Remedies outline 2 goals: 1) What remedy to choose 2) and once chosen how to measure it? What does the court do for a successful plaintiff? Grant specific relief usually specific performance or an injunction “in personam remedy” operates against the D’s person Award substitutionary relief or money damages Award= adjudicate, decide after consideration “in rem” operate against the D’s property Award restitution based on defendant’s gain or unjust enrichment What court may do to the defendant? Require D transfer title or possession of property Order D to do something Prohibit D from doing something Direct the D to be confined (contempt) to coerce him to obey any of the above except to force payment Enter a money judgment to compensate P, to prevent D’s unjust enrichment, or to punish D Equitable versus Legal Remedies Principle equitable remedies: Injunction, specific performance, constructive trust- associated to specific or in personam relief 1
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Transcript
Remedies outline
2 goals: 1) What remedy to choose 2) and once chosen how
to measure it?
What does the court do for a successful plaintiff?
Grant specific relief usually specific performance or an injunction
“in personam remedy” operates against the D’s person
Award substitutionary relief or money damages
Award= adjudicate, decide after consideration
“in rem” operate against the D’s property
Award restitution based on defendant’s gain or unjust enrichment
What court may do to the defendant?
Require D transfer title or possession of property
Order D to do something
Prohibit D from doing something
Direct the D to be confined (contempt) to coerce him to obey any of
the above except to force payment
Enter a money judgment to compensate P, to prevent D’s unjust
enrichment, or to punish D
Equitable versus Legal Remedies
Principle equitable remedies:
Injunction, specific performance, constructive trust- associated
to specific or in personam relief
For judge to grant equitable relief P must show legal
remedies inadequate, without equitable relief will suffer
irreparable injury
Major legal or common law remedy-
money damages substitutionary or in rem relief
Differences between equitable and legal remedies
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No right to jury trial for equitable remedies
Judge will enforce an in personam equitable order by holding the
defendant in contempt; in contrast to the plaintiff’s
collection of money damages with a writ of execution,
garnishment, and judgment lien.
Tort Remedy Goals
1. Prevent a tort from occurring- injunction
2. Restore the Status Quo- can be done through specific performance,
restitution or restoration for a property tort
3. Compensate the P for Loss- compensation or indemnity principle- can
award damages for P’s physical or mental injury, pain and suffering,
lost income, and loss of property value, etc.
4. Deter Future Torts- market economic analysis stress structuring actual or
potential P damages awards should encourage D’s to take precautionary
goals to prevent future mishaps
5. Establish, Declare, Vindicate P’s Rights- declaratory judgment different
than injunction for it neither commands nor forbids anything
6. Punish wrongdoers- punitive damages for aggravated wrongful act
Remedies goals in Contract
1. Fulfill Plaintiff’s expectancy of gain- may consist of specific
performance or money damages if SP not available
2. Special Damages to restore plaintiff’s losses and reliance
expenditures P incurred
3. Restitution- court’s rescission of K or agreement followed by
restitution will restore the plaintiff and the defendant to respective
situations prior to the transaction
4. Punish or deter the D- by granting the plaintiff’s expectation and
special damages will deter D’s from breaching Ks. (market
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economist). A court will almost never award P punitive damages when
a defendant breaches a K.
5. Declare or terminate parties contractual rights or duties- may grant
declaratory judgment either before or after a parties breach
Remedy goals for Unjust Enrichment
1. Restore the benefits D unjustly holds, restitution- primordial concept.
2. Punishment and deterrence- subordinate goals when D has give up
benefits she has unjustly reaped.
Summary of Historical Crap
Common law courts
tort-property actions
1. Specific relief/ restitution of property
Ejectment- to recover possession of real property/land.
Detinue- developed from writ of debt, and to be used against an
unfaithful bailee, let the D either return the chattel or pay
plaintiff its value
Replevin- to retrieve P’s personal property from a D.
2. Compensatory Damages- money for harm
Trespass- historically to someone’s person, to chattel, or to land allowed for
damages
Trespass to the case- to compensate the P for injuries ranging from indirect
& negligent injuries to the person to nuisances and various business
torts
Trover- for D’s conversion of P’s chattels allowed for compensatory
damages
3. Punishment- historically would allow jury to award Ps punitive
damages bc of “detestation” of act itself
3
4. Prevention- Common law Courts could not award equitable remedies,
had to go to Court of Chancery (Court of Equity) thus major
deficiency- dual courts
5. Declaration of Rights, obligations and status- problem in common law
courts, but could award nominal damages.
Contract Breaches historically-
Account- originally D’s breach of fiduciary obligation- fell out of favor
cumbersome procedure for dual lit. in both court systems
Covenant- no covenant if debt is applicable- only for instruments under seal.
Debt- oldest personal action, D’s duty to pay P a certain amount either by
contract, custom (statutory required payment), or record (collect money
judgments)
Assumpsit- 2 forms-
special assumpsit- P’s action on a simple express contract supported by
consideration, whether executory or partially executed.
General assumpsit- used common counts, including work done or quantum
meruit used by contemporary courts to develop the remedy of legal
restitution and concept of quasi contract.
Chancery Court- used if common law court fell short, equitable court
Granted equitable relief- such as declaratory, uses and trusts, as well as
mortgages
Enforcing a lien still considered to be equitable matter; separate equitable
defenses such as “Laches” and “unclean hands” evolved.
Specific performance and injunctions- decisions were not necessarily
precedent thus criticized for being unpredictable and vague
All reformed by Field Code in 1848; led to
FRCP: Today “only one action a Civil Action” R.2 FRCP
Chap 2- Money Damages
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Injured P principal civil remedy is money damages; performs two
functions 1) a plaintiff is compensated for loss and 2) damages deter
particular defendant and other potential defendants from incurring
future liability, thus they take reasonable precautions.
Damage determinations require a lay jury because states and Fed Const.
require it
7th Amendment: “In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise re-examined in
any Court of the United States, than according to the rules of the common
law”--- historical reasons for jury- prevent tyranny etc.
Very few cases even heard by juries bc they settle
Rules encourage settlement- FRCP pretrial conference 16(A)(5) and
FRE 408 parties settlement offers and negotiations not admissible.
FRCP 68 any litigant that rejects a settlement offer and receives a less
favorable judgment pay other sides attorney fees.
Most jury trial parties share four common characteristics-
Intransigent Party- unwilling to agree
Reputation to protect
Outcome is uncertain
Stakes are unusually high
Controversial doctrines:
Pain and suffering
Punitive damages
American Rule requiring each side to pay attorney’s fees
Gavcus v Potts (USCA 7th Cir. 1986) p.17.
Stolen silver Coins- compensatory damages and Att Fees
Gavcus brought action against stepfamily for trespass and conversion of her
silver coins from late husband. Jury awarded her special verdict of new
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locks, alarm and Att Fees from prior action concerning possessory interest
in coins and punitive damages.
DC set aside jury verdict and gave her $1.
C of A affirms DC decision- “nominal damages can be awarded when no
actual or substantial injury has been alleged or proved, since law
infers some damages from the trespass” also “consequential damages
can be awarded for actual or substantial injury to realty.” & “CD can be
recovered for a trespass, since a trespasser is liable for all injuries
which are the natural and proximate result of trespass”
Trespass can cause mental distress and illness or physical harm. No
emotional distress in Gavcus bc failure to proof to nature extent and
causation of ED
Att Fees- recoverable from prior action only if 1). prior litigation was the
natural and proximate result of the subsequent def. wrongful act and 2).
involved the P and a third party.
Punitive damages only if compensatory damages
Dura Pharmaceuticals v Broudo (SCOTUS 2005) p20
Stock fraud- FDA approval, false profits
P brought action against D for stock fraud- governed by statute- Throw
complaint out bc did not even meet Conley requirement of “short and plain
statement” as to provide the D with fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.”
Did not show causation that Dura’s fraud caused an economic loss
Bc price fell after FDA not approved came out but gained back all value
within a week.
Sec Ex Act 1934 forbids use of deceptive device in connection with sale of
securities
Basic elements of stock fraud:
1. a material misrepresentation ( or omission)
2. scienter, i.e. wrongful state of mind. Or knowledge/intent
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3. a connection with the purchase of security
4. reliance or “transactional causation”
5. economic loss
6. loss causation- causal connection between misrepresentation and
loss
Dura argued P did not prove last two elements, SCOTUS agrees says “Given
the tangle of factors affecting price, the most logic alone permits us to say I
that the higher purchase price will sometimes play a role in bringing about
a future loss.” Must chow causation not simply “touch upon”
Related to Dura p.118 Randall v Loftsgaarden tax benefits incurred due to
capital losses should not be subtracted from claim
Youst v Longo (SC Cali. 1987) p25
“I could have been a contender” Horse Racing interference
“it is well settled law that interference with the chance of winning a contest,
such as the horserace at issue here, usually presents a situation too
uncertain upon which to base tort liability.”
P sought Compensatory damages between actual finish (5th) and finish
which allegedly would have occurred but for D’s interference. Punitive of
250K also sought
Did not plead physical personal injury or property damage
RST 774B actual discusses such scenario in comments “not sufficient
certainty to entitle P to recover”
To speculative to recover Compensatory Damages
Notes case point to some curious cases where some contestants allowed to
recover. I.e. Beauty contest disqualified bc not notified of earlier start time
A railroad breached agreement for delivery thus getting contestant 2nd
instead of first
Puzzle contest, answer erroneously marked wrong, given amount equal to
odds times the prize money.
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Other speculative claims: Lost chance to survive in malpractice cases
Smith v State Dept of Health and Hospitals (Louisiana SC); x-ray
cancer MD no follow up, man died shown he had 10% chance of life if
notified on day of x-ray. So damages totaled and then only 10%. 3
recognized methods for calculating Lost chance of survival
1. focus on chance of survival lost due to negligence (used above)
2. Plaintiffs approach- if any chance than MD pays full claim
3. -Adopted by lower court in Smith- percentage more favorable
outcome – becomes percentage probability.
Can recover damages for fear of cancer as part of pain and suffering
damages if also liable for P’s physical injuries.
Medical monitoring
3 sub types- 1) D pays a lump sum to each individual P for future medical
attention
2) P’s Md’s send monitoring bills to D 3) a Court supervised
monitoring program is sought such as in
Henry v Dow Chemical Co. (Sc Mich 2005) p30
Class action for Dioxin Exposure in Tittabawssee flood plain in Mich.
Court supervised Medical monitoring sought
Court denies as plaintiffs have suffered no actual harm yet; only potential
for injury thus P’s have failed to state a valid negligence claim and grants
Sum. Judgment
“It is present injury, not fear of an injury in the future, that gives
rise to a cause of action under negligence theory.”
Importance of requirement of present physical injury 1) who actually
possesses a cause of action 2) reduces the risk of fraud by setting a minimal
threshold 3) would force Court to compromise judicial power to uncertainty,
“Our common law jurisprudence has been guided by a number of prudential
principles. Among them has been our attempt to avoid capricious
departures from bedrock legal rules as such tectonic shifts might produce
unforeseen and undesirable consequences”
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Not emotional distress bc no physical manifestations of such distress
Court not in business of crafting policy in the dark, deference to Legislature
already created the Mich Dept of Env. Quality
Dissent p.39
Plaintiff’s physical harm secondary to defendant’s economic health
P’s claim for med. Monitoring warrants equitable relief- P exposed to dioxin
at over 80 times deemed safe
“Court has equitable jurisdiction to provide remedy where none exist at law,
even if the parties have not specifically requested an equitable remedy.”
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Proving the amount of damages p.47
Court can easily determine some of P’s damages; i.e. lost wages, medical
expenses, the value of damaged property, expectancy and reliance damages
for breach of contract
However some difficult to prove: lost business profit (mind games v western
pub.)
Future pecuniary damages hard to calculate
Some compensatory hard to calculate such as P’s pain and suffering or
mental anguish
To prove damages first must prove the fact of damages then must prove
amount of damages- however even if damages amount uncertain “the
tortfeasor, not the P, should bear the burden of some uncertainty in the
amount of damages”
Plaintiff’s lost capacity to earn (past wages)(aka economic
damages)
Washington v Am. Comm. Stores Corp (SC Neb 1976) p48
Jury verdict of 76K arising out of car crash
P , 24, was successful collegiate wrestler and working as adult parole officer
at time of crash. Had a life expectancy of 49.9 years no dispute to
permanency of P injuries or that injuries prevented P from wrestling.
“It is well settled law that loss of earning capacity is distinct from loss
of wages, salary, or earnings, is a separate element of damage.”
Loss of past earnings is an item of special damage and is specifically
pleaded and proved
Impairment of earning capacity is an item of general damage and proof
may be had under general allegations of injury and damage.
Factors include- P’s age, life expectancy, health, habits, occupation,
talents, skill, experience, training, and industry.
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Agree with jury sufficient evid. to find P pursuit of wrestling career valid.
Again general damages thus no specific evid needed to recover.
Childs v US (USDC Georgia 1996) “unborn General”
Lawsuit for wrongful death under the Fed Tort Claims Act- State subs. Law
governs
Car crash 3rd passenger, mother and unborn child “General” die
immediately when struck by postal truck. P bring action under FTCA, D
admit liability, and have stipulated to estate of Debra and General are worth
$8794 for funeral and medical ex. Plus some more for damage to the car.
Issue is to amount of damages for P wrongful death claims. Debra 33, , had
life expectancy of 47 years- also 8 months pregnant with General, life
expectancy of 73.
Debra worked as produce manager at Kroger
Lost future income 4 elements
1. base year or entry level income (projected before tax income)
2. income growth rate (inflation, progression, productivity gains)
3. worklife expectancy (how long someone would have remained
in workforce)
4. discount rate (present value of decedents future income) (PV)
personal tax offset; personal expense/consumption offset; (some don’t
use)
+lost fringe benefits (includes health insurance, pension benefits, social
security.) usually 15% of PV of decedents lost income.
Lastly +lost household service (hours spent doing housework times
minimum wage).
Battle of experts for amount of lost future income damages varied between
$890K and $195K.
Total economic loss equals all of above added together,
difference in Childs, for debra- 1.148 million versus 398K
Generals lost future income-
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No lost household services for unborn child, but lost future earnings and
lost fringe benefits- Differences astounding $1.7 million versus $433K
“Who will fail and who will succeed and who will either enjoy or suffer
through life, is a game of fools” & “the mathematical precision the experts
put on General’s death illusory”
Both experts paid to see what they saw- P overvalues, D undervalues
Difference in Debra’s economic damages explained by difference in worklife
expectancy, used P expert’s calculations for Debra fringe benefits bc talked
to Kroger, both calculations for lost household service too high. Total
economic loss 1.35 million
General more speculative , big caring family, but from single mother
so 1.08 million
Sept 11th compensation- administrative remedy set up within two weeks,
based on male tables, still victims families wanted more, 1st year ass. at law
firm.
Also subrogation (infra) reduced payments, except workers comp and
private charity
Use stat mortality tables and work-life expectancies as authorities, not
binding on court though.
Waldorf v Shuta (p.61)- consideration as future attorney, when a high school
dropout far too speculative
Good notes p.60-68
Pain and suffering (p68) (aka, nonpecuniary, general damages,
hedonic- when referring to loss of enjoyment)
Also compensatory damages. Premised on P has been through trauma
has lost more than earnings or medical bills. Pain is physical. Suffering
takes many forms: grief, bereavement, fear, and frustration.
Referred to as noneconomic, but are they? Posner thinks not, economic
but non-pecuniary.
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“Two shortcomings to awarding pain and suffering- 1) money awards do
not make them whole, 2) there is no rational scale that justifies the
award of any particular amount., in compensation for a particular amount of
pain.” Consorti v Armstrong
Are Pain and Suffering damages used to pay attorney fees? P.69
Subjectivity of pain and suffering, conversion to dollar amount is difficult
and expensive
Parts of pain and suffering-
Victims anguish and terror felt in the face of impending injury and
death
Victims tangible physiological pain at time of injury and through
recovery
V’s loss of enjoyment of life- hedonistic damages
V’s loss of consortium
Hard to prove- must discuss V’s life before accident, during, and after,
what therapies
Loth v Truck-a-way (Cali CA 1998) p71 “Active lady struck down/Whore
expert”
PI from a auto accident- P awarded general damages and
D argued not admissible, expert testimony to hedonic damages, but it is
admissible
F: P car struck by 24-wheel truck, she walked away, continued business trip
then cut short went to Dr. complained of headaches and back stiffness. Saw
army of Dr’s but none able to stop pain. D conceded liability only issue was
damages. P’s expert testified to hedonic damages.
however should have been precluded bc of double recovery -pain and
suffering and hedonic. Only one collection of pain and suffering and
hedonic included in that figure. No separate jury instructions because
one figure
Only person whose pain and suffering is relevant is the P’s.
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can ask for per diem basis for pain and suffering (the norm in Fla.)
No formula for calculation (SCOTUS); Smith’s calculation does just that.
“a life is not a stock, car, home, or other such item bought and sold in some
marketplace.”
$890K verdict not excessive although Smith’s testimony could lead to
runaway verdicts and should be inadmissible. Still remand bc curative
instruction did not properly correct prejudice of Smith testimony.
Notes: Unit of time break down not allowed in some jurisdictions, Ok in Fla.
Some states all right if come with line at end that this is just an estimate
McDougald v Garber (NY CA 1989) p80 “Comatose Caesarean”
P permanently comatose after botched Caesarean section by D and
anesthesiologists.
Jury awards $9.6M + $1M for pain and suffering + $3.5M for loss of
pleasures and pursuits of life. Trial Judge reduced to 4.9M and 2M for pain
and suffering (one award)
Can she suffer conscious pain and suffering if comatose? No! “Cannot
experience the pleasure of giving it away” award must have utility to victim
to be compensatory
Dissenting opinion – basically she is suffering even if she does not know it.
highly emotional response, majority injects an extra element into equation
by creating utility.
“to obtain the benefit of this legal fiction the law requires a
prerequisite to recovery that the V of a tort have cognitive
awareness” & “therefore the P has the threshold burden of proving
consciousness for at least some time following an accident in order to
justify an award of damages for pain and suffering”
Notes p.87 “[Above] burden can be satisfied by direct or circumstantial
evidence but mere conjecture, surmise, or speculation is not enough”
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“often when unconsciousness or death occurs shortly after a tort, it is
difficult, sometimes impossible, to determine if a decedent suffered or was
actually conscious of any pain”
Limitations on Damages Recovery
Avoidable Consequences/ Avoidance
Williams and Robbins v Bright (NY SC 1997) p90 “Jehovah’s Witness
can’t see the Dr.”
P victim in car crash driven by her father, some evidence he fell asleep.
P religious beliefs do not discharge duty to mitigate damages. She claimed
Jehovah’s not allowed blood transfusions. Then she became wheel chair
bound after necrotic development of bone structure in knee.
She got “reasonably prudent Jehovah standard” at Trial Court, in effect
discharging her of any duty to mitigate. Relied on Ballard
Appeal: “State does have a compelling interest in assuring that the
proceedings before its civil tribunals are fair. And that any litigant is not
improperly advantaged or disadvantaged by adherence to a particular set of
religious principles.”
Courts purposes must be secular, unfairly advantaged to P in instant case.
Dissent- distinguished Ballard; court gave right charge below, new
instruction impermissible 1st Amend. Violation
Collateral Source Rule
Exception to the rule barring P from recovering compensatory
damages that exceed the P’s losses. Plaintiffs can still recover full
amount from defendant tortfeasors even though they have already received
compensation for their injuries (i.e. medical or car insurance). Not always
insurance!
Such as Shriners in Moulton v Rival Co. “a plaintiff who has been
compensated in whole or in part by a source independent of the tortfeasor
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is nevertheless entitled to a full recovery against the tortfeasor, to prevent
the tortfeasor from gaining a windfall.”
Even Posner agrees not a windfall for P.
Tort Reform sought though b/c some P’s collecting from disability and court
judgments
In Fla. Reduce the amount of damages paid to the claimant from collateral
sources however if right of subrogation exists (i.e. insurance) than no
reduction in damages.
Subrogation- Conventional Subrogation gives third party (mostly
“insurer”) right to “step into P’s shoes” and recover from D the expenses
incurred by third party in putting P in the rightful position; [also equitable
subrogation related to restitution] Subrogee (payor) and Subrogor
(victim)
Lagerstrom v Mertle Werth Hospital-Mayo Health System (SC Wis
2005) p102
“I owe Medicare”
P estate sues hospital and insurers for wrongful death/med mal. Get
judgment of $55,755.00 ; D at trial presented evidence that out of pocket
expenses were only $755.
Collateral Source evidence brought in by D, but P not allowed to rebut with
evid that may need to reimburse Medicare $89K.
Opinion saturated with statutory interpretation.
Ultimately finds “… evidence of collateral sources is admissible and if
presented then P must be allowed to show any potential obligations of
subrogation or reimbursement.”
Dissent- heavy disagreement bc US not joined as a party, so would affirm
lower decision
2nd Dissent- majority against legislative intent thus full dissent, “some
litigants use the rule to get around the cap on noneconomic damages [aka
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pain and suffering]” legislative history is clear “does not require juries to
make offset bc of collateral sources but permits them to.”
Notes p118 “Benefits rule provides that if defendant’s tortious conduct
confers a benefit, as well as a harm, on the plaintiff jury may weigh the
value of benefit against the claimed harm.” i.e. negligent digging discovers
oil well
Enhancement and adjustment of compensatory
damages
Prejudgment interest
Jurisdictionally set at around 8 to 9%, and compound “calculated on
principal and interest from prior period”
Present value of money more than future value, “a dollar today is worth
more than a dollar tomorrow”
Prejudgment interest- from the time claim arose to judgment
Post-judgment or judgment interest- from the time of judgment to payment,
set by statute and often very low
Contract interest- interest a debtor agrees to pay a creditor
Jurisdictions split on awarding interest- left over medieval crap that interest
perpetuates feudalism and only awarded if D knew exactly what it owed.
Unions told not to violate injunction, every violation brings penalty of $100K
for violent and $20K non-violent. 7 separate contempt hearings for over 400
offenses racks up $64M in fines for Union. Companies and union settle and
vacate $12M in fines but $52M still owed to Virginia and two counties.
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Union argues fines are criminal contempt and not civil contempt thus
needed a jury and higher standard of proof.
Civil Contempt- “carry the key of prison door in your own pocket.”
1. coerces the D into compliance with the court’s order, or
2. compensates the complainant for losses sustained
Criminal contempt- a fixed sentence of imprisonment and is imposed
retrospectively for a “completed act of disobedience.” Gompers (had
been put in jail for 12 months was criminal contempt) “thus a flat,
unconditional fine totaling even as little as $50 announced after a finding of
contempt is criminal if the contemptor has no subsequent opportunity to
reduce or avoid the fine through compliance.”
What protections are afforded and When?
“Courts independently must be vested with “power to impose silence,
respect, and decorum, in their presence” Anderson “inherent Contempt
authority” Gompers
Thus direct contempt’s can still be handled summarily
Indirect contempt’s of complex injunctions demands reliable fact finding
and triggers the criminal procedural protections [presumed innocent,
advised of charges against them, have an opportunity to respond to
charges, right to counsel, right to call witnesses, have a public trial,
unbiased judge, right not to testify against oneself, and proof BaRD; and
afforded a jury for serious criminal contempt] to prevent arbitrary exercise
of judicial power.
Fines levied on Union were not compensatory and were punitive thus should
have triggered criminal procedural protections such as criminal jury trial.
Scalia Dissent $52M criminal, too extreme a case to try and clarify civil
versus criminal contempt. Would satisfy all the previous tests.
4. Confinement, Contempt, and Cash money: Ability to comply.
Statutes authorize a judgment creditor to institute collection proceedings or
discovery proceedings to find the judgment debtor’s assets.
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Judge may enforce an order to pay with contempt even though requires him
to pay money bc defendants failure to comply considered contumacious
conduct.
“Yet cannot get any blood out of a turnip” contemptor can assert the
defense of inability to comply” Deadbeat dad cannot be forced into civil
contempt if he is unable to pay Hughes v Georgia Dept of Human Resources
p 344 Contemptor has both burden of persuasion and burden of production
on defense of inability to pay.
Moss v Superior Court, Ortiz (SC Cal 1998) p345 “Deadbeat dad has to
pay”
There is no constitutional impediment to imposition of contempt sanctions
on a parent for failure to pay child support when the parent has the ability
to seek and accept available employment.
A court order requiring parent to pay child support and thus seek and
accept gainful employment is not a violation of the thirteenth Am.
Prohibiting involuntary servitude. Neither it is a violation of Cal Const. “A
person may not be imprisoned for a debt” bc provision has long been held
not to apply to imprisonment for crimes or contempt’s.
5. The Collateral Bar
Ex Parte Purvis (Sc AL 1980) p352 “protestor imprisoned for 3 criminal
contempts”
Purvis violated of TRO by striking against his employer, Water Works Board
of Birmingham. Sentenced to criminal contempt of 15 days for 3 separate
incidents of contempt. Uphold TRO despite Purvis contention that
Injunction violated his constitutional rights to freedom of assembly, etc.
“order issued by court with jurisdiction… must be obeyed until it is reversed
by orderly and proper proceedings even though it may be constitutionally
defective” unless rare case [If transparently invalid- ridic high standard]
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where compliance would cause the irreparable injury and appeal would not
totally repair the error.
5. Who may obey
Because courts cannot make general rules that apply to the masses, such as
statutes as made by legislatures, then injunctions only apply to certain
people.
Can be geographically specific Acuna or Milk Wagon Drivers p359 or 36
feet Madsen
People v Conrad (Cal CA 1997) p360 “Two groups one abortion clinic”
Two groups picket abortion clinic, one group, “Solano Citizens for Life” has
injunction enjoined against it. “Operation Rescue of California, another anti-
abortion group, claims they are unrelated. ORCal was at clinic to “test the
injunction”. Parties did not know each other and thus could ORCal members
could not be enjoined by previous injunction. Did not act “in concert” as
required by injunction.
Ex Parte Davis (Tex 470 SW 2d 647) [Roman asked up to look up] “It don’t
apply to me”
Beaumont preacher building church against injunction
states that an injunction is binding only upon the parties to the
action, their officers, agents, servants, employees, and attorneys,
and upon those persons in active concert or participation with them
Neither Bible Baptist Church nor Davis were parties to the 1962 temporary
injunction. The question here is whether a non-party to the original
injunction proceeding, was in active concert or participation with the Brites.
This court in Ex Parte Foster said that while a person not named as a party
is not ordinarily bound by the terms of the injunction decree and therefore
cannot be punished for violating its terms, he is ‘in active concert or
participation’ with the named party if he participated in the original
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proceeding and was a real party in interest when the decree was
rendered
E. The Enforcement of Constitutional and Public Law
Through Structural Injunctions
Granted to protect P’s constitutional rights usually infringed by schools,
prisons, jails, and now mental hospitals and even police departments.
Future based hard to draft and strain the judiciary, also Separation of
powers concerns because may usurp executive and legislative power. But
sometimes needed because other branches too slow to react, i.e. Brown II
“all deliberate speed.”
Courts can hold city council members or other government officials in
contempt for not following structural injunctions; Courts can subject
injunctions over entire systems as in Dixon v Berry where courts supervised
the DC mental health system for over 25 years.
A judge may also grant relief from an injunction when the prospective
application in “no longer equitable” FRCP 60(b)(5).
1. Attempts to remodel an existing social or political institution to bring it into conformity with constitutional demands
2. Typically complex and invasive 3. Likely to involve judge in tasks traditionally considered to be non-judicial, that is,
less about rights and duties and more about management4. Used only as public law remedies for serious and pervasive rights violations5. Ex. restructure school system to facilitate equality of educational opportunity
F. Injunction Reform2 big areas: Limits on strike injunctions and injunctions which effect
unconstitutional prison conditions
Frew ex Rel. Frew v Hawkins (SCOTUS 2004) p374
Texas parents filed a class action lawsuit on behalf of their children against
state healthcare officials, claiming deficiencies in the state's Medicaid
program. The case was settled through a consent decree, a written
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agreement similar to a contract that the court approves and has the power
to enforce. Two and a half years later, parents were unsatisfied with the
state's progress and filed a motion to enforce the consent decree. The
district court found that the consent decree was enforceable, but the court
of appeals reversed, holding that the state was immune from enforcement
under the Eleventh Amendment, which provides that a state cannot be sued
by individuals from other states, countries, or its own residents unless it
explicitly waives immunity. The court of appeals held that a consent
decree is not enforceable against a state or its officials except to
vindicate a federal right under 42 U.S.C. § 1983. The court found no
violation of a federal right and no waiver of sovereign immunity;
therefore, the consent decree was unenforceable.
Chapter 4 – Unjust Enrichment- Restitution
A. Doctrine of Unjust Enrichment is an Equitable one, providing
one party should not be able to benefit at the expense of another because of
an innocent mistake or unintentional error. UE opposite of Officious
intermeddler- window washer.
Kistler v Stoddard (Ark CA 1985) p384 “Hey I planted those crops”
Stoddard tenant farmer for 20 yrs. planted crop in Nov. 1980. Farm owner
died, estate sold land which Stoddard planted on. New owner unjustly
enriched. Stoddard had no equitable or legal claim to the crop, but that
does not mean D (Kistler) is entitled to be unjustly enriched.
Kossian v American Nat. Ins. Co. (Cal CA 1967) p393 “Cleanup of Fire in
hotel”
The plaintiff was hired by the owner of a hotel to clean up debris after a
fire. He performed the work but was never paid. Later, the hotel owner filed
a bankruptcy petition. The trustee in bankruptcy abandoned the hotel to the
defendant company, which held a mortgage on the property. The defendant
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took possession of the debris-- free premises, and also collected on an
insurance policy the hotel owner had maintained for the defendant's benefit
pursuant to the mortgage. The insurance contract indemnified the
defendant for fire loss, including the cost of removing debris; but, like most
insurance contracts, it did not require that the work be done.
The plaintiff asserted a restitution claim against the defendant, seeking a
money remedy in the amount of the insurance proceeds corresponding to
debris removal. Although the defendant never requested the plaintiff's
services, and the insurance payment was based on an independent contract
between the hotel owner and the insurer, the court allowed the claim. It
interpreted the "equitable doctrine of unjust enrichment" to mean
that the defendant should not "be indemnified twice for the same
loss, once in labor and materials and again in money, to the
detriment (forfeiture) of the party who furnished the labor and