Remedies With Case

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REMEDIES OUTLINE
PART 1: INTRODUCTION
General Approach to Crafting a Remedy

(1) Identify the remedy’s goal.
(2) The choice between a specific and a substitutionary remedy, which operate by giving the
plaintiff a substitute equal to the value of the plaintiff’s entitlement.
(3) How to implement the first two choices.
(4) How to enforce the remedy. If the defendant does not cooperate, what can and should be
done?
Damages for prior loss, attorney’s fees, restitution, punitive damages, and disbarment seek to
remedy past harms. Injunctions, declaratory judgment, and damages for future harm all seek to
remedy possibly future harm.
Damages for prior loss, injunctions, declaratory, and future damages are all about putting the
plaintiff back in their rightful position. Restitution puts the defendant back in their rightful
position. Punitive damages, disbarment, and civil penalties seek to punish.
Another difference in damages is specific entitlement compared to the substitute, usually money.
Other types of remedies include civil penalties, forfeiture of property, treble damages.
PART 2: WHERE THERE’S A RIGHT, THERE’S A REMEDY
Many observers contend that at least in the context of public law litigation, designing a remedy is
far from a mechanical process. Rather, the design of a remedy is an exercise of power
independent of the declaration of a right, and so requires its own justification.
If there is one thing to be learned from a course in remedies, it is that “Where’ there’s a right,
there’s a remedy” is a singularly unhelpful maxim.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971)

Facts: Narcotics agents entered petitioner’s apartment and arrested him for alleged narcotics
violations. He alleges the arrest was made without probable cause and with unreasonable force.
Issue: Whether violation of the right against unreasonable searches and seizures by a federal
agent authority gives rise to a cause of action for damages based on his unconstitutional conduct.
Holding: It does.
Reasoning (Brennan): It is well settled that where legal rights have been invaded, and a federal
statute provides for a general right to sue for such invasion, federal courts may use any available
remedy to make good the wrong done.
Notes: If a damages remedy is appropriate when the fourth amendment is violated, does it
necessarily follow that a damages remedy is equally appropriate for all constitutional violations?
Justice Harlan’s concurrence suggests not.
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Schweiker v. Chilicky (1988)

Facts: Finding that benefits were too often being improperly terminated by state agencies, only
to be reinstated by a federal administrative law judge, Congress enacted the Social Security
Disability Benefits Reform Act of 1984, which required a more careful review before benefits
could be terminated. … Respondents had their benefits terminated and later reinstated. They then
sued to recover damages for the harm caused by months-long delay in the restoration of their
benefits, including loss of food, shelter, and other necessities, as well as emotional distress.
Issue: Whether these facts give rise to a cause of action for money damages.
Holding: We conclude that such a remedy, not having been included in the elaborate remedial
scheme devised by Congress, is unavailable.
Reasoning (O’Connor): In sum, the concept of “special factors counseling hesitation in the
absence of affirmative action by Congress” has proved to include an appropriate judicial
deference to indications that congressional action has not been inadvertent. When the design of a
government program suggests that Congress has provided what it considers adequate remedial
mechanisms for constitutional violations that may occur in the course of its administration, we
have not created additional Bivens remedies. … Whether or not we believe that Congress’
response was the best, it is the body charged with making the inevitable compromises required in
the design of a massive and complex welfare benefits program.
Dissent (Brennan): Because I am convinced that Congress did not intend to preclude judicial
recognition of a cause of action for such injuries, and because I believe there are no special
factors militating against the creation of such a remedy, I dissent.
Class Notes
In Bivens, Harlan in his concurrence decides that in this kind of case that damages are
appropriate but that there are other constitutional causes of action in which damages would not
be available.
There have been explicit grants of money relief and also implicit ones, but up until Bivens the
Court has never created a constitutional remedy for damages.
Brennan, writing for the majority, says we’re going to assume money damages are appropriate
unless there are some special factors present.
There are only two instances where Bivens has been extended: when dealing with due process,
and another with cruel and unusual process.
PART 3: THE NATURE, AVAILABILITY, AND SCOPE OF INJUNCTIONS
A. The Nature of an Injunction
There are two main requirements a plaintiff must show the receive injunctive relief:
(1) that there is a threat of harm from the defendant, meaning the problem will or may
happen in the future.
(2) that there is no adequate remedy at law, such as compensatory damages. One way to
show that the remedy at law is inadequate is to demonstrate that the plaintiff could not
replace what the defendant has taken with compensatory damages – that is, to
demonstrate irreparable injury.
Under the rubric of balancing the equities, courts grant injunctions that fall short of the
plaintiff’s rightful position or even deny injunctive relief altogether. For example, a court might
conclude that issuing an injunction would impose an undue hardship or would otherwise be
unfair to the defendant.
Violation of an injunction, as an order of the court, is contempt of court and punishable under the
courts’ contempt power.
In order to enforce its orders specifically, the court has essentially three weapons.
(1) If the injunction is violated, the court may award monetary compensation to the plaintiff,
known as compensatory civil contempt. It differs from an ordinary action for
compensatory damages in that the contemnor does not have a right to a jury trial and the
court generally has authority to award the plaintiff attorney’s fees.
(2) The court may coerce the contemnor into obeying the order by jailing or fining her so
long as the disobedience continue, known as a coercive civil contempt.
(3) If the violation of the injunction is willful, the court may adjudge the contemnor guilty of
a crime and impose a sentence, known as criminal contempt.
B. The Plaintiff’s Rightful Position as the Measure of an Injunction
An injunction’s primary mission must be to protect the plaintiff’s rightful position. Sometimes,
though, this is not so evident.
Mt. Healthy City School District Board of Education v. Doyle (1977)

Facts: Doyle claims that the Board’s refusal to renew his contract in 1971 violated his rights
under the First and Fourteenth Amendments to the US Constituion. Doyle had no tenure, and
there was therefore not even a state law requirement of cause of reason, but the Board notified
him that part of the reason he was let go was due to some comments he made to a local radio DJ.
The District Court concluded that Doyel was entitled to reinstatement with back pay.
Issue: Whether the fact that the protected conduct played a “substantial part” in the actual
decision not to renew would amount to a constitutional violation justifying remedial action.
Holding: We think that it would not.
Reasoning (Rehnquist): Clearly the Board legally could have dismissed respondent had the
radio station incident never come to its attention. A rule of causation which focuses solely on
whether protected conduct played a part, substantial or otherwise, in a decision not to rehire
could place an employee in a better position as a result of the exercise of constitutionally
protected conduct than he would have occupied had he done nothing.
Rizzo v. Goode (1976)

Facts: The District Court entered an order in 1973 requiring petitioners to “submit to the Court
for its approval a comprehensive program for improving the handling of citizen complaints
against alleged police misconduct.” The Court of Appeals upheld the District Court’s judgment.
Issue: Whether the judgment of the District Court represents an unwarranted intrusion by the
federal judiciary into the discretionary authority committed to them by state and local law to
perform their official functions.
Holding: We reverse the judgment of the Court of Appeals.
Reasoning (Rehnquist): There was no showing that the behavior of the Philadelphia police was
different in kind or degree from that which exists elsewhere. When a plaintiff seeks to enjoin the
activity of a government agency, even within a unitary court system, his case must contend with
“the well-established rule that the Government has traditionally been granted the widest latitude
in the dispatch of its own internal affairs.”
Dissent (Blackmun): It is a matter of regret that the Court sees fit to nullify what so
meticulously and thoughtfully has been evolved to satisfy an existing need relating to
constitutional rights that we cherish and hold dear.
Class Notes
The most important lesson from Mt. Healthy is that the framing of an injunction must begin with
a careful definition of the plaintiff’s right. Other takeaway is that goal of injunction can’t be to
go beyond the rightful position, although the terms of the injunction might go beyond that.
In Rizzo, the crux is that the defendants sued weren’t the perpetrators of the violation. The
injunction needed to run against the police chief and the mayor, but there was no proof that they
were violators.
The purpose of an injunction is to put the plaintiff in the rightful position, not deterrence, even
though it might have the side effect of doing so.
When there is no remedy that will achieve the rightful position exactly, the injunction’s terms
may overreach the rightful position so long as the injunction’s aim is to achieve no more than the
rightful position.
The remand remedy differs from a simple reversal in two respects:

(1) As a matter of substance, the successful complainant will not necessarily get what it
ultimately wants but rather reconsideration, theoretically free from error. A
(2) As a matter of procedure, doubtful cases are to be decided by the governmental entity
originally charged with making the decision rather than by the court.
One major difference between damages and injunctions is that with damages the court upholds it
by acting on the defendant’s stuff if they do not comply, whereas with injunctions the court acts
on the defendant personally.
PART 4: THE PREREQUISTES FOR INJUNCTIVE RELIEF
1. Threat of Harm
A threat of future harm will obviously pass the test. At the same time, past violations are not
essentially; they are only one kind of evidence of a threat of future harm. On the other hand, a
court may find no threat of future harm despite past violations.
Hecht Co. v. Bowles (1944)

Facts: Section 205a of the Emergency Price Control Act of 1942 has provisions relating to
injunctive relief. A regulation issued under section 2 of the Act and effective in May 1942
provided that no person should sell or deliver any commodity at a price higher than the
authorized maximum price as fixed and determined by the regulation. There is no doubt that
petitioner violated the Act. There is also no doubt of petitioner’s good faith and diligence.
Issue: The question in this case is whether the Administrator, having established that a defendant
has engaged in acts or practices violative of section 4 of the Act, is entitled as of right to an
injunction restraining the defendant from engaging in such acts or practices or whether the court
has some discretion to grant or withhold such relief.
Rule: Under § 205(a) of the Emergency Price Control Act of 1942, the grant of an injunction,
upon application of the Administrator and a showing that the defendant has engaged in acts or
practice violative of 4 of the Act, is not mandatory, but is in the discretion of the court.
Holding: Whether the District Court abused its discretion in dismissing the complaint is a
question which we do not reach. The judgment is reversed and the cause remanded to the Court
of Appeals for that determination.
Reasoning (Douglas): It seems apparent on the face of section 205a that there is some room for
the exercise of discretion on the part of the court. For the requirement is that a “permanent or
temporary injunction, restraining order, or other order” be granted. While the Administrator asks
for an injunction, some other order might be more appropriate, or at least appear so to the court.
Notes: Often cited for its statements that courts have great flexibility in framing injunctions.
City of Los Angeles v. Lyons (1983)

Facts: This was a United States Supreme Court decision holding that the plaintiff, Adolph
Lyons, lacked standing to challenge the city police department's alleged chokehold policy.
Lyons, an African American, had been subjected to a chokehold after being stopped for a traffic
violation. He sought both compensatory damages for the chokehold, and declaratory and
injunctive relief against the department's chokehold policy (he introduced evidence that from
1975 to 1983, 16 people had been killed by police chokeholds).
Holding (White): The the Court held, 5-4, that Lyons had failed to allege a sufficiently plausible
threat of future injury to have standing for an injunction; Lyons did, however, have standing for
his damages action, since this was retrospective and the injury--being subjected to the
chokehold--was concrete and particular. The decision helps establish the principle that a plaintiff
must meet a standing requirement for each form of relief sought
Lewis v. Casey (1996)

Facts: Inmates in various prisons in Arizona brought a class action alleging the state failed in its
constitutional duty to provide law libraries or persons adequately trained in the law to help
prisoners file meaningful legal papers. The Supreme Court rejected the system wide injunction
ordered by the district court. The remedy had to be limited to redressing the inadequacy that
produced an injury that the plaintiffs with standing had proven; suing on behalf of a group of
prisoners did not help without such proof.
Reasoning (Scalia): It is for the courts to remedy past or imminent official interference with
individual inmates’ presentation of claims to the courts; it is for the political branches of the
State and Federal Governments to manage prisons in such fashion that official interference with
the presentation of claims will not occur. The distinction between the two roles would be
obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but
merely the status of being subject to a governmental institution that was not organized or
managed properly.
Class Notes
The burden is on the plaintiff to show the threat of harm, which includes imminent and
substantial harm to the plaintiff from the defendant. If there is a past violation of a threat of
harm, then the burden shifts to the defendant to show that there is no longer a threat of harm.
In Hecht, there is a balancing aspect to the threat of harm where the court here is weighing the
need for an injunction versus the harm the injunction will have on the defendant.
In Lyons, big issue is whether there is a threat of harm. Speaks to standing & remedial mootness.
Threat of harm is important in terms of not just whether you get an injunction, but also that the
scope of the injunction is going to be geared to the harm you show has been threatened.
Other cases balance the likelihood of the harm against the gravity of the harm. For instance, if
the gravity of harm is substantial, then a smaller likelihood than normal might suffice for an
injunction.
The injunction only protects the plaintiff, meaning the plaintiff’s neighbor cannot bring a case
for a breach of injunction. The neighbor might incidentally benefit from the injunction, but that
does not mean he has a right to enforce it.
2. Inadequate Remedy at Law
A traditional test of inadequacy is that the remedy at law is not “as practical and as efficient to
the ends of justice and its prompt administration as the remedy in equity.”
Professor Douglas Laycock has neatly punctured the puffery in the inadequate remedy at law
maxim:
“The full statement of the traditional rule is as follows:
(1) Equity will not act if there is an adequate remedy at law.
(2) Adequate remedy means a remedy as complete, practical, and efficient as the equitable
remedy.
This rule could be reformulated as follows:
(1) Plaintiff is entitled in all cases to the most complete, practical and efficient remedy.
(2) If a legal and an equitable remedy are equally complete, practical, and efficient, the legal
remedy shall be used.
Although the two formulations are logically equivalent, they are not rhetorically equivalent.”
Note on Declining Importance of the Inadequate remedy at law rule

In practice, courts weigh the practical merits of equitable and legal relief. As a result, if the
plaintiff has a good reason for preferring an injunction to damages, that reason is usually good
enough to persuade a court to grant injunctive relief, except where there is some special reason
for avoiding injunctive relief, such as concern for placing a prior restraint on speech.
Class notes
Most legitimate reasons for preferring injunctive relief will be enough to convince the court. An
illegitimate reason would be if you’re just doing it out of spite or something.
Prior restraint doctrine says you cannot enjoin speech. You can’t make somebody shut up, but
you might be able to get damages. This situation is not that the legal remedy is inadequate, it is
more so that there are First Amendment considerations that trump it.
Two arguments to keep the inadequate remedy at law doctrine:

(1) Keep a jury trial, as an injunction, once issued, is done by the judge not the jury
(2) Efficiency. It is efficient to have an injunctive remedy and not a damage remedy.
PART 5: BALANCING THE EQUITIES
1. The Four Factor Test
eBay v. Mercexchange LLC

Facts: Online auction site eBay uses practices in its online auction technology for which
MercExchange owns patents, including a patent which covers eBay's "Buy it Now" function -
over 30 percent of the company's business. In 2000, eBay initiated negotiations to outright
purchase MercExchange's online auction patent portfolio. When eBay abandoned its effort,
MercExchange sued eBay for patent infringement and prevailed in a 2003 Virginia jury trial
which found eBay had willfully infringed the company's patents. Following the verdict,
MercExchange sought an injunction to prevent eBay's continued use of its intellectual property.
Holding: The Court unanimously determined that an injunction should not automatically issue
based on a finding of patent infringement, but also that an injunction should not be denied simply
on the basis that the plaintiff does not practice the patented invention. Instead, a federal court
must still weigh the four factors traditionally used to determine if an injunction should issue
whenever such relief is requested.
Reasoning (Thomas): The test requires a plaintiff to demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury;
(3) that considering the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by a permanent
injunction. The decision to grant or deny such relief is an act of equitable discretion by the
district court, reviewable on appeal for abuse of discretion.
2. Granting Less than the Plaintiff’s Rightful Position

Smith v. Staso Milling Co. (2nd Cir. 1927)

Facts: After the D had purchased the land, but before it had put up the plant, the P wrote, calling
attention to the brook which flowed through the premises, advising it that its continued purity
was a valuable asset to him, and protesting against any pollution or interference with its flow.
The D assured him there would be no problem. The D had installed dust arresters which are rated
to stop 99 percent of the dust which is produced. D was enjoined by the lower court from
polluting the brook with slate dust. P was also awarded past damages.
Holding: An injunction is appropriate.
Reasoning (Learned Hand: Nevertheless, so far as concerns the pollution we think that the
injury is so substantial and the wrong so deliberate, that we ought to impose upon the defendant
the peril of any failure successfully to avoid it. In the case at bar not only did the D have the most
explicit warning from the P, but it gave an equally explicit assurance that it could avoid defiling
the brook. … We are not prepared in such situation to say that, if the D cannot by the best known
methods arrest all the dust which it emits, it must shut down its mill. … The best disposition [is
to affirm the injunction as stands but allow the D leave to show it operates the most efficient
arresters and is therefore impossible to reduce the dust.] If proved, then the injunction should be
modified so as merely to limit the dust to that which will escape the award of damages.
Notes: Point here is that the undue hardship defense will not just affect whether the injunction
will be used but also its terms.
Brown v. Board of Ed II – Question of remedies

Reasoning (Warren): At stake is the personal interest of the plaintiffs in admission to public
schools as soon as practicable on a nondiscriminatory basis. … While giving weight to these
public and private considerations, the courts will require that the defendants make a prompt and
reasonable start toward full compliance with our prior ruling. … During this period of transition,
the courts will retain jurisdiction of these cases.
Notes: Previously, injunctions were the remedies of last resort both because of the inadequate
remedy at law rule and the suspicion of injunctions generated by injunctions against strikes in the
early days of the union movement. After Brown II, the injunction was the remedy of choice for
constitutional violations.
In weighing an undue hardship, the Courts will look to the hardship imposed on nonparties but
not the benefits imposed on the nonparties.
The courts balanced the equities in Staso, a common law case, and Brown II, a constitutional
case. The next question is whether they may do so to allow statutory violations to continue.
Tennessee Valley Authority v. Hill

Facts: The Tennessee Valley Authority started the building of the Tellico Dam on the Little
Tennessee River and was constructing the dam when an endangered fish species, the snail darter,
was found upstream. The Endangered Species Act was passed after construction had begun. If
the dam project was completed, the resulting reservoir would flood the snail darter's river habitat
- causing considerable harm to the fish.
Holding: The completion of the dam project violates the Act.
Reasoning (Burger): The Court held that pursuant to the Act's explicit provisions, the survival
of the snail darter population required the permanent halting of the dam project. The Court noted
that Congress intended endangered species to be afforded the highest of priorities and to halt and
reverse the trend toward species extinction because the value of endangered species was
"incalculable." … The Court ruled that an injunction was the appropriate remedy because of
"institutionalized caution" and separation of powers, as that was the remedy Congress intended.
Notes: Balancing is much, much harder here. Balancing against a blatant violation of the statute
is not going to happen at all. But, if the facts were changed, balancing might be possible. If it
were possible to move the fish safely somewhere else, that would still be a violation of the
statute because the statute refers to the “destruction of modification of habitat of such species.”
This might be balanced because it is still consistent with the goals of the statute – to protect
endangered species – and stopping the dam being built would be a hardship.
Recipe for Balancing the Equities

Step one: Identifying the hardship to the defendant. The cost to the defendant of complying with
an injunction is not a hardship to the extent that it requires ordinarily anticipated costs of obeying
the law. Similarly, the difference between the cost of obeying the injunction and the cost of
paying damages -- that is the difference in cost between specific and substitutionary relief -- is
also not necessarily a hardship. … The hardship is the difference between the actual cost of
compliance with the injunction and the cost that the law maker anticipated. In other words, the
hardship is "a factor justifying departure from the rule that was not reflected in its formulation."
Step two: Identifying the plaintiff's interest. The plaintiff's interest in injunctive relief is, as
Professor Laycock puts it, "the disadvantage to plaintiff of receiving only substitutionary relief."
This difference is usually not readily reducible to money terms because of the difficulty in
putting a price tag on plaintiff's rightful position.
Step three: Discount the defendant's hardship and the plaintiff's interest to take account of fault.
Judges are unsympathetic to defendant's hardship to the extent that it is self-imposed. Similarly,
if the plaintiffs in some way encouraged defendant to think that the violation was acceptable,
plaintiff's interest would be discounted.
Step four: Balance the defendant's hardship and the plaintiff's interest in light of the law's goals.
The goals of the law of liability should guide the court in balancing the incommensurate
interests of the parties. For example, one can read TVA v. Hill to hold that the balance must
come out in favor for the endangered species because the statute's predominant goal is to
preserve species. Similarly, the law of contracts lets parties make their own deal. Accordingly,
the court will give little weight to difficulties of performance that were anticipated.
3. Granting More than Plaintiff’s Rightful Position; Prophylaxis and Impossibility
To get an injunction that grants less than the plaintiff’s rightful position, the defendant must
justify that result through a factor not reflected in the law of liability – a “hardship.”
To get an injunction that grants more, the plaintiff also must justify the result through a factor not
reflected in the law of liability – the difficulty of supervising a resistant defendant or the
impossibility of precisely recreating the plaintiff’s rightful position.
The defendant must show that the hardship outweighs the plaintiff’s interest in getting specific
rather than substitutionary relief. The plaintiff must show that the threat to its rightful position
from a narrower injunction outweighs the harm to the defendant from an injunction going
beyond the plaintiff’s rightful position.
Courts may provide more injunctive relief than is necessary to ensure that the plaintiff will
actually achieve her rightful position. This type of injunctive relief is called a “prophylactic”
injunction. Like prophylactic measures in medicine, the additional safeguards are taken to avoid
future harm, such as vaccination given to prevent a more serious disease.
A court might order a prophylactic injunction to ensure compliance with an injunction. The court
still aims for the P’s rightful position, but the term of the injunction go beyond that position as
prophylaxis against falling short of it.
The Hutto case suggests that injunctions that go beyond the plaintiff’s rightful position require a
demonstrated risk that the defendants would not comply with a narrower order. Such a
requirement parallels the requirement of showing a threat of harm to plaintiff’s rightful position
as a prerequisite to the issuance of any injunction.
Courts issue orders that achieve more than the plaintiffs rightful position for a second reason –
because it is impossible to achieve the plaintiff’s rightful position precisely, even if the defendant
cooperates.
Swann v. Charlotte-Mecklenburg Board of Education (1971)

Facts: These cases present us with the problem of defining in more precise terms than heretofore
the scope of the duty of school authorities and district courts in implementing Brown I and the
mandate to eliminate dual systems and establish unitary systems at once. … Most of the Negro
students in the relevant area attended schools which were either totally Negro or more than 99%
Negro. … The District Court found that residential patterns in the city and county resulted in part
from federal, state, and local government action rather than school board decisions. The District
Court was presented with two alternative pupil assignment plans. … The “Board Plan” involved
substantial restructuring of the zoning in order to even out the racial balancing. The “Finger
Plan” adopted the school board zoning plan with one modification: it required that an addition
300 Negro students be transported from the Negro residential area of the city to the nearly all-
white Independence High School. The court adopted the Finger plan.
Holding: The order of the District Court is affirmed.
Reasoning (Burger): The Court of Appeals, searching for a term to define the equitable
remedial power of the district courts, used the term “reasonableness.” In Green, this Court used
the term “feasible” and by implication, “workable,” “effective,” and “realistic” in the mandate to
develop a “plan that promises realistically to work and to work not.” We are unable to conclude
that the order of the District Court is not reasonable, feasible, and workable.
Missouri v. Jenkins (Jenkins III) (1995)

Facts: In a case originally brought by the Kansas City, Missouri School District (KCMSD), the
courts held that the state of Missouri was liable for segregated schools within the boundaries of
KCMSD. In 1987, the district courts ordered mandatory salary assistance, arguing that in order
to end segregation in the schools the district needed higher-paid, quality teachers, and in 1993
the district court ordered the state to pay for these salary increases.
Issue: Did the court order to increase property taxes violate Article III, the Tenth Amendment, or
principles of federal/state comity?
Holding: The Court, in a 5-4 decision, overturned the District Court.
Reasoning (Rehnquist): The Supreme Court ruled that while direct imposition of taxes is
indeed beyond judicial authority, it would be permissible for the district court to order the school
district to levy the same tax. The Court said: "Authorizing and directing local government
institutions to devise and implement remedies not only protects the function of these institutions
but, to the extent possible, also places the responsibility for solutions to the problems of
segregation upon those themselves who have created the problem." … The Court also said: To
hold otherwise would fail to take account of the obligations of local governments, under the
Supremacy Clause, to fulfill the requirements that the Constitution imposes upon them.
Class Notes
Brown II lays out two requirements: (1) dismantling of dual school systems and (2) the
admission of all children to unitary schools on a racially indiscriminatory basis. First is
reparative while second is preventative.
The Court begins to take over some of the school functions in Jenkins because the school board
failed to meet the Brown standards.
The strange thing in Swann is that the rightful position is to be colorblind, yet some of the
methods used to that end are not colorblind. The reason the court can’t be color blind is because
the court needs to look at color in order to repair the past damage inflicted on the basis of race.
PART 6: PROCEDURES FOR FORMULATING, ADMINISTERING, AND

ENFORCING THE INJUNCTION
A. Obtaining Preliminary Injunction Relief
1. Types of Injunctions
When a court has to issue an injunction quickly to avoid possible immediate harm, the order is
called “temporary” or “preliminary” because it lasts only long enough to give the court time to
deliberate further on the merits. In contrast, an injunction issued after a final determination is
called a “permanent injunction.” The word “permanent” signifies not the injunction’s duration
but rather that it is not contingent upon some further finding on the merits.
A Temporary Restraining Order (TRO) is an emergency order, which can be granted if, but only
if, immediate and irreparable harm will result before a hearing can be held; as a result, it can be
granted ex parte (i.e. without any notice to the D).
2. Standards for Granting Preliminary Relief

Appellate courts typically state that the granting of a preliminary injunction or a TRO is within
the discretion of the trial court; they also note that such preliminary relief is an extraordinary and
drastic remedy that should issue only if the P makes a proper showing.
Winter v. Natural Resources Defense Council (2008)

Facts: The case concerns the United States Navy ability to use sonar during drills causing
possible harm to whales and other marine mammals. … Environmentalists claim that the high
decibel levels used harm whales, causing beach strandings. In February 2007, however, the Navy
issued an environmental assessment under the National Environmental Policy Act (NEPA),
concluding that the use of mid-frequency active sonar during the exercises would cause minimal
harm to marine mammals. … Petitioners, mostly environmental groups, sought declaratory and
injunctive relief against the exercises, on the ground that they violated NEPA, plus other
environmental laws not material to the Supreme Court decision. On remand from the Ninth
Circuit, the district court modified the preliminary injunction to allow the Navy to use the sonar
if it used mitigation measures.
Reasoning (Roberts): Chief Justice Roberts wrote in his opinion, “the most serious possible
injury would be harm to an unknown number of marine mammals that they study and observe.”
By contrast, he continued, “forcing the Navy to deploy an inadequately trained antisubmarine
force jeopardizes the safety of the fleet.” … The majority opinion held that as an initial matter
the Ninth Circuit’s “possibility” test for issuance of a preliminary injunction is too lenient;
plaintiffs must show that irreparable injury is “likely” in the absence of an injunction. However,
the Court continued, even if plaintiffs had shown irreparable injury (and, too, likelihood of
success on the merits), it is “plainly outweighed” by the Navy’s interest in effective, realistic
training of its sailors.
Notes: The Ninth Circuit is widely regarded as an environmentally friendly circuit, and the
Supreme Court, in reversing it here, was doing what it has done many times before.
American Hospital Supply Corp. v. Hospital Products Ltd. (1986)

Facts: Hospital Products (D) was a manufacturer of reusable surgical stapling systems. D
entered into a three year contract with American Hospital Supply (P), whereby P would serve as
D’s exclusive distributor in the U.S. … Toward the end of the initial three year period, on the last
day on which notice of termination could be given to avoid automatic renewal, D asked P
whether it intended to renew and P affirmed renewal. The next day D informed P that it was
going to treat the agreement as if it had been terminated and P sued. P was granted a preliminary
injunction to compel D to continue to perform under the contract.
Issue: What is the proper test for determining whether a preliminary injunction is appropriate?
Reasoning (Posner): A preliminary injunction is proper only if the harm to the plaintiff of
denying the injunction outweighs the harm to the defendant of mistakenly granting the
injunction. To reverse a preliminary injunction there must be a strong conviction that the judge
exceeded the permissible bounds of judgment in granting the injunction.
Class Notes
Permanent injunction exists after liability has been judged. Preliminary is issued before liability
has been judged. Temporary Restraining Order (TRO) exists to guard harm not preventable by a
preliminary injunction.
For preliminary, you have to show that the harm is not reparable by a permanent injunction or by
damages. For permanent, you just need to show it is not reparable by damages.
If a preliminary injunction is granted against a D, a D can ask for a stay pending appeal, which is
essentially a preliminary injunction against the preliminary injunction. Same for permanent. To
get this, you have to show all of the same factors as initially getting the injunction.
B. Formulating and Administering the Injunction
1. Drafting the Injunction
Portland Feminist Women’s Health Center v. Advocates for Life, Inc. (9th Cir. 1988)
Facts: The clinic brought an action against Advocates that was based on certain spirited
demonstrations. The preliminary injunction prohibited Advocates from (1) “obstructing the free
and direct passage of any person in or out of the Portland Center,” (2) from shouting or yelling
during on-site demonstrations, and (3) from producing noise by any other means which
substantially interferes with the provision of medical Center, among other things.
Issue: We are asked to determine the validity of both the injunction and the contempt citations.
Rule: Because we are dealing with an injunction, the vagueness issue is controlled by
Fed.R.Civ.P.65(d), which requires that injunction “shall be specific in terms and shall describe in
detail the act or acts sought to be restrained. … We have interpreted the rule and its policy to
require that “the language of injunctions be reasonable clear so that ordinary persons will know
precisely what action is proscribed,” but injunctions are not set aside under this rule unless “they
are so vague that they have no reasonably specific meaning.”
Holding: We do not find the injunction here in dispute impermissibly vague.
Reasoning (Hug): While an enumerated decibel level certainly would provide a more specific
definition of the enjoined conduct that the injunction now provides, we do not believe that such
specificity is required. The terms of the injunction place the enjoined parties on fair notice of the
actions that are prohibited in language that is reasonable understandable.
2. Administering the Injunction
With the average “plain vanilla” injunction, it is the plaintiff’s responsibility to monitor the
defendant’s compliance with the terms of the injunction. If the P detects a violation, she should
file for an Order to Show Cause with the court – an order directing the defendant to show cause
why he should not be held in contempt of court for violating the injunction. This usually works
pretty well, but so no much whenever it is difficult to determine whether the defendant is in
compliance with the injunction.
Thus, the court must simultaneously avoid the twin evils of using an injunction that is so open
ended that it is nothing more than aspirational platitudes on the one hand and so detailed as to tie
everyone up in nothing but counterproductive paper work on the other.
Given the practical and legal limitations on “overbroad” injunctions discussed previously, courts
often are forced to address the problem of administering injunctions using other techniques.
Special Project – The Remedial Process in Institutional Reform Litigation (1978)

There always remain problems of resolving disputes, monitoring compliance, and supervising
the defendant’s actions. … A wide variety of techniques are available. Traditionally,
administration is party oriented, depending on adversarial interplay. However, some judges
supplement this by court oriented administration, in which the court acts on its own initiative.
1. Party-Centered Administration. Here, the court assumes a passive role, playing no part in
implementation unless solicited by one of the parties. This places a considerable burden
on the plaintiff, particularly when relief is gradual or implementation is drawn out. This
requires a cohesive plaintiff with considerable resources, and courts sometimes act to
strengthen a weak plaintiff.
2. Administrative Techniques with Reduced Reliance on Parties.
a. Direct Judicial Initiative as an Administrative Technique. Court-ordered hearings,
once begun, will remain adversarial in nature, with the customary reliance on the
parties, and active judicial involvement in remedy administration will be
constrained by the limited expertise and time of federal judges.
b. Use of Court Appointed Agents to Administer the Remedy: The master’s role is to
gather information and make recommendations. He reports to the court and, if
required, makes findings of facts and conclusions of law. … The monitor’s role is
to report on the defendant’s compliance with the decree and on the achievement
of the decree’s goals. … A mediator is a delegate whose primary responsibility is
handling disputes over the decree’s meaning, compliance standards, and the pace
of compliance. … The administrator is the most innovative and unusual of the
devices utilized by the courts for remedy implementation. The administrator acts
at his own instance to implement the remedy and has an executive role.
Appointment of an administrator is appropriate if implementation is complex and
difficult to supervise. … Administrators, like masters, monitors, and mediators,
can only be effective if some cooperation is forthcoming from the defendant.
When it is not forthcoming, a receivership may be appropriate. In a receivership,
a court-appointed officer replaces the defendant’s officers either completely or
temporarily and for limited purposes. This is the most dramatic assertion of
federal equitable power possible and courts have so regarded it.
C. Accommodating Changing Circumstances: Interpretation and Modification of the

Decree
There are sound policy reasons for valuing the finality of judgments. Thus, it is fairly difficult to
modify a final judgment of a court.
A later change of circumstance (for example, after judgment, the plaintiff actually lives longer
than the life expectancy assumed at trial) is not permitted to be the basis for reopening the
litigation or for a modification of the judgment to change the amount awarded originally at trial.
However, at times the finality of an injunction (and its close cousin, the consent decree) has been
treated somewhat differently.
In Us v. Swift (1932) the Court stated, “Nothing less than a clear showing of grievous wrong
evoked by new and unforeseen conditions should lead us to change what was decreed after years
of litigation with the consent of all concerned.” Additionally, Cardozo said that there should be
no modification from changed conditions unless the original dangers that were the reason for the
decree, “once substantial, have become attenuated to a shadow.”
Firefighters Local Union No. 1784 v. Stotts (1984)

Facts: Petitioners challenge the Court of Appeals’ approval of an order enjoining the City of
Memphis from following its seniority system in determining who must be laid off as a result of a
budgetary shortfall. … The decree stated that the Department would promote certain individuals,
provide back-pay to others, and adopted the long-term goal of increasing the proportion of
minority representation in each job classification in the Fire Department to approximately the
proportion of blacks in the labor force in the county. … Later, job cuts were being made for
budgetary reasons and were to be based on the “last hired, first fired” rule. Then, the District
Court entered an injunction forbidding the layoff of any black employee.
Issue: Whether the order was justified under the circumstances.
Holding: Because we conclude that the order cannot be justified, either as an effort to enforce
the consent decree or as a valid modification, we reverse.
Reasoning (White): Here, there is no mention of layoffs or demotions within the four corners of
the decree; nor is there any suggestion of an intention to depart from the existing seniority
system or from the City’s arrangements with the Union. We cannot believe that the parties to the
decree thought that the city would simply disregard its arrangements with the Union and the
seniority system it was then following. If so, there would have likely been an express provision
to that effect. This is particularly true since the decree stated that it was not “intended to conflict
with any provisions” of the1974 decree – which expressly anticipated that the City would
recognize seniority. … Here, there was no finding that any of the blacks protected from layoff
had been a victim of discrimination and no award of competitive seniority to any of them. … We
thus are unable to agree either that the order entered by the District Court was a justifiable effort
to enforce the terms of the decree to which the City had agreed or that it was a legitimate
modification of the decree that could be imposed on the City without its consent.
Dissent (Blackmun): The power of the District Court to enter further orders to effectuate the
purposes of the decree was a party of the agreed remedy. The parties negotiated for this, and it is
the obligation of the courts to give it meaning.
Note on Binding Successors in Office with a Consent Decree

Consent alone is insufficient to support a commitment by a public official that ties the hands of
his successor. Thus the answer to the question “why should consent decrees be enforced when
contracts out of court are not?” must concentrate on legal rules that shape the parties’ agreement.
… It depends on rules of law that govern the public official’s conduct. “The District Court’s
authority to adopt a consent decree comes only from the statute which the decree is intended to
enforce, not from the parties’ consent to the decree.”
Horne v. Flores (2009)

Facts: In January 2000, the court had cited Arizona for civil contempt for failing to adequately
fund English Language Learner programs, in violation of the Equal Educational Opportunities
Act and subsequently rejected proposed legislation as inadequate to resolve the programs'
deficiencies. The superintendent and representatives argued that increases in state funding,
changes in the management of the school district involved, and passage of the No Child Left
Behind Act sufficiently altered the foundations of the district court's original ruling and therefore
relief was warranted.
Issue: Did the lower courts err in their analysis under Rule 60(b)(5) regarding Arizona's
contention that changes in education law, including increased state funding, changes in the
management of the school district involved, and passage of the No Child Left Behind Act had so
altered the foundations of prior court rulings that relief from such judgments was warranted?
Holding: Yes. The Supreme Court held that the lower courts erred in their analysis under Rule
60(b)(5). With Justice Samuel A. Alito writing for the, the Court criticized the lower courts for
implementing a Rule 60(b)(5) standard that was too strict. It remanded the case for the federal
district court to examine four factual and legal areas that may warrant relief for Arizona from its
court orders: 1) the impact of a new ELL learning program, 2) the impact of No Child Left
Behind, 3) the impact of structural and managerial changes in its school system, and 4) the
impact of an increased state general education fund.
Reasoning: Injunctions in institutional reform cases often remain in force for many years, during
which time changed circumstnaces may warrant reexamination of the original judgment. …
Courts must remain attentive to the fact that “federal court decrees” exceed appropriate limits if
they are aimed at eliminating a condition that does not violate federal law or flow from such
violation. Thus a critical question in this inquiry is whether the EEOA violation underlying the
2000 order has been remedied. If it has, the order’s continued enforcement is unnecessary and
improper.. … Essentially, both of the lower courts focused excessively on the narrow question of
the adequacy of the State’s incremental funding for ELL incstruction instead of fairly
considering the broader question whether, as a result of important changes during the intervening
years, the State was fulfilling its obligation under the EEOA by other means.
Notes: Horne holds in essence that it is wrong to treat old decrees as binding contracts. Rather,
they should be treated as means to an end: If that end has been achieved, judges should stand
back and allow state and local officials to perform the duties for which they were elected.”
Class Notes
You have to show that it is “no longer equitable” for the judgment to have this prospective effect.
The idea is that the threat of harm no longer exists so the injunction should be change or gotten
rid of completely.
Swift: Judge Cardozo said that there should be no modification from changed conditions unless
the original dangers that were the reason for the decree originally, “once substantial, have
become attenuated to a shadow.”
What’s important about all of this is that these consent decrees have a large impact on many
cities across the country. The Horne court vastly altered the way these decrees can be amended,
and thus has a massive impact.
D. Retaining and Closing a Case
FRCivP 60(b)(5) specifically grants a court power to relieve a party from a final judgment if
“applying it prospectively is no longer equitable.” If granted, and unless the conduct is
independently prohibited by law, the defendant will be under no obligation to continue to avoid
the conduct which had been proscribed by the injunction.
Board of Education of Oklahoma City Public Schools v. Dowell (1991)

Facts: Board of Education of Oklahoma City (Petitioner), sought dissolution of the District
Court-imposed school desegregation plan. … In 1972, the District Court imposed a
desegregation plan for the Oklahoma City Public School System. In 1985, the Board of
Education adopted a new plan (”SRP”) for assigning students to schools. The SRP was not
discriminatory on the basis of race. After the school district was sued, the District Court ruled
that the desegregation decree was dissolved, and the Court of Appeals reversed.
Rule: District Court authority over school districts extends only until the districts in question
have complied with the injunctions long enough to reasonably redress past segregation.
Holding: District Court was correct in ruling that the desegregation decree was dissolved.
Reasoning (Rehnquist): Rehnquist states that a District Court’s authority to enjoin a school
district only extends to the point necessary for the district to remedy past discrimination to the
extent practicable, as long as the district was making a good faith effort to remedy the situation.
Dissent (Marshall): Marshall notes that under the SRP, over half of Oklahoma City’s schools
have a racial component of at least 90% white or 90% non-white students. J. Marshall finds this
to be persisting segregation and would leave the decree in place.
Notes: The majority’s primary concern is for returning control of the school districts to local
authorities. They balance the needs of desegregating the schools with the knowledge that not all
segregation is de jure and perfect racial balance is just not possible in some situations.
Reasonable compliance to correct past wrongs is the standard put forward.
Freeman v. Pitts (1992)

Holding (Kennedy): We hold that, in the course of supervising desegregation plans, federal
courts have the authority to relinquish supervision and control of schools districts in incremental
stages, before full compliance has been achieved in every area of school operations. While
retaining jurisdiction over the case, the court may determine that it will not order further
remedies in area where the school district is in compliance with the decree. … Once the racial
imbalance due to the de jure violation has been remedied, the school district is under no duty to
remedy imbalance that is caused by demographic factors. If the unlawful de jure policy of a
school system has been the cause of the racial imbalance in student attendance, that condition
must be remedied. The school district bears the burden of showing that any current imbalance is
not traceable, in a proximate way, to the prior violation.
Class Notes
Supreme Court’s position as of Rufo: where there is a consent decree, the court serves to
vindicate the goal of the contract as opposed to the plaintiff’s rightful position.
As to modifying the decree, Rufo gets away from the grievous harm standard and says that in
institutional reform cases the court is willing to modify the decree if there are a significant
change in circumstances that warrant it.
Rufo makes it clear that the grievous harm standard does not apply in institituional reform cases;
the standard is whether there was some change in circumsnatce than was unforeseen.
Frew: “A state, in the ordinary course, depends upon successor officials, both appointed and
elected, to bring new insights and solutions to problems of allocating revenues and resources.
The basic obligations of federal law may remain the same, but the precise manner of their
discharge may not. If the State established reason to modify the decree, the court should make
the necessary changes; where it has not done so, however, the decree should be enforced
according to its term.”
Frew together with Horne gets rid of the idea that you can’t got to the statutory floor.
The takeaway from this: there has been a shift in standards, at least on the part of the majority,
and the new approach says you do not have to stick with the old decree if the state officials in an
institutional law have some other way of coming in to compliance with state law.
Institutional reform means cases against government that go to how major programs run. A suit
against the city for trespass doesn’t fit. One against how the prison system works would be.
PART 7: ENFORCEMENT OF THE DECREE
The contempt power is the court’s ultimate weapon to deter, overcome, or punish disobedience
of an injunction. Because contempt is a powerful weapon, it may harm the defendant more than
it helps the plaintiff and can require a heavy expenditure of judicial time and credibility. So,
when a plaintiff complains that a defendant has violated an injunction, courts will often explore
less intrusive techniques to prompt compliance.
1. The Contempt Power
The contempt power takes three forms: criminal contempt, coercive civil contempt, and
compensatory civil contempt. A single proceeding may result in criminal, compensatory, and
coercive sanctions.
Hicks on behalf of Feiock v. Feiock (1988)

Facts: A California court order Feiock to begin making montly payments to his ex-wife for the
support of their three children. Over the next six years, he only sporadically complied with the
order and by the end of 1982 he had discontinue payment altogether. He was then servied with
an order to show cause why he should not be held in contempt for failure to pay. He defended by
arguing that he was unable to pay support during the months in question. He was then placed on
probation for three years. One of the conditions of probation was that he again had to make
support payments. At the hearing, he claimed that it was an unconstitutional violation of Due
Process because the statute shifts to the defendant the burden of proving inability to comply ith
the order, which is an element of the crime of contempt.
Issue: Three issues: (1) whether the ability to comply with a court order constitutes an element
of the offense of contempt or, instead, inability to comply is an affirmative defense to that
charge; (2) whetehr section 1209.5 requires the alleged contemnor to shoulder the burden of
persuasion or merely the burden of production in attempting to establish his inability comply; (3)
whether this contempt proceeding was a criminal or civil one.
Holding: (1 and 2) The appellate court ruled that whether the individual is able to comply with a
court order is an element of the offense rather than an affirmative defense and the statue shifts to
the alleged contemnor the burden of persuasion in showing inability to comply. We are not at
liberty to depart from the state appellate court’s resolution of these issues of state law. (3) What
is unclear is whether the ultimate satisfaction of the accumulated prior payments would have
purged the determinative sentence imposed on respondent. If the relief imposed here is in fact a
determinate sentence with a purge clause, then it is civil in nature.
Reasoning (White): In determining whether to classify relief as criminal or civil in nature, the
Court reasoned as follows. If the relief provided is a sentence of imprisonment, it is remedial if
“the defendant stsands committed unless and until he performs the affirmative act required by the
court’s order, “ and it is punitive if “the sentence is limited to imprisonment for a definite
period.” If the relief provided is a fine, it is remedial when it is paid to the complainant and
punitive when it is paid to the court, though a fine that would be payable to the court is also
remedial when the defendant can avoid paying the fine simply be performing the affirmative act
required by the court’s order. … These distinctions lead up to the fundamental proposition that
criminal penalties may not be imposed on someone who has not been afforded the protections
that the Constitution requires of such criminal proceedings, including the requirement that the
offense be proved beyond a reasonable doubt.
Dissent (O’Connor): In the case before us respondent carries something even better than the
“keys to the prison” in his own pocket: as long as he meets the conditions of his informal
probation, he will never enter the jail.
United Mine Workers v. Bagwell (1994)

Facts: A trial court enjoined striking unions in Virginia from undertaking certain unlawful
activities (throwing things, threatening, obstructing, and picketing without supervision); when
union members repeatedly violated the injunction, the trial court established a schedule of
$100,000 fine for future violent breaches, $20,000 fine for future non-violent breaches; after
more violations of the injunction, the trial court ended up assessing $64 million, including $12
million to the plaintiff in the civil case and $52 million to the commonwealth of Virginia.
Issue: Were the fines civil or criminal (in which case due process and jury would be required)?
Reasoning (Blackmun): The Court held that a contempt sanction is civil if it is remedial and for
the benefit of the complainant—if it either coerces the defendant into compliance with the
court’s order or compensates the complainant for losses sustained. But where a fine is not
compensatory, it is civil only if the contemnor is afforded an opportunity to "purge" (avoid or
reduce fine through compliance); otherwise, it is criminal contempt. … There could be no
compensation to the plaintiff as there was no opportunity for the defendant to purge the
contempt. Therefore, these were criminal fines, which required appropriate due process—a trial
by jury—which had not been afforded.
Class Notes
Elements of contempt:
(1) order
(2) actual notice
(3) violation of the order

(4) for criminal contempt it has to be willful violation but not for the others
(5) in some cases the person trying to prove contempt has to show it was possible to
comply, while in other places it is a defense that it was impossible to comply.
Three types of contempt:

(1) Criminal
(2) Civil compensatory
(3) Civil coercive
Procedural difference is that a jury trial is required for a criminal trial if the potential sentence is
grave enough, while there is no requirement for civil contempt.
Purging is doing what you’re ordered to do. If you are held in contempt for failing to do
something and then you do what you are supposed to do, you have purged contempt. But the
court is the one that has to decide whether the purging actually took place.
Bagwell: Repeated violations of an injunction. The court holds that the defendant did not have
the opportunity to purge the contempt, therefore these were criminal fines. The court rejects the
negative-positive distinction between affirmative acts and failing to act.
TEST combining Hicks and Bagwell: If under Hicks, it comes out to civil compensatory, your
work is done – meaning if it’s being paid to a private plaintiff. If it comes out criminal under
Hicks, you’re done. If it comes out coercive civil under Hicks, you have to look to Bagwell. But
what is the test? Note 2 on page 322 reads Bagwell as a balancing test. Other courts view it as, if
its difficult to gauge compliance, then it is criminal. So there are different interpretations.
2. When Are Parties Bound?
Griffin v. County School Board of Prince Edward County (4th Cir. 1966)
Facts: The Board reacted to Brown by closing its public schools and making tuition grants to a
private foundation which conducted school for white children only. The Courts got involved and
ultimately the Board reopened the schools while still making tuition grants. The plaintiffs moved
for enjoining the processing of tuition grants on the theory that they drained money from the
public schools to perpetuate segregation.
Issue: Whether the Board should be enjoined from issuing the private grants.
Holding: The Board should be enjoined from issuing the private grants. We find the Board of
Supervisors and its members guilty of civil contempt.
Reasoning (Bryan): Although this court had not issued an injunction against the appropriation
of the moneys to tuition grants, the Board knew that if the plaintiffs succeeded this would be its
ultimate decree, as in fact it became. … Here, the disbursement of the moneys seriously impaired
the appeal. The suit and the appeal were directed to a specific subject, the Board’s right to apply
to a certain purpose money within its power. The Board assumed the right in utter and willful
disregard of this court’s views. … The Board and its members, personally and in their own right,
will be ordered jointly and severally to restore to the County Treasurer, through recapture or
otherwise, an amount equal to the disbursements authorized and made by their resolutions. This
cause will be continued for a period of 90 days from this date for report by the Board and its
members of what has been done towards compliance with this order.
Class Notes
Griffin: The thing about Griffin is that most educated observers believe the outcome was just but
the reasoning was flawed. Reason is that the court reasoned that the appeals process was a
“process” under the meaning of the preliminary injunction statute. Schoenbrod notes that this
was wrongfully decided.
You can disregard a statute if you reasonably believe it to be unconstitutional or otherwise
invalid, but you can’t disregard a court order without being held in contempt.
3. The Collateral Bar Rule
In Re Providence Journal Co. (1st Cir. 1988)

Facts: The FBI had done surveillance on Raymond Patriarca, an organized crime boss. The
Journal requested to logs and memoranda from the FBI under the Freedom of Information Act
after Patriarca died and the FBI assented. Patriarca’s son filed a summons and complaint for an
injunction preventing the defendants from publishing the released material. The district court
initially issued a TRO but then denied preliminary injunctive relief. The day after the court
issued the original TRO, and while that order was still in effect, the Journal published an article
on the deceased Patriarca that included information taken from the FBI logs. Following a
hearing, the district court found the Journal guilty of criminal contempt, with a fine and jail time.
Issue: The Journal admits that it violated the order but argues that the order was a prior restraint
and that the unconstitutionality of the order is a defense in the contempt proceeding.
Holding: We agree. A party subject to an order that constitutes a transparently invalid prior
restraint on pure speech may challenge the order by violating it.
Reasoning (Wisdom): As a general rule, a party may not violate an order and raise the issue of
its unconstitutionality collaterally as a defense in the criminal contempt proceeding. Rather, the
appropriate method to challenge a court order is to petition to have the order vacated or
amended. … An order entered by a court clearly without jurisdiction over the contemnors or the
subject matter is not protected by the collateral bar rule. … The same principle supports an
exception to the collateral bar rule for transparently invalid court orders. The key to both
exceptions is the notion that although a court order – even an arguably incorrect court order –
demands respect, so does the right of the citizen to be free of clearly improper exercises of
judicial authority. …. As a general rule, if the court reviewing the order finds the order to have
had any pretense to validity at the time it was issued, the reviewing court should enforce the
collateral bar rule.
4. Who Is Bound?
State University of New York v. Denton (Ap. Div. 4th Dep. NY 1970)
Facts: Members of the SUNY faculty at Buffalo appeal from a judgment adjudging them guilty
of criminal contempt for violating a preliminary injunction issued by the lower court. Execution
of the 30-day jail sentence has been stayed pending determination of the appeal. … After
massive student disturbances and protests on campus, a preliminary injunction was ordered
enjoining the students “and all other persons receiving notice of this preliminary injunction,
whether acting individually or in concert from acting within plaintiff’s buildings in such
unlawful manner as to disrupt or interfere with plaintiff’s lawful and normal operations.” It is
alleged that these faculty members violated that order. Appellants were not among the named
defendants in the injunction action, were not parties to the application for the temporary
injunctions, and were never personally served with the order.
Issue: Whether appellants were bound by the order, and whether accordingly appellants may be
found guilty of criminal contempt for its violation.
Holding: Well settled principles of law require a negative answer to the inquiry.
Rule: “No court can make a decree which will bind anyone but a part. … The only occasion
when a person not a party may be punished is when he has either helped the defendant, or is
legally identified with him.”
Reasoning (Del Vecchio): There is no basis on the facts presented for the conclusion that
appellants, who had no opportunity to be heard in the injunction proceedings, were subject to
punishment for violation of the order. …. We need not reach the question whether there was an
adequate showing to justify Special Term’s conclusion that appellants had knowledge of the
preliminary injunction because we conclude that knowledge of a non-party alone is not sufficient
without proof of agency or collusion with the named defendants to impose liability for violation.
… Even if the faculty members had knowledge of its provisions, they could not be held in
contempt for their independent action in disobeying the injunction, as they were not parties to the
disruptive actions or acting in concert with the students.
United States v. Hall (5th Cir. 1972)

Facts: The district court previously entered judgment in Mims requiring the Duval County
(Jacksonville, Florida) School Board to complete its desegregation. In enjoining anyone other
than students, faculty, or administrations from being on campus, the order also provided that
“anyone having notice of this order who violates” it would be subject to arrest and prosecution.
Hall was identified as one of several black outsiders who were attempting to prevent the normal
operation of the school through student boycotts and other activities. Hall was served with a copy
but was not a party to the litigation. Hall then violated the order and was convicted.
Holding: We uphold the District Court’s conclusion that in the circumstances of this case it had
this power, and affirm the defendant’s conviction for contempt. … We hold, then, that the
district court had the inherent power to protect its ability to render a binding judgment between
the original parties to the Mims litigation by issuing an interim ex parte order against an
undefinable class of persons. We further hold that willful violation of that order by one having
notice of it constitutes criminal contempt.
Reasoning (Wisdom): In previous cases, the activities of third parties, however harmful they
might have been to the plaintiff’s interests, would not have disturbed in any way the adjudication
of rights and obligations as between the original plaintiffs and defendants. The activities of Hall,
however, threatened both the plaintiffs’ rights and the defendant’s duty as adjudicated in the
Mims litigation. Disruption of orderly operation of the school system, in the form of a racial
dispute, would negate the plaintiffs’ constitutional right and the defendant’s duty. … We do not
hold that courts are free to issue permanent injunctions against all the world in school cases. Hall
had notice of the court’s order. Rather than challenge it by the orderly processes of law, he
resorted to conscious, willful defiance.
Notes on Injunctions Against Nonparties

In keeping with SUNY, FRCP 65(d)(2), literally read, allows courts to bind only parties, their
officers, agents, servants, employees, and attorneys and other person who are in active concert of
participation with one of them. The rationale is due process. Hall, in contrast, allows the trial
court order to bind a wider group without advance notice and, correspondingly, requires those
bound to challenge the order in court prior to violating its terms.
Note on Notice
The party bringing the contempt action bears the burden of establishing actual knowledge of the
injunction, and, at least in criminal contempt proceedings, this must be shown beyond a
reasonable doubt. The more indirect the form of communication, the harder it is to show notice.
Class Notes
The injunction binds the parties when it is issued. An erroneously issued injunction ceases to
bind the parties when or if it is overturned.
SUNY v. Denton: You can only bind the parties and the limited set of people who are aligned
with the party, in concert with, agents of, etc.
5. Enforcement Against the Government
One problem is that sanctions against government defendants may harm innocent citizens. If a
government defendant is fined for violating an injunction, the fine against it would come out of
the pockets of taxpayers rather than the responsible officials. The court could theoretically jail
the officials for criminal contempt, but that rarely happens in practice.
Despite separation of powers and federalism, courts still issue reparative and prophylactic orders
involving government defendants. But sensitivity to separation of powers and federalism issues –
which is sometimes called “comity” – is supposed to weigh in favor of less intrusive action.
Resistance by governmental defendants is also complicated by the immunity of some

governments to suit. Sovereign immunity bars suits against a state in its own courts, or suits
against the federal government in a federal or a state court. The 11th amendment has been read to
bar suits by private persons against states in federal courts.
Given sovereign immunity, how is it that governmental actions can get challenged in court? For
starters, the 11th amendment does not bar suits brought by the US or other states. Second, local
governments are not generally considered sovereigns under the 11th amendment and so are
amenable to suit in federal court.
The ultimate problem is this: putting the plaintiff in the rightful position requires action that state
law does not empower the defendant officials to take and the legislature refuses to grant them the
necessary power. A court could conceivably react in a number of different ways:
(1) The court could postpone responding to the violation of its injunction in the hope that the
legislature will grant the authority, the parties will settle, or Congress will act. But if
patience seems unlikely to pay off, a judge who delays action may well feel that the
judiciary is failing the plaintiff.
(2) The court could hold the defendant officials in contempt of court. But if the state law that
denies the officials power to act is valid and binding, they can successfully argue that
obedience is impossible.
(3) The court could strike down whatever state law denies defendant officials the necessary
authority, which has obvious problems.
(4) The court could order state officials to disregard state law.
(5) The court could use indirect means to pressure the legislature to grant the necessary
authority.
Missouri v. Jenkins (Jenkins II) (1990)

Facts: This opinion deals with questions concerning how to finance the implementation of the
school desegregation injunction described in Jenkins III. … The injunction made the Kansas City
Missouri School District (KCMSD) and the state jointly and severally liable for the cost of the
injunction’s implementation. State law limits the power of the KCMSD and other school boards
to tax and borrow and gives voters a role in decisions to increase property tax rates above certain
levels and to borrow. Voters had rejected all of the KCMSD’s proposals to increase taxes. Faced
with these limits, the district court itself increased the property tax rate and imposed a surcharge
on the state income tax to fund implementation of the decree.
Issue: Whether the court was allowed to levy a property tax increase.
Holding: The District Court abused its discretion in imposing the tax increase, which
contravened the principles of comity. The Court of Appeals' modifications of the District Court's
order satisfy equitable and constitutional principles governing the District Court's power.
Reasoning (White): Authorizing and directing local government institutions to devise and
implement remedies not only protects the function of those institutions but, to the extent
possible, also places the responsibility for solutions to the problems of segregation upon those
who have themselves created the problems. While a district court should not grant local
government carte blanche, local officials should at least have the opportunity to devise their own
solutions to such problems. Here, KCMSD was ready, willing, and, but for the operation of state
law, able to remedy the deprivation of constitutional rights itself. … The Court of Appeals' order
does not exceed the judicial power under Article III. A court can direct a local government body
to levy its own taxes.
United States v. City of Yonkers (2nd Cir. 1988)

Facts: The complaint alleges that the city had “intentionally perpetuated and seriously
aggravated residential racial segregation” in violation of the Constitution and Title VII of the
Civil Rights Act of 1968. … The District Court found the city liable, and an order was entered
which included provisions for the construction of 200 unites of public housing and for the
planning of additional units of subsidized housing. …. The City violated the Housing Remedy
Order. … Ultimately, the District Court issued an order that gave the City until August 1st to
enact the requited legislation called the Affordable Housing Ordinance. If it did not occur, the
City and the council members would have to show cause why they should not be adjudged in
contempt. If such casue was not shown, each council member failing to vote for such legislation
would be fined $500 per day, and if the legislation was not passed by August 10th, each council
member would be imprisoned on August 11th. There were also substantial sanctions against the
city. The order provided that a council member could be purged of contempt by voting in favor
of the legislation or by enactment of the legislation. The City could be purged by enactment.
Holding: We concluded that under the circumstances of this case the recalcitrant council
members may be required to vote to implement the consent judgment and that the City, in
addition to the Council members, may be adjudicated in contempt and subjected to coercive
sanctions for failure to abide by the consent judgment and subsequent implementing orders of the
District Court. We also conclude that the amount of the sanctions imposed on the City should be
somewhat reduced.
Reasoning (Newman): In this case, there is a fundamental reason why the choice of
implementing legislation as a remedy and the choice of coercive contempt sanctions to enforce
compliance with that remedy cannot possibly be an abuse of the District Court’s discretion. That
reason is the blunt fact that the City agreed in the Consent Judgment to comply with the Housing
Remedy Order by the adoption of necessary implementing legislation, specifically including tax
abatement and zoning changes. This means the City Council itself selected the remedy and
cannot complain that the District Court approved the agreement. … No litigant, least of all public
officials sworn to uphold the Constitution of the United States, may be permitted to avoid
compliance with solemn commitments they have made in a consent judgment by a federal
district court to remedy constitutional violations.
Spallone v. United States (1990)

Facts: With the city’s daily contempt sanction approaching $1m per day, the city council finally
enacted the Affordable Housing Ordinance by a vote of 5 to 2, petitioners Spallone and Fagan
voting no. Because the contempt orders raise important issues about the appropriate exercise of
the federal judicial power against individual legislators, we granted cert to the councilmembers
but not the city, and now reverse.
Issue: Whether the District Court’s contempt orders against the councilmembers should stand.
Holding: They should not. We hold that the District Court, in view of the “extraordinary” nature
of the impositions of sanctions against the individual councilmen, should have proceeded with
such contempt sanctions first against the city alone in order to secure compliance with remedial
orders. Only if that approach failed to produce compliance within a reasonable time should the
question of imposing contempt sanctiosn against petitioners even have been considered.
Reasoning (Rehnquist): The imposition of sanctions on individual legislators is designed to
cause them to vote, not with a view to the interest of their constituents or of the city, but with a
view solely to their own personal interests. Such fines thus encourage legislators, in effect, to
declare that they favor an ordinance not in order to avoid bankrupting the city for which they
legislate, but in order to avoid bankrupting themselves. … This sort of individual sanction effects
a much greater perversion of the normal legislative process than does the imposition of sanctions
on the city for failure of these same legislators to enact an ordinance.
Class Notes
Jenkins 2: The main issue here, as opposed to in Griffin, is that the school board does not have
authority to enact the tax because of state law. The point of Jenkins is to illustrate that there are a
variety of tactics where there is a lack of authority.
What happens if the Ds have the authority but they don’t do it? Yonkers is the answer, as the
court says that the city board members have to vote a certain way.
Spallone: The Supreme Court essentially says that the fines against the individual council
members were unnecessary because sanctioning the City would’ve been enough.
PART 8: DAMAGES
A. Introduction
Memphis Community School District v. Stachura (1986)

Facts: A tenured teacher in Memphis was suspended with pay after a number of parents
complained about his teaching methods regarding sexual reproduction. He was notified by the
School Board that an “administrative evaluation” of his teaching methods was underway. No
such evaluation was ever made. Responded was reinstated the next fall, after filing this lawsuit.
At trial, turning to damages, the court instructed the jury that on finding liability it should award
a sufficient amount to compensate respondent for the injury caused by petitioners’ unlawful
actions. The court also explained that damages could also be awarded based on the value or
importance of the constitutional rights that were violated.
Issue: Whether federal law authorizes an award of compensatory damages based on the
factfinder’s assessment of the value or importance of a substantive constitutional right.
Holding: We hold that damages based on the abstract “value” or “importance” of constitutional
rights are not permissible elements of compensatory damages in such cases. The judgment of the
Court of Appeals is reversed, and we remand.
Reasoning (Powell): Respondent does not, and could not reasonably, contend that the separate
instructions authorizing damages for violation of constitutional rights were equivalent to punitive
damages instructions. The instructions concerning damages for constitutional violations are thus
impermissible unless reasonably could be read as authorizing compensatory damages. … Where
no injury was present, no compensatory damages could be awarded. … Respondent further
argues that the challenged instructions authorized a form of “presumed” damages – a remedy that
is both compensatory in nature and traditionally part of the range of tort law remedies. Presumed
damages are a substitute for ordinary compensatory damages, not a supplement for an award that
fully compensates the alleged injury. When a plaintiff seeks compensation for an injury that is
likely to have occurred but difficult to establish, some form of presumed damages may possibly
be approximate. [But that is not the case here.]
Concurring (Marshall): I write separately to emphasizes that the violation of a constitutional
right, in proper cases, may itself constitute a compensable injury.
Compensatory damages
Compensatory damages are traditionally divided into two categories: compensatory damages for
pecuniary, or economic, losses, and compensatory damages for nonpecuniary losses, such as
emotional distress, pain and suffering, and so on.
Nominal Damages
Nominal damages are a nominal or trivial sum of money (frequently one dollar) awarded to
plaintiffs who have established a cause of action, but have not shown an injury for which
compensatory damages can be awarded. These are not available in all cases. For instance, actual
injury is required for a negligence case; thus, there are no nominal damages in such cases.
The practical significant of nominal damage awards has always been thought to be limited to two
sorts of cases: (1) cases where the plaintiff is really after a sort of declaratory judgment, and (2)
cases where the plaintiff simply could not persuade the jury to award substantial damages. As for
the latter, an action for declaratory judgment now achieves that.
Note on the Right to a Jury Trial

There are two questions to be considered in deciding whether there is a right to a jury trial under
a particular statute: are the rights analogous to common law rights, and is the remedy sought
legal or equitable in nature? Of the two questions, the nature of the remedy is more important.
The right to a jury trial extends to suits where legal, as opposed to equitable, rights are at stake.
Class Notes
With an injunction, the judge is generally in charge. With damages, the jury appoints the
damages award, and it is the job of the court to oversee the jury.
What Stachura says is that you get damages for injury stemming from violation of your
constitutional rights, but not just damages for the violation of the right standing alone.
What Marshall says in the concurrence is not that damages should be awarded when there is no
injury, but that the violation in itself is somehow an injury worthy of damages. So if you are
deprived of your first amendment right to express political views, the damage is the lost
opportunity to express his views. In Stachara, this would be the lost opportunity to teach.
Presumed injury is not injury as account of the constitutional violation, but injury on behalf of
injury you are presumed to have suffered.
B. The Basic Issues
1. Roadmap to Damages
Multiple questions need to be answered in order to determine what, if any, damages apply:
1. What is the plaintiff’s cause of action?
2. What elements of damages are recoverable?
3. How are the damages to be measured?
4. Is the plaintiff’s recovery to be limited because his losses were unforeseeable, uncertain,
avoidable, offset by benefits, or limited by agreement?
5. How is the plaintiff’s claim to be presented at trial?
After the award has been announced, the trial court’s review is quite limited. It can act only if an
error of law has been committed (as, for example, where the jury has awarded damages for a loss
that, as a matter of law, is not compensable), or if the verdict is grossly excessive or inadequate.
To reject a jury verdict as excessive, the court must be convinced that the verdict is so large that
it must have been the result of passion or prejudice. An inadequate award can be rejected if the
jury’s verdict is completely unsupported by the evidence.
When the judge decides that a verdict is excessive and offers the plaintiff the choice of a lesser
amount or a new trial, it is called a remittitur. When the verdict is thought inadequate, and the
defendant is offered the choice of accepting a larger verdict or a new trial, it is called additur.
Note on Election of Remedies

When multiple remedies are possible, the doctrine of “election of remedies” may come into play.
The traditional formulation of the doctrine had two parts: (1) a plaintiff who has two (or more)
remedies concurrently available to her must choose between those remedies if they are
inconsistent; and (2) once a plaintiff has clearly elected a remedy, he is bound by that choice.
2. Value
State v. Bishop (Indiana 2003)

Facts: This is an eminent domain proceeding in which the State condemned land adjoining an
interstate highway in order to build an interchange. The state condemned the Bishops land and
then appointed an appraiser to assess the fair market value, which included the fair market value
of the land and the fair market value of improvements to the land. The Bishops later filed a
motion in seeking to prohibit testimony about compensation other than fair market value,
meaning the State’s desire to pay the value of the land taken, the value of the one billboard taken,
and the cost to move the remaining three billboards onto the Bishops’ remaining property.
Issue: By what method does one assess the fair market value of a billboard that is taken in
condemnation?
Reasoning (Shepard): Three widely accepted approaches to estimating the fair market value of
property taken by eminent domain are: (1) the current cost of reproducing the property less
depreciation from all sources; (2) the market data approach or value indicated by recent sales of
comparable properties in the market; and (3) the income approach, or the value which the
property’s net earning power will support based upon the capitalization of net income. … The
State argues that it was error for the trial court to exclude evidence regarding the cost to move
the billboards from the condemned property to an appropriate location on the residue. We agree.
The cost to move the billboards was evidence of the cost to reproduce the improvements
situation on the condemned property and therefore should have been presented to the jury. …
“Income from property is an element to be considered in determining the market value of
condemned property when the income is derived from the intrinsic nature of the property itself
and not from the business conducted on the property.” [The income from billboards is not
derived from the intrinisic nature of the property, but from business conducted on the property.]
Ohio v. Dept. of the Interior (DC Court of Appeals 1989)

Facts: States, environmental organizations, chemical industry trade association, manufacturing
company, and utility company sought review of regulations promulgated by the Dept. of Interior
pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act that
governed recovery of money damages from persons responsible for spills and leaks of oil and
hazardous substances to compensate for injury such releases might inflict on natural resources.
Holding: Held that: (1) regulation limiting damages recoverable by government trustees for
harmed natural resources to the lesser of cost of restoring or replacing equivalent of injured
resource or lost use value of resource was contrary to clearly expressed intent of Congress and
therefore invalid; (2) record would be remanded to DOI for clarification of its interpretation of
its own regulations concerning applicability of CERCLA natural resource damage provisions to
privately owned land that was managed or controlled by federal, state or local government; and
(3) regulation prescribing hierarchy of methodologies by which lost use value of natural
resources could be measured, that focuses exclusively on market values for such resources when
market values are available, was not reasonable interpretation of CERCLA.
Reasoning (Wald): The fatal flaw of Interior’s approach, however, is that it assumes that natural
resources are fungible goods, just like any other, and that the value to society generated by a
particular resource can be accurately measured in every case – assumptions that Congress
apparently rejected, after a careful look at the statute. Congress saw restoration as the
presumptively correct remedy for injury to natural resources.
Class Notes
State v. Bishop: The fight is over how to value the land that the Bishops lost. The Court comes
up with three ways of valuation:
(1) The cost of reproduction – what would it cost to build something like this
(2) The market data approach – what something like this sells for on the market
(3) The income approach – how much income can somebody get from a set-up like this?
The state wants to exclude (3), and the Bishops want to exclude (1), as (3) is the most expensive
and (1) is the least. Each is mutually exclusive; you can’t have multiple ones.
What the court here says is that you receive the value of what you lost, which is the land, not the
business generated from your use of the land. The exception to this would be if your income is
derived from the intrinsic nature of the land.
But, the importance of this case is not about takings – it’s essentially about the three different
valuations. That’s what to remember.
C. An Overview of Tort Damages
As per the Restatement (Second) of Torts, the rules for determining the measure of damages in
tort are based upon the purposes for which actions of tort are maintainable. These purposes are:
(a) To give compensation, indemnity, or restitution for harms;
(b) To determine rights;
(c) To punish wrongdoers and deter wrongful conduct;
(d) To vindicate parties and deter retaliation or violent and unlawful self-help.
The first purpose is achieved by compensatory damages; the second purpose, by nominal
damages; the third by punitive damages.
In tort cases involving personal harm, compensatory damages typically include damages for:
(1) Past and future bodily harm and emotional distress;
(2) Lost earnings and loss of earning capacity;

(3) Reasonable past and future medical and other expenses; and
(4) Harm to property or business.
In cases involving harm to property, damages include compensation for:

(1) The difference between the property’s pre- and post-tort market value, or the cost of
repairing the harm; and
(2) Where real property is harmed, the occupant’s discomfort and annoyance.
Ayers v. Jackson Township (NJ 1987)

Facts: Residents brought nuisance action against township arising from contamination of water
by toxic pollutants leaching into aquifer from township landfill.
Holding: The Supreme Court held that: (1) damages for residents' emotional distress based on
possible exposure to carcinogens and other toxic chemicals were not recoverable against
township; (2) residents were entitled to damages for infringement on their “quality of life”
caused by absence of potable water for 20 months; and (3) residents were entitled to damages for
cost of medical surveillance based upon enhanced, although unquantified, risk of disease in
future as result of exposure to toxic chemicals.
Reasoning (Stein): Statutory bar to recovery against public entity for “pain and suffering
resulting from any injury” applies to intangible, subjective feelings of discomfort associated with
personal injuries and does not bar claims for inconvenience associated with invasion of property
interest. … Award of $5,396,940 for deterioration of township residents' “quality of life” during
20 months when they were deprived of potable water due to contamination of aquifer by
pollutants leaching from township landfill did not constitute damages for “pain and suffering,” so
as to be nonrecoverable from public entity, but rather represented compensation for
inconvenience, discomfort and annoyance associated with damage to property. … Emotional
distress is an “injury” for purposes of tort liability of municipality. … Emotional distress of
township residents, characterized by such subjective symptoms as depression, fear and anxiety,
as result of their deprivation of potable water due to contamination of aquifer by pollutants
leaching from township landfill constituted “pain and suffering” and damages therefor were not
recoverable from township, due to statutory bar.
Limits on the Award

Are the damages foreseeable, certain, unavoidable, and not offset by benefits? These are all
requirements to receive damages.
According to the avoidable consequences rule, a plaintiff cannot recover for any harm that could
have been avoided by taking reasonable steps to mitigate the harm.
“When the defendant’s tortious conduct has conferred a special benefit to the interest of the
plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of
damages, to the extent that this is equitable.” For example, if a doctor performs an unauthorized
operation that actually improves the plaintiff’s health, the amount of damages the plaintiff
recovers from the doctor will be reduced by the amount of the benefit conferred.
But, according to the collateral source rule, “payments made to or benefits conferred on the
injured party from other sources are not credited against the tortfeasor’s liability, although they
cover all or part of the harm for which the tortfeasor is liable.”
Eliminating the collateral source rule is high on the agenda of the current movement for tort
reform. Legislation limiting the application of the rule has been enacted in at least 30 states.
Class Notes
“Lesser of” rule: plaintiff gets the lesser of the repair cost and fair market value. If it costs the
plaintiff $2500 to repair a damaged car and the car has lost $3000 of market value due to the
damages, the plaintiff gets $2500.
Contingent valuation: basically, in toxic tort-type cases, or any case involving damage to species
and protected land, what you do is you send out a bunch of pollsters and ask members of the
public how much certain things are worth to them individually. Then add it up. Schoenbrod
thinks this is crazy, so do I, but the Court approved it.
Always need to be concerned about double recovery. Court is not going to allow you to recover
for the same thing twice. The way you know this is whether you can explain the difference
between the different sorts of recovery.
Foreseeability on the part of the defendant is required to receive damages. In torts, you have to
show the injury is foreseeable in kind. In contract, you have to show the injury is foreseeable in
kind and in amount.
1. Elements of the Award
One of the characteristics that sets tort damages apart is the availability of monetary recovery for
nonmonetary harms.
Bell v. City of Milwaukee (2nd Cir. 1984)

Facts: Daniel Bell was shot in the back as he fled from a police officer. His family brought a
civil rights action to recover damages for the shooting and the subsequent racially motived
cover-up. Bell’s estate was awarded $100k for compensatory damages for “loss of life” and $35k
in punitive damages. Bells father’s estate (he died shortly after Bell) recovered $475k for the loss
of the son’s society and companionship. … The defendants contend that Wisconsin law does not
permit recovery by the estate for the death of Daniel Bell.
Issue: Whether a state law is “inconsistent” with federal civil rights law and therefore does not
apply where state law would not allow the estate to recover for the loss of life.
Holding: Supreme Court precedent expressing the policies underlying section 1983 and the
guarantees of the 14th amendment indicate that allowing the estate of Bell to recover is the proper
result under federal policy, and that restrictive state law at issue in this case is inconsistent with
federal policy. The Wisconsin law therefore cannot be applied to preclude the $100k damages
recovered by Daniel Bell’s estate for loss of life. The cited decisions also support plaintiff’s
contention that the $25k punitive damages awarded should he upheld as well.
Reasoning (Cummings): The fundamental policies behind section 1983 are twofold:
compensation for and deterrence of unconstitutional acts committed under state law. … If section
1983 did not allow recovery for loss of life notwithstanding inhospitable state law, deterrence
would be further subverted since it would be more advantageous to the unlawful actor to kill
rather than injure.
Notes
Only five or six states allow recovery of damages for “loss of life” in a wrongful death action.
After all, if the plaintiff is dead, can an award of damages for the lost value of his life be justified
as compensation? Of course, without an award of damages for the lost value of life, damages in
case the decedents has no dependents or has limited earning capacity will be minimal.
The elements of damages in a survival action or a wrongful death action are fixed by statute.
Many survival statutes expressly limit the damages that can be recovered.
Damages for harm to the plaintiff’s quality of life or lost enjoyment of life are less controversial
in personal injury cases. It seems to be generally settled that general damages can include
compensation for loss of the ability to participate in or to enjoy the activities of life.
Two issues on which courts are divided, however, are: (1) whether damages for lost enjoyment
or quality of life are a separate element of damages requiring a separate jury instruction, or
whether they are subsumed within pain and suffering; and (2) whether a separate award of
damages should be made for “lost years” in cases in which the plaintiff’s life expectancy has
been shortened by the defendant’s negligence.
Class Notes
Foreseeability on the part of the defendant is required to receive damages. In torts, you have to
show the injury is foreseeable in kind. In contract, you have to show the injury is foreseeable in
kind and in amount.
“Loss of a chance” doctrine: if there was a 66% chance of dying in a surgery, and the doctor was
also negligent and the person died, the percentage the death was caused by the doctor was 33%.
Normally 33% would not be enough to prove a preponderance of the evidence. But under the
“loss of chance” doctrine, you’ll get 33% of your regular recovery so that the doctors don’t get
away with murder.
Bell: Point of this case is that the elements of recovery are tough in terms of wrongful death. …
Section 1983 calls for analogy to tort law, specifically to that in the state in which the suit is
being bruit, except when it is inconsistent with the laws of the United States. Deterrence is one of
the purposes of federal law and the state law was inconsistent with that. So statutes that bar
recovery for loss of life may be upheld in some instances so long as there are other deterrent
factors allowed – punitive, for instance.
2. Measuring the Damages

Unlike past economic tort damages, nonpecuniary damages and economic losses that lie in the
future, like harm to earning capacity, present a variety of measurement problems.
Tullis & Townley Engineering & Manufacturing Co. (7th Cir. 2001)
Facts: Tullis sued his employer, Townley, alleging he was fired for pursuing a workers
compensation claim after injuring his back. He prevailed at trial, recovering over $80,000 in
nonpecuniary damages for “mental anguish and inconvenience.” The Court of Appeals affirmed.
Issue: Whether the damages for nonpecuniary damages should be upheld.
Holding: We uphold the nonpecuniary damages award.
Reasoning (Flaum): When we review a compensatory damages award, we employ a three-part
test: (1) whether the award is monstrously excessive; (2) whether there is no rational connection
between the award and the evidence; and (3) whether the award is roughly comparable to awards
made in similar cases. … An award for nonpecuniary loss can be supported, in certain
circumstances, solely by a plaintiff’s testimony about his or her emotional distress. The jury
found Tullis’ testimony to be sincere and sufficient for the award they gave him. … Because it is
within the jury’s domain to assess the credibility of witnesses, specifically in the case of Tullis’
testimony, we cannot find that the award was monstrously excessive or not rationally connected
to the evidence. … We cannot conclude that the amount here is not roughly comparable to the
small number of cases (albeit mostly distinguishable) that have been discussed.
Notes
In tort cases, special damages consist of the plaintiff’s economic losses: past and future medical
expenses, loss of earnings and earning capacity, and damage to property. Everything else falls
into the catchall of general damages. The entire range of human responses to injury can be found
there, like pain and suffering associated with physical injury. Very little law exists on the proper
measurement of nonpecuniary losses, except to say that the amount of the award is in the fact-
finder’s discretion.
Arpin v. United States (7th Cir. 2008)

Facts: The plaintiff’s husband was a patient at a hospital jointly run by the US Air Force and St.
Louis University, the defendants in this suit for wrongful death arising from alleged medical
malpractice. Among other damages, the district judge award $7 million for loss of consortium by
the plaintiff and her four children.
Issue: Whether the judge’s award of $7 million in damages for loss of consortium was so
excessive as to “shock the judicial conscience,” the test under Illinois law.
Holding: With regard to the loss of consortium damages, they were indeed excessive, and we
vacate the judgment and remand the case for further proceedings consistent with this opinion.
Reasoning (Posner): When a federal judge is the trier of fact, he, unlike a jury, is required to
explain the grounds of his decision. This means, when the issue is the amount of damages, that
the judge must indicate the reasoning process that connects the evidence to the conclusion. …
Here, the figures were plucked out of the air, and that procedure cannot be squared with the duty
of reasoned, articulate adjudication imposed by Rule 52(a). The judge should have considered
awards in similar cases, both in Illinois and elsewhere. … The first step in taking a ratio
approach to calculating damages for loss of consortium would be to examine the average ratio in
wrongful-death cases in which the award of such damages was upheld on appeal. The next step
would be to consider any special factors that might warrant a departure from the average in the
case at hand – such as the number of children, whether they were minors or adults, and the
closeness of the relationship between the decedent and his spouse and children. … We suspect
that such an analysis would lead to the conclusion that the award in this case was excessive, but
it is the trial judge’s task to do so.
Loss of Consortium
Loss of consortium protects the interest in intimate relationships. Elements of damages typically
include loss of the spouse’s society and comfort, physical and emotional support, physical
intimacy, and diminished social activity. A controversial issue is whether relationships other than
marriage deserve protection. The most common controversy is over whether harm to the parent-
child relationship should give rise to such a cause of action.
Walker v. Ritchie (Ontario 2005)

Facts: Stephanie Walker, a 17 year old girl, got into an accident with Ritchie, who was driving a
tractor-trailer. She sustained permanent, irreversible injuries that would prevent her from ever
working in a competitive job. The court found Ritchie and his employer liable, awarding
Stephanie almost $5m Canadian in damages. … The defendants are appealing $1.1m of those
damages, arguing that the trial judge erred in: (1) assuming that Stephanie would have attended
university; and (2) applying earning statistics for all university graduates.
Issue: Whether the trial judge erred in his conclusions.
Holding: He did not.
Reasoning: The trial judge cited a case which established that a plaintiff is not required to prove
her future income loss on a balance of probabilities but rather to prove “a real and substantial
risk of future pecuniary loss.” … The trial judge dismissed the possibility that Stephanie would
have stopped her education after grade 12 after analyzing her circumstances up to that point. …
After setting a base annual earnings loss, a trail judge must refine the award by properly
considering the potential negative and positive contingencies. Example of negative contingencies
that impede the production of income are job loss, forced retirement, disability prior to normal
retirement age, and the possibility that a plaintiff may, after all, have pursued a different path.
Factors that might improve the plaintiff’s potential income (i.e. positive contingencies), include
promotion, labor productivity increases, and continuing employment after normal retirement age.
To some greater or lesser extent, positive and negative contingencies may be found to offset each
other. There was ample evidence for the trail judge to reach the conclusions he did.
3. Limits on Recovery: Foreseeable, Certain, and Unavoidable
Steinhauser v. Hertz Corp. (2nd Cir. 1970)

Facts: After being involved in a car accident where she did not receive any physical injuries, a
14 year old girl became mentally unstable and often schizophrenic. She was hospitalized in
multiple mental facilities and ultimate discharged. he important issue was the existence of a
causal relationship between the rather slight accident and Cynthia’s undoubtedly serious ailment.
The jury propounded the following question: “If we find the auto accident was the precipitating
factor, but not the cause of the illness, must we find for the plaintiff.” The judge merely reread
what he had already said on proximate cause.
Reasoning (Friendly): When they were told in effect that plaintiffs could recover only if,
contrary to ordinary experience, the accident alone produced the schizophrenia, the result was
predestined. … Although the fact that Cynthia had latent psychotic tendencies before the
accident would not defeat recovery if the accident was a precipitating cause of schizophrenia,
this may have a significant bearing on the amount of damages. While the evidence does not
demonstrate that Cynthia already had the disease, it does suggest that she was a good prospect.
Class Notes
When a trial court judge reviews a jury award, the standard is one of deference. He can only alter
it if it is clearly excessive in light f the circumstances. Then, on appeal, there is the usual
deference to the trial judge, using the abuse of discretion standard. So, in a situation where the
trial judge upholds a jury verdict, there is sort of double deference. Only three reasons for
overruling: (1) Monstrously excessive, (2) lack of a rational connection to the evidence, and (3)
comparability to similar cases.
Walker v. Ritchie: Must show a “real and substantial risk of future pecuniary loss,” as opposed to
a balance of the probabilities r a preponderence of the evidence. To square this with the certainty
doctrine, the doctrine requires preponderence of the evidence for certainty as to injury, not as to
the amount.
Greyhound Lines (p533): “We hold that in cases brought fr the wrongful death of a child where
there is no past income upon which to base a calculation of projected future income upon which
to base a calculation of projected future income, there is a rebuttable presumption that the
deceased child’s income would have been the equivalent of the national average as set forth by
the US Dept. of Labor. Either party may rebut the presumption by presenting relevant credible
evidence to the finder of fact.”
Avoidable consequences doctrine: You do not get compensated for damages you could have
reasonably avoided.
D. An Overview of Contract Damages
Great American Music Machine, Inc. v. Mid-South Record Pressing Co. (Tenn. 1975)
Facts: The complaint seeks monetary damages based upon breach of contract and implied
warranty in connection with some record albums which plaintiffs allege were defectively pressed
by Mid-South. The defendant counterclaims on its open account with the plaintiff corporation.
GrAMM did not complain of the quality of the second pressing nor reject the second batch of
albums, yet has refused to pay its open account with Mid-South. The amount due is $13,025.39.
Issue: What damages the plaintiff is entitled to.
Holding: Under the circumstances peculiar to this case, the court finds the best measure of
allowable damages to be the expenses reasonably incurred by GrAMM in its efforts to
rehabilitate the record following the breach, including salaries and travel expenses of GrAMM
representatives sent to Nashville to renegotiate the re-pressing.
Reasoning (Morton): With regard to the second pressing of the record albums, the court finds
that plaintiff GrAMM is liable on its open account with the defendant in the amount of
$13,025.39. Plantiff’s liability is predicated upon the fact that it accepted the repressed records
and, under statute, must pay at the contract rate for goods accepted by it. The fact that plaintiff
accepted the second batch does not, however, preclude its suit for damages occasioned by the
defective pressing of the first batch. … Plaintiff GrAMM has elected to sue for breach of
contract, rather that suing in tort for negligence. The damages recoverable for a breach of
contract are “limited to those reasonably within contemplation of the defendant when the
contract was made, while in a tort action a much broader measure of damages is applied.” …
While the amount of damages may be approximated, the fact of damage attributable to the wrong
must be proven with reasonable certainty. … Although GrAMM proved the amount of its
investment and the cost of operating its business during the period in question, it offered no
convincing proof that, with an initial pressing of high quality, it would in all probability have
sold a sufficient number of records to recoup its investment.
The Purpose of the Damage Award
The “expectation interest,” which is his interest in having the benefit of his bargain by being put
in as good condition as he would have been in had the contract been performed. The “reliance
interest,” which is his interest in being reimbursed for loss caused by reliance on the contract by
being put in as good a position as he would have been in had the contract not been made. The
“restitution interest,” which is his interest in having restored to him any benefit that he has
conferred on the other party.
The vehicle that promotes these purposes is the compensatory damage award. Traditional
wisdom would have it that punitive damages are not available unless the plaintiff can recast his
cause of action to sound in tort.
Limits on the Award.
a. Foreseeability. Loss may be foreseeable as a probable result of a breach because it

follows from the breach (a) in the ordinary course of events or (b) as a result of special
circumstances, beyond the ordinary course of events, that the party in breach had reason
to know.
b. Certainty. Damages can be recovered for a particular element of loss “only to the extent
that the evidence affords a sufficient basis for estimating their amount in money with
reasonable certainty.”
c. Avoidable consequences. If, through reasonable efforts, a loss could have been avoided,
damages for that amount cannot be recovered.
d. Offset by benefits. The difficulty in applying the offset rule lies in determining whether
the benefit was actually the product of the defendant’s actions.
e. Limiting damages by agreement. Parties to a contract have the power to limit liability
expressly in the agreement, or to alter the measure of damages the common law would
impose. The power, however, is not unlimited. Most jurisdictions have limited the power
of the parties to exclude consequential damages, as in the UCC.
E. Adjustments to the Damage Award

1. Time and Value: Prejudgment Interest
Kansas v. Colorado (2001)

Facts: Previous cases led to the negotiation of the Arkansas River Compact, an agreement
between Kansas and Colorado that in turn was approved by Congress. This case involves a claim
by Kansas for damages in violation of that Compact. … The Court-appointed Special Master
determined that groundwater well pumping in Colorado had materially depleted the river’s
waters, violating the Compact. Among other things, the Special Master recommends that the
damages should include prejudgment interest from 1969 to the date of the judgment.
Issue: Whether prejudgment interest is warranted, whether it is excessive here, and what date
should be used in determining when the interest should begin accruing.
Holding: Prejudgment interest is warranted, the individualized interest rate used for farmers (and
not state) is warranted, and 1985 is the correct date.
Reasoning (Stevens): Colorado submits that, if any prejudgment interest is to be awarded, it
should begin to accrue in 1985 (when Kansas filed its complaint in this action), rather than in
1969 (when Colorado knew or should have known that it was violating the Compact). Kansas
argues that it should begin in 1950. We cannot say that by 1949 our case law had developed
sufficiently to put Colorado on notice that, upon a violation of the Compact, we would
automatically award prejudgment interest from the time of injury. We agree with the Special
Master that the equities in this case do not support an award of prejudgment interest from the
date of the first violation of the Compact, but rather favor an award beginning on a later date, as
he appropriately considered the relevant factors in making his determination. After examining
the equities ourselves, the Court has decided that the 1985 date is the more appropriate.
Class Notes
Schoenbrod’s rule for probable damages: Dylan says you can’t recover for enhanced damages;
Ayers says you can. But they both express the same rule. Recovery based on probabilities applies
under four conditions: (1) plaintiffs can prove by a preponderance that something real happened
to them; (2) that something is fairly likely to have consequences, though not more likely than
not; (3) the probability is not so uncertain such that calculating damages based on the probability
would be entirely speculative; and (4) such relief would not lead to a flood of new lawsuits.
“The injured party has a right to damages based on his expectation interest as measured by:
(a) The loss in the value to him of the other party’s performance caused by its failure or
deficiency, plus
(b) Any other loss, including incidental or consequential loss, caused by the breach, less
(c) Any cost of other loss that he has avoided by not having to perform
In Kansas, the court says that to make the plaintiff whole you have to include interest.
2. Time and Money: Discounting to Present Value
Jones & Laughlin Steel Corp. v. Pfeifer (1983)

Facts: Respondent was injured in the course of his employment as a loading helper on a coal
barge. As his employer, petitioner was required to compensate him for his injury under a
Congressional Act. … In coming to its final award, the district court did not take inflation into
account and it did not discount the award to reflect the present value of the future stream of
income. … Although the district court did not dispute that respondent could be expected to
receive regular cost-of-living wage increases from the date of his injury until his presumed date
of retirement, the Court refused to include such increases in its calculation, explaining that they
would provide respondent “a double consideration for inflation.”
Issue: Whether the Court of Appeals correctly upheld the trial court’s computation of
respondent’s damages.
Holding: The Court of Appeals did not come to the correct conclusion.
Reasoning (Stevens): Even in an inflation-free economy, a worker’s wages tend to “inflate.”
This “real” wage inflation reflects a number of factors, some linked to the specific individual and
some linked to broader societal forces. … With the passage of time, an individual worker often
becomes more valuable to his employer. He will often receive “seniority” raises, “merit” raises,
or even promotions. Although it may be difficult to prove when, and whether, a particular injured
worker might have received such wage increases, they may be reliably demonstrated for some
workers. … Unfortunately for triers of facts, ours is not an inflation-free economy. … The first
stage of the calculation requires an estimate of the shape of the lost stream of future income, as
many workers have a contractual “cost-of-living adjustment” that automatically increases wages
each year by the percentage change during the previous year. Such a contract takes inflation into
account. … The second stage of the calculation requires the selection of an appropriate discount
rate. Anticipated price inflation certainly affects market rates of return. … [The problem is
deciding what the inflation rate should be. Courts in the US and around the world have all varied
in deciding a proper rate.]
Energy Capital Corp. v. United Staes (Fed. Cir. 2002)

Facts: The Department of Housing and Urban Development agreed to eliminate certain
regulatory barriers so Energy Capital could originate loans to allow owners of HUD properties to
install energy sufficient heating. Energy Capital sued after HUD terminated the agreement for
breach of contract and prevailed. The government contends that the Court of Federal Claims
made the following two errors when it discounted the damages award: (i) discounting damages to
the date of judgment instead of the date of breach of contract; and (ii) using a risk-free discount
rate rather than a risk-adjusted discount rate.
Issue: Whether the lower court erred in discounting the damages award.
Holding: The lower court did not err in discounting the damages award.
Reasoning (Schall): “The time when performance should have taken place is the time as of
which damages are measured.” Almost all of Energy Capital’s lost profits would have been
earned after the date of judgment. Accordingly, we hold that the tiral court did not err in
discounting Energy Capital’s lost profits to the date of judgment instead of the date of breach.
…. The Court of Federal Claims agreed with Energy Capital that the appropriate discount rate
was the rate of return on “conservative investment instruments.” By finding that EC’s lost profits
were reasonably certain, the trial court found that the probability that the AHELP venture would
be successful was high enough that a determination of profits would not be unduly speculative.
The determination of the amount of those profits, however, could still be affected by the level of
riskiness inherent in that venture. … We do not hold that in every case a risk-adjusted discount
rate is required. Rather, we hold that the appropriate discount rate is a question of fact.
Notes: This case is essentially a law review article about what to do about inflation.
3. Taxation of Damage Awards
Commission of Internal Revenue v. Banks (2005)

Issue: Whether the portion of a money judgment or settlement paid to a plaintiff’s attorney under
a contingent-fee agreement is income to the plaintiff under the Internal Revenue Code.
Holding: We hold that, as a general rule, when a litigant’s recovery constitutes income, the
litigant’s income includes the portion of the recovery paid to the attorney as the contingent fee.
The judgments of the lower courts are reversed and the cases are remanded for further
proceedings consistent with this opinion.
Reasoning (Kennedy): The attorney is an agent who is duty bound to act only in the interests of
the principal, and so it is appropriate to treat the full amount of the recovery as income to the
principal. The portion paid to the agent may be deductible, but absent some other provision of
law it is not excludable from the principal’s gross income.
Class Notes
Reminder for assessing damages:

1. Cause of action
2. Element
3. Measurement
4. Limits
a. Foreseeability
b. Avoidability
c. Certainty
5. Procedural
PART 9: PUNISHMENT AND PUNITIVE DAMAGES
A. Distinguishing Criminal and Civil Sanctions
The rationales underlying criminal punishment are similar for civil punitive damages: retribution,
deterrence, and compensation for intangible injuries. New theories have also been advanced,
such as using punitive damages as societal damages or to advance the greater public good.
Hudson v. United States (1997)

Facts: The government administratively imposed monetary penalties and occupational
debarment on petitioners for violation of federal banking statutes, and later criminally indicted
them for essentially the same conduct.
Issue: Whether the government is barred from doing so.
Holding: We hold that the Double Jeopardy Clause of the 5th Amendment is not a bar to the later
criminal prosecution because the administrative proceedings were civil, not criminal.
Reasoning (Rehnquist): The Clause protects only against the imposition of multiple criminal
punishments for the same offense, and then only when such occurs in successive proceedings.
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory
construction. A court must first ask whether the legislature, in “establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one label or the other…
Applying traditional double jeopardy principles to the facts of this case, it is clear that the
criminal prosecution of these petitioners would not violate the Double Jeopardy Clause. It is
evidence that Congress intended the penalties and sanctions imposed for these violations to be
civil in nature. …. First, neither money penalties nor debarment have historically been viewed as
punishment. Second, the sanctions imposed do not involve “affirmative disability or restraint.”
While petitioners have been prohibited from further participating in the banking industry, this is
certainly nothing approaching the infamous punishment of imprisonment. Third, neither sanction
comes into play only on a finding of scienter. Fourth, the conduct for which OCC sanctions are
imposed may also be criminal.
Notes on Differences Between Civil and Criminal Proceedings

The following differences between the two systems should be borne in mind, particularly with
regard to whether they justify or explain differences in the type of remedy that a judge may
impose:
(1) Commencement of the action. No formal procedure prior to the filing of the action is
required of the government or a private party in a civil action. A federal felony charge
requires presentation of evidence by the prosecutor to a grand jury consisting of 16 to 23
citizens and the affirmative vote of 12 or more grand jurors and assent of the prosecutor.
(2) Discovery. Modern civil discovery is, of course, wide-ranging and is equally available to
both the plaintiff and the defendant. Federal criminal discovery is entirely different.
(3) Bail.
(4) Trial. Criminal burden of proof is beyond a reasonable doubt. In a civil case, the standard
is a preponderance of evidence.
(5) Effects of conviction. Remedies following conviction are not limited to fines or
imprisonment. Conviction of a felony may carry collateral consequences such as loss of
the right to serve on a grand jury and forfeiture of the instruments or proceeds of crime.
United States v. Bajakjian (1998)

Facts: Respondent Bajakjian attempted to leave the US without reporting, as required by federal
law, that he was transporting more than $10,000 in currency. Federal law also provides that a
person convicted of willfully violating the reporting requirement shall forfeit to the government
“any property involved in such offense.” He wound up forfeiting $357,144.
Issue: Whether forfeiture of the entire amount that respondent failed to declare would violate the
Excessive Fines Clause of the 8th amendment.
Holding: We hold that it would, because full forfeiture of respondent’s currency would be
grossly disproportional to the gravity of his offense.
Reasoning (Thomas): The forfeiture serves no remedial purpose, is designed to punish the
offender, and cannot be imposed upon innocent owners. … We now turn to the question of
whether it is “excessive.” … We hold that a punitive forfeiture violates the Excessive Fines
Clause if it is grossly disproportionate to the gravity of a defendant’s offense. We adopt the
standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause
precedents. … Whatever his other vices, respondent does not fit into the class of persons for
whom the statute was principally designed: He is not a money launderer, a drug trafficker, or a
tax evader. The harm that respondent caused was also minimal. Failure to report his currency
affected only one party, the government, and in a relatively minor way. Comparing the gravity of
respondent’s crime with the amount forfeited, we conclude that such a forfeiture would be
grossly disproportionate to the gravity of the offense.
B. Punitive Damages at Common Law
The black letter rule for 20 years has been that punitive damages are not available for breach of
contract. It is now the general rule that punitive damages are available when the conduct
constituting the breach of contract is also an independent tort. Indeed, it appears that punitive
damages are now awarded more frequently, and in higher amounts, in cases involving contract-
related torts (fraud, employment discrimination, tortious interference with contract) than in tort
cases not involving contractual relationship.
Grimshaw v. Ford Motor Co. (Cal. 1981)

Facts: A 1972 Ford Pinto stalled and exploded after being rear-ended. The drive, Ms. Gray, died
from the burns and the passenger, Grimshaw, suffered permanent disfiguring burns on his face
and entire body. Grimshaw was awarded $2.5 million in compensatory damages and $125
million in punitive damages. On Ford’s motion for a new trial, Grimshaw was required to remit
all but $3.5 million of the punitive award as a condition of denial of the motion. … Prior to its
release, crash tests done by Ford revealed that the Pinto’s fuel system as designed could not meet
the 20-mile-per-hour proposed standard. Ford produced and sold the Pinto to the public without
doing anything to remedy the defects. The design changes would have had relatively little cost.
Issue: Whether punitive damages were warranted and, if so, whether the amount was excessive.
Holding: Punitive damages were warranted and the $3.5m awarded was not excessive.
Reasoning (Tamura): We recognize the fact that multiplicity of awards may present a problem,
but the mere possibility of a future award in a different case is not a ground for setting aside the
award in this case, particularly as reduced by the trial judge. If Ford should be confronted with
the possibility of an award in another case for the same conduct, it may raise that issue in that
case. … Ford’s final contention is that the amount of punitive damages awarded, even as reduced
by the trial court to $3.5m, was so excessive that a new trial on that issue must be granted. In
determining whether an award of punitive damages is excessive, comparison of the amount
awarded with other awards in other cases is not a valid consideration. Instead, the following
factors should be weighed: the degree of reprehensibility of defendant’s conduct, the wealth of
the defendant, the amount of compensatory damages, and an amount which would serve as a
deterrent effect on like conduct by defendant and others who may be so inclined. Applying these
factors here, the punitive damage award as reduced by the trial court was well within reason.
Punitive Damages and the Government

Governments may recover punitive damages under the common law. On the other hand, punitive
damages are generally not available against the government unless authorized by statute.
Exxon Shipping Co. v. Baker (2008)

Facts: The Exxon Valdez supertanker ran aground in Alaska’s Prince William Sound in 1989
while under the command of Joseph Hazelwood, a relapsed alcoholic. Exxon knew that
Hazelwood had resumed drinking but did not relieve him of his post, and the ship eventually
spilled 11 million gallons of oil into the ecologically sensitive sound. The jury calculated
compensatory damages at $287 million, and then awarded $5 billion in punitive damages. The
punitive award has been reviewed three times by the Ninth Circuit Court of Appeals, which
ultimately settled on a $2.5 billion figure.
Issue: (1) Whether the punitive damages award should be reduced. (2) Does maritime law permit
judges to award punitive damages for employee misdeeds? (3) Does maritime law allow judge-
made remedies when Congress has not authorized them?
Holding: (1) The punitive damages award should be reduced from $2.5b to $500m. (2) Maybe.
(3) Yes.
Reasoning (Souter): (1) After considering the punitive damage policies of foreign nations, the
Court reasoned that although punitive damages were warranted, they may not exceed what
Exxon already paid to compensate victims for economic losses, which was about US$500
million. Souter argued that a one-to-one ratio between punitive and compensatory damages was
"a fair upper limit" in maritime cases that involved recklessness, compared to the lower liability
of negligence or the higher liability of intentional conduct. (2) With Justice Samuel Alito taking
no part in the decision because he owns Exxon stock, the Court split evenly 4-4 on the issue of
whether judges may award punitive damages against a company for employee misdeeds.
Therefore, the Court left the Ninth Circuit's ruling that they can undisturbed, but noted that this
affirmation could not be used as precedent because it merely reflected an even split in the Court.
(3) A majority of 5-4 held that judges are free to create remedies in maritime cases where
Congress has not legislated in the area. However, this freedom can be lost if Congress passes
legislation restraining such judicial activism.
Class Notes
When does the common law provide for punitive damages? They exist to punish and deter, and
not to compensate.
Grimshaw: Availability of punitive damages, after interpreting the term malice, is not limited to
cases where there is an actual intent to harm plaintiff or others, but also includes instances
evincing a conscious disregard of the safety of others. … Here, among other things, the chain of
command had an attitude that approved this way of doing things.
C. Constitutional Limits on Punitive Damages
In a series of relatively recent cases, the Court has crafted a judicial inquiry to assess when
punitive damages are so grossly excessive as to violate the Constitution’s due process guarantee
against arbitrary state action. Many have criticized the Court’s venture into punitive damages
review, arguing that constitutional analysis does not extend to this type of judicial tort reform.
State Farm Mutual Automobile Insurance Co. v. Campbell (2003)

Facts: Although investigators concluded that Curtis Campbell caused an accident in which one
person was killed and another permanently disabled, his insurer, State Farm Mutual Automobile
Insurance Company, contested liability and took the case to trial. State Farm assured the
Campbells that they would represent their interests. After losing in court, the Campbells sued
State Farm for bad faith, fraud, and intentional infliction of emotional distress. The trial court
reduced the jury’s award to $1 million compensatory and $25 million punitive. The Utah
Supreme Court reinstated the $145 million punitive damages award.
Issue: Is an award of $145 million in punitive damages, when full compensatory damages are $1
million, excessive and in violation of the Due Process Clause of the Fourteenth Amendment?
Holding: Yes. The Court held that the punitive award of $145 million was neither reasonable nor
proportionate to the wrong committed, and it was thus an irrational, arbitrary, and
unconstitutional deprivation of the property of the insurer. An application of the Gore v. BMW
guideposts to this case, especially in light of the substantial compensatory damages awarded (a
portion of which contain a punitive element), likely would justify a punitive damages award at or
near the amount of compensatory damages.
Rule: Three prong test from Gore for determining if a punitive damages award is excessive: (1)
reprehensibility of DF's conduct; (2) the ratio of the award to the harm inflicted on PL; and (3)
the difference between the award and the civil or criminal penalties in comparable cases.
Mathias v. Accord Economy Lodging, Inc. (7th Cir. 2003)

Facts: The plaintiffs, a brother and a sister, were guests at a Motel 6 and were bitten by bedbugs,
which are making a comeback in the US as a consequence of more conservative use of
pesticides. The jury awarded each plaintiff $186k in punitive damages though only $5k in
compensatory damages.
Issue: Whether the punitive damages award amount is proper.
Holding: All things considered, we cannot say that the award of punitive damages was
excessive, albeit the precise number chosen by the jury was arbitrary. But as there are no
punitive damages guidelines, corresponding to the state and federal sentencing guidelines, it is
inevitable that the specific amount of punitive damages awarded whether by a judge or by a jury
will be arbitrary. The judicial function is to police a range, not a point.
Reasoning (Posner): Although bedbug bites are not as serious as the bites of some other insects,
they are painful and unsightly. Motel 6 could not have rented any rooms at the prices it charged
had it informed guests that the risk of being bitten by bedbugs was appreciable. There was, in
short, sufficient evidence of “willful and wanton conduct” within the meaning that the Illinois
courts assign to the term to permit an award of punitive damages in this case. … A defendant’s
wealth is not a sufficient basis for awarding punitive damages. Where wealth in the sense of
resources enters is in enabling the defendant to mount an extremely aggressive defense against
suits such as this and by doing so to make litigating against it very costly, which in turn may
make it difficult for the plaintiffs to find a lawyer willing to handle their case.
Class Notes
State Farm: Regarding the out-of-state evidence, you can use it to speak to a pattern of
reprehensible conduct, but you can’t use it as a multiplier for punitive damages. But the overall
rule is as follows: (1) you can’t use out-of-jurisdiction evidence to support your amount of
punitive damages, as you can’t punish the defendant for out-of-jurisdiction conduct; and (2) the
evidence has to be analogous to your case.
PART 10: RESTITUTION & RESTITUTIONARY REMEDIES
A. Introduction
Restatement of Restitution (1937): A person who has been unjustly enriched at the expense of
another is required to make restitution to the other.
B. Restitution and Unsolicited Benefits
Kossian v. American National Insurance Co. (Cal. 1967)

Facts: In 1964, a fire destroyed a portion of the Bakersfield Inn, owned by Reichert. Defendant’s
property was protected by policies of fire insurance. Later, Reichert entered into a contract with
plaintiff whereby plaintiff agreed to clean up and remove the debris from the fire damaged
portion of the inn for the sum of $18,900. Sometime after, Recihart filed for bankruptcy and then
assigned their interest in the policies to defendant. Defendant then agreed upon a figure of
$135,620 with the insurance carrier. The insurance payment included at least a part of the cost of
debris removal and demolition. Thus the defendant received the insurance payment for plaintiff’s
work and the actual benefit of the plaintiff’s work in that the property was cleaned. Plaintiff was
never paid for its services.
Issue: The question, simply stated, is whether in a jurisdiction that recognizes unjust enrichment,
one party should 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 materials.
Holding: We conclude that the doctrine of unjust enrichment is applicable to the facts of this
case, and that plaintiff is entitled to reimbursement out of the insurance proceeds paid defendant
for work done by plaintiff.
C. Restitution and Wrongfully Acquired Benefits
Olwell v. Nye & Nissen (Washington 1946)

Facts: Plaintiff sold and transferred to the defendant corporation his one-half interest in Puget
Sound Egg Packers. Plaintiff was to retain full ownership in an “Eggsact” egg-washing machine,
formerly used by the company. The defendant promised to make it available for delivery shortly
after the agreement was made. The plaintiff arranged to have the machine stored in a space
adjacent to the defendant’s premises. The defendant wound up using the machine in its regular
course of business for about three years until plaintiff discovered the defendant’s use. Plaintiff
offered to sell the machine to defendant, but no agreement on price could be made.
Issue: Whether plaintiff may recover for the defendant’s profit.
Holding: The plaintiff may recover for the defendant’s profit.
Reasoning (Mallery): The very essence of the nature of property is the right to its exclusive use.
The appellance cannot be heard to say that his wrongful invasion of the respondent’s property
right to exclusive use is not a loss compensable in law. … Respondent may recover the profit
derived by the appellant from the use of the machine. … [The court then held that the plaintiff
could not recover more than he had prayed for in the complaint and directed the trial court to
reduce the judgment to $25 per month, or $900.]
Note
Olwell’s assertion that a conscious wrongdoer will always be stripped of his profits is overly
broad. There are no easy formulas to determine whether, or the extent to which, the defendant’s
gain is the product not solely of the plaintiff’s interest but also of contributions made by the
defendant. Instead, the court must resort to general considerations of fairness, taking into account
the nature of the defendant’s wrong, the relative extent of his contribution, and the feasibility of
separating this from the contribution traceable to the plaintiff’s interest.
Another alternative to a profit-based measure is to measure recovery by the expenses the

defendant saved. Sometimes, however, recovery is measured by the defendant’s actual profits.
There are a number of tort causes of action in which the tort measure of damages arguable allows
for profits to be recovered, interference with contract and appropriation of the right of publicity
being the most common examples. And in trademark, copyright, and insider trading cases,
profits are frequently recovered.
Class Notes
Kossian: The Court says it is the second benefit – the money – that qualifies as the unjust
enrichment. The first one – the clean-up – is questionable because the insurance company had no
opportunity to reject it.
The cases where unjust enrichment seems to pop up: unsolicited benefits, solicited benefits, and
wrongfully-acquired benefits.
In Olwell, the reason he sued under restitution and not tort was that tort would have resulted in a
lower return.
D. Restitution and Solicited Benefits
Hutchison v. Pyburn (Tenn. 1977)

Facts: Plaintiffs bought a house and shortly thereafter discovered seepage from the sewage
disposal system. Pyburn, the current owner, had become aware of the sewage problem after
purchasing the property from Williams and had prevailed on Williams to release him from his
obligation to purchase it, whereupon Pyburn and Williams negotiated the sale to plaintiffs. ….
Among other things, including rescission of the contract and incidental damages in the form of
expenses incurred in connection with the property, the trial court awarded $5,000 in punitive
damages. Defendants assert that the trial court erred in awarding punitive damages for
misrepresentations incident to a contract when rescission of the contract and deed was also
decreed.
Holding: Punitive damages were applicable.
Reasoning (Drowota): Cases often announce the rule that there must be proof of “actual
damages” before punitive damages may be awarded. The cases are unclear, however, as to the
meaning of “actual damages” in this context. But we need not go so far here as to define “actual
damages.” We hold simply that plaintiffs’ proof of their entitlement to rescission of the deed,
refund of the purchase price, and incidental damages such as moving expenses, shows sufficient
harm and loss to them to satisfy the “actual damages” prerequisite to recovery of punitive
damages in Tennessee.
Earthinfo, Inc. v. Hydrosphere Resource Consultants, Inc. (Col. 1995)

Issue: Whether a party that breaches a contract can be required to disgorge to the non-breaching
party any benefits received as a result of the breach.
Rules: It is a principle of the law of restitution that one should not gain by one’s own wrong; it is
a principle of the law of contracts that damages for breach should be based on the injured party’s
lost expectation. Here, there is a conflict of these two rules.
Holding: We hold that whether profits are awarded to a nonbreaching party shall be determined
within the discretion of the trial court on a case by case basis. We agree with the trial court that
Earthinfo must be required to disgorge the profits it accrued as a result of its breach since its
breach was conscious and substantial, but that determination of that amount should be remanded
because not all the profits should be given but only the portion not attributable to Earthinfo’s
own efforts.
Class Notes
Looking at possibilities to measure damages in Olwell, there are a few: (1) rental value, (2) labor
saved, (3) labor saved + profits on eggs, (4) gross revenue, or (5) gross revenue + increase.
Looks like the court there went with labor saved.
Questions we’re going to ask to determine which measurement test applies include: (1) social
worth of activity, (2) contribution of defendant, (3) wilfullness or knowledge, (4) threats or
violence made, and more. The list is in no way exhaustive, and the point is that there are many
different ways to look at this.
As for Hutchison, Schoenbrod says the opinion itself is worthless – it’s the fact and the results
that are worth it.
Earthinfo: The key thing here is that it has to return the profits that it was otherwise entitled to
keep. Three reasons the court gives for making the remedy the defendant’s gain rather than the
plaintiff’s loss: (1) the parties agree; (2) damages are inadequate; and (3) breach was substantial
and conscious.
Efficient breach doctrine: when defendant’s loss is less than plaintiff’s gain, it is considered an
efficient breach because the overall effect on society is greater.
Schoenbrod says that if this is a correctly decided case then it is not adequately explained.
The Restatement says you can get profits for a multitude of reasons, one of which is an
opportunistic breach.

Remedies With Case

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General Approach to Crafting a Remedy

PART 2: WHERE THERE’S A RIGHT, THERE’S A REMEDY

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971)

Schweiker v. Chilicky (1988)

PART 3: THE NATURE, AVAILABILITY, AND SCOPE OF INJUNCTIONS

A. The Nature of an Injunction

B. The Plaintiff’s Rightful Position as the Measure of an Injunction

Mt. Healthy City School District Board of Education v. Doyle (1977)

Rizzo v. Goode (1976)

The remand remedy differs from a simple reversal in two respects:

PART 4: THE PREREQUISTES FOR INJUNCTIVE RELIEF

Hecht Co. v. Bowles (1944)

City of Los Angeles v. Lyons (1983)

Lewis v. Casey (1996)

2. Inadequate Remedy at Law

Note on Declining Importance of the Inadequate remedy at law rule

Two arguments to keep the inadequate remedy at law doctrine:

PART 5: BALANCING THE EQUITIES

1. The Four Factor Test

eBay v. Mercexchange LLC

2. Granting Less than the Plaintiff’s Rightful Position

Smith v. Staso Milling Co. (2nd Cir. 1927)

Brown v. Board of Ed II – Question of remedies

Tennessee Valley Authority v. Hill

Recipe for Balancing the Equities

3. Granting More than Plaintiff’s Rightful Position; Prophylaxis and Impossibility

Swann v. Charlotte-Mecklenburg Board of Education (1971)

Missouri v. Jenkins (Jenkins III) (1995)

PART 6: PROCEDURES FOR FORMULATING, ADMINISTERING, AND

A. Obtaining Preliminary Injunction Relief

2. Standards for Granting Preliminary Relief

Winter v. Natural Resources Defense Council (2008)

American Hospital Supply Corp. v. Hospital Products Ltd. (1986)

B. Formulating and Administering the Injunction

1. Drafting the Injunction

2. Administering the Injunction

Special Project – The Remedial Process in Institutional Reform Litigation (1978)

C. Accommodating Changing Circumstances: Interpretation and Modification of the

Firefighters Local Union No. 1784 v. Stotts (1984)

Note on Binding Successors in Office with a Consent Decree

Horne v. Flores (2009)

D. Retaining and Closing a Case

Board of Education of Oklahoma City Public Schools v. Dowell (1991)

Freeman v. Pitts (1992)

PART 7: ENFORCEMENT OF THE DECREE

1. The Contempt Power

Hicks on behalf of Feiock v. Feiock (1988)

United Mine Workers v. Bagwell (1994)

(3) violation of the order

Three types of contempt:

2. When Are Parties Bound?

3. The Collateral Bar Rule

In Re Providence Journal Co. (1st Cir. 1988)

United States v. Hall (5th Cir. 1972)

Notes on Injunctions Against Nonparties

5. Enforcement Against the Government

Resistance by governmental defendants is also complicated by the immunity of some

Missouri v. Jenkins (Jenkins II) (1990)

United States v. City of Yonkers (2nd Cir. 1988)

Spallone v. United States (1990)

Memphis Community School District v. Stachura (1986)

Note on the Right to a Jury Trial