PART 1: Compensatories .....................................................................................................................

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Compensatory Damages .................................................................................................................. 4
The Rightful Position Principle ................................................................................................ 4
Value as the Measure of the Rightful Position (Lesser of 2 rule) ................................ 4
Reliance and Expectancy as Measure of the Rightful Position .................................... 5
Consequential Damages .............................................................................................................. 7
Limitations of Remedy and Liquidated Damages Clauses (over and under
liquidated) ........................................................................................................................................ 7
Litigating Damages for Personal Injury and Death .......................................................... 9
Tort Reform .................................................................................................................................. 10
Dignitary and Constitutional Harms ................................................................................... 10
PART 2: Injunctions ............................................................................................................................ 12
Irreparable Injury Rule ................................................................................................................. 12
Ripeness/Propensity ..................................................................................................................... 12
Preventative Injunctions (Wrongful Acts) ............................................................................ 13
Prophylactic Injunctions (Not Wrongful Acts) .................................................................... 14
Reparative Injunctions .................................................................................................................. 15
Winston/Bailey ................................................................................................................................ 15
Structural Injunctions ................................................................................................................... 16
School Desegregation Cases ................................................................................................... 16
Institutional Reform .................................................................................................................. 18
Injunctions and the Rights of Third Parties .......................................................................... 18
PART 3: Choosing Remedies ............................................................................................................ 20
Damages or Injunctions ................................................................................................................ 20
Irreplaceability ............................................................................................................................ 20
Damages or Specific Performance ............................................................................................ 21
Burdens on Defendant or the Court ......................................................................................... 21
Other Reasons to choose Damages over Injunctions ........................................................ 22
Ebay Test for PERMANENT INJUNCTION ......................................................................... 23
Preliminary or Permanent Relief .............................................................................................. 24
Substantive Law of Prelim Inj ................................................................................................ 24
Procedural law of Prelim Inj/ TRO ...................................................................................... 24
Prospective or Retrospective Relief......................................................................................... 26

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 Sovereign Immunity ....................................................................................................................... 26
Suits against officers in their Official Capacities ............................................................ 26
Suits against officers in their Personal Capacities- Qualified Immunity ............... 27
Declaratory Relief ................................................................................................................................ 27
Declaratory Judgments ................................................................................................................. 27
Reformation ...................................................................................................................................... 28
Other Forms ...................................................................................................................................... 29
Part 4: Restitution................................................................................................................................ 31
Defenses ......................................................................................................................................... 32
Dobbs Problems- Rescission and Restitution.................................................................. 33
Disgorgement of Profits from Opportunistic Breach of K ............................................... 33
Rescission when rescission is no longer possible .............................................................. 34
Part 5: Punitives ................................................................................................................................... 36
Common Law and Statute ............................................................................................................ 36
The Constitutional Limits (THE BMW GUIDEPOSTS) ....................................................... 36
BMW GUIDEPOSTS .................................................................................................................... 38
Punitive Damages in K and other Punitive Remedies ....................................................... 38
Part 6: Ancillary Remedies ............................................................................................................... 40
The Three Kinds of Contempt .................................................................................................... 40
Collateral Bar Rule- Not in CAL.................................................................................................. 40

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 1. Basic Remedies
a. Compensatory Damages
i. Designed to make P as well off as he would have been if they had not been
wronged (usually $- Damages)
b. Restitution
i. Stop unjust enrichment by D- Dives D of ill gotten gains
c. Rescission
i. Undo the contract- put parties back where they were before the K was
formed, provided this is still possible to do. Generally done in situations
involving fraud, mutual mistake, and illegality
d. Reformation
i. “Keep” the K, used by the court to make the contract conform to the
intention of the parties when the contract was formed. Used when mistake
or fraud is present
e. Specific Performance
i. Equitable remedy in K, designed to compel D to do what he promised he
would with the P. Discretionary application- primarily in land K
f. Injunction
i. Equitable remedy in K or Tort which orders the D to do (Mandatory) or not
to do (prohibitory or preventive) a certain thing. Discretionary application-
applied carefully by cts
2. Ancillary Remedies
a. Three Kinds of Contempt
i. Civil Coercive Contempt
ii. Criminal Contempt
iii. Civil Compensatory Contempt (not available in CAL)
b. Collateral Bar rule (No available in CAL)

Goodman Breakdown
1. Compensatories
2. Preventative
a. Stop harm before it happens
i. Ct orders- D must/must not do
ii. Coercive- ct order
iii. Declaratory- parties asking for judgment
3. Restitutionary
(Facilitating above are:)
4. Punitive Remedies
a. Coerce behavior
b. Only available in compensation situations
5. Ancillary Remedies
a. How to collect/arg/get remedies

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PART 1: Compensatories
Compensatory Damages
The Rightful Position Principle
1. Put P in the most rightful position available to make up for the
wrong/negative they suffered
2. Hatahley
a. R: you cannot speculate harm, must do factual inquiries into what $
damages ware worth
b. Navajo had been using lands that US owns without permit. US took N
animals and killed them. How do we put N in their rightful position
c. Lct eyeballed- assigned $ number to animals, $ for pain and suffering,
$ for loss of use of herds
d. OVERRULED: Problem: you need to actually figure out indiv values-
using forensic accountant
e. WHY individualize (POLICY): prevent over/under comp
f. Easier to limit prejudice
g. Remedies are meant to be individualistic
h. Limits missing potential areas of damages

Value as the Measure of the Rightful Position (Lesser of 2 rule)

1. Different sets of facts warrant dif value assessments
2. In re Sept 11
a. Lesser of 2 Rule
i. Look for the least expensive way to put P in rightful position
3. Lesser of (2) Rule
a. Lesser of
i. The dimunition of props MV, or
ii. Replacement cost, or Cost of Repair, or
iii. Other (consider all the possible valuations and which would be
the cheapest)
b. Hypo application of lesser of 2
i. Crash Car:
1. 5000 to repair
2. 1800 value of car before crash
3. 50 salvage value
4. 1750 dimunition in value
5. If totaled: no salvage value, 1800 = diminution in value)
ii. Rightful Position doesn’t care about unique experience if you
can get something similar on the open market that is the MV
and if that is cheaper than cost to repair you will not get repair
you get MV
4. Lost Use

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 a. If something is damaged you are entitle dot lost use
b. If something is destroyed you cannot get lost used because you will be
satisfied by getting replacement cost
5. Prejudgment Interest
a. You can get this while waiting for judgment (time between harm
occurring and getting monetary judgment. Set at SS rate)
6. Consumer Items
a. When consumer items are lost we could apply lesser of two rule but
minority of cts (INCL CAL) say that where there is a consumer item
w/ a readily available MV you get cost of replacement minus
depreiciation
i. Subtract the “use” you got form the og
ii. Used to combat the lemon effect
1. Used items on market are depressed in value because of
the lemon effect- value of good is below what it should
be because buyers are fearful og getting defective one
(some will be good, some will be defective- 1/10
defective lowers price on all) Cost of replacement would
give too low a valuation
7. Trinity Church (Fact specific- finding “other” valuations)
a. When cost of repair or cost of replacement are not calculable
b. Church very unique, used old stonework. Was damaged but not so
much that it needed to be taken down
i. P comes up with 3rd way to get $. Gets reduction in the
estimated life of the church
1. Certain percentage of the useful life of the church has
been reduced, experts determine percentage and give
that money
2. Idea: one day they will have to repair the church and
this money can be used then
c. SN: you do not have to use the money to put yourself in the rightful
position- once you get it, you can do what you want with it.

Reliance and Expectancy as Measure of the Rightful Position

1. Expectancy- the benefit you thought you would get
2. Reliance- everything that is not expectancy
a. Usually: money spent in belief deal would happen
3. Neri v Retail Marine Corp
a. K for boat, B pays deposit. B rescinds but boat is already on its way. S
refuses to refund deposit.
b. B sues for deposit. S sues for breach of K
c. Holding: both owed damages
i. B gets Deposit back
ii. S gets
1. Reliance Damages- stuck with boat, had to store it, wash
it etc

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 2. Expectancy Damages- benefit of bargain. What S would
have gotten if K had gone through
a. Seller had unlimited supply and demand so he
could have sold more; if not lost volume seller
than he could not have gotten this.
b. In classic sense, expectancy is the marginal profit
you would have made from that specific buyer
(selling the boat to him for more than MV)
3. R-> Expectancy = K price- MV
4. Lost Volume Seller
a. Person who sells similar items (sells many boats of same types, used
cars lot, antique store)
i. Even if the items aren’t identical, if you are in the business of
selling items you are a LVS (as opposed to someone who is
selling THEIR car)
ii. When you make business off of sales we don’t want to penalize
you for not making the sale
5. Chatlos Systems (expectancy) IMPORTANT CASE
a. X buys a computer
i. K sale price- $46,020
ii. MV- $207,000 (buyer told X comp was worth this much)
iii. Cts est value of compt - $6000
b. Expectancy = benefit of bargain
i. They thought they were getting 207 computer so exp =
$171,000 (warranted value – K price)
c. Ct says they also get the amount they over paid ( $40,00) ($6000
value from K price)
i. So if they keep the computer they get = $40,020 ( K price
minus value ( 46,020-6000)
ii. If they return the computer they get $46020 (K price)
d. Policy:
i. Company would be unjustly enriched if they kept the money
ii. Stop people making unwarranted promises
iii. Put P in rightful position as if promises had been reality
e. SN: if they brought evidence of lost profits/clients etc from breach
they could also get RELIANCE damages
6. Smith v Bolles (tort)
a. Expectancy in tort: all you get
b. Fraudulent misrep of land deal
i. Used to require deliberate misrep
ii. No cts have mostly erased the difference between tort and K.
You can still get bene of bargain
7. Texaco in v Penzoil
a. Plead in tort: get fraud misrep and punitive damages (only available in
tort except, employment and insurance)

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 b. Penz was going to purchase oil for Getty for discount. Penz can get
more use value out of oil than usual person because they are a
particular type of buyer which resulted in a better bargain. Texaco
causes K to be breached
c. Ct uses how much pens would have benefitted , not how much
average person would have
i. Got 10.53 bil and 3 bil in punitives and 7.53 bil in compesatory
damages

Consequential Damages
1. Consequential Damages = damages proximately caused by the breach
2. A type of reliance
a. Reasonable and foreseeable- must let other person know what would
happen if you breached a k)
3. Buck v Morrow
a. P is dispossessed of land he uses for grazing.
b. H entitled to consequential damages
i. It was written in the lease but even if it wasn’t P would get
consequentials because they are just a type of RELIANCE
damages
4. Meinrath v Singer
a. R: where the alleged breach of K consists only of a failure to pay
money, remedy is limited to principal owed plus damages
b. P claims they are entitled to bonus consequetials because they would
have invested the money and made money off the investments
i. Ct rejects claims for consequential damages. Too tenious to
give profits off investment you would have made off the money
c. Policy: you can’t know how investments would have worked out

Limitations of Remedy and Liquidated Damages Clauses (over and under liquidated)
1. Self-imposed limits (voluntary)
a. Company sets limits because it is marketly accepted, buyer agrees for
the convenience of using company or because it lowers price of
product because company has less risk to spread to buyer
2. Kearney v Master Engraving
a. K to purchase tool. K states
i. S is not liable for consequentials
ii. B is limited to repair or replacement (S can allow return or
refund at their discretion)
b. S warrants item for 12 montsh or 4000 hours.
c. Machine malfunctions frequently
d. Ct says: limitations of remedy fails its essential purpose as a remedy
because it leave the Buyer with no remedy if therei is a breach
i. You cannot waive all remedies- wrong doing must be able to be
taken into account
ii. Can limit consequentials but the second part of K is no good

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3. Limitations
a. You cannot waiver your right to have some remedy- cannot waive all
possible remedies (Kearney)
i. There must be an available remedy
ii. If you are goint to strike remedies you remove just he
particular remedy or waiver and leave others- limitations have
to leave some form of recourse but you can still get rid of most
as long as one remains
4. Liquidated damages
a. Parties bargain for specific $ amounts in advance
i. Liquidate the concepts (consequentials, reliance, expectancy)
to money only and that mount is all that is available- Create
Predictability
b. Ct allows parties to set figures w/ some limits
i. NO PENALTIES
1. Parties can’t agree to punitive measures for breach/
punishments
2. It is a penalty if the liquidated damages amount is not
reasonable
a. This creates issue/paradox because “reasonable”
before is an estimate but after there is an exact
amount of damage that may look unreasonable
post anti
b. If you knew the reasonable amount, you
wouldn’t need liq damages clause
c. To get around, just sue stating they are a penalty
d. Over liquidated- penalty (not allowed)
e. Under liquidated- amount is far below what they would hae gotten
sans clause (permitted w/in limits)
i. Not allowed when it is so low it is essentially like having no
remedy at all (case by case factual inquiry)
5. Northern Ill v Energy Coop (underliquidated)
a. NI promise to buy 56 mil barrels of naptha from ECI over ten years.
Stopped buying when it became cheaper to buy natural gas. ECI
sought damages based on difference between K price and Market
price plus consequentials
b. TCT denied NI motion for sum judge on liquidated damages clause
and struck liq damages defense. TCT said the clause gave non-
breaching party CHOICE of recovering either ACTUAL or liquidated
damages. NI Appealed
c. REVERSED
i. A liquidated damages clause is the agreement of the parties as
to the amount of damages which must be paid in the event of
default. The non-defaulting party does not have to take that
amount but that does not create the right to seek a greater
measure
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 ii. Liq dam clause provides agreed upon measure of damages
d. Controversial Case
i. Reasoning is suspect- the language of the K didn’t specify
exclusivity but ct says that a statute requiring explicit
limitations applies only to remedies not to damages
1. Nonsensical because liq damages is a limitation on
remedies
ii. Say ALL liquidated damages are exclusive
1. Open controversy as to whether K must be explicit as to
under liq damages being the only remedy- UNDECIDED
in CAL
2. Likely a k would have to be explicit or you could choose
a different remedy
e. Rule is PROBABLY that liq damages clause are exclusive remedies but
likely need explicit language so arg both sides when you see an under
liquidated damages clause
i. Proper arg: liq damages clause wasn’t exclusive remedy- that K
allowed for other rems or it is so low it = Fails Essential
purpose (A ct does not allow for there to be no remedy, if you
have allusory remedy it fails its essential purpose) = no
remedy
1. REMEMBER- OVER LIQUIDATED = PENALTY = NEVER
OK

Litigating Damages for Personal Injury and Death

1. When it comes to value for personal inj and death, there is no one who can
testify as to what the amount is- jurors are as much experts as anyone else
(no expert person life value-er exists)
2. Truly do not make anyone whole
a. Value can’t be measure in $ in a meaningful way but we try
3. Debus v Grand union Stores
a. Petfood falls on D, she has 20% permanent disability. How do you
value the loss?
b. Per Diem
i. Giving people a per day amount for the damage
1. Means a smaller number
a. Attorney at trial would say something like “What
would you say: $9 to suffer loss of hand?”
i. Makes jury believe they have come up
with the number themselves
c. C-arg- by suggesting per diem you are vouching for it
i. Encourages an inexact method of measurement
d. CC-arg- not suggesting metho assumes jury will come up w/ right way
e. CAL allows per diem approach
i. But still can’t be prejudicial (can’t seem like you are being an
authority)

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 4. Discounting for present value
a. A dollar today is worth more than a dollar promised in a year
i. You can make the dollar productive and get a rate of return
that you can’t get from a promised dollar
ii. So if you get a lump sum now, it can be smaller that if the
amount is paid over a number of years

Tort Reform
1. Fixed limits on recovery for pain and suffering are a centerpiece of the
national movement for ss limits on tort liability
2. Arbino v Johnson and Johnson
a. A sued JJ alleging she suffered blood clots caused by Birth Control. I:
Whether the limit on “noneconomic” damages in Ohio Rev Code
violates the Ohio Constitution
b. Several ways a ct may apply the law to change a jury award of
damages without running afoul of the Const.
i. Decreasing jury award as a matter of law cannot violate a right
when it has been held numerous times that the ct can increase
a jury award
ii. Interpret Const to prohibit statues that effectively prevent
individuals from pursing relief for their injuries
1. Available remedies are meaningful
iii. Statute is not Arb/Capr- bene of limits could be obtained
without limiting the recovery of individuals whose pain and
suffering is traumatic etc by setting limits for those not as
severely injured and predetermined numbers
iv. Facially neutral
c. Tort Reforms OK- upheld limits on punitive damages on similar
reasoning
3. Problem of outlier verdicts is real but no as unpredictable as outliers might
suggest
a. Insurance Commissioners created nine level scale for grading severity
of injuries
4. Difficult to value a life- Creation of the value of statistical life

Dignitary and Constitutional Harms

1. Levka v City of Chicago
a. Invasive strip search- woman claims emotional distress
b. Jury award $$- ct review jury award
c. TEST: was award so monstrously excessive as to shock the conscious
of the court?
d. H: overturned awr- new trial or $25,000 (half prior award)
i. USES : Comparative Review- evaluates verdict by comparing it
to other verdicts in similar cases
2. Perverse incentive (if you isolate perverse incentive it actually elongates
recover time)

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 a. Eggshell plaintive- on the hook for all damages even if affect was
unique to that P and same harm would not have occurred on average
person
i. Perverse incentive that you get more if you are harmed more
1. Stronger emotional person gets less than weaker
3. Carey v Piphus
a. Constitutional Harm
b. Principal sees P holding what looks like a joint. Does not investigate,
suspends student
i. A person has a right to not be denied education- process
requirement
c. Injunctive relief: P gets to go back to school after 8 days. P also sought
damages- declaratory judgment, removal of suspension from records,
money
d. TCT: you can get everything but money
e. Ct App you can also get money
f. SCT: TCT was right, everything but money
i. P not entitled to damages- compensatories
1. P pled that denial of the hearing was a harm and he
should get $3000 for it. He didn’t get hearing = const
harm- right to procedural due process
ii. In principal he is entitled to comp damages for denial of
hearing but P did not show ACTUAL damage
g. RULE: you must show evidence of how you were harmed in order to
get compensatory damages even if your Const right was ACTUALLY
violated
i. You must have showing of harm
4. What is actual harm
a. Not getting his day in ct
i. What damage arose? Can’t take out of the abstract
1. No monetary value attached to this harm.
5. Just because there is a const violation doesn’t mean you get money

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PART 2: Injunctions
1. You are always entitled to COMPENSATORIES after injury. If you want to
privilege of Inj you must
a. Satisfy IIR- p must show there would be irrep injury if action was
allowed to continue/begin
b. Ripeness Propensity- show that D has propensity to commit act
c. Go to ct and show that you satisfy elements req to get an injunction

Irreparable Injury Rule

a. Cts will not grant equitable remedy (inj) if a legal remedy (damages)
would be adequate
i. Legal remedy must be as complete, practical and efficient as the
equitable remedy
ii. Real estate/ Real property is unique in a way that acts as an
excuse for specific performance
1. But to qualify as unique, the real property cannot be
economically interchangeable (VAN WAGNER)
iii. Scarcity and/or uniqueness are excuses for specific performance
(CAMPBELL SOUP)
iv. If burden to D of suffering inj is more than bene of inj to P you
won’t get inj ( WHITLOCK)
1. But if D knew about the burden they were assuming
because P gave notice, P can get inj (D brought hardship on
themselves)
v. If the burden on the Ct to enforce the inj is too great you will not
get inj EVEN IF the legal remedy is inadequate (CO-OP INSUR. V
ARGYLL)
vi. We will not issue money judgments if the P would be unable to
collect those damages and instead will issue inj (if D could not
pay damages) (Ct must consider whether damages will be paid)

Ripeness/Propensity
a. Threat of injury must be ripe in order to get injunction
i. Ct will hold off issuing inj until issue is ripe
ii. D must have propensity to engage in the harm (likely to commit
the wrong)
iii. Ct Inquiry: Is there a real danger that the bad acts are going to
occur
1. Suff eve to show that purported harm will occur
imminently
2. If you don’t have the fact to show imminent harm you can
show SUBSTANTIAL FACTS that the harm will occur
eventually (higher barrier)
3. The closer you get to the harm the less evidence you need

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Preventative Injunctions (Wrongful Acts)
a. APPLY IIR- show that money damages aren’t sufficient
b. APPLY RIPENESS/PROPENSITY- imminent and likely
c. Damage has no occurred yet by P senses it is coming so P goes to ct to get
inj against D to prevent harm - Keeps P in rightful position- Presume you
will commit wrongful act so we are ordering you not to
d. Almurbati v Bush
i. Enemy comabtants held at Gitmo, move to transfer people out-
sending them home or to third coutnries to be detained. Bahraini
nationals seeking 30 days notice of any transfer out of Gitmo-
want Prelim Injunction- ct order that gov must provide 30 days
notice
1. Ev P provided: NY times article of intent to move detains to
torture countries
2. Ev D (gov) provided: affidavit saying they won’t do it
ii. Ct Denies Inj.
1. Is IIR satisfied?
a. Yes, facts ass alleged satisfy- stop people being
tortured
2. Is Threat/Danger ripe?
a. No; ev shows that policy is not to send people to
countries that torture. P fails to show threat because
their ev is not suff.- News is a conspiracy not
satisfactory ev.
iii. Policy: We don’t need ct to tell people not to break the law- here
the gov said they wouldn’t do it, do not want to issue inj and add
to punishment suffered by person who breaks the law. Inj
heightens penalty for breaking the law
1. Would lead to inj for everything- there are already
penalties for breaking the law
e. Marshall v Goodyear
i. D sued for violating age discrim employ act
1. Remedy- lost wages (compensatories)
2. DCT also issued injunction nationwide against further age
discrim firings/discharges
ii. REVERSED:
1. IRR- Satisfied
2. Ripeness/Propensity NOT SATISFIED
a. Inj too broad- Manager could do it again, so inj again
him would be ok but nationwide ban is too broad-
you would need evidence that it was a companywide
problem. Haven’t shown PROPENSITY
f. US v. W.T. Grant Co (Mootness as C-ARG)

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 i. D attempting to render case moot by stopping behavior and
promising not to do it again. In response to complaint, D
disentangled self from anti-trust situation
1. P claims D has propensity to commit, D claims Mootness
a. For mootness D must show they will not revert back
to past behavior
g. MOOTNES FACTORS (defense against Propensity)- No reasonable
expectation that wrong will be repeated
i. Bonefideness of expressed intent to comply w/law
ii. Affectiveness of discontinued use in removal of harm
iii. Character of past violation- level of culpability
iv. (Example of failed mootness defense: P wants inj against policy
for spying on them and discovered policy was spying on them
during the trial. Ct granted inj. Showed propensity by spying on
people during work up to case about them spying on people so
their promise to not spy was no good)

Prophylactic Injunctions (Not Wrongful Acts)

a. Preventing lawful acts that may have wrongful consequences
b. Nicholson
i. Ps own prop. D wanted to open halfway house in neighborhood.
P sues to get inj to prevent halfway house from opening
1. P alleges crimes will increase and property values will
decline
2. Tct issues inj
ii. REVERSED
1. Not enough evidence of propensity- no evidence that there
will be a nuisance
2. No IIR- speculative, intangible fear of harm is insufficient
3. A mere fear is not ev
4. Conduct is entirely legal and no NUISANCE has been est.
Must show that this company IS doing a bad job and
creating nuisance (post est of halfway houses)
c. Pepsico v Redmond
i. Inj to stop exemployee sharing trade secrets- Redmond know
pricing and roll out of product
ii. H: inj granted- R has to hold off working for competitor, cannot
disclose trade secrets
1. Key: R could not do his job at competitor without using
knowledge for exemployer. Impossible for him to “forget”
what he knows.
2. Harm hasn’t risen but is bound to
d. Wilson Casket
i. Owner of company touches/kisses/rapes employees

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 ii. Issue inj before he commits these acts on different/future party-
enjoined from doing these acts/ from being alone with female
employees
1. Propensity est through prior acts

Reparative Injunctions
a. Stop ongoing harm
b. RULE AGAINST DOUBLE RECOVERY
i. You cannot get money damages for a harm and an injunction to
repair that same harm
1. You CANNOT get inj + compenstatories or compensatories
+ interim compensatories
2. You CAN get inj + interim compensatories
ii. Forster v Boss
1. D sells prop w/ fraud rep that you can obtain permit for
boat dock issued by Union Electric and that D would
remove a swim dock. P buys but D did not remove swim
dock and you can’t get a permit
2. First H:
a. Jury awards
i. $ compensatories for permit (K diminution of
value of house w/out permit
ii. $ in punitives for D committing fraud
iii. $ in compensatories for failure to remove
dock (cost to remove dock)
b. Judge Awards
iv. Orders inj to have dock removed and for
union electic to transfer permit to new owner
c. JA+ JA = double recovery- violated rule against
double recover
3. ON REMAND- R: No Double recovery- you don’t get money
to demolish the dock and an injunction to have D demolish
the dock- Choose Money Damages or Injunctive Relief, not
both.
iii. Interim Compensatory Damages-
1. Providing money for the harm that occurred while waiting
for trial
2. For damage suffered during ct case- (having to store boat
because no dock, not being able to use dock)
3. Awarded up until the point that injunction takes over- time
between start of harm and inj

Winston/Bailey
a. Apply when there is a federalism issue- no separation of powers issue
then don’t mention it
b. Both claim to put P in rightful position, no more.

15
 c. Winston- Rightful Position Approach
i. Today’s norm- more conservative- incremental- tailor to “exact
rightful position
d. Bailey- Equitable discretion Approach
i. Goes farther than Winston- sort of prophylactic: legal behavior
likely to lead to wrongful result- puts P in rightful position at a
time farther down the road
ii. Roving commission to do good
e. Winston
i. 3m makes dictation machine. 2 employees leave and create own
machine like 2Ms to sell to gov
ii. TCt says
1. No damages
2. D enjoined from disclosing and using Ps info for 2 years
from date of injunction
iii. P appeal- want longer/permanent (forever) inj.
1. Permanent inj does noe last forever, just means final
judgment (as opposing to prelim inj which you get while
awaiting trial)
iv. D wants damages no inj
v. Ct says- INJ = correct, 2yrs = correct
1. 2 years – time it would take competitor to create similar
machine via reverse engineering w/out insider info
2. Put D in same position as other competitors- not punitive
3. If D was never allowed to engage in the market it would be
a punishment for an unperformed harm.
f. Bailey
i. Mutual fund owners invest $ w/ capital from holders of $$ in
debentures. Owners were not as investest ad debenture holders-
uneven distribution- allowed wrong incentive. Congress passes
investment company act of 1940 that forbid this type of
arrangement
ii. Tct- Mutual fund is put into receivership- trust become solvent
again because of good investment
iii. Dct- while law allows it I won’t
iv. Appeal Ct- t did not abuse discretion by going further than the
law
1. Insolvency – likely and ct was remedying that
2. Gave more than P needed to be in rightful position
Structural Injunctions-
a. Not a 4th kind of inj. One of the three but applied to institutions- when
you are trying to make institutional change

School Desegregation Cases

i. When repairing a large harm requires a lot of tinkering- applications of
Winston and Bailey- what does the rightful position require for this case

16
 ii. Swan v Charlotte- Bailey
1. Segregation in violation of const (de jure segregation)
2. Setting up neutral attendance zone based on geography would only
solve superficial level- there would still be de facto segregation
through white flight- would not put P in rightful position
3. Ct sets up wedge shaped attendance zones which make it harder to
move to different zones- appealed
4. SCT says- Not a problem- affirmed
a. Regular zones would fail of essential purpose so we have to
go beyond incremental inj- go with Bailey and go further
iii. Milliken I-moving toward Winston
1. Intentional pattern of segregation- predominantly black school
districts w/intentional segregation
2. Ct app- remedy: desegregated the entire area- ordered that
suburban school districts be combined with city districts and
students mixed
3. SCT Reveresed- not narrowly tailored enough- forcing people to be
involved in remedy to problem they were not a part of
a. Commitment to Winston- can’t involve people who don’t
need remedy and weren’t a part of the harm
iv. Milliken II-
1. Reversed and sent back to DCT
a. Remedy: if we can’t physically desegregate by bringing
outside in then we will have to provide an educational
component- result of seg = allow resources to be allotted by
race
b. Remedy to that problem = order resources funneled to the
affected schools to ensure better edu of those students
(affirmed)
v. Missouri v Jenkins- aggressively Winston
1. Segregated school district- appeal from 1977 case
2. Dct order very expensive changes to advance education in formerly
seg schools. Expand education opportunities, tutoring, magnet
schools, money- cost per pupil higher than any other Missouri
school district
3. Ct REVERSES: Applies STRICT WINSTON problem w/tcts measure
for rightful positition0 over remedying. Goes beyond rightful
position when it starts attracting students from outside district
4. Limits Milliken II- limits on spending
vi. Thomas’ Concurrence to Missouri- The Modern View of the Ct- WINSTON
(majority rule of sct)
1. Federalism- sep of powers
a. Jusdges trying to play role of school board goes beyond the
judicial power- They cannot decide how to fund school and
what should be taught
b. Remedy should be fashioned by relevant institutions
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 c. Tradition must only be based on constitution
d. Find liability- order cts to stop harm and sue again if they fail
to comply
v. SN: Problem with contempt in the institutional
setting- institution can’t really be held in contempt-
lack of incentive

Institutional Reform
i. Hutto v Finney
1. Inj against solitary confinement longer than 30 days- D not
interested in complying w/ orders
ii. Lewis v Casey
1. Inadequate legal assistance in prison- violated right of access
2. Inj: all prisons must comply w/ detail of inj
3. REVERSE/REMANDED
a. Overly wide inj- have not shown propensity/scope- one or a
few prisons violation does not show country wide problem
b. Ev only of 2 instances, not institutional wide denial of rights
iii. VMI
1. P appealing injunction in their favor saying it isn’t actually putting
them in their rightful position
2. Ct agreed that they haven’t achieved rightful position

Injunctions and the Rights of Third Parties

1. There is always a possibility of a 3rd party impact so look for it
2. Test
i. Orders directed at bad D affecting 3rd parties
a. 3rd parties can be affected substantially but not to the
point of being RESTRUCTED by order to D who
violated the law
ii. Orders directed at 3rd party
1. Innocent 3rd parties can be subjected to minor and
ancillary orders
2. Gov cannot directly order students to go to different
schools but can order District to desegregate and the
District can tell students to go to different schools.
3. 3rd parties can sue actual party for damages from the
orders
3. Hills v Gautreaux
a. Racial segregation in public housing operated by CHA, Public
housing was built only in AA neighborhoods- ct ordered
consideration of metropolitan plan
b. Judicial order directing relief beyond the boundary lines of
Chicago where CHA and HUD (Ds) have authority to operate
outside the city limits (unlike Milliken school districts which
operated in their district only)

18
 c. Does this order against HUD affecting its conduct beyond
Chicago’s boundaries impermissibly interfere with local gov,
suburban housing authorities that have not been implicated in
HUD unconstitutional conduct?
i. Not impermissible (affirmed)- would have same effect
on suburban govs as a discretionary decision by HUD
4. Gen Building v Penn
a. Order to innocent 3rd parties can be minor and ancillary order
only- often record keeping etc
b. Party no subject to the law may not be assessed a proportionate
share of the costs of implementing a decree to assure
nondiscriminatory practices on the part of another party which
was property enjoined. They CAN be require to aid the court by
charting the changes resulting from inj.

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PART 3: Choosing Remedies
1. Cts will not grant an equitable remedy if a legal remedy would be adequate
a. Reason for the rule: historical accident
b. Hard to know when it applies, cts just do what they think is best
c. Cts say they are applying it but they are just doing lip service- “The
legal remedy is inadequate…”
d. For legal remedy to be adequate it must be fully as complete. Practical,
and efficient as the equitable remedy
Common Law Cts Cts of Chancery
History Used the Writ System Equitable Relief
Remedy Compesnation, Injunctions,
damages, replevin, constructive trusts
detinue, trover

Damages or Injunctions
IIR
1. Courts will not grant an equitable remedy if a legal remedy would be
adequate
2. Legal remedy must be as complete, practical and efficient as the equitable
remedy
3. Real estate/ real property is unqie in a way that acts as an excuse for specific
performance
4. Scarcity and or uniqueness are excuses for specific performance (Campbell)
a. Just because it is unique is not enough to bring on specific
performance- distinction between
i. unique and economically interchangeable-( not enough to
satisfy IIR) and (WAGNER
ii. unique, physically different but not economically
interchangeable- must be MORE than unique (CAMPBELL)
5. If burden to d of suffering inj is more than bene of inj to P you won’t get inj
a. But if D knew about the burden they were assuming because of notice
by P then P can get inj (D brought it on themselves)
*Apply IIR, find wrinkle in test, explain that IIR doesn’t determine outcome, Judges
do what they think is best, explain what is driving CT
Judges will find way to issue inj even when it would seem ev dictates against
it, Result oriented0 hide behind IIR but usually determine case for some
other reason

Irreplaceability
1. Brook v. James A Callimore
a. C sues B because C lent B money w/Kthat says that if B fails to repay,
C can take item of B’s personal property, B doesn’t pay.
b. B-arg: I will give C cash equivalent instead of PP (pay damages)

20
 c. There is a CL remedy- REPLEVIN
i. C-ARG, I am not asking for spec performance- asking for legal
remedy of replevin
d. H: C gets replevin gets item. P decided which legal CL remedy it
wanted
2. Continental Airlines
a. Discount coupons- travel agency buying coupons in violation of rule
that coupons were nontransferable. Tell comp to stop.
b. Remedy asked for: inj to stop transfer of coupons
c. CARG- you can calculate financial loss from coupons transfer
d. Get INJ- result oriented- even forensic accountant have limits. It is too
difficult to calculate the loss/damages thaat coupon transfers cause.
IIR Satisfied.

Damages or Specific Performance

1. Campbell Soup
a. K between C and Farmers to deliver carrots. Carrots become scarce so
the Market Price rises about K price. Farmers breach. C can’t get
carrots anywhere else. C seeks Inj- Specific performance. Ask F to
hand over carrots
b. TCT- no, get damages and buy carrots on market
c. APP CT- Tct wrong- IIR has been satisfied. If you gave C money to buy
carrots somewhere else they would not actually be able to get them
(only F has carrots). Though you could calculate loss, it is easier to
order that they get the scarce commodity.
2. Van Wagner
a. P has lease for billboard. D bought building and watned to dear down
billboard. P wanted specific performance to maintain their lease on
basis that billboard was unique
b. Ct: you pay rent which defines value- advertising potential is
monetized and that ban be calculated so you can get that money and
rent billboard elsewhere
i. When you have real estate/ real property it is unique, you scan
still get damages IF it is economically interchangeable
ii. Avoids Disproportionate harm to D, wouldn’t be able to do
anything with building while P had lease.
3. Efficient Breach
a. Very rare- opportunities for EB are rare
i. Academic concept that doesn’t reflect reality- in cases where
there is opp for EB, there is also likely one of those things that
would make ct decide that an inj is approp, destroying EB

Burdens on Defendant or the Court

1. Whitlock v Hilander Foods
a. D wants to expand Grocery store. Retaining wall moved up against Ps
land. P notices foundation footins that extend itn otheir prop. D says

21
 he is just replacing what was there. P asks for rend for the
encroachment. Negotiate while construction continues. P kicks D off
land. P seeks inj to remove encroachment
b. TCT: focus on whether harm to P was intentional- Find D didn’t’
intend to encroach so no inj. Also P waited too long (latches)- can’t get
equitable relief when you haven’t been equitable yourself
c. Reversed on appeal
d. CT Don’t know whose fault it is.
i. P put D on notices of encroachment, D went forward anyway
ii. Assuming no Latches
1. BALANCING TEST: whether hardship to D weighed
again bene to P
a. If bene of inj to P is less than hardship to D it is
not fair and P won’t get inj
iii. Comes down to who knew what and acted badly
1. If D was on notice and encroached – inj
2. If P lay in wait- no inj
2. COOP v Argyll
a. D owns safeway store, wants to close location in Ps shopping center.
Has 35 year lease. Closes anyway. P seeks inj to keep D in store
because there is a bene to having D stores in shopting center that is
hard to quantify
b. CT: can’t get inj- no specific performance
i. Ct would have to supervise to ensure that D was actually
staying open
ii. Ct would have to figure out way to make D comply
iii. Huge Burden on D to continue having losing business
iv. D pays lease plus damages
3. Structural v. Private Injunctions for Specific performance
a. Ct will take on burden for structural inj to remain open (see structural
section)
i. Assume these burdens because of economic incentives in inj
against prisons/schools/med reform
ii. Move now to stop cts even taking these roles- claim that const
limits judiciaries ability to assume these roles
b. Ct will not take on burden for Private inj remain open
i. Too burdensome- outweighs any bene to P

Other Reasons to choose Damages over Injunctions

1. Current state of affairs it that cts will choose remedy that will provide best
outcome despite requirements of IIR
a. Will just say damages/legal remedy is inadequate if they want to
provide equitable remedy
b. Will cite IIR whenever they deny inj by saying legal remedy is
satisfactory

22
 2. In Cal we will not go through process of giving legal remedy if the result of
that would be no remedy because D couldn’t’ pay- does not put P in rightful
position
a. R: cts can consider the ability of a D to pay damages when considering
whether to issue inj)
b. (opposite of Willing v Mazzocone- minority rule case)
i. W sues P attorney because she says he kept some of her
money. W stand outside ct with sign disparaging P. Law firm
wants inj to stop Ps behavior. Tct give inj. Appeals modify
order to enjoin particular statements. Cts gave in partly
because W did not have money to pay legal damages
ii. Appealed- thrown out- no injunction, only legal damages.
1. Whether a legal remedy is adequate must be
determined on the merits, not on whether D could pay
the damages.
a. Effect: if you can’t pay you can’t have free
speech- a person who has money could just pay
the fine and continue the action. Poor person
can’t pay so can’t afford to get fine

Ebay Test for PERMANENT INJUNCTION

1. EBAY v MercECHANGE
a. Created bad test but you must still satisfy it
b. 4 Part test for PERMANENT INJUNCTION- burden on P
i. Must show that you have suffered “irreparable” injury
1. Problem; past tense language “suffered” when inj are
supposed to stop a harm that hasn’t happened yet
ii. Remedies at law are inadequate to compensate for injury
1. Problem; basically repeats req 1
iii. Considering balance of hardship between p and D a remedy in
equity is warranted
1. Problem: puts burden on P to prove a negative- P must
show no burden on D
iv. Public interest no disserved by permanent injunction
1. Problem: this was never a requirement for permanent
inj before- it is the 4th element in a prelim injunction
test
c. So pay lip service to the law- say the rule but then grant or don’t grant
based on IIR
i. Limit it to the facts- say ebay test only applies in cases identical
to ebay
1. Cts constructively ignore bay
d. Mention EBay Test- Apply IIR

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Preliminary or Permanent Relief
Substantive Law of Prelim Inj
1. Permanent v Preliminary v TRO
a. Permanent= final judgment
b. Preliminary = issued while awaiting trial- up until verdict
i. If you lose then you lose your inj bond- money paid to get the
prelim inj
ii. Sufficiently important that they are appelable- either the
issuance or denial of a prelim inj is appealable because of the
fear of Irreparable injury.
c. TRO – temporary restraining order- expire after 14 days
i. Not appealable- shortcut to quick hearing- must be heard in 14
days- can be ex parte.
2. Prelim
a. Apply Winters Test
i. To get Prelim inj. P must est
1. Likely to succeed on the merits ( On test say: They will
succeed on merits, don’t discuss merits)
2. Likely to suffer irrepreable harm in absence of prelim
relief (Ripeness and Propensity- when will harm occur)
3. Balance of equities tips in Ps favor (damage to D by PI if
erroneously granted v If PI Denied and P deserved it)
4. An injunction is in the public interest (does it serve
public policy)

Procedural law of Prelim Inj/ TRO

1. Carroll v Pres and Commissioner of Princess Anne
a. White Supremacist group holds rally near cthouse in Princess Anne.
Targets blacks and Jews. At end of rally, speaker says- tomorrow night
lets raise hell for white race. Local gov official apply for TRO to stop
rally group from meeting for 10 days
b. Ct issues TRO. Rally cancelled. After 10 days, TRO extended for 10
months
i. NOT OK, cannot extend TRO past period (then 10 days, now
14)
c. Appealed: Sct thrown out TRO
i. Procedural Problem
1. No notice given to opposing party
a. Not always a problem- sometimes if D is there
they will cause irreparable injury to occur
sooner (domestic violence) sometimes you can’t
find D
i. Suspends due process right w/showing
of necessity just for the time it takes to get
P to safety

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 b. They did not show excuses for no notice
i. Could have served D, easy to find, no good
excuse or IR
c. w/o both sides there is no advocacy for D
2. Sampson v Murray
a. P worked for gov. Fired. Suspicion she was fired for reasons
pertaining to previous job. Should have had more procedure/process.
Applies for TRO. Granted. Extended repeatedly
b. I: how long can you extend the injunctions
i. Employer submitted affidavits but ct wanted person to show
up. Employer refused. Ct extend injunction and keeps
extending
c. P loses on the merits-
d. Characterized as prlim inj rather than TRO because it kept being
extended and was eventually made unlimited
i. Though they called it TRO it was procedurally treated as
Prelim Inj. which is appelable
ii. Ct hears the case, decides
1. No IR- temporary loss of income, no harm to reputation
2. H: Tcts cannot create unrepealable prelim injunction by
re-extending TROS.
3. Convert TRO into Prelim Inj, making it appealable and
allowing ct to review
e. DISSENT: Actual Practice
i. Problem w/ cts approach: w/TRO finding of facts and
conclusions of law have not been filed- no valid prelim inj was
ever issued- no well settled args of facts/law. There was no
opportunity for P to lay out her facts/args so they could not
actually decide on the facts
ii. Gov could have asked for a motion to dissolve TRO and if that
was denied
iii. Gov could have asked for a prelim inj. Or gov could have asked
for a hearing on the prelim inj- demand a hearing
1. They would get a hearing and either rwin or los and
appeal. Even if ct refused to grant hearing- that would
be appealable
3. Original Jurisdiction in App Ct
a. Idea that you can file complaint in app ct
i. They will take the case when there is no other ct that can hear
the case
1. If you want to bring a case against a lct and get a writ of
mandate ordering official body to do something
ii. Go to APP ct and have them order LCT to issue prelim inj
hearing. (suing lower ct to get order that that the ct has to issue
tro or prelim inj because right to appeal is inadequate)
4. Granny Goose v Brotherhood of Teamsters (alt)
25
 a. If you have indefinitie TRO and notice has been given (no listed
eexpiration) the the order expires at the end of the SS maximum (then
10 days, no 14). D not bound after 14 days and so can’t be held in
contempt of rviolating it after 14 days
b. Only when tro is indefinite- lists no end date
i. If they give actual date or extend over SS period- apply
Sampson Requist or Marshall. (treat as Prelim inj because it
functioned as on (Requist)- Ask for your hearing on the Prelim
inj (Marshall) and then sue in App Ct if lct denies)

Prospective or Retrospective Relief

Sovereign Immunity
1. Sometimes it matters who your D is- when you sue states/gov entities, your
remedies are limited

Suits against officers in their Official Capacities

1. P seeking to control future conduct
2. Chisholm(1793)
a. People suing state for money damages- A state was liable to suit by a
citizen of another state or a foreign country
3. 11th Amend
a. Response to Chisholm, no suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens of any foreign state
4. Hans (1890)(no longer quite so robust)
a. Expands concept; States can’t be sued by their own citizens
5. Young (1908)
a. Limits sovereign immunity
b. You can’t seek money damages but you can get EQUITABLE RELIEF
when
i. You are citizens of that state and
ii. You don’t really sue the state- you sue the attorney general or
warden or some other person in THEIR OFFICIAL CAPACITY
c. Legal fiction that you are suing a person in their official capacity
because if you win then the person is deemed to not have been acting
in accordance w/ the state and you get injunction
6. Edelman (1974)
a. Can sue state but Only entitled to injunctive relief, never $ damages
b. F: Ill had AABD program, agrees to run program how fed gov suggest
to get fed funding. Fed gov requires that process and check to
applicant must occur in 45 days. Ill took 4 months to process and pay
and included no backpay. Director of ILL dep of pub health named as
D

26
 c. TCT enjoins official from doing this and awards backpay- seems like
legal remedy but TCT and CT App call it “equitable restitution” as an
attempt at a work around
d. SCT says: paying money = compensatory damages which are not
permitted under sovereign immunity. All we can do is equitable
prospective relief, no retrospective relief
7. EXCEPTION: States can waive sovereign immunity (marshall dissent says
immunity was waived in Edelman when they accepted funds)
a. BUT: states must explicitly waive SI- it cannot be implied
b. Now Fed SS contain language that by accepting the funds tates
expressly waive their SI
c. W/out SS language there is no express waiver unless state waives SI
by itself (which it will sometimes do)

Suits against officers in their Personal Capacities- Qualified Immunity

1. Work around for Sovereign Immunity
2. Recovering damages for past misconduct
3. Sue the individual in gov who harmed you- you can get $ damages
a. But individuals can utilize Qualified Immunity- Immune from suit
personally
4. QI- standard RULE: Gov official performing discretionary function generally
are shielded from liability for civil damages in so far as their conduct does
not violate clearly established Statutory or Const rights of which a reasonable
person should have known
5. Harlow v Fitzgerald
a. F testified about tech problems on AirForce Dept. He is fired as
“reduction in force.” Memo came out that suggested they fire him in
this way to get rid of him. F sues variety of people in official and
personal capacity
b. D moves for sum judge then args that they are immune from money
damages because they were acting in official capacity
c. How the Rule Test works in practice
i. Two major problems
1. Most causes of action req. est. of Ds motives- won’t
know if law applies until we know Ds intent
2. Defining reasonable person is hard
ii. Result: not much immunity protection
1. Creates incentive problem in public gov sectors
2. Doesn’t encourage innovation

Declaratory Relief
Declaratory Judgments
1. No contempt power
2. Merely a judgment- not a finding

27
 3. P asks for declaration of his rights under a particular law or ordinance.
4. Procedurally easier to get than an injunctions
a. Need not show IIR
5. Reduce uncertainty; used eliminate frivolous threats of litigation, can serve
to vindicate certain const rights
6. RIPENESS
a. Adversity of parties interests
b. Conclusiveness of the judgment
c. Utility of the judgment
7. Nashville RR v Wallace
a. Appellant wanted judicial declaration that a state excise tax levied on
the storage of gas was invalid as applied to them under the Commerce
Clause and 14th A.
i. (wanted declaratory judgment that tax is unconstitutional)
b. Lct held for the appellees and it was affirmed by SCT of the state
c. SCT said: lct/sct correct (upheld for appellees)- failure to give judicial
declaration was correct
i. State upheld tax on the merits. Appellants sought to have
taxing act be declared unconstitutional.
8. Federal Declaratory Judgment Act
a. Requires an actual controversy
b. Loosely follows SS1 and 8 of UDJA
i. Confers jurisdiction on cts to declare rights whether or not
further relief is or could be claimed
ii. No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for.
The declaration may be either affirmative or negative in form
and effect and such declaration shall have the force and effect
of a final judgment or decree
iii. May refuse to render declaratory judgment where if rendered
it would not terminate the uncertainty or controversy giving
rise to the proceeding
iv. May be reviewed as are other orders
v. Further relief based on declaratory judgment or decree may be
granted whenever necessary or proper

Reformation
1. K formation validity- equitable remedy- no jury
2. Reformation (v. Rescission)
a. When parties actually have agreement- “Meeting of the minds”
between two parties who agree on general terms. Think they have a K
b. Problem: written piece of paper (K doc) doesn’t property reflect eh
agreement
i. Ct will reform the K to satisfy the actual agreement
1. As soon as they have a meeting of the minds there is a K
whether or not its written (unless SS of Frauds applies)

28
 2. Written piece of paper can be reviewed by ct and
reformed to reflect agreement
3. Recission
a. Rescinds the K/ withdraws K
i. Reverses transactions- everyone takes what they put in and
leaves
ii. Invalid/void K- no meeting of the minds
4. Ex:
a. Sale of prop= both sides understand what is being sold. Deed
described land wrong. Sale occurs
i. Reformation; ct reforms deed to described deal properly
b. Sale of prop deed is accurate, neither side visits land and have
incorrect description of land. No meeting of the minds because they
had the wrong thing in mind
i. Rescission: K is void
1. If there is a mistake there is not meeting of the minds
and Rescission applies
5. Handv Dayton-Hudson
a. P working for company that let hi go and offered him money to
renounce any claims he had against them, asserted they already owed
him the money anwya. P took k home and made identical K w/out the
liability waiver. Signs it, turns it in and then sues company, alleging
age discrim.
i. D asks for reformation- put waiver language back in
b. Dct- sum judge for D- reform K (put waiver language back in)
c. App- affirmed
i. Controversial- there wasn’t really a meeting of the minds. P did
not agree to the og K.
ii. Reformation generally requires mutual mistake but in FRAUD
cases, cts will use reformation to punish those with unclean
hands
iii. P-Arg: I didn’t agree, sue me for fraud but no reformation. Ct
rejects this arg-
1. Goal was to make D think he agreed to OG k and
committed fraud. P wanted D to think there was a
meeting of the minds and so they are allowed to think
that there was one.
2. Ct basically trying to punish P for committing fraud.
Force P to live with the fraud
d. Rescission would not work because you can’t re employ P-
e. By reforming K, fraud claim by D is moot because it gets rid of the
fraud. But D could seek consequentials because of the fraud if there
were damages caused in the interim

Other Forms
1. Nominal Damages

29
 a. Kind of declaratory relief
i. Declares liability on part of D (creates hook for punitives)
symbolic $1
ii. Allows case to go forward
2. Quo Warranto
a. Writ; predate equity
b. Determine the right to hold a public officer or corp franchise
c. Relic of write system
d. Used to raise grounds that renders incumbent ineligible for his office
3. Coram Nobis
a. after res judicata has been applie, is the ability of the ct to modify the
final orders
b. Still applicable in CAL
c. Used conservatively
d. Typically used for ministerial changes (to change spelling ect)
i. Amend spelling, names, clerical errors
e. Rarely used to correct anything significant
f. Abolish in Fed Ct

30
Part 4: Restitution
1. Restitution- giving P what belonged to him. Putting D in rightful position
(dives him of any unjust enrichment he received)
a. Divest yourself of the property: undo the transfer. Don’t care so much
about culpability
b. Remedy for Unjust Enrichment
i. Remedy in law or equity
ii. Remedy in tort or k
2. Four types of cases for Restitution
a. No other cause of action but unjust enrichment
i. D gets money from ATM on accident
b. Ds gains exceed Ps loses
i. D steals money, uses it in Vegas and wins big- in Restitution, P
gets all that money (any money you can trace to UE, p can get if
D is wrong doer)
c. P wants to reverse the transaction and get back what they lost (actual
property)
d. If D s judgment proof, P is just asking for what is there (getting back
what belong to P- cut in line in front of creditors) reclaiming what is
yours
3. Blue Cross v Sauer
a. Insurance Co sent money to wrong person. D receives checks an
deposits check. P sues seeking restitution. D wants jury trial. Tct says
no. P asks for constructive trust- restitutionary remedy under equity
i. Const Trust: someone is holding your proper such that title has
transferred to them but it is not theirs
b. D argues that it is not a constructive trust case- no object; P is just
asking for money judgment not “this” money, just the right monetary
amount. On appeal- reverse order for new trial with jury because of a
directed verdict
c. If you are not “innocent” D then P is entitled to any interest/gains you
make on that money- if you are impeding an innocent party getting
their money, that reflects negatively on you.
4. Culpability of P
a. When P screws up
i. If its money- p ca make any mistake and ask for money back
unless they were perpetrating a fraud.
b. Somerville v Jacobs
i. P owns 3 lots, built warehouse on wrong lot (On D’s property).
P sues D. P wants the money for the FMV of the addition of the
warehouse to the property
ii. CT: if D keeps warehouse they will be unjustly enriched so they
can either:
1. Pay for the value of warehouse or

31
 2. Sell p land for value before construction of warehouse
iii. Why?
1. P lacks culpability (innocent)
2. P relied on surveryor who said they owned the lot on
which they build warehouse
3. Ct wants to avoid waste- permit a transaction to stand
or you are wasting money building it and wasting
money knocking it down- societal desire to not be
wasteful
c. State v ANW Seed Corp
i. State seize farm machinery belong to D. P sells prop. D appeals
and wins. Prop already gone. D wants FMV (Property was sold
for less than FMV)
ii. Ct says: D only entitled to proceeds of the sale: Unjust
enrichment- only get back the enrichment of the other party
2. Ds level of culpability
a. D lies in wait; knows warehouse is being built and does nothing to
stop it- D is required to tell P to stop. If they don’t P is still entitled to
restitution but they get to choose the measure and if they choose to
force D to buy warehouse, they can force D to pay the higher measure
of value
b. Cts often favor the D if everyone is evil- once you establish that P is an
officious intermeddler, the ct looks no further and doesn’t matter if D
was lying in wait, D gets to keep warehouse
3. Mitigating Harshness
a. If you can do something simple, such as move the warehouse, the ct
can say do that (add that into determination and assessing of costs,
choose the cheapest)
b. Look at ps conduct
i. If p knowingly performed service in absence of K
1. Officious intermeddler
a. D will not be forced to reimburse, D keeps
warehouse
ii. Allow D to elect method of payment- allow them to buy
warehouse or sell land
iii. If D elects to purchase warehouse we allow them the cheapest
way of measuring value of warehouse (lesser of 2)
1. Pay for increase in property value by having warehouse
2. Pay cost of having warehouse built
c. When you are improving land you think is yours, the D can force a sale
and make it yours
i. Forces dale is an option when P thinks they are improving
their own land.
Defenses
1. Change of Position

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 a. If D was unjustly enriched by arg “Change of Position” they can keep
whatever money they already spent
i. Reqs:
1. No notice that D has been unjust enriched. D did not
now the money wasn’t’ there.
a. Notice req only knowledge of facts sufficient to
make it reasonable to conduct a further inquiry
that would reveal the truth
2. Must be actual change of position. Unusual expenditure
upon receipt of the money. Expenditure that would not
normally be made
a. (benes people who don’t need the money over
people who use it pay for necessities)

Dobbs Problems- Rescission and Restitution

Disgorgement of Profits from Opportunistic Breach of K

1. Snepp v Us
a. Constructive trust- breach of trust
i. D signed agree w/ CIA under employ no tot release CIA info
w/out approval. D publishes book without approval. Didn’t
actually divulge anything confidential.
ii. CIA SUE-
1. want declaration D breached K
2. inj requiring D to submit future info for review
3. order imposing constructive trust for gov benefit of all
profits that SNEPP might earn from publishing the book
in violation of fidduty
iii. LCT- const trust- if D fails to comply, D must disgorge profits
1. How: ct says- looks like trust agreement so treat it as
one. D had a dty to employer and breach that duty
which is like a const trust
a. Fiduciary duty- gains from breach are traceable
2. SCT agrees
a. Need to deter similar breaches of security even if
there wasn’t’ actual security breach here
iv. Dissent: just a breach of K- how is that a breach of duty- no
fiduciary duty. Breach of K doesn’t equal Breach of Duty
b. May v Muroff
i. B buys land from S, prior to completion of sale, S sells fill to X
for $240,000. B sues for the money
ii. TCT says: no- you cant get 240000, should only get decrease in
value of land (122,000)
iii. APPct: reverse- lesser of 2 not applicable here. S breach was
intentional- make quick buck. B should get profit. S should not
be able to breach to make this profit. (moral traditional rule)

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 iv. ASSUMPSIT- legal remedy; dealing with money- it is over
payment of money in a different form- taking dirt –dirt
becomes money- money should belong to land buyer.
c. Modern Rule: when people breach K intentionally it is possible that
there will be disgorgement of profits
i. Forcing you to look at reason behind breach
ii. R3rd rule: If a deliberate breach of K results in profit to the
defaulting promisor and the available damage remedy afford
inadequate protection to the promisee’s contractual
entitlement, the promisee has a claim to restitution of the
profit realized by the promisor as a result of the breach (
opportunistic breach)

Rescission when rescission is no longer possible

1. Rescission- everyone takes their marbles home
a. Mobil oil v Us
i. M enters into K w/US to maybe be able to drill for oil. NC has
ability to make K useless. Fed gov repudiated K. Passed statute
that made K void. NC was vetoing K anyway (no damage-
Mobile Oil wouldn’t get anything anyways)
ii. M wants rescission and restitutions (to get $ back)
1. The repudiation by Fed gov gave Mobile opportunity to
get out of a bad K and get restitution
2. Rescission is an option
iii. M wins, gets money back K is undone (even though it was a
losing K, because P elects remedy)
2. Rescission when its not possible
a. Boomer v Muir
i. Parties can’t take marbles and go home
ii. 95% of dam built- losing K. Boomer (dam builder) abandons
the work. Muir failed to deliver material.
iii. Ct finds K was breached because of Ms failure to deliver
material.
1. D has 95% complete dam. D repudiated. P elects to get
restitution0 not really rescission because P doesn’t get
dam (can’t take it back)
iv. Valuation problem: This is really QUANTUM MERUIT (service)
1. What is MV of service or How much was prop improved
by service OPTIONS:
a. Traditional Rule- gets what he spent/ MV of
service (limited to MV even if he spent more than
MV)
b. Restatement- caps at K price even if MV value or
amount spend is higher
c. Alt- get 95% of K price ( amount of job
completed)

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 d. Get increase in property value
2. If the service decreased prop value then you get nothing
because no benefit has been conferred/ no UE

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Part 5: Punitives
1. Punitive Damages overview- Retribution and deterring harmful conduct
a. Rule Based
i. Basic Rules- applied only to compensatories (cannot ask for
them in a claim for restitution)
ii. Can ask for nominal damages in order to be eligible for
punitives
b. Exxon v Baker (setting up outer limits to punitives)
i. Fed Maritime Law- so Fed ct sees case. Rule of very little
impact- Punitives in this type of case = double the
compensatory damages (limited to cases that involve maritime
law)
ii. Exxon super tanker ran aground and caused massive oil spill
because captain was drunk. Consolidated case by
fishermen/locals
iii. Lct gave 500mill in compensatories and 5 Bill punitives
iv. Appct to assess if 5 bill punitives were unreasonable excessive
1. H: 1:1 ratio instated- if 500 mill compensatories then
500 mill is limit for punitives
2. Does not find problem with punitives as a concept just
with the amount assigned

Common Law and Statute

1. CA Common Law (Ford v Grimshaw)
a. Test- weighed against eachother: jury instruction- so we don’t really
know how they come up with the number
i. Degree of “reprehensibility” of conduct (how bad was the
conduct)
ii. Wealth of defendant ( amount must actually punish D)
iii. Amount of compensibles
iv. Deterrence (large enough to stop behavior)
b. Common Law limited by Constitution

The Constitutional Limits (THE BMW GUIDEPOSTS)

1. Theoretically, the Constitution set limits on punitives
2. Browning (1989)
a. Eight Amendment- prohibition of excessive fines could mean a limit
on punitives
b. Majority rejected- “fine” has part meaning- reject const limit
3. Pacific Mutual (1991)
a. Large punitive upheld- SCT review CL factors/criteria for punitives
b. D claimed factors violated DUE PROCESS
c. Ct Rejects arg; does not violate due process, factors const
4. TXO (1993)

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 a. TXO manufacture evidence and file deal based on that- Fined $10mill
punitives and $15000 compensatories
5. Honda (1994)
a. Majority revers state ct punitive award
i. Oregon constitution denied judicial review of jury punitive
awards
ii. SCT Invalidate Oregon’s const provision (Or const inconsistent
with US const)
6. BMW (1996) THE RULE
a. Maj invalidate “excessive” punitive damages
b. BMW repaints cars with damaged finish. Alabama has statute require
disclosure if more than 3% of car has been rpaired. BMW did not
disclose
c. Jury awards punitives: Actual damaged @ $4000, punitives @ $4mil
i. 1000 BMW had been repainted but only one was at issue in
this case
ii. Alabama sct reduces to 2mil because some cars were sold
outside Alabama where statute would not apply
iii. USsct: There are outer limits to what is considered permissible
under const.
7. State Farm
a. C is bad driver, state farm insures him. C has accident kills 1, injures 1.
Prior to trial P offers 50,000 as settlement. SF refuses settlement,
advises C to go to trial. C follows advice to a point then gets own
laywer. Joins w/ P, settle their separate settlement then sue State
farm.
b. In discovery, SF has national policy to obstruct and dney claims and
cover it up.
c. Jury awards 2.6 mil in compensatories for emotional distress to C and
$145 mil in punitives
d. TCt reduces, App ct puts back to Jury Award
e. USSCT review punitive award- reduces.
i. Runs afoul of BMW
1. Reprehensibility- can’t consider people out of state, only
punish for one act in question (not overall bad acts)
2. Ration- 1:145 is very high should be a 1:1 ratio
3. Fines – illustrate where a punitive should be
4. Doesn’t really consider wealth of D anymore
8. Philip Morris
a. Decedent died of lung cancer. Estate sues PM in Or for fraud. Ps
attorney asks jury to consider ALL smokers in OR who have been
deceived
b. Jury awards- $21000 economic damages, $800000 non economic
damages (pain and suffering). Tort Reform statue limit reduces to
$500,000 (only applies to damages, not punitives). $79.5 mil in
punitives
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 c. SCT reverses
i. You can consider other people for determining reprehensibility
but you can’t punish them for the harm they did other people.
ii. Remanded to apply reprehensibility standard- same award
entered on remand w/new basis.

BMW GUIDEPOSTS
1. Factors
a. Degree of reprehensibility
i. More reprehensible = higher limit
ii. Don’t consider how reprehensible the conduct of the D is
toward people outside the state (really only look at Ds
conduct toward P)
b. Ratio between punitives and compensatory- harm occurred to P
and harm likely to occur in future
i. Ratio between punitives and the harm likely to occur and
harm that did occur from Ds conduct
ii. Compensatory and other
c. Civil or criminal penalties
i. If there are civil or criminal penalties, punitives are
REDUCED and if $ fine in civil/crim is low, punitives should
be LOW
ii. Small fine = small punitive
iii. Large fine = arg both ways
1. Large fine = large punitive because clearly we see the
act as band a person should be punished just as small
fine = small punitives; the value of the act has been
determined
2. Large fine= small punitives because the large fine is
punishment enough, should not double up punishment
2. Read as limits to state factors. By finding due process right to not have
excessive punitive we have changed standard of review. (fundamental
rights have been violated)
d. De novo- no deference to lower ct- start over Any time appeal
involves whether lct followed the law it results in denovo
(basically relook at everything) reviewed fresh by higher ct.

Punitive Damages in K and other Punitive Remedies

1. Punitives in tort- Yes
2. Punitives in K- usually not
a. Allowed when there is an independent reason for allowing it
3. Formosa
a. Breach of K where D is liable for punitives. F sent bid to P. P relied on
bid packet and it took 8 months to complete project. Evidenc that F
intentionally enticed contractors to submit low bids using fraud.

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b. K made under Fraud. P relied on bad numbers and ended up in losing
K
c. Jury:
i. Fraud cause of action: 1.5 mil compensatories, 10 mil in
punitives
ii. Breach of K: 1.267 mil compensatories, 0 punitives (no
culpability considered)
d. On remittiter
i. Fraud: 700kcomp, 10m punitive
ii. K: 467K comp
iii. P elected to waive the K claim (unusual, usually you pick before
award is decided)- can only measure harm once
iv. Appealed- F says: those are economic loses under K claim.
1. Ct says: Fraud is Fraud- not forced to be K case just
because K was involved

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Part 6: Ancillary Remedies
The Three Kinds of Contempt
1. Civil Coercive Contempt
a. Initiated by the parties
i. Coercion, getting someone to comply w/inj they have already
shown they won’t obey
1. Jail/Fine
ii. If the coercion stops working it become Criminal Contempt
iii. If the jail term is too lengthy it becomes Criminal Contempt
2. Criminal Contempt
a. Intiated by the ct
b. Fines go to the ct
c. Is a true charge- you have oporutnity to respond and say why you
should not be held in contempt
i. “I am charging you, this is a sentence, do you have a
response?”
ii. No need for a trial when it is in the judges presence/ on the
record
iii. It is appealable0 if it is a gross misuse or arbi/capr
3. Civil Compensatory Contempt- Not in CAL
a. If there is damage to P because of injunction you just sue

Collateral Bar Rule- Not in CAL

1. Protective of crim contempt
2. When you are appealing a crim contempt order/sentence you are not
permitted as affirm defense to raise the issue of the correctness of the
order you violated- you can’t argue that the order is wrong, only that
procedure or findings of fact were faulty
3. CAL objects to collateral bar rule
a. We don’t want to stop people being able to defend themselves
b. You can argue that the order is bad and that is why you violated it
(ct order could not be obeyed if you wanted to properly serve your
client)- you are at risk though because if you violate the order and it
is ruled to be good then you are in violation of that order.
4. Walker illustration of Collateral Bar Rule
a. White supremacists stop people protesting Jim Crowe laws, boycott
of businesses. MLK lead boycotts, mass demonstrations near Easter-
people weren’t interested.
b. Leader of town raises bond on injunction to $2000- went to ct
exparte to get inj on demonstration
c. King couldn’t get permit for demonstration, Got served notice of inj,
Held protest anyway

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d. King arrested for violating inj and for violating law req permits for
demonstration
i. Args that could be made to overcome coll bar rule (to say it
doesn’t apply)
1. Arg: that there was insuff time to get relief- review
wasn’t possible- can’t get reviewed so you disobeyed
it.
2. Arg: that the ct did not have jurisdiction to issue the
inj
a. If you are wrong then contempt is approp
b. If you show to another ct that the ct did not
have jurisdiction the n the inj they issued never
really happened so you didn’t violate it

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