as coercive measure, not as punishment : once

prison loses its coercive power, legal justif for it ends, & further confinement is prohibited - but ct can turn to criminal contempt if coercive contempt has lost coercive power(1) inquiry : whether there’s substantial likelihood that further

imprisonment will serve any coercive purp, considering on case-by-case basis factors like age, health, & length of jail time - release isn’t automatic just b/c Δ says he won’t talk & has been confined for a particular length of time(1) In re Crededio : ct can consider risk of undermining coercive

contempt sanction, & determ is virtually unreviewable(2) Catena ct found it impractical to eval moral worth of reason

for stubborness, but thought it practical to determine that stubbornness was irrevocable

(2) Catena : released 73-yr old Δ b/c jail didn’t force him to testify on mob after 5 yrs & wasn’t likely to accomplish that purp - can’t be used to punish for remaining silent(1) ct req’d live testimony of Δ, but other cts consider affidavit

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Remedies Infelise, Spring 1998of witness suff, Simkin

3. 28 USC §1826 : fed witness who refuses to testify can only be held 18 mos, even in coercive contempt & even if testimony is still needed - & often move for release before 18 mos b/c no substantial likelihood witness will testify

7. defense to contempt : Δ is incapable of complying w/injunc - ex. Δ does not have $ assets or prop to turn over to π1. Δ bears burden of proof: outcome depends on whether ct believes Δ’s story

of losing or dissipating the prop, & denial is credible if Δ doesn’t produce the prop after a long pd in jail - trial judge should believe him even if he didn’t originally

8. Yonkers case : SCt rev’d contempt sanctions against indiv Δ-councilmen, but refused stay against city for repudiating public housing consent decree, allowing payment of fines of $1 mill/day as they accrued until councilmen changed votes & the ordinance to implement consent decree was enacted1. ct had power to order ordinance into effect w/o council vote, & had

discretion to order council to adopt it - wanted city to face resps2. ct rejected 1st amend arg that attempt to coerce council vote violated free

speech rts of members, cf. Clarke3. cts invoking contempt power exer least possible power adeq to the end : Ct

held sanctions for refusing to enact ordinance only ran against city, not councilmen b/c likely to be suff & personal sanctions only should be considered if sanctions against city failed after a reasonable time

9. institutional reform : ct has flexible range of inducements/sanctions to influence & target behavior, includ civil/criminal contempt, awarding atts’ fees, excluding Δ from aspect of remedial planning, closing instit, removing officer, appt’g receiver1. tactics : utility of sanctions depends on severity & credibility - to use threat

as inducement to action, judge must appear ready to carry out threat, but maintain flexibility to avoid damaging action if threat fails in its obj - fear of losing credibility may outweighs concern for effectiveness of threat itself

2. govt Δs : cts rarely exer contempt power against govt Δs b/c (i) don’t want to create martyr (ii) imputing personal guilt conflicts w/idea that systemic & impersonal factors cause instit failure (iii) potential obj of contempt is often the one whose continuing cooperation is necess to implement injunc

3. officials : cts rarely displace noncomplying official’s auth b/c alienates other polit allies, exacerbates dislocation, successor may not behave diff, & app cts are likely to vacate as excessively intrusive b/c less disruptive sanctions are usually available

4. closure of instits : often threatened, but rarely ordered b/c causes serious dislocations, so selective closure more practical - but advs are (i) directly redresses viols (ii) inconvenience to Δ of making alternate arrangements (iii) remedial quality gives threat of closure further credibility

10. anticipated injuncs : ct can use injunc to restore status quo if Δ w/notice of injunc proceed completes the act sought to be enjoined1. risk to lawyer : if ct counsels that conduct is permissible but later can

penalize att for conduct, att must choose btwn potential for malpractice

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Remedies Infelise, Spring 1998claim for improper counseling or big fine/prison b/c he doesn’t know w/certainty what ct would do - Infelise says Griffin can’t be the law b/c suggests this but puts att in no win position

2. Griffin : destruction or removal of subj matter of pending appeal beyond the ct’s control/juris was contempt, regardless of whether injunc was issued b/c it was resistance to live process of app - mens rea for violating ct’s wishes was met b/c worked through the night knowing that ct would prohibit their conduct(1) Bd of Supervisors’ circumvention of ct request to stipulate that no

tuition grants be paid pending app was civil contempt although no injunc issued b/c aim was to resist any adverse decree that would result from pending app

(2) ct extended 18 USC §401(3), prohibiting resistance to a ct’s lawful writ, process, order, rule, decree or command - app is a process

3. Merrimack : Δs won case in SCt, but held in contempt b/c didn’t wait to see if there’d be pet’t for rehr’g

4. inconsistent rules : (i) viol of declaratory J isn’t contempt b/c isn’t viol of judic decis that an explicit command (ii) order that approves settlement agmt, w/o more, doesn’t order parties to comply & writing “so ordered” on settlement agmt is reversible error - Δs want K instead of consent decree to avoid exposure to contempt power (iii) injuncs must be in writing - not contempt to viol oral order

5. inherent judic power : if Δ completes an act he had notice would be enjoined, ct may invoke inherent judic power to punish as bad faith litig tactics instead of invoking contempt power, Chambers

6. Kleiner : violation of class mgmt order isn’t an injunc but is punishable by contempt & subject to collateral bar rule

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