Law of Remedies: Damages, Equity, Restitution
Authors:
Dobbs, Dan B. / Roberts, Caprice L.
Edition:
3rd
Copyright Date:
2018
21 chapters
have results for remedies
Chapter 1. INTRODUCTION TO REMEDIES 197 results (showing 5 best matches)
- Although non-judicial remedies are outside the scope of this treatise, they help define the scope of judicial remedies by exclusion. Three kinds of non-judicial remedies are important: (1) self-help remedies, (2) administrative remedies, and (3) alternative dispute resolution remedies.
- A third kind of classification of remedies distinguishes between permanent remedies and provisional remedies. Permanent remedies are those awarded after a trial has established rights and appropriate remedial measures. All of the remedies discussed so far—damages, restitution, injunction, and declaratory judgment—are usually permanent remedies.
- Remedies issues
- The main kinds of remedies
- To impose a remedy is to impose costs and to create benefits. Any remedy, including injunctive and other non-money remedies, will impose costs upon defendant. Any effective remedy will also create benefits for plaintiff. Remedies may also impose costs upon or provide benefits for third persons or the public.
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Chapter 2. EQUITY AND NONMONETARY REMEDIES 275 results (showing 5 best matches)
- The merger of law and equity powers makes it anomalous to refer to “equity” as a distinct forum from “law.” Some writers accordingly try to avoid terms like equitable remedies. Yet a system of equity lingers post merger. The phrase “equitable remedy” remains in use. Because equitable remedies are usually coercive, the term “coercive remedy” is an alternative term for “equitable remedy,” though not all equitable remedies are coercive. This treatise will use both “coercive remedy” and “equitable remedy” to refer to remedies that, historically, were separately administered by Chancery Courts. These remedies retain distinctive qualities associated with coercion and discretion. Also, equitable remedies do not garner a constitutional right to a jury trial. Instead, the judge is the factfinder and retains discretion for whether and how to render equitable relief.
- Authoritative federal decisions hold that the adequacy rule is relative. Before equitable relief is foreclosed, the legal remedy must be as complete, practical, and efficient as the equitable remedy available. That is, the content of the legal remedy is judged relative to the content of the equitable remedy. This comparison of remedies seems to cover their content, not their enforcement procedures.
- Equity courts traditionally awarded and continue to award a variety of remedies. Some equitable remedies are restitutionary (though restitution also supports legal remedies). Some are declaratory remedies. Most often, however, equitable remedies are coercive. Coercive remedies in equity are variants of the injunction. Variations on the injunctive remedy will quickly appear. The essence of the remedy in most instances, however, is an
- Distinctive remedies
- Yorio, however, does not share the view that coercive remedies should be granted routinely. Still addressing specific performance in particular, he argues that both defendant-promisor and the court have interests in the nature and scope of the remedy. The parties’ failure to specify a remedy should be read as leaving the remedy to the court’s judgment, not as leaving the remedy to the promisee’s choice. Yorio also sided with the economic arguments that favor the present regime, believing that specific performance is efficient when the subject matter of the contract is more or less unique, otherwise not.
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Chapter 12. REMEDIES FOR BREACH OF CONTRACT 191 results (showing 5 best matches)
- For restitution remedies for contract breaches (or where the contract is invalid), plaintiff is not required to show inadequacy of legal remedies. Thus: “A claimant otherwise entitled to a remedy for unjust enrichment, including a remedy originating in equity, need not demonstrate the inadequacy of available remedies at law.” For that set of cases, plaintiff must show “the available damage remedy affords inadequate protection to the promisee’s contractual entitlement.” Similarly, courts may deny constructive trusts simply because they are not necessary because the same result is attainable with a legal remedy. Still the modern law of restitution and unjust enrichment generally aims to remove the traditional inadequacy frame.
- Combining and “electing” remedies
- . Economic concerns may substantially affect contract remedies. Courts and writers have advanced these economic ideas: (1) Contract remedies should promote economic efficiency in performance and should encourage economic actors to make the economically desirable promises. (2) Contract remedies should not require economic waste. (3) Contract remedies should permit or even encourage at least some efficient breach of contract—that is, permit or encourage breach when the breach is so productive that the breacher can pay all the victim’s damages and still profit from the breach. (4) Contract remedies should promote efficient investment in reliance on the contract promises.
- To clarify, remedies for breach of contract still include specific performance, expectancy, reliance, and restitution. These remedies are generally in the alternative. Restitution as a remedy is an alternative to the conventional contract remedies and should not apply at all in most cases. If the contract fails, a claim for unjust enrichment
- What remedies are inadequate
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Chapter 5. HARMS TO INTERESTS IN TANGIBLE PROPERTY 84 results (showing 5 best matches)
- Types of remedies
- Remedies balancing generally
- The ejectment action is oriented towards the tangible and immediate. If defendant casts doubt on plaintiff’s title but does not deprive plaintiff of possession, ejectment is not the traditional remedy; to remove a cloud of title when there is no dispossession, plaintiff must resort to an equitable remedy like injunction or to a statutory procedure.
- Replevin of chattels, both a provisional remedy and a permanent one, had its own peculiar common law development. At the same time, it is one of a whole range of provisional remedies granted before trial on the merits. It may be compared to or contrasted with such other remedies as prejudgment attachment and garnishment and with those preliminary injunctions that are used to freeze a bank account before trial.
- As against converters who are not fiduciaries, perhaps the equitable remedy should be denied when the claims at law will sufficiently serve the policy against unjust enrichment. If the converter has not sold the converted property at all, plaintiff can ordinarily use replevin to recover the goods in specie, and this will capture any increase in the value of the goods. Even if the converter has passed the goods on to a third person, the remedy at law against that person is usually adequate or at least no worse than the constructive trust itself. If the converter has sold the goods for a price in excess of their value, plaintiff can capture this gain in the assumpsit action. The legal remedy is clearly not adequate compared to the equitable remedy whenever the trust or lien would give plaintiff a priority, or when the trust would give plaintiff a return of specific unique property not reachable at law, but in such cases there is a question whether the more effective equitable remedy...
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Chapter 4. RESTITUTION 151 results (showing 5 best matches)
- In many cases, however, courts limit plaintiff to a restitutionary remedy. The rationale may be that a restitution theory is the only viable path to a remedy. This might occur, for example, if the statute of frauds bars enforcement of a contract. In that case, damages is an inappropriate remedy because allowing damages would subvert the statute; but restitution is a perfectly acceptable remedy. Sometimes one remedy is precluded because of a supposed election of remedies resulting from plaintiff’s delay in pursuing a claim or from his failure to restore benefits he himself has received in a transaction. So the choice of remedy as well as a measure of it presents a common remedial issue.
- . Restitution measures the remedy by defendant’s gain and seeks to force disgorgement of that gain. It differs in its goal or principle from damages, which measures the remedy by plaintiff’s loss and seeks to provide compensation for that loss. As the watch example shows, in some cases defendant gains more than plaintiff loses, so that the two remedies may differ in practice as well as in principle. Plaintiff may be able to claim whichever remedy is more advantageous.
- The constructive trust and equitable lien are also similar in the rule that neither remedy can be used unless some particular assets can be identified as belonging in good conscience to plaintiff, and in the rule that permits any identified or traced assets, tangible or intangible, to qualify as particular assets. Both remedies protect the rights of bona fide purchasers. The two remedies are also alike in the way they affect the remedies of other creditors of defendant: both have the effect of removing some of defendant’s assets from the pool of resources available to creditors generally.
- . Although it is important to understand the substantive and procedural sides of restitution, this book is primarily concerned with its remedial side. In other words, this book focuses on the questions affecting the measurement of remedy, or its qualification, or the selection of some alternative remedy.
- It is usually assumed that substantive law is determined first and that the remedy follows obediently like a dog on a leash. This is partly correct, because the remedy must indeed reflect the rule of substantive law and carry out its policy.
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Chapter 3. PRINCIPLES OF DAMAGES 45 results (showing 5 best matches)
- Specie remedies distinguished
- and the remedy is the
- The concepts of restitution and damages are quite distinct, but sometimes courts use the term damages when they mean restitution. The two concepts may be further confused by the fact that the amount of defendant’s gains may furnish some evidence about plaintiff’s probable losses. But again, the damages remedy and the restitutionary remedies are always conceptually distinct and often distinct in dollar amount as well.
- . Some issues of damages law are really issues about remedies law. For instance, should damages continue to be the single most important remedy, or should restitution and coercive remedies take a greater role in the remedial scheme of things? The traditions that made damages the primary remedy for most kinds of suits seem to be breaking down. Statutes may mark the way first, as suggested by the Annenberg proposals,
- of the legal remedy compared to the equitable remedy. But that is a very limited comparison; it does not purport to compare relative desirability, all factors considered, only the adequacy for plaintiff’s purposes.
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Chapter 7. INVASION OF CIVIL RIGHTS AND DIGNITARY INTERESTS 48 results (showing 5 best matches)
- In the example given, the discrepancy between the scope of the right and the scope of the remedy is relatively small, as well as the intrusion on defendant’s operations. But there is a limit somewhere. At some point the remedy is so different that it does not address the wrong done by defendant. The remedy then addresses some wrong that has not been committed at all by defendant. When that point is reached, the remedy that exceeds defendant’s wrong or plaintiff’s right becomes unacceptable. Legitimate concerns are whether the remedy is too intrusive,
- Remedies for rights versus remedies against social attitudes
- Further, restitution remedies do not need to overcome an adequacy-at-law hurdle, which may alter the law-equity rationale, which courts such as the Eighth Circuit in
- Adequacy of legal remedy
- Terminal remedies versus ongoing administration
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Chapter 9. FRAUD AND MISREPRESENTATION 26 results (showing 5 best matches)
- . Under traditional doctrine, by no means limited to misrepresentation cases, a plaintiff who has two “inconsistent” remedies must “elect” between them and pursue only one of them. Alternatively, courts often say plaintiff has in fact made an election of one remedy or another by some act before trial, often described as a ratification or affirmance of the transaction. Remedies are traditionally found to be “inconsistent” when one of the remedies results from “affirming” a transaction and the other results from “disaffirming” a transaction. Most typically plaintiff has elected, or is forced to elect, between rescission and damages remedies, but the election rule may apply to any pair of affirming and disaffirming remedies, such as replevin and damages. The election of remedies terminology is also sometimes invoked in very different cases that appear in reality to be based on res judicata or satisfaction of plaintiff’s claim rather than on election as such.
- . Traditional courts felt that two subsidiary legal rules followed from the idea that affirmance and disaffirmance remedies were inconsistent. First, the rule was that plaintiff could not actually recover both kinds of remedies. He could not, for example, obtain damages for fraud and also rescind and get his money back. He cannot have his cake and eat it too, one court said. This is one of the two “election of remedies” rules only in the sense that plaintiff cannot recover both kinds of remedies. Standing alone, the either/or rule does not require plaintiff to make any choice or election before judgment. It requires only that plaintiff choose between the two remedies if duplicative.
- Restitutionary Remedies for Deception: Rescission, Constructive Trusts, and Other Remedies
- Restitutionary Remedies for Deception: Rescission, Constructive Trusts, and Other Remedies
- . Courts often suggest that the election of remedies doctrine is based on a policy to avoid duplication of relief. It is true that many cases avoid duplication of remedies by invoking the language of election. But many other cases invoke the language of election when duplication of relief is not a problem. The election is forced upon plaintiff on the ground that the remedies are logically inconsistent, not on the ground that they are duplicative.
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Chapter 6. INTERFERENCE WITH ECONOMIC RIGHTS 29 results (showing 5 best matches)
- Given these remedial and procedural differences, formulating a good strategy for plaintiffs requires an assessment of the different remedies and procedures available under the different actions as well as the different substantive rules. Consequently, general statements about remedies have limited use.
- Under certain civil rights statutes which are not aimed exclusively at employment discrimination, the remedies can include the complete list of remedies—back pay, reinstatement, emotional harm damages and punitive damages where appropriate, as well as any provable consequential damages.
- This includes wage and hour legislation, and labor-management relations legislation. Particular statutes of narrow scope may also dictate remedies. For example,
- (ruling state remedies for employment discrimination are not preempted by Title VII and can be even broader than what is included in Title VII);
- Plaintiff may seek to avoid the limits of the attachment statute by applying for a temporary restraining order or preliminary injunction and by claiming that the remedy under the statute is inadequate. But the argument that the attachment statute is inadequate is an invitation to subvert the authority and protective limits of the statute. Courts have often refused to grant freeze orders when plaintiff claims an ordinary tort or debt claim and cannot prove the special grounds for attachment or garnishment under even though the attachment remedy might be “inadequate.” Nor have courts been quick to find special statutory authorization for any general sequestration of funds. The principle applies regardless of the parties’ alignment procedurally or the terminology invoked: a party cannot impose a judicial “escrow” on disputed funds any more readily than he can impose an injunctive freeze order.
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Chapter 10. DURESS, UNDUE INFLUENCE, AND UNCONSCIONABLE CONDUCT 20 results (showing 5 best matches)
- . Remedies in the broker cases have been varied. Perhaps the prime remedy is the restitutionary one, that is, a recovery of the secret profit gained by the tricky broker. Disgorgement is also possible where the broker has been unjustly enriched through the violation of the fiduciary relationship. When disgorgement is the chosen remedy, the remedy keys to defendant’s unjust gain as opposed to the losses sustained by plaintiff.
- As long as the beneficiary party is “entitled to a remedy for unjust enrichment,” that party does not have to prove that the legal remedies available are insufficient. As the Restatement (Third) of Restitution and Unjust Enrichment notes, however, there are certain classes of cases where the constructive trust remedy is unavailable. This includes cases “in which the claimant asks for constructive trust although the effect of the remedy is identical to what would be achieved by an action at law for unjust enrichment.” ..., and those funds can be traced into the agent’s account. The principal may naturally desire the powerful constructive trust remedy. Yet, if the agent has adequate assets to pay the legal judgment and there are no creditors competing for the funds, the court may deny a constructive trust here as “superfluous.” Such redundancy, however, does not occur in cases where, for example, plaintiff asks for a constructive trust to be imposed on property and ordering its sale...
- Plaintiff’s remedies in a case of a transaction induced by duress are essentially restitutionary. Generally, they are the same as the restitutionary remedies available to the victim of fraud. The transaction may be avoided by affirmative action of the injured party and he may obtain restitution where it is appropriate. If plaintiff gave up property as a result of duress applied by defendant, he can recover that property as restitution. If the property is no longer available, he can recover its value as substitutionary restitution.
- Quite frequently the remedy asserted is the constructive trust. A constructive trust is an equitable remedy that can be used to prevent unjust enrichment in cases involving, for example, breach of a fiduciary duty. The fiduciary who uses inside information to profit for himself is thus liable to make “restitution” of the profits produced with that information. This is often expressed by saying that she holds those profits in a constructive trust for the beneficiary of the special relationship.
- The Court applied a robust remedy—constructive trust over defendant’s book profits—despite the admitted lack of classified information in the publication. Ultimately, the Court used the remedy to protect against release of confidential government information and incentivize compliance with prepublication clearance notwithstanding any encroachment on First Amendment rights.
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Chapter 11. MISTAKE IN CONTRACTING AND GIFT TRANSACTIONS 21 results (showing 5 best matches)
- But other restitutionary remedies may be appropriate, too. It is conceivable that one might mistakenly perform her contract with another in such a way as to discharge the other’s debt to a secured creditor. In such a case, subrogation would be an appropriate remedy.
- The third kind of mistake is quite different and so is the remedy. This is a mistake in integration of the contract, that is, a mistake in writing it down. The parties bargain for the sale of “Lot 1,” but write “Lot 10” in error. If their intent to bargain over “Lot 1” is clear and it is established that the expression was an error, the writing ought to be reformed, if need be, to reflect their true intent. This is the remedy of reformation, and it is, of course, quite distinct from the rescission or restitution remedies.
- Varieties of Mistake and Remedies for Mistake
- Restitution as a Remedy for Mistake in Formation of a Contract—Measurement of Restitution
- Mistake in the Performance of an Obligation—Restitution Remedies
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Index 178 results (showing 5 best matches)
Table of Contents 100 results (showing 5 best matches)
Chapter 8. PERSONAL INJURY AND DEATH 17 results (showing 5 best matches)
- Congress responded to the 9/11 terrorist attacks with a compensation fund for all those injured and killed in the attacks. It created two remedies: a judicial remedy, which only a few utilized, and a no-fault administrative remedy, which most families utilized. Kenneth Feinberg was appointed Special Master to administer the program, set rules for the awards, and individualized recovery for the loss of victims. One difference between Congress’s 9/11 legislation and common-law damages rules was that Congress’s 9/11 legislation required reduction of each victim’s recovery by subtracting collateral source payments such as pensions and life insurance.
- The wrongdoer should not be able to benefit from his crime. If a wrongdoer profits from a murder, the law of restitution aims to undo that gain. Restitution-based remedies will not permit enrichment by homicide.
- but it also reiterated that medical monitoring as a remedy option for a traditional common law tort requires meeting the elements of those torts, including physical injury. Some other courts have permitted causes of action for negligence with medical monitoring as the remedy in cases where physical injury is absent.
- . Tort reform initiatives of the 1980s produced a wide range of enactments. Some statutes attacked the substantive tort law rules by changing rules of liability or adding defenses. Others launched procedural initiatives, limiting joint and several liability or imposing more stringent statutes of limitations. Many of the tort reform packages affected remedies, notably by modifying the collateral source rule by instituting periodic payment systems, and by limiting punitive damages in some instances.
- . In two groups of personal injury cases, however, the tortfeasor may derive a gain or profit, although sometimes quite indirectly, from the injury. In the first group, the tortfeasor murders in hope of gain by inheritance, insurance, or otherwise. In this situation, restitution by way of a constructive trust or a similar statutory remedy may be imposed to prevent the tortfeasor from profiting from his wrong, and to force allotment of the inheritance or insurance funds to others.
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Chapter 13. UNENFORCEABLE CONTRACTS & RESTITUTION 13 results (showing 5 best matches)
- (remedy limited as justice requires in light of other potential remedies such as restitution);
- Limiting remedy to restitution or to reliance damages
- Remedies When Performance Is Excused Under Doctrines of Frustration or Impracticality
- Remedies for Benefits Conferred Under Contracts Avoided for Defective Capacity
- Limitations on the Doctrine and the Remedy
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About the Authors 3 results
- Throughout her academic career, Caprice L. Roberts has devoted significant scholarly and teaching attention to advancing the law of remedies. She has published the 9th edition of a leading Remedies casebook with Doug Rendleman—
- In five decades of writing, teaching, and practice, Dan B. Dobbs has helped shape the law of torts and the law of remedies. He is the author of two leading treatises—
- Along with his prolific scholarship, Professor Dobbs has taken an active role in teaching and service. He has given numerous presentations to judges, lawyers, faculty, and student groups. He also served as a past Chair of the Association of American Law Schools Torts and Remedies sections, and continues to be an active member of the American Law Institute. Professor Dobbs was named a Regents Professor of the University of Arizona—the highest academic distinction that the University can bestow. The AALS Torts Section has awarded him the Prosser Award, and the ABA has given him the Robert B. McKay Law Professor Award.
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Preface 2 results
- Thank you to those who listened to my Remedies musings and offered insights, research, edits, and support over the years: Katelyn Ashton, Jesse Centrella, Elizabeth Rackley DeSalvo, Scott Hendrix, Dre’Kevius Huff, Kellyn McGee, Meagan Rafferty, Marc Lane Roark, Rikki Simmons, Alison Slagowitz, Judd Sneirson, Briana Tookes, and, of course, my Remedies students. To Andy Wright, thank you for clearing all the brush along the way.
- Last, this undertaking has been formidable; it requires standing on the shoulders of giants. The text relies upon the thoughtful interpretations of so many Remedies greats. It channels their spirits. This volume aims to honor their work by building on this enduring legacy to the field.
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Summary of Contents 3 results
Center Title 1 result
Title Page 1 result
Dedication 3 results
- To Dan Dobbs, your decades of dedication to the subject of Remedies have improved the law in countless, tangible ways. Your graceful distillation continues to be foundational and generative.
- To Andrew Kull and the American Law Institute, your contributions to the law of Remedies and the law of Unjust Enrichment and Restitution shed light on the law’s labyrinth. The path for advancement lies in reading and rereading the Restatements alongside this treatise.
- To Doug Rendleman, your dedication to Remedies inspires and teaches the value of critical reading and thinking. Your consummate attention to detail models the necessary practice to do justice to the subject and service the vital goals at stake.
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- Publication Date: November 9th, 2017
- ISBN: 9780314267597
- Subject: Remedies
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This definitive treatise explains available remedies across a wide range of public and private causes of action—from torts to intellectual property, contracts to fiduciary breaches, and civil rights to nuisance. Topics include compensatory damages for tangible and intangible harms, punitive damages, unjust enrichment and restitution, equitable remedies, and much more. This single-volume text unpacks major developments of the last twenty-five years for the law of remedies in the United States with citations to hundreds of cases, articles, and statutes. It incorporates key advancements from the Restatement (Third) of Restitution and Unjust Enrichment, the Restatement (Third) of Torts, and significant updates in the law of injunctions, punitive damages, and beyond.
