Tejada F07-Remedies

Tejada F07-Remedies - Remedies Prof. Tejada INTRODUCTION...

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Remedies Prof. Tejada I NTRODUCTION --“Where there is a right, there is a remedy.” b Not always b/c many poorer parties get “bulled” out of court by deeper pocketed D’s. Remedy is the goal of litigation o Anything a court can do for a litigant who has been wronged or will be wronged. 2 Main types of remedies: 1. Judgments—Money Damages 2. Orders—Injunctions Substantive Law vs. Procedural Law w/ regard to remedies : Substitutionary Remedy o Gives Π what he started with or was promised but given a substitute—usually money. Specific Remedy o Exactly what Π wants, Π gets Equitable or Legal Remedies --Equitable are usually injunctions --Legal are money damages Law acts in Remedy—acts on the property Equity acts in personam—acts against the person Function and Forms of Remedies C OMPENSATORY —Substitutionary o Make Π as well off as he would’ve been if not for the wrong P REVENTATIVE : Prevent wrong from happening o Coercive: Injunction o Declaratory R ESTITUTIONARY o Give Π all that Δ has gained at Π ’s expense o Punitive —punishment o Ancillary —Designed to aid other remedies. P AYING FOR H ARM : C OMPENSATORY D AMAGES United States v. Hatahley Indian horses and burros grazing on U.S. land-gov’t takes animals and sells to glue plant. Lower court offers blanket damages for the animals and for mental distress Issue: Measuring Damages.
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Tort damages are based upon the principle that the injured party be placed in the same position as he would’ve been in had the tort not occurred (Rightful Position), but the damages must be measured individually (damages actually incurred by each plaintiff). Want to prevent giving Π a windfall by restoring to more than the rightful position. Reasons for the Standard: 1. Corrective Justice—Morality 2. Law & Economics—Efficiency No wrong unless cost of violation is more than the cost of punishment. Ok to wrong as long as you profit and repay the victim. Morality of the Marketplace Pro tanto rule: Can recover only once for each item of damage. Proportionate share rule” allocates % of damages according to share of liability. U.S. v. Fifty Acres of Land Eminent Domain case. How to measure value of lost property when property must be replaced? Cost of replacement rather than FMV? In this case, replacing the landfill was more expensive than giving FMV for the land taken. Fifth Amendment/ED cases have specific rules: Only compensate for lost value, i.e., FMV unless FMV is too hard to determine. No consequential damages, like cost of finding a new landfill Subjective value as rightful position When too hard to determine FMV King Fisher Case: Very unique Barge— Π got a really good deal b/c the FMV of the barge was more than he spent Depreciated Property Where diminution of FMV of property cannot be determined, reasonable costs of reconstruction or replacement are allowed b Trinity Church v. John Hancock Mutual Life Ins. Co. Cost of repairs, Helen B. Moran
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Tejada F07-Remedies - Remedies Prof. Tejada INTRODUCTION...

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