Principles of Remedies Law
Authors:
Weaver, Russell L. / Shoben, Elaine W. / Kelly, Michael B.
Edition:
3rd
Copyright Date:
2017
18 chapters
have results for Principles of Remedies Law
Chapter Four. Preventive Injunctions 111 results (showing 5 best matches)
- It is axiomatic that remedies are derived from the same source as the substantive right under which a claimant prevails. When a right derives from the common law, then common law remedies govern. When a claim is brought under a statute, the court looks to the statutory provision for remedies. If injunctions are enumerated, common law principles are generally implied.
- These common law factors may be replaced by a statutory mandate that alters the traditional discretion of the trial court. In some circumstances, a legislature may choose to require an injunction without regard to the judge’s evaluation of the equities of the case. In such cases, it is the legislature’s predetermination of the equities that governs. This section first examines the general principles of remedies when the plaintiff’s claim is statutory, and then examines the particular situation noted here, when statutory remedies constrain equitable discretion.
- The rule that the remedy at law must be inadequate does not mean that all economic interests are foreclosed from equitable relief. Quite to the contrary, economic interests are most frequently what is at stake. However, the damages remedy may be inadequate because the potential losses are too uncertain or indefinite in calculation to permit an adequate damages recovery. For example, a patent holder who seeks to enjoin competitive use by an infringer has economic interests at stake, but the remedy at law is typically inadequate because of the difficulty of ascertaining the dollar loss caused by the unlawful competition.
- It is often held that an injunction is the “usual” remedy in nuisance cases. This rule is followed particularly where the nuisance is of a public character and affects health and safety. In such cases, the remedy at law is inadequate and the harm is great and irreparable, so courts grant injunctive relief as a matter of course.
- Title II of the Civil Rights Act of 1964 provides an interesting example of limited remedies where none other is implied. This Act prohibits discrimination on the basis of race in places of public accommodation. Effective in 1965, this Act preempted the “Jim Crow” laws that required racial segregation in some states. The federal statute provides that a court may remedy violations of Title II with injunctive relief and attorney’s fees. Damages are not available and courts have not implied a damages remedy under Title II.
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Chapter One. Overview 17 results (showing 5 best matches)
- Legal Versus Equitable Remedies.
- Declaratory Remedies.
- Remedies also allows you to see the relationship between “rights” and “remedies.” In many of your first year courses, you were focused on whether plaintiff had a legal right. Is this a tort? Is it a contract? If so, what are the requirements? One tends to think of a Remedies course as assuming that plaintiff’s rights have been violated and to focus on the remedies to which plaintiff is entitled. In fact, as we shall see, how one characterizes the legal right can affect plaintiff’s remedial options. For example, a fundamental principle of equity provides that equitable relief is not available except when the plaintiff’s legal remedy is inadequate. As a result, during this course, we will frequently find ourselves focusing on plaintiff’s “legal” cause of action and the remedies available under that action. Only after we ask, and answer, those questions is it possible to focus more specifically on plaintiff’s remedies.
- So, why do we have a separate Remedies course? There are a number of reasons. First, although you may have been introduced to many remedial concepts ( , equity and conscience), Remedies gives you the chance to consider them in greater depth. The time available in a Contracts course or Torts course does not always permit full exploration of each remedial option. Second, there are many remedies which you may not have studied or may have touched on only tangentially (i.e., preliminary injunctions, temporary restraining orders and permanent injunctive relief). Third, Remedies allows you to see the law in a more integrated way. Established subject boundaries are artificial, and although convenient for classification, they are not responsive to the law in practice or to the remedial policies that transcend substantive areas of the law.
- There are many different ways to categorize remedies. Some distinguish between “substitutionary” and “specific remedies.” Others distinguish between “legal remedies” and “equitable remedies.” Still others distinguish between “damage remedies,” “coercive remedies,” “declaratory remedies” and “restitutionary remedies.” While all of these categorizations are useful, they often overlap and none necessarily excludes other categorization possibilities.
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Chapter Two. Equity and Equitable Remedies 95 results (showing 5 best matches)
- As equity developed into a separate court system, that system existed side-by-side with the King’s Courts. As a result, if a plaintiff wished to obtain a “legal remedy,” he was required to obtain a writ which would be taken to a court of law, and which would be governed and resolved by traditional legal principles. By contrast, if plaintiff sought an “equitable remedy,” he was required to file suit in a court of equity. The two court systems functioned by very different rules and frequently adjudicated quite different issues. For example, if plaintiff sought damages for a breach of contract, the case would have been filed in a court of law. Since plaintiff sought only damages, a court of equity would not entertain the case. By contrast, if plaintiff sought specific performance, rather than damages, the case would have been brought in a court of equity since the law courts did not grant specific performance.
- Of course, the description of equitable remedies as being based on “conscience” is somewhat misleading. Courts of law have their own “rules of conscience” even though they do not label them as such. For example, we know that an ancient court of equity might have refused to specifically enforce a contract when the plaintiff’s hands were unclean. A modern court, applying what might be regarded as “legal principles” might refuse to enforce a contract on “public policy” grounds.
- The modern law of remedies owes much to its historical roots. This is particularly true for the so-called “equitable remedies.” At one point in history, there were two separate and independent court systems referred to as “law courts” and “equity courts.” Whereas “law courts” granted “legal relief,” “equity courts” granted “equitable relief.” Each system proceeded according to its own rules and criteria.
- The dividing line between law and equity was not entirely precise and clean. Indeed, a given case might be heard (in all or in part) in both a law court and an equity court. For example, suppose that plaintiff sought specific performance in a court of equity. As we shall see, the remedy of specific performance was discretionary, rather than automatic, so that the equity court was not required to grant the requested relief. If specific performance was denied, plaintiff might have been relegated to his legal remedies, and forced to return to a court of law to seek those remedies. Even if a court of equity granted the request for specific performance, if substantial damages were involved as well, plaintiff might have been forced to go to the law court to obtain those damages. In other words, plaintiffs might have been forced to bring two separate actions, one in the law courts and one in the equity courts.
- Courts continue to deny equitable relief except when plaintiff’s legal remedy is inadequate. This principle is also known as the “irreparable harm” requirement. The classic example of an “adequate legal remedy” involves items that are readily purchasable on the open market. For example, in , plaintiff agreed to purchase a Chevrolet automobile from a car dealership, but the dealer breached and refused to sell him the car. When plaintiff sued seeking specific performance, the Court refused to grant the remedy on the basis that Chevrolet automobiles are freely available on the open market. As a result, if plaintiff were awarded damages (calculated by determining the difference between the contract price and the fair market price of the automobile), he could purchase a comparable Chevrolet on the open market. In justifying the denial, the Court stated that a court of equity will not “specifically enforce a contract for the sale of ordinary articles of commerce, which can at all times be...
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Title Page 4 results
Chapter Nine. Damages 461 results (showing 5 best matches)
- Article 2 of the Uniform Commercial Code codifies contract remedies for sales of goods. These provisions usefully illustrate how contract remedies work. Reviewing these provisions should help illuminate the way the principles apply in other contract contexts, such as employment and construction.
- A substitute remedy may be either exclusive or optional. If optional, the plaintiff may elect to pursue remedies under the law instead of the substitute remedy. If the substitute remedy does not specify that it is exclusive, then it is optional. . Most contracts seeking to limit remedies specify that their remedies are exclusive.
- Contracts may specify (or liquidate) an amount of damages, either as a fixed amount or by a formula. Liquidated damages clauses are not treated as substitute remedies: they do not reject the principles governing calculation of damages, but simply attempt to perform the calculation in advance.
- Limitations on remedy usually take one of two forms: (1) terms precluding recovery of some element of damages, such as consequential damages; or (2) terms substituting a different remedy for the ones provided by law, such as the cost to repair or replace promised property. Substitute remedies sometimes implicitly preclude consequential damages: if plaintiff can recover only the cost of repair, consequential damages are excluded. Some contracts include both kinds of provisions. Article 2 of the Uniform Commercial Code (covering sales of goods) treats these two kinds of limitations differently.
- Unless the exclusive remedy fails of its essential purpose, it precludes recourse to remedies under the code. . A remedy fails of its essential purpose unless it provides plaintiff some minimally adequate remedy. For instance, an exclusive remedy limiting the buyer to repair would fail of its essential purpose if defendant cannot repair the item after sufficient opportunity to do so. The mere fact that the remedy is not as generous as those provided in the code is not sufficient to justify rejecting the contractual remedy. But the utter failure to provide the plaintiff with the benefit for which they bargained may permit the court to reject the limited remedy provided in the contract.
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Preface 5 results
- The purpose of this book is to provide students with a clear and concise guide to the study of remedies. As you will see (or, perhaps, have already seen), remedies is a fascinating course. It involves historical analysis in the sense that historical distinctions between “law” and “equity” condition and limit the availability of remedies today. Remedies also involves modern analysis in the sense that it examines remedial limitations which, whether or not they originated for historical reasons, must have vitality and force today.
- The course also focuses on the array of things a court can do for the prevailing party in litigation. Knowing the alternatives is essential to choosing among them. Choosing the wrong remedy may lead you to file the wrong cause of action in the wrong jurisdiction or even to sue the wrong defendant. In some ways, the remedy should be the first thing an attorney considers when contemplating how to help a client. The remedy often is foremost in the client’s mind. Focusing on the remedies at the outset of litigation may prevent a number of poor litigation choices.
- In this book, we examine many different types of remedies. In addition to the damage remedies, which you may have first encountered in contracts, torts and property courses, we also examine injunctive remedies. As a result, we focus on permanent injunctions, as well as temporary (a/k/a, “preliminary” injunctions) and temporary restraining orders (a/k/a, “TROs”). We examine the conditions and limitations on these remedies, as well as the methods (principally, contempt) by which they are enforced. We also examine the declaratory remedy which is frequently combined with the injunctive remedy.
- A significant portion of the book focuses on damage remedies. Many of these remedies are “substitutionary” in nature because they provide plaintiff with a monetary substitute for her losses. For example, if plaintiff loses an arm in an automobile accident, it is impossible for defendant (or, a court, for that matter) to physically replace the arm. In the face of this impossibility, remedies provides damages to the plaintiff as a limited, and in some respects inadequate, way of compensating for the loss.
- We give thanks to the many people who assisted us in the creation and revision of this book, including our research assistants and secretaries. Last, but not least, we are thankful to our spouses and children who supported us through the various stages of this project.
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Table of Contents 48 results (showing 5 best matches)
- 3.Equitable Remedies Continue to Be Based on Principles of “Conscience” and “Equity”
- 1.Inadequacy of the Remedy at Law
- Chapter Two. Equity and Equitable Remedies
- 1.Equitable Relief Was Unavailable Except When Plaintiff’s Legal Remedy Was Inadequate
- 1.Equitable Relief Continues to Be Available Only When Plaintiff’s Legal Remedy Is Inadequate
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Chapter Eight. Declaratory Judgments 32 results (showing 5 best matches)
- This remedy is thus a valuable tool for saving the time and expense of more extensive litigation. As the sections below explain, this remedy is available under both federal and state law.
- The remedy of declaratory judgment is created by statute and is available under both federal and state statutory schemes. It is a remedy that is neither legal nor equitable in character. Because it is a creature of statute, it is and not governed by common law doctrine. It first appeared early in the twentieth century as a response to a deficiency of common law in that it could not clarify the rights of the parties before the occurrence of an actual loss or of a greater loss than has already happened.
- The declaratory judgment is a remedy that declares the rights or legal relations of the parties to a situation or expresses the court’s opinion on a question of law. The declaration does not order anything to be done, but it is reviewable as a final judgment and has
- Because declaratory judgments are statutory actions not arising from law or equity, they are governed by their own procedural law. Although they appear more equitable than legal in form, there is no requirement that the plaintiff demonstrate the inadequacy of other remedies. Moreover, factual issues may be tried before a jury if the relevant issue would be triable before a jury at the time of the ratification of the Seventh Amendment.
- Another modern use of the declaratory remedy is to declare parental rights. This complex area of family law has produced many lawsuits after the birth of a child where courts have considered both contractual and constitutional issues to resolve the parental rights of intended parents and surrogate mothers. Parties who are nervous about future disputes over parental rights may seek a declaratory judgment if the controversy is sufficiently ripe.
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Chapter Six. Injunctions in Context 94 results (showing 5 best matches)
- In addition, the Court has placed limits on the availability of structural remedies. For example, in , respondents, black citizens who had been advocating for equality in employment, housing, education, and participation in governmental decisionmaking, began an economic boycott of local merchants opposed to equality. Respondents claimed that the county magistrate and judge had singled them out for harsh treatment because of the advocacy and the boycott. Specifically, respondents alleged that the judge and .... The Court concluded that respondents were not entitled to injunctive relief, placing particular emphasis on the fact that none of the respondents could satisfy the Article III case or controversy requirement. The Court concluded that those who had been subjected to the alleged practices in the past could not show a case or controversy because “past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if... ...of...
- State courts have sometimes attempted to enjoin litigation in other states. Of course, following common law equity principles, courts do not actually attempt to enjoin foreign courts, but instead enjoin the parties to the foreign litigation from proceeding with that litigation. Indeed, because of personal and subject matter jurisdiction rules, the court might not have the power to directly enjoin the other court. The foreign court may be outside the court’s jurisdiction and not subject to service of process within the enjoining state.
- In striking down the injunction, the United States Supreme Court established a broad prohibition against prior restraints: “The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right.” The Court suggested that public officials, “whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.” In other words, they are not entitled to injunctive relief against publication:
- , the Court justified its decision by resorting to ancient equity rules. The court noted that the “basic doctrine of equity jurisprudence” provides that “courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” The Court also found support for its approach in the Constitution, noting that the “fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted.” Finally, the Court grounded the abstention doctrine in “the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments,...
- expressly authorized a “suit in equity” to redress “the deprivation,” under color of state law, “of any rights, privileges, or immunities secured by the [Constitution]” The Court held that it did, noting that the law need not specifically mention the anti-injunction statute, or explicitly authorize an injunction against state court proceedings. The Court held that the question is whether “an Act of Congress . . . created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding.” The Court held that 1983 fit within this concept.
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Index 84 results (showing 5 best matches)
Chapter Three. Contempt 95 results (showing 5 best matches)
- As an illustration of these principles, assume that a court orders a defendant ex-employee not to violate a noncompetition agreement with a former employer. The agreement purports to restrict the defendant from competing against the former employer for a certain period of time in a certain geographic area. The ex-employee violates the order and is held in criminal contempt. On appeal, the court holds that the non-competition agreement is overly broad and unenforceable, and therefore that the ex-employee should prevail on the merits. Notwithstanding the employee’s success on the merits, criminal contempt findings will stand regardless of the outcome of the case. By contrast, any civil contempt sanctions will fall when the ex-employer loses the underlying case because civil contempt remedies depend upon the plaintiff’s ultimate success on the merits in the underlying case.
- For example, if the defendant has contracted to perform a show where trained elephants fly, the court cannot jail the defendant until such time as the show goes on because elephants simply cannot fly. Damages would be the appropriate remedy if the contract is otherwise enforceable. In contrast, if a painter had agreed to sell a unique and completed painting and refused to do so, resistance to the specific performance order could result in coercive civil contempt until the painter complied. The painter can raise the impossibility defense if the painting has been destroyed or earlier sold to another person. The coercion cannot continue if compliance is impossible, and again the remedy would be damages if the contract is otherwise enforceable. Compare the fact that as a matter of substantive law, impossibility (or commercial impracticability
- The demonstration’s organizers appealed based on the unconstitutionality of the order. The United States Supreme Court rejected the argument on the following basis: “This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to Constitutional freedom.”
- People who are bound by a court order must either obey the order or seek its dissolution through proper judicial channels. It is not permissible to wait until a contempt hearing to challenge the court’s order in the first place. The Supreme Court established this principle in its famous opinion in
- The right to a jury trial depends upon the type of contempt. There is no right to a jury trial in a civil contempt case because the plaintiff receives this remedy as a part of the underlying equitable remedy, such as a specific performance order. The exception to this rule is
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Chapter Five. Temporary Injunctive Relief 72 results (showing 5 best matches)
- This dispute about the availability of “prevailing party” attorney’s fees for a preliminary injunction underscores the inherent tension in this area of remedies law. Because this relief is awarded on a showing that is less than a full trial on the merits, it is not a true adjudication of the dispute. The standards for the award nonetheless permit the parties to make a more informed guess about the ultimate outcome of the case and therefore the decision to grant or withhold the temporary relief often determines a final disposition of the case by agreement of the parties.
- The threshold provides that a “serious question” must be presented. The threshold for irreparability is that there is some level of irreparable harm. Thus, even if there is an extremely high probability of success on the merits, the lack of any irreparable harm would preclude the preliminary injunction. A contract debt without more, for example, would not support the order because the remedy at law—damages—would remain adequate. The “single continuum” does not extend that far.
- Some federal circuits follow alternative approaches. Circuits that deviate from the traditional rule are not in complete agreement about a substitute approach but agree to a basic sliding scale principle. That principle is that plaintiffs may meet a lesser standard than “probability” of success on the merits of the underlying claim when the degree of potential harm is particularly great. In contrast, the traditional approach requires proof of a “probability” of success on the merits in all preliminary injunction cases.
- Despite the fact that courts often state that the purpose of temporary relief is to maintain the , that purpose is insufficient by itself to justify relief. Rather, a trial court focuses primarily on whether the plaintiff can establish that the absence of immediate relief will cause irreparable harm under circumstances where the court is justified in protecting the plaintiff’s interests even at the risk of causing loss to the defendant before there can be a full trial on the merits. As Judge Posner explained, the “premise of the preliminary injunction is that the remedy available at the end of trial will not make the plaintiff whole; and, in a sense, the more limited that remedy, the stronger the argument for a preliminary injunction.”
- The findings of the court at the preliminary injunction hearing are not binding on the judge at the time of the full trial. The United States Supreme Court explained in
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Chapter Seven. Restitution 85 results (showing 5 best matches)
- An additional advantage of special restitutionary remedies is that they can be used to circumvent debtor exemptions. Each state provides debtors with certain “exemptions” that allow them to protect assets against creditors. Special restitutionary remedies allow creditors to circumvent the exemptions and assert a claim against the property that is the subject of the exemptions.
- The principle that a person who innocently has acquired the title to property for which he has paid value is under no duty to restore it to one who would be entitled to reclaim it if he had not been innocent or had not paid value therefor, is of wide application, being a limitation upon the principle that a person who has been wrongfully deprived of his property is entitled to restitution.
- Early restitution cases were brought in equity. Over time, the law courts developed a restitution action of their own called assumpsit. This action, which initially involved “an action of trespass on the case, brought for a failure to perform an undertaking or for performing negligently the duties of a public calling,” eventually expanded in scope and use and came to be referred to as an action in “quasi-contract.” However, even after the law courts developed the quasi-contract action, equity courts still heard restitution cases. For example, equity might grant a special restitutionary remedy such as a constructive trust, equitable lien or subrogation.
- However, a constructive trust is generally inappropriate when plaintiff cannot claim an equitable interest in the specific property on which the remedy would be imposed. In , a husband suffered severe physical injuries in an automobile accident and received a sizeable financial settlement. The man had fathered a child by a prior marriage and was behind on child support payments at the time he received the settlement. As a result, the ex-wife sought to impose a special restitutionary remedy on the settlement. The court refused the request noting that such remedies are imposed only to prevent unjust enrichment, and that the unjust enrichment “must result from the receipt of the particular property upon which the lien is imposed.”
- Restatement of Restitution
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Summary of Contents 15 results (showing 5 best matches)
Table of Cases 28 results (showing 5 best matches)
Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: December 16th, 2016
- ISBN: 9781634596862
- Subject: Remedies
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book is written in a student-friendly style designed to facilitate learning and comprehension. In addition the book is up-to-date and contains the latest decisions from the United States Supreme Court and the lower federal and state courts.
