RemediesChapter 8: Ancillary Remedies
REMEDIES I
Outline
Professor Laycock
Fall 2001
Table of Contents
Course Overview
CHAPTER 1: INTRODUCTION
THE ROLE OF REMEDIES
CLASSIFYING REMEDIES
Compensatory Remedies
Preventive Remedies
Coercive Remedies
Declaratory Remedies
Restitutionary Remedies
Punitive Remedies
Ancillary Remedies
LEGAL AND EQUITABLE REMEDIES
CHAPTER 2: PAYING FOR HARM: COMPENSATORY DAMAGES
THE BASIC PRINCIPLE OF COMPENSATORY DAMAGES: RESTORING PLAINTIFFS TO THEIR RIGHTFUL POSITION
United States v. Hatahley:
Rightful Position
Rationales for Rightful Position
Corrective Justice:
Economic incentives:
Precision:
One satisfaction rule:
VALUE AS THE MEASURE OF THE RIGHTFUL POSITION
U.S. v. 50 Acres
Fair Market Value
Net Present Value
Exception 1: Unique value to owner
King Fisher Marine v. The NP Sunbonnet
Value to owner that’s not recoverable
Value to owner less than FMV
Charter Oak v. Color Conv. Ind.
Exception 2: Replacement Cost allowed for Component Parts
U.S. v. Ebinger:
Saved Maintenance Costs:
Exception 3: Repair or replacement cost for Special Purpose Property
Trinity Church v. John Hancock:
Exception 4: Property that fluctuates in value
Decatur County v. Young:
Valuation for crops
Securities
Choosing Between Competing Measures of Damages:
DEFINING THE RIGHTFUL POSITION: RELIANCE OR EXPECTANCY?
Neri v. Retail Marine Corp.
Three damage approaches
Fuller & Perdue
Expectation damages are preferred
Expectation damages defined
Exceptions to compensating expectancies: impossible, mistaken, excessive, short lived, or speculative expectancies
Impossible Expectancies
Chatlos Systems v. NCR
Reasons for awarding excessive expectancies
Mistaken, Excessive, and Short-lived Promises
Pennzoil v. Texaco
Smith v. Bolles
Notes on the Distinction Between Tort & Contract:
CONSEQUENTIAL DAMAGES
Buck v. Morrow
Limits on consequentials
Exception 1: failure to pay money
MEINRATH v. SINGER CO.
Consequentials and the UCC:
Hard Cases make bad law – the limit of consequentials
Texaco v. Pennzoil Co.
LIMITS ON THE BASIC PRINCIPLE of rightful position
THE PARTIES' POWER TO SPECIFY THE REMEDY
Kearney & Trecker v. Master Engraving
Rules on limitation of remedy clauses
Overliquidated damages clauses
Ashcraft & Gerel v. Coady
Underliquidated damages clauses
NORTHERN ILLINOIS GAS CO. v. ENERGY COOPERATIVE
AVOIDABLE CONSEQUENCES, OFFSETTING BENEFITS AND COLLATERAL SOURCES
Avoidable Consequence Rule
S.J. GROVES & SONS CO. v. WARNER CO.
Employment Cases
OFFSETTING BENEFITS RULE
COLLATERAL SOURCE RULE
HELFEND v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT:
PROXIMATE CAUSE
PRUITT v. ALLIED CHEMICAL CORP
Tort Economic Harm Rule
NOTES ON THE ECONOMIC HARM RULE
Policing the boundary between K and Tort / proximate cause
EVRA CORP. v. SWISS BANK CORP.
HADLEY v. BAXENDALE applied:
SOUTHWESTERN BELL TELEPHONE v. NORWOOD
MORE NOTES ON PROXIMATE CAUSE
THE CERTAINTY REQUIREMENT
Details
BIGELOW v. RKO RADIO PICTURES
NOTES ON THE CERTAINTY REQUIREMENT
SUBSTANTIVE POLICY GOALS of compensatory damages
BRUNSWICK CORP v. PUEBLO BOWL-O-MAT
NOTES ON REMEDIAL IMPLICATIONS OF SUBSTANTIVE POLICY
DAMAGES WHERE VALUE CANNOT BE MEASURED IN DOLLARS
Immeasurable Values: Pain & Suffering, Human Life
Debus v. Grand Union Stores
Golden Rule Argument:
Fair Market Value Argument:
Unit of Time (per diem) Arguments:
Notes on Pain & Suffering:
Notes on Wrongful Death:
Notes on the Controversy Over Tort Law:
Etheridge v. Medical Center Hospitals
Smith v. Department of Insurance
Constitutional and Dignitary Torts
Levka v. City of Chicago
Note on the Right to Recover for Emotional Distress:
Carey v. Piphus
Notes on Valuing Constitutional Rights:
TIME, TAXES, AND THE VALUE OF MONEY
Taxes
NORFOLK & WESTERN RAILWAY v. LIEPELT
NOTES ON TAXES
Pre and Post Judgment Interest
City of Milwaukee v. National Gypsum Cement
NOTES ON INTEREST
Discounting payments for future losses to net present value
JONES & LAUGHLIN STEEL CORP. v. PFEIFER
NOTES ON INFLATION AND DISCOUNTING TO PRESENT VALUE
NOTES ON PERIODIC PAYMENTS AND STRUCTURED SETTLEMENTS
NOTES ON DAMAGES IN FOREIGN CURRENCY
CHAPTER 3: PREVENTING HARM: THE MEASURE OF INJUNCTIVE RELIEF
PREVENTIVE INJUNCTIONS & PROPENSITY & Ripeness
Humble Oil v. Harang
L.A. v. Lyons:
Notes on Ripeness & Preventive Injunctions:
Scope of preventive injunction
Marshall v. Goodyear
Notes on the Scope of Preventive Injunctions:
Mootness
U.S. v. W.T. Grant
Notes on Mootness:
Prophylactic Ripeness
Nicholson v. Connecticut Half-Way House
More Notes on Ripeness:
Note on Constitutional & Remedial Ripeness:
Coercive relief available at law:
REPARATIVE AND PREVENTIVE INJUNCTIONS
Bell v. Southwell
Notes on Reparative Injunctions:
Douglas Laycock: Injunctions & the Irreparable Injury Rule
Where damages and injunctions overlap
Forster v. Boss
SCOPE OF REPARATIVE INJS: WINSTON & BAILEY
Winston Research v. 3M
Notes on the Scope of Reparative Injunctions:
Bailey v. Proctor
More Notes on the Measure of Injunctive Relief:
Prophylactic Injunctions
STRUCTURAL INJUNCTIONS THE REACH OF THE INJ WHEN ISSUED
Equitable discretion approach to remedy
Swann v. Char.-Meck. Bd. of Educ.
Notes on Remedies in School Desegregation:
Rightful position approach to remedy
Milliken v. Bradley
Notes on the Measure of Injunctive Relief:
Notes on the Consequential Harms of School Segregation:
Milliken II
Dayton I
Dayton II
Missouri v. Jenkins
Return to equitable discretion?
Hutto v. Finney
More Notes on the Measure of Injunctive Relief:
Limits of structural injunctions – minimum reqmts, max remedies
Lewis v. Casey
U.S. v. Virginia
Notes on the Measure of Injunctive Relief:
Notes on the Municipal Bond Cases:
MODIFYING INJUNCTIONS
Rufo v. Inmates of the Suffolk Co. Jail
Scope of judicial power
Notes on Modification of Decrees:
Modif'n of school desegregation decrees
Consent Decrees
INNOCENT 3rd party substantive rights / STRUCTURAL INJUNCTIONS
Hills v. Gautreaux
Notes on Relief Against Third Parties:
Gen'l Bldg. K'ors Ass'n v. Pennsylvania
More Notes on Relief Against 3rd Parties:
innocent 3rd pARTY PROCEDURAL RIGHTS
Int'l Ass'n of Firefighters v. City of Cleveland:
Martin v. Wilks:
CHAPTER 4: CHOOSING REMEDIES
Irreparable injury rule: DAMAGES OR PERMANENT INJUNCTIONS
PARDEE v. CAMDEN LUMBER CO.
FREDERICK MAITLAND, EQUITY(p. 419)
Notes on the History of Equity in the United States
Notes on arguments for/against Irreparable Injury Rule
Econ view of irreparable injury rule
Notes on the Content of the Irreparable Injury Rule
DOUGLAS LAYCOCK, INJUNCTIONS AND IRREPARABLE INJURY RULE
Replevin at law erodes irreparable injury rule
Brook v. James a Cullimore
Irreparable injury rule fails to apply even where damages are uncertain
Continental Airlines v. Intra Brokers
Damages or specific performance: Irreplaceability II
Replaceability and the irreparable injury rule
CAMPBELL SOUP v. WENTZ
NOTES ON SPECIFIC PERFORMANCE
Notes on Efficient Breach of Contract
NOTES ON UNCONSCIONABILITY AND RELATED DEFENSES
Inconvenience and irreparable injury
THOMPSON v. COMMONWEALTH
NOTES ON SPECIFIC PERFORMANCE WHERE COVER IS POSSIBLE
Damages or specific relief: undue hardship to Defendant and Court
Undue Hardship to Defendant
VAN WAGNER ADVERTISING CORP v. S & M ENTERPRISES
NOTES ON IRREP INJURY AND UNDUE HARDSHIP
BOOMER v. ATLANTIC CEMENT CO.
NOTES ON UNDUE HARDSHIP
Limit on defendant’s undue hardship defense: culpable conduct
ARIOLA v. NIGRO
MORE NOTES ON UNDUE HARDSHIP
Note on Laches
Undue Hardship on Court
Coop Insurance Society v. Argyll
Substantive Policy Reasons for Choosing Remedies
Prior Restraints
WILLING v. MAZZOCONE
Insolvency
Right to jury trial
Multiplicity of Suits
NOTES ON PRIOR RESTRAINT
NOTES ON THE RIGHT TO JURY TRIAL
NOTES ON UNCOLLECTIBLE DAMAGES
Personal service contracts
AMERICAN BROADCASTING CO. v. WOLF
NOTES ON PERSONAL SERVICE CONTRACTS
PRELIMINARY OR PERMANENT RELIEF
Preliminary Injunctions and TROs: The substantive law
L.A. COLISEUM COMMISS. v. NAT'L FOOTBALL LEAGUE.
NOTES ON PRELIMINARY INJUNCTIONS
Altering the status quo
LAKESHORE HILLS v. ADCOX
NOTES ON PRESERVING THE STATUS QUO
The Bond Requirement
Coyne Delaney v. Capital Development Board
NOTES ON INJUNCTION BONDS
The procedural law of preliminary relief
Temporary Restraining Orders
CARROLL v. PRESIDENT OF PRINCESS ANNE
NOTES ON T. R. O.'s
Stringent View of Irreparable Injury
SAMPSON v. MURRAY
NOTES ON PROCEDURE FOR GRANTING PRELIMINARY RELIEF
The real deal on TRO law after Carrol, Sampson, Granny Goose:
MORE NOTES ON IRREPARABLE INJURY
Overview of Irreparable Injury
Prospective or Retrospective Relief I: Sovereign Immunity
Overview
Chisholm v. Georgia:
11th Amendment:
Hans v. Louisiana:
Ex Parte Young:
Suits against officers in their official capacities
Edelman v. Jordan: (official capacity suits)
Seminole Tribe v. Florida
Prospective or Retrospective Relief II: Official Immunity
Personal capacity suits:
Harlow v. Fitzgerald
Clearly established law requirement:
Clearly established law test fails where claim depends on motive
CHAPTER 5:PREVENTING HARM WITHOUT COERCION: DECLARATORY REMEDIES
DECLARATORY JUDGMENTS
Young Dilemma
Actual case or controversy requirement
Nashville, Chattanooga, & St. Louis Railway v. Wallace
Cardinal Chemical v. Morton International
Declaratory Judgments of Constitutionality: The Younger Doctrine
Young Dilemma + Forum Shopping (P wants Fed. Court)
Steffel v. Thompson
Hicks v. Miranda:
Preliminary injunctions pending litigation of declaratory judgment claims
Doran v. Salem Inn
Notes on Declaratory Judgments:
Notes on Declaratory Judgments & Irreparable Injury:
BILLS TO QUIET TITLE & RELATED ACTIONS
Newman Machine Co. v. Newman
Notes on Bills to Quiet Title & Related Actions:
Cancellation
Rescission
REFORMATION
Hand v. Dayton Hudson
Notes on Reformation:
DECLARATORY RELIEF AT LAW
Nominal Damages – damages in form, declaratory in function
Quo Warranto
CHAPTER 6:BENEFIT TO DEFENDANT AS THE MEASURE OF RELIEF: RESTITUTION
GENERALLY
THE BASIC PRINCIPLE: disgorging the profits of conscious wrongdoing
Restitution of more than Plaintiff Lost
Olwell v. Nye & Nissen: Quasi K / incremental cost
Notes on Quasi-Contract:
Notes on Recovering More Than P Lost:
Maier Brewing v. Fleischmann Distilling: Accounting for profits
More Notes on Recovering More Than P Lost:
Snepp v. U.S.: Constructive Trust
Notes on Constructive Trusts & Accounting for Profits:
Notes on Irreparable Injury:
Notes on Rest'n of the Profits From an Effic. Breach of K:
Notes on Restitution of Money Not Spent on Safety:
MEASURING THE profits of Unjust Enrichment
Apportioning Profits
Sheldon v. MGM (pro-rata / factors of production approach)
USM v. Marson Fastener (incremental cost approach)
Notes on Apportioning Profits:
Mishawaka Rubber & Woolen Mfg Co. v. S.S. Kresge Co.:
Reversing Transactions and Paying for Benefits
Restitution: substantive requirements
Rescission
Cases where P gets a windfall by rescinding a losing K
Mutual Benefit Life Insurance v. JMR
Cherry v. Crispin
Notes on Rescission:
Farash v. Sykes
Notes on the Benefit Requirement:
Notes on Election of Remedies:
The frontiers of restitution for breach of contract
Easy “losing contract” cases: Restitution in kind
Bush v. Canfield
Mobile Oil v. US
Harder “losing contract” cases: where P wants to revalue performance
Rescission of a losing K where principal benefit cannot be returned: D must pay for benefit received
Boomer v. Muir
Earthinfo v. Hydrosphere
Impossible cases: losing K where K must be revalued but cannot
Glendale Fed. Bank v. US
TRACING D'S UNJUST ACQUISITIONS: RESTITUTION & INSOLVENCY
Restitution of identifiable asset
Hicks v. Clayton
Notes on Restitution From an Insolvent Defendant:
The fraud requirement
In Re: North American Coin
In re Teltronics
In re Erie Trust Co.
More Notes on Restitution From Insolvent Defendants:
Notes on Tracing:
Tracing Into Assets Worth More Than P Lost, & the Tracing Rules of the Restatement:
Restitution from 3d Parties/The Limits of Tracing
Relaxation of tracing rules in Simonds and Rogers:
Restitution from 3rd parties
Simonds v. Simonds:
Notes on Rest'n From 3rd Parties:
Rogers v. Rogers:
Notes on Constructive Trusts & Fraudulent Conveyances:
Equitable Liens
Robinson v. Robinson:
Mistaken Improvers
Notes on Equitable Liens:
CHAPTER 7: PUNITIVE REMEDIES
Generally
Common Law of Punitive Damages
Grimshaw v. Ford Motor Co.
Notes on Punitive Damages
Constitutional Law on Punitive Damages
Pacific Mut. Life Ins. Co. v. Haslip
BMW v. Gore
Notes on the Constitutionality of Punitive Damages
Notes on the Measure of Punitive Damages
Table of Cases
United States v. Hatahley:
U.S. v. 50 Acres
King Fisher Marine v. The NP Sunbonnet
Charter Oak v. Color Conv. Ind.
U.S. v. Ebinger:
Trinity Church v. John Hancock:
Decatur County v. Young:
Neri v. Retail Marine Corp.
Chatlos Systems v. NCR
Pennzoil v. Texaco
Smith v. Bolles
Buck v. Morrow
MEINRATH v. SINGER CO.
Texaco v. Pennzoil Co.
Kearney & Trecker v. Master Engraving
Ashcraft & Gerel v. Coady
NORTHERN ILLINOIS GAS CO. v. ENERGY COOPERATIVE
S.J. GROVES & SONS CO. v. WARNER CO.
HELFEND v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT:
PRUITT v. ALLIED CHEMICAL CORP
EVRA CORP. v. SWISS BANK CORP.
HADLEY v. BAXENDALE applied:
SOUTHWESTERN BELL TELEPHONE v. NORWOOD
BIGELOW v. RKO RADIO PICTURES
BRUNSWICK CORP v. PUEBLO BOWL-O-MAT
Debus v. Grand Union Stores
Etheridge v. Medical Center Hospitals
Smith v. Department of Insurance
Levka v. City of Chicago
Carey v. Piphus
NORFOLK & WESTERN RAILWAY v. LIEPELT
City of Milwaukee v. National Gypsum Cement
JONES & LAUGHLIN STEEL CORP. v. PFEIFER
Humble Oil v. Harang
L.A. v. Lyons:
Marshall v. Goodyear
U.S. v. W.T. Grant
Nicholson v. Connecticut Half-Way House
Bell v. Southwell
Forster v. Boss
Winston Research v. 3M
Bailey v. Proctor
Swann v. Char.-Meck. Bd. of Educ.
Milliken v. Bradley
Milliken II
Dayton I
Dayton II
Missouri v. Jenkins
Hutto v. Finney
Lewis v. Casey
U.S. v. Virginia
Rufo v. Inmates of the Suffolk Co. Jail
Hills v. Gautreaux
Gen'l Bldg. K'ors Ass'n v. Pennsylvania
Int'l Ass'n of Firefighters v. City of Cleveland:
Martin v. Wilks:
PARDEE v. CAMDEN LUMBER CO.
Brook v. James a Cullimore
Continental Airlines v. Intra Brokers
CAMPBELL SOUP v. WENTZ
THOMPSON v. COMMONWEALTH
VAN WAGNER ADVERTISING CORP v. S & M ENTERPRISES
BOOMER v. ATLANTIC CEMENT CO.
ARIOLA v. NIGRO
Coop Insurance Society v. Argyll
WILLING v. MAZZOCONE
AMERICAN BROADCASTING CO. v. WOLF
L.A. COLISEUM COMMISS. v. NAT'L FOOTBALL LEAGUE.
LAKESHORE HILLS v. ADCOX
Coyne Delaney v. Capital Development Board
CARROLL v. PRESIDENT OF PRINCESS ANNE
SAMPSON v. MURRAY
Chisholm v. Georgia:
11th Amendment:
Hans v. Louisiana:
Ex Parte Young:
Edelman v. Jordan: (official capacity suits)
Seminole Tribe v. Florida
Harlow v. Fitzgerald
Nashville, Chattanooga, & St. Louis Railway v. Wallace
Cardinal Chemical v. Morton International
Steffel v. Thompson
Hicks v. Miranda:
Doran v. Salem Inn
Newman Machine Co. v. Newman
Hand v. Dayton Hudson
Olwell v. Nye & Nissen: Quasi K / incremental cost
Maier Brewing v. Fleischmann Distilling: Accounting for profits
Snepp v. U.S.: Constructive Trust
Sheldon v. MGM (pro-rata / factors of production approach)
USM v. Marson Fastener (incremental cost approach)
Mishawaka Rubber & Woolen Mfg Co. v. S.S. Kresge Co.:
Mutual Benefit Life Insurance v. JMR
Cherry v. Crispin
Farash v. Sykes
Bush v. Canfield
Mobile Oil v. US
Boomer v. Muir
Earthinfo v. Hydrosphere
Glendale Fed. Bank v. US
Hicks v. Clayton
In Re: North American Coin
In re Teltronics
In re Erie Trust Co.
Simonds v. Simonds:
Rogers v. Rogers:
Robinson v. Robinson:
Grimshaw v. Ford Motor Co.
Pacific Mut. Life Ins. Co. v. Haslip
BMW v. Gore
Course Overview
XXI.Basic Remedial Q is "where would the parties be but for the violation of law?"
A.Compensatories seek to get P enough recovery to permit P to buy way back to original position
1.Where this is too difficult as in case of pain and suffering, cts allow reasonable compensation
B.Preventive Injunctions want to keep P in rightful position to start with and avoid any harm
C.Reparative Injunctions want to restore P to rightful position
1.In equity, chancellor has broad discretion to do justice. This view disfavored by current Sup Ct which keeps writing rightful position opinions
2.Scope of equitable relief is analog to measure of damages in compensation cases
3.Specific performance decrees are just special form of injunction w/remedial Qs similar to injunctions
D.Choosing Remedies
1.Choice between compensation and specific relief
2.Should choose on the front end--must decide what you want and what think can get
3.Must show something wrong with damage remedy to get equitable one
E.Declaratory Remedies
1.Analogous to preventive inj. b/c trying to prevent harm before it happens
F.Restitution
1.Trying to put D back to rightful position
2.Designed to reverse transaction
G.Punitive Remedies
1.Don't restore anyone to any position
2.Nonremedial in sense of undoing harm or taking away D's unjust gain
H.Contempt
1.Remedies mean nothing w/o enforcement power
XXII.Conflict Between Economist and Ethicist in Remedies
A.Economists seek the just right level of violations and compensation
B.Ethicists seek to eliminate all violations and get the victim complete compensation+
XXIII.Ps should ask
A.Are there measurable damages?
B.What is most lucrative way to measure?
C.Is there other harm that can still be prevented?
D.Go down list of remedies
XXIV.Ds seek cheapest possibilities from above list
CHAPTER 1: INTRODUCTION
THE ROLE OF REMEDIES
Remedies give meaning to obligations imposed by the substantive law. Remedies are deemed substantive, not procedural, by S.Ct.
CLASSIFYING REMEDIES
Compensatory Remedies
Designed to compensate P for harm suffered. Most important form is compensatory damages, a sum of money designed to make P as well off as he would have been if he never had been wronged.
Preventive Remedies
Coercive Remedies
Designed to prevent harm before it happens. Usually an order to do or refrain from doing something. Specific performance decree is a specialized form of injunction ordering Ds to perform their K. A D violating a direct order from a court is guilty of contempt. The direct order and the potential for punishing disobedience distinguish coercive remedies from declaratory remedies.
Declaratory Remedies
Authoritatively resolve disputes about the parties' rights but they do not end in direct order to D. Declaratory remedies prevent harm to litigants by resolving uncertainty about their rights before either side has been harmed by erroneously relying on its own view of the matter. Misleading to describe declaratory remedies as noncoercive b/c if declaration is disobeyed ct will enforce declaration with injunction.
Restitutionary Remedies
Designed to restore P all that D gained at P's expense. In some cases, restitution and compensation are identical. Usually measure P's recovery by D's gain.
Punitive Remedies
Designed to punish wrongdoers. Many statutes authorize minimum recoveries in excess of actual damages, recovery of double or triple P's actual damages. Punitive remedies often do not remedy anything in the usual sense of repairing, correcting, or fixing. But punitive damages or statutory minimum recoveries are sometimes necessary to make it feasible for Ps to enforce important rights.