“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).
– result of action (e.g. injunctions).
Distinguishing between Substantive
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
. 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
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
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