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.