REMEDIES RULE STATEMENTS

[THRESHOLD INQUIRY: WHEN DID HARM TAKE PLACE?]

I. When was Π pushed out of their rightful position by wrongful acts of Δ?
A. Past Harm: If the plaintiff is seeking a remedy for a harm that has already occurred, the court will retrospectively
analyze the plaintiff’s rightful position. In cases of past harms, compensatory damages, punitive damages,
compensatory civil contempt, and criminal contempt are potentially available for the plaintiff to recover depending
on the type of case.
B. Future Harm: If the plaintiff is asking the court to prevent a harm from occurring that has not occurred yet, the
court will prospectively analyze the plaintiff’s rightful position. In cases regarding prevention of future harm,
injunctions, declaratory judgments, coercive civil contempt, and restitution are potentially available to the plaintiff
depending on the type of case.

PAST HARMS: COMPENSATORY DAMAGES

I. PAST HARMS: COMPENSATORY DAMAGES GENERAL RULES
A. Compensatory remedies are designed to compensate the plaintiff for harm they have already suffered. The
most important form for compensatory remedies are compensatory damages, which are a sum of money
designed to place the plaintiff back in their rightful position. Hatahley. The rightful position is the position the
plaintiff would have been in if they had never been wronged. The rightful position principle encompasses the
fundamental principle of damages, which is to restore the injured party, as nearly as possible, to the position
he would have been in had it not been for the wrong of the other party. Hatahley.
1. Compensatory remedies are inherently substitutionary because the plaintiff does not always get back exactly
what they put in. In reality, putting Π in the rightful position is impossible. Even in situations where the only
damage Π suffered is monetary, they will have suffered other harms that are not compensable. In a way, the
rightful position theory is a legal fiction because it doesn’t actually put Π in the position they would have been
without Δ’s wrongful actions
II. DISTINCTION BETWEEN TORT AND CONTRACT DAMAGES
A. Expectation damages are only available in claims based on breach of contract, including breach of warranty.
(Chatlos). Expectation damages are not available in tort cases, including claims based on fraud. (Smith v.
Bolles). The distinction is important because in contract cases, the court honors the expectation value because
the existence of a contract between the parties signifies that they have a heightened responsibility toward
guarding and enabling each other’s expectations. The purpose of entering into a contract is to identify and
protect each parties’ interest. Conversely, in tort actions, the parties come together by accident. As a result,
the court will only look to the direct damages the parties have caused to each other.
1. Example: In the September 11th case, Πs expected to be able to make profits off of their purchase of the World
Trade Center. However, they could not recover those expected profits through expectation damages because
plaintiffs sued for negligence rather than under a breach of contract claim. In tort cases, plaintiffs can only
recover the value of the thing they have lost.
2. Example: In the Chatlos case, the plaintiff was able to recover the full expectation value of the computer system
they purchased, even though the computer was essentially worthless. There, the court found that even though Π’s
expectations may have been unrealistic, there was a contract between the parties that contained a warranty that
the computer could perform the functions promised.
3. In the Smith case, the plaintiff, a victim of stock market fraud, could only recover damages in the form of the
price that he had paid and any reliance.
B. The distinction between remedies available in tort and those available in contract can be very significant when
assessing what a plaintiff can recover. As such, in cases involving willful deception, plaintiffs will likely elect a suit
under a contract theory rather than a tort theory in an effort to recover the full expectation damages suffered.
C. Plaintiffs in both contract and tort cases may recover direct and consequential damages only if they can prove them
with reasonable certainty. Remoteness generally means that consequential damages weren’t reasonably foreseeable
when the parties entered into the contract or when the defendant committed the tort.
III. 1A: PAST HARMS IN TORT CASES
A. Direct damages caused by a tort are those damages that’re the usual result of the defendant’s tort, which
flowed naturally and necessarily from the tort. Consequential damages are those that resulted naturally, but
not necessarily, from the defendant’s tortious conduct. An example of direct damages in a tort case is the
plaintiff’s pain and suffering. An example of consequential damages would be the defendant’s lost income
from his disability resulting from the tort.
B. Torts Committed on Property: Lesser of 2 rule (In re September 11th Litigation). A plaintiff whose property has
been injured may recover the lesser of the diminution of the property’s market value or its replacement cost. The
lesser of two rule is the majority rule, and courts reason that each (diminution of market value and replacement cost)
has a proper way to measure lost property value, the lower of the two figures affording full compensation to the
owner yet avoiding uneconomical efforts.
1. When property has been damaged, Π can recover either:
a) Diminution of property’s market value; or
b) Replacement cost
2. Whichever is LESS→ regardless of whichever would actually put Π in rightful position
a) Purpose: In addition to the concern of putting Π in rightful position, there is an equal concern in protecting Δ
from an excessive award
b) There are due process concerns in making Δ pay for damage they didn’t case
3. EXCEPTION to Lo2 Rule: Special Property (In re September 11th Litigation; Trinity Church). Where the
property is of a type seldom traded and for which there is no market price, a different kind of valuation must be
used. In such a circumstance where the market value cannot be measured, the property is considered specialty
property and the replacement cost is considered the proper measure of fixing damage.
a) Generally speaking, what you should think about when you think about special purpose properties are
things like schools, non-profit centers, hospitals, churches→ the kind of non-profit organizations with
specialized structures that aren’t designed for general use and therefore don’t have much of a market
value
b) Factors:
(1) Improvement must be unique and specially built
(2) There must be a specific use for which the improvement is designed
(3) There must no market for the type of property and no sales of property for such use
(4) The improvement must be an appropriate improvement at the time of the taking and its use must be
economically feasible
c) In Trinity Church, Π was able to recover a portion of the replacement value of the church because the church
was a special purpose property. This was evidenced by the fact that there is no real market value for a
church, as the only real viable use of that particular piece of property was as a church. As a result, when
there are damages to a special purpose property, the lesser of two rule is not used. Instead, the Court will
look solely at the costs of reproduction of the building. Reproduction costs are calculated by assessing the
replacement cost of the property and subtracting any depreciation to the property that has occurred.
d) Receipt of replacement costs does not require that the building actually be replaced. Further, an injured party
is not required to perform repairs in order to recover for diminution in the market value of its property.
C. Consequential Damages in Tort→ Generally, a plaintiff must prove consequential damages with reasonable
certainty. However, certainty is less of a limitation in tort cases than in contract cases. Uncertainty about damages
caused by a tort or the fact that damages are difficult to measure won’t prevent compensatory damages if there’s any
rational basis to award them.
1. Plaintiffs may recover a just and reasonable estimate of damages where the actions of the defendant prevented a
precise computation of those damages. Tortious acts may preclude a precise calculation of damages by
manipulating the market. When this happens, juries are allowed to act upon probable and inferential proof.
Otherwise, wrongdoers would be enabled to profit at the expense of their victims. (Bigelow)
D. Tort Damages for Pain, Suffering, and Wrongful Death
 1. Because these types of damages are so difficult to quantify, there are a variety of arguments that may be made to
juries regarding the size of the awards. However, only the per diem argument is permissible in many
jurisdictions.
a) Per Diem→ Asks the jury to consider how much a single day of pain and suffering would be worth, and then
multiply that by the projected course of the plaintiff’s life. (Debus)
b) Golden Rule argument→ Asks the jury to consider how much money they would want if they had
suffered the same injuries as the plaintiff
(1) Generally not allowed
c) Market Value argument→ Asks the jury how much someone would have to be paid to suffer the kind of
injury plaintiff has suffered
(1) Generally not allowed
2. Recovery for wrongful death can be in the form of medical expenses related to an injury, funeral expenses, pain
and suffering from injury to death, loss of enjoyment from injury to death, loss of earning capacity from injury to
death, present value of lost future earning capacity minus decedent’s expenses, or loss of consortium or society.
Lost earning capacity as a result of wrongful death is granted as a lump sum at the end of a case, even though it
represents the lost earnings the decedent would have received over the course of their lifetime. In order to make
this award fair, courts must reduce that amount to its present value in order to account for the investment
potential of the award.
3. Recovery for emotional distress (Levka)
a) The traditional/federal rule is that damages for emotional distress are recoverable in actions for intentional
torts, but not in negligence without some additional threshold showing, such as physical impact. (Gottshall)
However, in many states, including TN, plaintiffs may claims of negligent infliction of emotional distress.
4. Constitutional Torts
a) A constitutional tort refers to a government official’s unconstitutional action that corresponds to a common-
law tort, such as trespass in a case involving an unreasonable search in violation of Π’s 4A rights. Π cannot
claim any more than nominal damages for the loss of a constitutional right in itself, because substantial, non-
punitive damages may not be awarded when the deprivation of rights does not result in injury. (Carey). In
order to recover additional damages, Π must show further harm caused by violation of the constitutional
right in order to recover damages. Generally, Π must show some physical or emotional harm caused by the
constitutional violation. (Carey). Additionally, a jury award of damages for a constitutional tort must be set
aside as excessive if the award is so large as to shock the conscience of the court. (Levka). Courts must
consider whether the award is out of line compared to other awards in similar cases as a factor in
determining whether the award is excessive. (Levka).
E. Policy Implications of the Tort Reform Movement
1. The tort reform movement is a political movement that seeks to limit recovery for “non-economic damages” like
emotional harm and mental anguish in addition to placing limits on punitive damages. The main issue that arises
in these cases is the right to a jury trial. Plaintiffs argue that if a limit is placed on the amount a jury can award,
the limit effectively changes the fact-finding of a jury that violates the 7th Amendment right to a jury trial. Some
state supreme courts, such as Ohio and Tennessee, have found that changing the size of an award does not
impinge on the right to a jury trial. (Arbino). However, a number of states have come to the opposite conclusion
and found that under their state constitutions, tort reform statutes create a conflict with the right to jury trial. Due
to the split decisions across state supreme courts, it is unlikely that a uniform approach is adopted until/unless
SCOTUS decides to grant certiorari on the issue concerning the federal right to a jury trial contained in the 7th
Amendment.
2. The goal of tort reform statutes is to balance the rights of those who have been legitimately harmed and the rights
of those who have been unfairly sued, all while curbing the number of frivolous lawsuits.
IV. 1B: PAST HARMS IN CONTRACT CASES
A. Direct damages in contract cases represent the plaintiff’s lost benefit of the bargain, meaning the loss of the
monetary value of the defendant’s promised performance, usually as of the date that the defendant breached
the contract. Conversely, consequential damages compensate a plaintiff for a secondary consequence of the
 defendant’s breach. There are three types of damages available in breach of contract cases: expectancy,
reliance, and restitution.
B. In the Neri case, the Π agreed to buy a speedboat and then backed out of the contract.
1. Money could be divided up into several different buckets:
a) Profit expected from sale of boat = Expectancy/Expectation Damages
b) $ to store boat while waiting for Π to buy = Reliance/Incidental Damages
c) Π’s deposit paid for boat = Restitution (Π), argument re: unjust for Δ to retain
since Π didn’t get the boat
C. Expectation damages are only available in claims based on breach of contract, including breach of warranty.
(Chatlos). Expectation damages are not available in tort cases, including claims based on fraud. (Smith v. Bolles).
The distinction is important because in contract cases, the court honors the expectation value because the existence of
a contract between the parties signifies that they have a heightened responsibility toward guarding and enabling each
other’s expectations. The purpose of entering into a contract is to identify and protect each parties’ interest.
1. Expectation damages, also known as general damages in some cases, go above and beyond the plaintiff's rightful
position to give the plaintiff what they were expecting out of the satisfaction of the contract, otherwise known as
the benefit of the bargain. Expectation damages are inherently punitive, as they punish the breaching party.
Courts are willing to award expectation damages to help the entire contract system function and protect against
breaching parties.
D. Consequential damages in contract cases (Buck v. Morrow, Meinrath)
1. Compensatory damages for breach of contract are generally for past damages only, and except in rare cases,
involve only pecuniary damages. Direct damages in contract cases represent the plaintiff’s lost benefit of the
bargain, meaning the loss of the monetary value of the defendant’s promised performance, usually as of the date
that the defendant breached the contract. Conversely, consequential damages compensate a plaintiff for a
secondary consequence of the defendant’s breach. There are three types of damages available in breach of
contract cases: expectancy, reliance, and restitution. Generally, emotional distress or mental anguish damages are
not awarded for a breach of contract that doesn’t involve independent tortious conduct. Limited exceptions exist
for certain types of personal-services contracts, so long as the damages were reasonably foreseeable at the time
that the parties entered into the contract.
a) Expectation damages are only available in claims based on breach of contract, including breach of
warranty. (Chatlos). Expectation damages are not available in tort cases, including claims based on fraud.
(Smith v. Bolles). The distinction is important because in contract cases, the court honors the expectation
value because the existence of a contract between the parties signifies that they have a heightened
responsibility toward guarding and enabling each other’s expectations. The purpose of entering into a
contract is to identify and protect each parties’ interest. Expectation damages can include both direct and
consequential damages when appropriate. Expectation damages go above and beyond the plaintiff's rightful
position to give the plaintiff what they were expecting out of the satisfaction of the contract, otherwise
known as the benefit of the bargain. Expectation damages are inherently punitive, as they punish the
breaching party. Courts are willing to award expectation damages to help the entire contract system function
and protect against breaching parties.
(1) Sale of Goods
(a) Buyer→ The basic measure of direct expectancy damages for a buyer when the seller breaches a
contract for the sale of goods is the difference between the contract price for the goods and the
market price for the same type of goods at the time of Δ’s breach. In addition, if the buyer
chooses to obtain replacement goods from another seller in a commercially reasonable manner,
the buyer may also recover consequential damages in the form of lost profits.
(b) Seller→ The basic measure of expectancy damages for a seller when a buyer has breached a
contract for the sale of goods is the difference between the market price at the time and place
for tender and the unpaid contract price together with any incidental damages. (Neri). If the
seller chose to sell the rejected goods to another buyer, the measure of damages is the difference
 between the resale price and the contract price together with incidental damages. If appropriate, also
less expenses saved in consequence of the buyer’s breach.
(i) If resale occurs, but Π is a lost-volume seller, Π may also recover lost profits from Δ buyer
in addition to any profit made on the resale to the other buyer. Lost volume refers to the
loss in volume of business that the seller has suffered as a result of the buyer’s breach.
(Neri)
(2) Sale of Land→ The majority rule surrounding expectancy damages for breach of contract for the
sale of land permits the non-breaching party to recover ordinary expectancy damages, measured by
the difference in the contract price and the fair market value of the property at the time of the
breach.
b) Reliance damages are calculated by the amount the non-breaching party spent in expecting the original
contract to be performed. Π’s reliance interest is one of two alternative measures to the expectancy interest
measurement. It’s the interest in being reimbursed for losses caused by reasonable detrimental reliance on
Δ’s breached promise. Such reliance damages put Π in as good a position as Π would have been in had the
contract not been made. Normally, reliance damages are less than expectation damages. Reliance damages
are generally sought when a Π has difficulty proving expectation damages. For instance, if Δ breached a
contract to hire the Π as an independent contractor, but Π can’t prove that she would’ve profited from the
contract, the Π at least can recover damages for any expenses that she reasonably incurred in reliance on the
Δ’s promise.
(1) Δ may reduce Π’s award of reliance damages by proving with reasonable certainty any loss that Π
would have suffered had the contract not been breached.
c) Restitution damages represent the Π’s interest in causing the Δ’s unjust benefits resulting from Π’s
performance of their contractual obligations. The goal of restitutionary damages is not to put Π in as good of
a position as they would have been had the contract been performed, but rather to put the Δ back in the
position that they would have been in if the contract had not been made. Restitutionary remedies are based
on the principle of unjust enrichment. For the Π to bring a restitutionary claim, the Δ must have been
unjustly enriched at the expense of the Π. A restitutionary remedy seeks to reverse the unjust enrichment by
restoring the relevant benefit or enrichment to the Π. Restitution focuses on returning property to its rightful
owner and preventing unjust enrichment. In assessing the appropriateness of a restitutionary remedy, the
court’s focus is on the Δ, considering what kind of gains the Δ has gotten as a result of an unjust process,
rather than the harm that the Π has suffered.
2. Consequential damages, also known as special damages, are damages that the plaintiff incurs as a result of the
initial harm. Consequential damages are damages for a breach of contract that arise not from the ordinary course
of events due to the breach, but from special circumstances peculiar to the injured party. Consequential damages
are not recoverable unless the breaching party had reason to know of the special circumstances. An injured party
must establish both the existence and the amount of its lost profits with reasonable certainty to recover the lost
profits as consequential damages for a breach of contract. These damages are also called special damages or
indirect damages.
3. If a seller refuses to deliver goods, the buyer must attempt to obtain similar goods from another source as a
prerequisite to receiving consequential damages. In satisfying this duty to cover or mitigate damages, the buyer
must act in good faith and in a reasonable manner. The breaching party bears the burden of proving that the non-
breaching party's losses could have been avoided by reasonable effort and expense.
4. Important limits on consequential damages:
a) Must be a proximate result of the breach of contract
b) Must be reasonably susceptible to proof
c) Must have been within the parties’ contemplation when they entered the contract
(1) Shown by:
(a) Parties wrote into contract
(b) Clear record of express discussion at the time of signing the contract, or
(c) Reasonably foreseeable consequences of a breach such that any reasonably person would expect that
those kinds of damages would come from a breach
 d) Π must have made reasonable efforts to cover for the harm following the breach
(1) Plaintiff’s duty to mitigate the consequential damages requires Plaintiff to show that they took
reasonable steps to mitigate, even if those steps were not the ideal response to the breach. This standard
is very favorable to the plaintiff. (S.J. Groves)
(a) In S.J. Groves, the court found that the Plaintiff took reasonable steps to mitigate, even though
Plaintiff took no action at all. The court may disregard Plaintiff’s lack of action in mitigating in the
case where the Defendant’s conduct left Plaintiff with no reasonable alternatives.
(i) “Where a choice has been required between two reasonable courses, the person whose
wrong forced the choice cannot complain that one rather than the other was chosen. The
rule of mitigation of damages may not be invoked by the contract breaker for the purpose of
showing that the injured person might have taken steps which seemed wiser or more
advantageous to the defaulter”
(2) Under the UCC, a contract’s breaching party has the burden of proving that the non-breaching party
failed to mitigate damages. (S.J. Groves)
5. Because consequential damages are considered to be more speculative than expectation or reliance damages,
courts generally require for each element of the above stated test to be proved with specific evidence.
a) However, there are cases where t
6. Example: In Buck v. Morrow, the plaintiff was able to recover expectation and consequential damages. The
expectation (general) damages were the difference between the contract price and the value of the unexpired
lease term. The consequential (special) damages were the various costs plaintiff incurred because of the original
breach of contract. In this case, plaintiff’s special damages were the value of the cattle he lost and the cost of
paying an additional ranch hand.
7. Consequential damages for delayed payment→ Meinrath
a) All damages for delay in the payment of money owing upon contract are provided for in the allowance of
interest, which is in the nature of damages for withholding money that is due.
b) = Consequential damages are not recoverable in actions for delayed payment because damages flowing from
the delay in payment are adequately compensated by the recovery of the money owed plus a reasonable
interest rate
c) Consequential damages are not available for failure to pay a salary
8. Parties, through the UCC and other mechanisms, may use the contracts themselves to limit the amount and type
of consequential damages available in the event of a breach so long as the limitation is not unconscionable. As a
practical matter, limitations on consequential damages are necessary in order to make a contract economically
viable.
E. Reliance Damages are calculated by the amount the non-breaching party spent in expecting the original contract to
be performed.
1. A plaintiff’s reliance interest is one of two alternative measures to the expectancy interest measurement. It’s the
interest in being reimbursed for losses caused by reasonable detrimental reliance on the defendant’s breached
promise. Such reliance damages put the plaintiff in as good a position as the plaintiff would have been in had the
contract not been made.
2. Normally, it’s less than expectation damages. Reliance damages are generally sought when a plaintiff has
difficulty proving expectation damages.
a) For instance, if a defendant breached a contract to hire the plaintiff as an independent contractor, but the
plaintiff can’t prove that she would’ve profited from the contract, the plaintiff at least can recover damages
for any expenses that the plaintiff reasonably incurred in reliance on the defendant’s promise.
F. Emotional-distress (or mental-anguish) damages aren’t awarded for a breach of contract that doesn’t involve
independent tortious conduct. Limited exceptions exist for certain types of personal-services contracts, such as a
contract to prepare a corpse for burial.

PAST HARMS: PUNITIVE DAMAGES

I. Punitive damages sit uncomfortably within US Courts’ remedial tradition because they do not just restore a
plaintiff to their rightful position for a past harm, but go above and beyond and effectively put the plaintiff in a
 better position than what would be considered their rightful position. Punitive damages do so, not out of any sense
that the plaintiff needs to be compensated for harm, but rather relying on the rationale that defendants should be
punished for morally reprehensible acts. In addition, punitive damages also serve as a deterrent to prevent or
discourage others from acting in the same reprehensible fashion.
A. Often, statutes will impose punitive damages for violations. Statutory punitive damages are appropriate when
wrongdoing is hard to detect, the value of the injury and the corresponding compensatory award are small, or where
private litigation is likely to occur.
B. Punitive damages are not designed to compensate parties. Rather, punitive damages punish misconduct and deter
future harms. (Forrester)
II. LIMITS:
A. As a matter of due process, punitive damages should generally not exceed a single digit multiplier between the award
of compensatory damages and punitive. (State Farm)
1. Punitive damages awards should generally not exceed compensatory damages by more than a 9:1 ratio, except
where the compensatory damages are small enough that a punitive award based on that ratio will not deter the
defendant.
B. Federal courts rely on three factors to determine whether a punitive damages award is grossly excessive and
therefore implicates due process concerns. (BMW v. Gore, affirmed in State Farm)
1. The degree of reprehensibility of Δ’s misconduct;
a) Factors for determining:
(1) Whether the harm caused is physical or economic
(2) Whether the tortious conduct evinces an indifference to or a reckless disregard of the health or safety of
others;
(3) Whether the target of the conduct has financial vulnerability;
(4) Whether the conduct involves repeated actions or is an isolated incident;
(5) Whether the harm is the result of intentional malice, trickery or deceit, or mere accident
2. The disparity between the actual or potential harm suffered by the Π and the punitive damages award ; and
a) The wealth of Δ cannot justify an otherwise unconstitutional punitive damages award
3. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed
in comparable cases
III. CONSTITUTIONAL CONCERNS
A. Philip Morris→ Juries may not base punitive damages awards on their desire to punish a defendant for harming
persons not before the court because such awards violate the Due Process Clause of the Fourteenth
Amendment.
1. The Due Process clause forbids a state to use a punitive damages award to punish a defendant for injury that it
inflicts upon nonparties. Permitting a defendant to be charged with injuring a non-party denies a defendant “an
opportunity to present every available defense.”

PAST HARMS: CONTEMPT

I. Courts enforce injunctions through their contempt power, which is an inherent power to force a litigant to comply
with a court order. The contempt power has been embraced as an inherent authority necessary to the exercise of
all other powers. The contempt power is an independent power of the courts, who possess enormous discretion on
how to exercise this power. In remedying past harms, courts may use two of the three types of contempt:
compensatory civil contempt and criminal contempt.
II. COMPENSATORY CIVIL CONTEMPT
A. Compensatory civil contempt is a form of contempt where the court will order the defendant to pay compensatory
damages to the plaintiff for harm caused by the defendant's violation of the court order.
B. Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed,
civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and
sanctioning the contumacious conduct.
C. Compensatory civil contempt is prosecuted by the plaintiff who has been harmed by the violation of the court order,
and decided by the court.
 D. Violations of a court order under a compensatory civil contempt theory must be proven by clear and convincing
evidence, while damages only have to be proven by the lower standard of preponderance of the evidence.
E. The collateral bar rule is a procedural rule that prevents someone from challenging a court order if they disobeyed it
before seeking judicial relief. The rule states that a person who disobeys a court order cannot challenge the merits of
that order as a defense to contempt charges. However, the collateral bar rule does not apply to compensatory civil
contempt, so the defendant may escape being held in contempt by showing that the injunction that defendant is
alleged to have violated is erroneous.
III. CRIMINAL CONTEMPT
A. Criminal contempt is a form of contempt where the court imposes criminal punishment for the intentional violation
of a court order. Criminal contempt is prosecuted in the name of the state, by the state, to enforce respect for the court
and obedience to court orders.
B. Intent to violate the court order must be proven by the typical criminal standard of beyond a reasonable doubt and the
defendant is entitled to a jury trial if the punishment involves imprisonment for more than six months or large fines.
C. The court may turn to the state or federal prosecutor, or may appoint a special prosecutor to prosecute the contempt
charge. It would be a violation of due process for the judge to prosecute the contempt charge.
D. The collateral bar rule is a procedural rule that prevents someone from challenging a court order if they disobeyed it
before seeking judicial relief. The rule states that a person who disobeys a court order cannot challenge the merits of
that order as a defense to contempt charges. The collateral bar rule applies to criminal contempt, so once the
defendant intentionally violates the court order, the defendant may be charged with contempt, even if the injunction
was erroneous. This can cause some pretty serious constitutional questions, as it can allow for criminal charges for
violation of a court order that is based on invalid law or legal interpretation.
E. Although it can be difficult to decipher the difference between coercive civil contempt and criminal contempt, the
Bagwell case is instructive on this issue. Coercive civil contempt penalties are designed to compel the defendant to
act and to deter an ongoing violation, and may be purged by complying with the court’s order. Conversely, criminal
contempt penalties are meant to punish past violations of the court order and cannot be purged once they have been
accrued.

FUTURE HARMS: GENERAL RULES

I. Preventing future harms requires the use of preventative remedies, rather than traditional compensatory remedies,
because a court cannot compensate for a harm that has not taken place yet. Preventative remedies are designed to prevent
harms before they happen, so that the issue of compensation never arises. The reasoning behind providing preventative
remedies is that it is more economically efficient to stop harms from happening in the first place instead of awarding
damages later. Preventative remedies come in two forms: coercive remedies and declaratory remedies. The difference
between declaratory and coercive remedies is largely one of form.
II. Coercive remedies are where a court uses its equitable power to order a litigant to do or refrain from doing something. It
is the direct order and potential for punishment that distinguish coercive remedies from declaratory remedies. Examples
of coercive remedies include injunctions, decrees of specific performance, and writs.
III. Declaratory remedies resolve disputes over the rights and obligations of the parties through the use of a judicial
declaration. Declaratory remedies authoritatively resolve disputes about the parties’ rights, but do not result in a personal
command to the defendant. Generally, declaratory remedies prevent harm to the litigants by resolving uncertainty about
their rights before either party has been harmed by erroneously relying on their own views of the matter. The most
important declaratory remedy is the declaratory judgment, which is a judgment issued by a court in which it determines
the legal rights of the parties or expresses an opinion on the law but does not award a remedy. If either party ignores a
declaratory judgment, the court will enforce its declaration with sterner measures.

FUTURE HARMS: INJUNCTIONS

I. INJUNCTIONS GENERAL RULES
A. Coercive remedies are where a court uses its equitable power to order a litigant to do or refrain from doing
something. It is the direct order and potential for punishment that distinguish coercive remedies from
declaratory remedies. Examples of coercive remedies include injunctions, decrees of specific performance, and
writs.
 B. Injunctions are a form of coercive remedy in the form of a personal command from a court to litigants, ordering them
to do or refrain from doing a specific thing. Injunctions are, by far, the most common type of preventative remedy
and the most important type of coercive remedy. The purpose of an injunction is to maintain a plaintiff in their
rightful position. As opposed to compensatory damages where the harm has already happened and the court awards
damages to put plaintiff back, in issuing an injunction, the court uses their equitable power to force the defendant to
act in a way that will avoid causing harm to the plaintiff at all. Injunctions are an extraordinary remedy that a court
will only grant where the plaintiff is clearly entitled to such relief.
II. LIMITS
A. The threatened harm that the plaintiff is requesting the court to stop must be actual and imminent, not remote and
speculative. (Almurbati) A court will refrain from intervening by use of an injunction unless it is highly certain that a
particular harm is going to occur without their intervention. In order to grant an injunction, the court must find that
absent an injunction, a serious injury to the plaintiff is going to occur, and that injury is going to occur imminently.
An injunction cannot be granted solely based on fears and apprehensions of speculative future actions. (Nicholson)
1. In the Nicholson case, the plaintiffs were unable to show that the proposed halfway house would be a nuisance
that would cause them irreparable harm. The court reasoned that because plaintiffs “neither alleged nor offered
any evidence to prove any specific acts or pattern of behavior which would cause them harm,” an injunction was
not warranted. Conversely, in the PepsiCo case, the plaintiffs were able to show that a trade secrets violation
would likely occur in the absence of the court granting an injunction. Under these circumstances, the court
should grant an injunction.
a) “No court of equity should ever grant an injunction merely because of the fears or apprehensions of the party
applying for it. Those fears or apprehensions may exist without any substantial reason” (Nicholson)
2. Voluntary Cessation (US v. W.T. Grant Co.)
a) An injunction against future violations of a particular law may only be granted when there is some
cognizable danger of recurrent violation. Generally, a voluntary cessation of allegedly illegal conduct does
not make a case moot. However, if Δ demonstrates that there is no reasonable expectation that the wrong
will be repeated, the case may be moot
b) The necessary determination is that there exists some cognizable danger of harm. Voluntary cessation of
allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case (i.e. does not
make the case moot). A controversy may remain to be settled in such circumstances e.g. a dispute over the
legality of the challenged practices.
c) The purpose of an injunction is to prevent future violations. The moving party must satisfy the court that
relief is needed, the necessary determination is that there exists some cognizable danger of recurrent
violation, something more than mere possibility which serves to keep the case alive
d) Factors:
(1) The bona fides of the expressed intent to comply with the law
(2) The effectiveness of the discontinuance
(3) The character of past violations (how bad was past action)
e)
f)
B. Injunctions should be generally limited in scope, narrowly tailored to stop the demonstrated harm and no further.
In crafting an injunction, the court should focus on the harm that the plaintiff has actually defined.
1. Example: A permanent injunction based on bast harm should not exceed the scope of likely future violations.
(Marshall). In Marshall, the lower court erroneously imposed an injunction on the entirety of the Goodyear
corporation, even though the risk of future violations had not been demonstrated with regard to the entire
corporation, but rather only for an individual store. Because the harm plaintiff identified was only in regard to the
particular store they were employed at, the court should have tailored the injunction to only apply to that
particular store so that it was limited in scope to stop the precise harm at issue.
2. “An injunction is warranted where there is a likelihood of further violations. The complementary rule is
obviously that an injunction’s scope should not exceed the likely scope of future violations” (Marshall)
C. Courts have different views on the appropriate range of their equitable power
 1. The court in the Winston case demonstrates the view that the courts’ equitable power in designing an injunction
should be narrowly limited to correcting the harm brought in front of the court and nothing more.
a) In the Winston case, the court narrowly crafted an injunction with the goal of precisely destroying the
benefits that the defendant got from stealing a trade secret, but was also very careful not to give the plaintiff
any advantages through the injunction that they would not have had if they hadn’t been at risk of losing their
rightful position.
2. Conversely, the court in the Bailey case demonstrates the broader view that the courts’ equitable power in
designing an injunction should be an expansive effort to correct harm based on the judge’s sense of what is right.
This view is discussed particularly in cases where the court sees that an important public interest is involved.
a) In the Bailey case, the court used its equitable power through an injunction to shut down a particular type of
investment trust because the court believed that this kind of trust harmed people, even though Congress had
deliberately chosen to allow at least some of those trusts to continue to exist.
3. The dynamic between these opposing views plays out on a larger scale in cases involving structural
injunctions. Structural injunctions are broad injunctions meant to remedy ongoing constitutional harms.
a) In Brown v. Plata, the majority found that the unacceptable circumstances in the California prisons
authorized the court to take broad steps to directly manage prison operations in an effort to force California
to comply with the constitutional limits surrounding prison conditions. However, the dissent in Brown made
reasonable objections, particularly stating that this type of structural injunction goes beyond the restriction of
the court’s jurisdiction contained in Article III to “cases and controversies.” The dissent argued that, in
making this type of injunction, the court was running a prison system and acting more like a legislature or
agency rather than a court.
b) An injunction may be issued to prohibit an act that is not, in and of itself, a violation of law where the act is
interrelated to other actions that together constitute a violation of law. (Hutto)
III. REPARATIVE INJUNCTIONS
A. Reparative injunctions use injunctions to solve a problem that occurred in the past, but the harm is still ongoing.
1. In Forrester, the court held that plaintiffs would have to choose between receiving an injunction or receiving
damages in order to avoid double recovery.
IV. COURT ENFORCED RULES RE: INJUNCTIONS
A. Employment
1. Courts will not order specific performance of an employee’s promise to work due to the impracticality of forcing
someone to work and concerns with the 13th Amendment prohibition on involuntary servitude.
2. Courts generally will not provide damages for breach of an employment contract. In many jurisdictions, this
makes employment contracts virtually unenforceable.
B. Courts will avoid issuing injunctions that act as prior restraints on the free speech rights of the defendant. (Willing)
1. However, sometimes courts will issue injunctions that serve as prior restraints, even though that is a limitation
that courts generally impose on themselves.
V. PERMANENT INJUNCTIONS
A. Permanent injunctions are always a matter of equitable discretion (eBay). Permanent injunctions should not be issued
as a matter of course, even in statutory contexts like patent law where injunctions are the standard remedy. In order to
receive a permanent injunction, Plaintiff must show four factors:
1. That Π has suffered irreparable injury;
2. That remedies available at law are inadequate to compensate that injury;
3. That, considering the balance of the hardships, an injunction is warranted;
4. That the public interest would not be disserved by issuing a permanent injunction.
VI. TEMPORARY INJUNCTIONS: PRELIM INJUNCTIONS
A. Preliminary injunctions are designed to prevent a harm from occurring during the proceedings of a case before the
court can issue a final judgment.
B. Under the Winter standard, a plaintiff must make a good showing of each of the following four factors in order to
receive a preliminary injunction:
1. Π is likely to succeed on the merits;
2. Π is likely to suffer irreparable harm in the absence of preliminary relief;
 a) Consider whether harm is actual and imminent, as opposed to speculative
b) Does the harm fall into one of the classic equity categories (unique real property, theft of intellectual
property, confidential information, misrepresentation/fraud)
3. The balance of equities tips in Π’s favor;
a) Would an injunction cause disproportionate harm/undue hardship to Δ?
b) Equity considerations such as intention, unclean hands, laches
c) Does the scope of the injunction exceed the scope of the harm?
4. An injunction is in the public interest.
a) Will the injunction impact public services/functions/require additional public spending?
b) Will the injunction require significant judicial supervision/yoke together hostile parties?
c) Does the injunction usurp traditional legislative functions? (“legislating from the bench”)
d) Does the injunction impact important constitutional rights, like the right to free speech?
C. To receive a preliminary injunction, the plaintiff will also likely have to put some money down as an injunction bond,
which serves to ensure against the risk of an improper preliminary injunction. (Fed. R. Civ. Pro. 65(c)). An injunction
bond assures the defendant that they can readily collect damages caused by a wrongfully imposed preliminary
injunction without further litigation and without worrying about potential insolvency of the plaintiff. An injunction
bond also provides the plaintiff with notice of the maximum extent of their potential liability in the event of an
erroneous injunction.
VII. TEMPORARY INJUNCTIONS: TROs
A. Temporary restraining orders are immediate, temporary injunctions that occur before a court has the opportunity to
resolve a motion requesting a preliminary injunction.
B. The main difference between preliminary injunctions and TROs is that TROds can be issued without notice to the
defendant, but only on a showing that the plaintiff has made a good-faith effort to contact the defendant and listing
the reasons why notice should not be required. (Fed. R. Civ. Pro. 65(b))
C. Federal Rule of Civil Procedure 65 states that TROs shall be limited to 14 days. This limit applies whether the
defendant receives notice or not. (Granny Goose; Sampson)
1. However, if the court extends the TRO, it will be treated as a preliminary injunction for purposes of appeal.
(Sampson) Unless the court gives no notice of the extension to the parties, at which point the TRO may be
treated as expired for purposes of contempt. (Granny Goose)

FUTURE HARMS: CONTEMPT

I. Courts enforce injunctions through their contempt power, which is an inherent power to force a litigant to comply
with a court order. The contempt power is generally considered an ancillary remedy, and has been embraced as
an inherent authority necessary to the exercise of all other powers. The contempt power is an independent power
of the courts, who possess enormous discretion on how to exercise this power. In preventing future harms, courts
may use one of the three types of contempt: coercive civil contempt.
II. COERCIVE CIVIL CONTEMPT
A. Coercive civil contempt is a type of contempt where the court imposes conditional penalties, including fines or jail
time, to compel the defendant to comply with a court order. Coercive civil contempt may include a series of repeated
or increasing fines for non-compliance, or confinement to jail until the defendant agrees to comply. Coercive civil
contempt is considered a civil penalty because the defendant can avoid the penalty at any time by complying with the
court order.
B. Although it can be difficult to decipher the difference between coercive civil contempt and criminal contempt, the
Bagwell case is instructive on this issue. Coercive civil contempt penalties are designed to compel the defendant to
act and to deter an ongoing violation, and may be purged by complying with the court’s order. Conversely, criminal
contempt penalties are meant to punish past violations of the court order and cannot be purged once they have been
accrued. As such, a penalty is coercive as long as it can be purged through compliance.

FUTURE HARMS: DECLARATORY JUDGMENTS

I. Declaratory remedies resolve disputes over the rights and obligations of the parties through the use of a judicial
declaration. Declaratory remedies authoritatively resolve disputes about the parties’ rights, but do not result in a
 personal command to the defendant. Generally, declaratory remedies prevent harm to the litigants by resolving
uncertainty about their rights before either party has been harmed by erroneously relying on their own views of
the matter. The most important declaratory remedy is the declaratory judgment, which is a judgment issued by a
court in which it determines the legal rights of the parties or expresses an opinion on the law but does not award a
remedy. If either party ignores a declaratory judgment, the court will enforce its declaration with sterner
measures.
A. Declaratory judgments, like injunctions, are another way a court can prevent a harm from happening. Here, the court
primarily focuses on the inquiry into the requirement of a case or controversy in Article III, to make sure that the
declaration the plaintiff is requesting is not an advisory opinion, but rather a declaration of rights and obligations
between parties to a case or controversy.
II. CONSIDERATIONS
A. Whether there is a genuine conflict between the parties
1. The controversy must involve the legal relations of parties with adverse legal interests, where one party has
challenged the rights of the other.
B. Whether a judgment will terminate the uncertainty between the parties
1. The judgment must terminate the uncertainty or controversy giving rise to the proceeding
2. Not a hypothetical or speculative question

FUTURE HARMS: RESTITUTION

I. Restitutionary remedies are based on the principle of unjust enrichment. For the plaintiff to bring a restitutionary
claim, the defendant must have been unjustly enriched at the expense of the plaintiff. A restitutionary remedy
seeks to reverse the unjust enrichment by restoring the relevant benefit or enrichment to the plaintiff. Restitution
focuses on returning property to its rightful owner and preventing unjust enrichment. In assessing the
appropriateness of a restitutionary remedy, the court’s focus is on the defendant, considering what kind of gains
the defendant has gotten as a result of an unjust process, rather than the harm that the plaintiff has suffered.
II. UNJUST ENRICHMENT
A. A person who is unjustly enriched at the expense of another is subject to liability in restitution, even if they have not
committed any type of legal wrong. Restatement of Restitution §1; Sauer.
B. Exception→ a person who has been unjustly enriched without notice is not obligated to return the money if
they have significantly changed position as a result of the mistake. Restatement of Restitution §65. The change
in position must be sufficiently significant that it would be inequitable to require the return of the money. This
is a rare situation.
III. INVALIDATING MISTAKE
A. Restitution is available when the party has transferred money or property due to an invalidating mistake. Restatement
of Restitution §5; Sauer. A mistaken transfer can be considered an invalidating mistake
IV. PROPERTY MISTAKE
A. In the Somerville case, it was illustrated that restitution can get very complicated in cases of mistaken property. The
majority held that one who, through a reasonable mistake of fact and in good faith, erects a building entirely upon the
land of another with reasonable belief that he owns the land, is entitled to recover the value of the improvements
from the landowner, or, in the alternative, to purchase the land from the landowner for the value of the land minus the
improvements. However, the dissent made a compelling argument that unjust enrichment does not apply in cases
such as this one, because whoever makes the mistake should suffer the consequences, rather than making a wholly
innocent party suffer.
V. DISGORGING PROFITS
A. Restitution can be used to disgorge profits from a wrongdoer, in an effort to encourage parties to work together to
resolve issues. In the Olwell case, the plaintiff was able to receive the defendant’s profits that resulted from the
defendant’s wrongful use of the plaintiff’s property, in addition to recovering for the harm done to the plaintiff.

[WHEN DAMAGES ARE APPROPRIATE vs. WHEN EQUITABLE RELIEF IS APPROPRIATE]

I. GENERAL RULES
 A. The basic rule of irreparability states that compensation in damages is adequate in all those instances in which the
property that is injured or destroyed may be substantially replaced with the money recovered as its value. (Pardee)
B. According to the traditional rules of equity, injunctions are only appropriate where the harm is irreparable. Equity
will not act if there is an adequate remedy at law, and will only act to prevent injury that is irreparable at law. A harm
is irreparable if money damages will not adequately compensate the plaintiff for the harm.
1. However, courts will often award permanent injunctions where plaintiffs have a good reason for wanting an
injunction rather than money at the conclusion of the case, even if money damages could adequately compensate
the plaintiff for the harm.
a) In Campbell Soup, the court awarded specific performance where money would not compensate for the
breach. Usually, specific performance will be awarded where there is a shortage of something and the
plaintiff cannot cover for the defendant's breach by finding a replacement on the market.
b) Conversely, in the Van Wagner case, the court refused to award specific performance where it would cause
undue hardship to the defendant.
(1) Undue hardship is an equitable defense. In Whitlock, the court held that the undue hardship defense will
not be available when the defendant intended to cause harm to the plaintiff. Additionally, laches will bar
the plaintiff from receiving an injunction if the plaintiff unreasonably delayed bringing suit, causing the
defendant to be misled or prejudiced.

[ATTORNEYS’ FEES]
I. GENERALLY
A. Attorneys fees are a form of ancillary remedies, which are remedies facilitating other remedies.
B. Under the American Rule, absent express statutory authorization to the contrary, each party to a lawsuit ordinarily
shall bear its own fees.
C. However, in some cases, like under §1983, Congress has expressly authorized through a separate statute (§1988), a
fee shifting mechanism that allows prevailing plaintiffs to recover their attorneys fees from defendants. In these
circumstances, the fee shifting mechanism was enacted specifically to enable plaintiffs to enforce civil rights laws
even in situations where the amount of damages at stake would not otherwise make it feasible to do so. The goal is to
encourage lawyers to represent clients in important civil rights cases who may not have the means to do so otherwise.
II. CALCULATION
A. A court will generally use the Lodestar approach to assess the reasonableness of attorneys fees under a fee shifting
statute. The Lodestar approach states that the most useful starting point for determining a reasonable fee is the
number of hours reasonably expended multiplied by a reasonable hourly rate.
1. This assessment includes consideration of the prevailing market rate in the geographical area