Tejada F07 REMEDIES-jon

Tejada F07 REMEDIES-jon - REMEDIES "For every right there's...

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REMEDIES “For every right there’s a remedy.” Remedies are anything a court can do for a litigant who has been wronged or is about to be wronged. Put another way, remedies are the legal consequence of violating, or threatening to violate a legal prohibition. Remedies, naturally, are the goal for litigation. Two types of Remedies: Judgments – the result of litigation (monetary damages). Orders – result of action (e.g. injunctions). Distinguishing between Substantive and Procedural aspects of remedies. The law that creates the remedy is substantively applied by the court hearing the claim, but the procedure that governs the judicial process is dictated by the forum in which the court sits. This is especially important where state courts decide federal claims, and where federal courts decide state claims. In diversity actions, the law of the forum governs the procedure, while the law as applied to the claim is derived from where the claim arose, or where the corp. is incorporated, or by Federal statute, etc. This way, everyone has Equal Protection under the law as mandated by the Fourteenth Am. Remedies are either Substitutionary , denoting an exchange of money, or Specific , denoting something else, such as an injunction. Remedies are either Legal or Equitable . Remember that once the court is doing equity, the judge sits without a jury. That is, you only have a right to jury trial when the remedy sought is legal. This is because the law acts in rem (directing attention to property), while the court doing equity acts in personam (directing attention at a person). Classifying remedies generally. Compensatory – aimed at compensating PL for harm suffered (i.e. tort). Coercive – this is a specific remedy that orders an individual or entity to do or not do something (i.e. injunction). Declaratory – here a court resolves disputes about the parties’ rights, but does not end in making either party do anything. (i.e. declaratory judgment). Restitutionary – here the aim is to restore to PL all the D gained at Pl’s expense (i.e. rescission). Punitive – punitive damages are designed to punish the wrongdoer. Ancillary – these remedies are designed to function in conjunction with other remedies (i.e. award of attorney’s fees and court costs, or, a receivership and garnishment). Compensatory Damages / RP The goal here is to restore the PL to what he was before the harm or injury occurred. That is, restore PL to his RIGHTFUL POSITION (RP). Determining the RP is not always
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easy. Suppose the PL gets 1000$ for a broken arm. Whether the money returns PL to his RP depends on what PL uses his arm for. United States v. Hatahley (10 th Cir, 1958) The US government seized Indian PL’s land, and sold their horses to the glue factory. The PL’s are thus entitled to the market value or replacement cost of their horses.
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This note was uploaded on 02/14/2008 for the course LAW 7291 taught by Professor Tejada during the Fall '07 term at Yeshiva.

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Tejada F07 REMEDIES-jon - REMEDIES "For every right there's...

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