Chapter 1: Basic Remedial Tools

A. Types of Remedies
a. There are four types or classifications of remedies
i. Coercive remedies
ii. Damages
iii. Restitution
iv. Declaratory relief
b. Coercive remedies
i. A coercive remedy, such as an injunction or specific performance order, is available from a court
sitting in equity
ii. Subject to equitable defenses, like unclean hands, laches, estoppel, unconscionability
iii. Interlocutory relief
1. Preliminary injunction Gives the P temporary relief pending a trial on the merits
2. TRO affords same thing
3. Principal of interlocutory relief is to preserve the status quo to prevent irreparable harm
4. P must make a strong showing of necessity / be consistent with due process
iv. Contempt
1. Criminal contempt punishes D for violation of a court order
2. Civil contempt can take the form of either compensating the P for loss caused by Ds
contempt or coercion of D through jail or finches to force compliance
v. Three types of injunctions in addition to preventive ones
1. Restorative injunctions
a. Operates to correct the present by undoing the effects of a past wrong
2. Prophylactic injunctions
a. Seeks to safeguard the Ps rights by directing the Ds behavior so as to minimize
the chance that wrongs might recur in the future
3. Structural injunctions
a. Involvement of the courts in the institutional policies and practices of the D
entity (like desegregation orders)
c. Damages
i. Purpose of damages remedy is to compensate Ps for losses sustained in violation of their rights
1. CL imposes certain limitations - cannot be too remote, speculative, or uncertain
a. Limits also come from collateral source rule and avoidable consequences rule
2. Exception: punitive damages
a. Designed to punish and deter the wrongdoers in cases involving egregious
conduct
d. Restitution
i. Goal is to restore property to its rightful owner by returning the P to a position be held before a
wrong, or to disgorge from a D any unjust enrichment occasioned by the wrong to the plaintiff
ii. Measure of restitution is the Ds gains rather than Ps losses
iii. Recovery can include damages or otherwise, like equitable liens, rescission, and suits in
assumpsit for quasi-contract
iv. Distinction between substantive and remedial restitution
1. Substantive restitution concerns the entitlement to a restitutionary remedy: courts
evaluate whether the D has acquired or holds a benefit which, if retained, would
constitute unjust enrichment
2. Remedial restitution concerns the measurement of that remedy
e. Jury trials and attorneys fees
 i. 7A says there is a right to a jury trial in legal cases but not equitable ones
1. 7A does not apply to states, but states generally follow suit
ii. American rule – pirates bear their own costs of litigation
iii. Some statutory changes impose “loser pays” model
f. Declaratory remedies
i. Purpose is to obtain a declaration of the rights or legal relations between the parties
ii. Liberally administered, but must demonstrate a justiciable controversy rather than hypothetical
iii. Nominal damages also serve to declare the rights of the parties
1. They are awarded when P establishes a substantive claim but cannot establish damages
B. Remedies at law and in equity
a. Equity refers to system of jurisprudence distinguishable from the system “at law”
i. There has been a merger of law and equity
b. Equitable remedies include flexible coercive orders such as injunctions and specific performance orders
c. Most prevalent legal remedy is damages
d. 7A provides right to a jury trial for causes “at law” not for equity
i. US Sup Ct has held that it is the type of remedy that controls jury trials rather than the historical
origin of the substantive right
ii. If P presents a mixed claim, legal issues are tried first by a jury and remaining equitable issues
tried by a judge
C. Introductory Remedies Problems
a. Notes
i. #6 Boomer v. Atlantic Cement Co
1. Cement plant sued by neighbors who were victimized by air pollution
2. Court declined to issue injunction and required D to pay permanent damage to P in
exchange for “servitute on the land” for the company” because of the harsh result on D
compared with the relatively small loss in the Ps property value
ii. Puerto Rico v SS Zoe Colocotroni (5th cir)
1. Tanker struck reef and captain ordered 5k tons of crude oil be dumped in the surrounding
waters to refloat the vessel
2. Severe environmental harm resulted but the injured land and marine life did not have
significant market value
3. Confused on outcome