CONTENTS

Preface xxiii
Acknowledgments xxix

CHAPTER 1
INTRODUCTION 1

The Role of Remedies 1

Classifying Remedies 3
Substitutionary and Specific Remedies 5
Legal and Equitable Remedies 6
Note on the Nature of Remedies 7
The Modern Remedies Course 8

CHAPTER 2
PAYING FOR HARM: COMPENSATORY DAMAGES 11

A. The Basic Principle: Restoring Plaintiff to His Rightful Position 11

United States v. Hatahley 11
Notes on the Basic Principle 14
B. Value as the Measure of the Rightful Position 18
In re September 11th Litigation 18
Notes on Market Value 22
Notes on Value to the Owner 26
Trinity Church v. John Hancock Mutual Life Insurance Co. 28
Notes on Special-Purpose Property 32
Notes on Repair Costs 33
Notes on Property That Fluctuates in Value 34
C. Expectancy and Reliance as Measures of the Rightful Position 35
Neri v. Retail Marine Corp. 35
Notes on 2-708(2) and Attempts to Codify Remedies 37
Notes on Expectancy and Reliance 39
Notes on Compensating Expectancies 42
Chatlos Systems, Inc. v. National Cash Register Corp. 45
Notes on Excessive Expectancies 47
Smith v. Bolles 50
Notes on Expectancy in Tort 50

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D. Consequential Damages 52
Buck v. Morrow 52
Notes on General and Special Damages 53
Notes on the Vocabulary of Damages 55
Meinrath v. Singer Co. 58
Notes on Consequential Damages from Failure
to Pay Money 60
Texaco, Inc. v. Pennzoil Co. 62
Notes on an Eleven-Figure Verdict 65
E. Limits on Damages 67
1. The Parties Power to Specify the Remedy 67
Kearney & Trecker Corp. v. Master Engraving Co. 67
Notes on Limitation-of-Remedy Clauses 72
In re Trans World Airlines, Inc. 74
Notes on Liquidated-Damage and Penalty Clauses 77
Northern Illinois Gas Co. v. Energy Cooperative, Inc. 81
Notes on Underliquidated-Damage Clauses 83
2. Avoidable Consequences, Offsetting Benefits, and Collateral
Sources 85
S.J. Groves & Sons Co. v. Warner Co. 85
Notes on Avoidable Consequences 88
Notes on Offsetting Benefits 93
Oden v. Chemung County Industrial Development Agency 95
Notes on the Collateral-Source Rule 98
3. The Scope of Liability 102
Pruitt v. Allied Chemical Corp. 102
Notes on the Scope of Liability 105
Notes on the Economic-Loss Rule 109
Evra Corp. v. Swiss Bank Corp. 112
More Notes on the Scope of Liability 116
4. Substantive Policy Goals 118
Brunswick Corp. v. Pueblo Bowl-O-Mat 118
Notes on Remedial Implications of Substantive Policy 122
5. The Requirement of Reasonable Certainty 124
Bigelow v. RKO Radio Pictures 124
Notes on the Requirement of Reasonable Certainty 129
Notes on Litigating Commercial Damages 131
F. Damages Where Value Cannot Be Measured in Dollars 134
1. Personal Injuries and Death 134
Debus v. Grand Union Stores 134
Notes on Pain and Suffering 137
Notes on Wrongful Death 141
Notes on Remedies for September 11 Victims 149
2. The Controversy over Tort Law 151
Arbino v. Johnson & Johnson 151
Notes on the Controversy over Tort Law 159
Notes on Valuing Pain and Suffering and Human Life 166
3. Dignitary and Constitutional Harms 170
Levka v. City of Chicago 170
Notes on Valuing Emotional Distress 174
Notes on Judicial Review of Jury Verdicts 177
Notes on Recovering Emotional Distress 178
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Carey v. Piphus 181

Notes on Valuing Constitutional Rights 184
Notes on Defamation Damages 187
G. Taxes, Time, and the Value of Money 187
1. The Impact of Taxes 187
Norfolk & Western Railway v. Liepelt 187
Notes on Taxes 191
2. Interest on Past Damages 193
City of Milwaukee v. Cement Division, National Gypsum
Company 193
Notes on Interest 197
3. The Net Present Value of Future Damages 200
Jones & Laughlin Steel Corp. v. Pfeifer 200
Notes on the September 11 Calculations 207
Notes on Discounting to Present Value 208
Notes on Race- and Sex-Based Data 211
Notes on Periodic Payments and Structured
Settlements 212
Notes on Damages in Foreign Currency 215

CHAPTER 3
PUNITIVE REMEDIES 217

A. Punitive Damages 217

1. Common Law and Statutes 217
Exxon Shipping Co. v. Baker 217
Notes on Punitive Damages 225
Notes on Measuring Punitive Damages 230
2. The Constitution 233
State Farm Mutual Automobile Insurance Co. v. Campbell 233
Notes on Constitutional Limits on Punitive Damages 237
Philip Morris USA v. Williams 241
More Notes on Constitutional Limits on Punitive
Damages 245
3. Punitive Damages in Contract 248
Formosa Plastics Corp. USA v. Presidio Engineers and
Contractors, Inc. 248
Notes on Punitive Damages in Contract 252
B. Other Punitive Remedies 257
1. Statutory Recoveries by Private Litigants 257
2. Civil Penalties Payable to the Government 259

CHAPTER 4
PREVENTING HARM: THE MEASURE OF INJUNCTIVE RELIEF 263

A. The Scope of Injunctions 263

1. Preventing Wrongful Acts 263
Almurbati v. Bush 263
Notes on Ripeness 265
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Marshall v. Goodyear Tire & Rubber Co. 269

Notes on the Scope of Injunctions to Prevent
Wrongful Acts 271
Note on Individual and Class Injunctions 275
United States v. W.T. Grant Co. 276
Notes on Voluntary Cessation of Wrongful Acts 278
2. Preventing Lawful Acts That Might Have Wrongful
Consequences 280
Nicholson v. Connecticut Half-Way House, Inc. 280
Notes on Ripeness and Uncertain Consequences 282
PepsiCo, Inc. v. Redmond 284
Notes on Prophylactic Injunctions 287
An Aside: Preventive Relief at Law 293
3. Repairing the Consequences of Past Wrongful Conduct 295
Forster v. Boss 295
Notes on Reparative Injunctions 297
Notes on Coordinating Multiple Remedies 300
Winston Research Corp. v. Minnesota Mining &
Manufacturing Co. 300
Notes on Reparative Injunctions and the Rightful
Position 303
Bailey v. Proctor 304
Notes on Equitable Discretion 307
4. Ending Complex Violations and Their Consequences
in Large Institutions 310
a. A Case Study: School Desegregation 310
Introductory Notes 310
Missouri v. Jenkins 314
Notes on the Kansas City Example 321
b. Other Examples, and the Current Law in the
Supreme Court 325
Hutto v. Finney 325
More Notes on the Measure of Injunctive Relief:
The Institutional Reform Cases 329
Lewis v. Casey 330
More Notes on the Measure of Injunctive Relief:
Recommitment to the Rightful Position? 333
United States v. Virginia 336
Notes on Plaintiffs Use of the Rightful-Position
Standard 338
Notes on Paying for the Remedy 338
Historical Notes: The Municipal Bond Cases 340
B. Modifying Injunctions 342
Introductory Notes 342
Horne v. Flores 346
Notes on Modification of Decrees 354
Notes on Modification Under the Prison Litigation
Reform Act 356
Notes on Modifying School Desegregation Decrees
and Maybe Decrees More Generally 358
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C. The Rights of Third Parties 359

Hills v. Gautreaux 359
Notes on Relief Against Third Parties 363
General Building Contractors Association v. Pennsylvania 366
More Notes on Relief Against Third Parties 370

CHAPTER 5
CHOOSING REMEDIES 375

A. Substitutionary or Specific Relief 375

1. Irreplaceable Losses 375
a. Injunctions 375
Pardee v. Camden Lumber Co. 375
F.W. Maitland, Equity 378
Note on Equity in the United States 380
Notes on the Reasons for the Irreparable
Injury Rule 380
Brook v. James A. Cullimore & Co. 384
Notes on Replevin and Injunctions 385
Continental Airlines, Inc. v. Intra Brokers, Inc. 387
Notes on the Content of the Irreparable
Injury Rule 388
b. Specific Performance of Contracts 391
Campbell Soup Co. v. Wentz 391
Note on Specific Performance of Contracts 393
Notes on Efficient Breach of Contract 396
Notes on Specific Performance Where Cover Is
Possible 400
Van Wagner Advertising Corp. v. S & M Enterprises 402
Notes on Irreparable Injury and Undue Hardship 404
Notes on Personal Service Contracts 408
2. Burdens on Defendant or the Court 409
Whitlock v. Hilander Foods, Inc. 409
Notes on Undue Hardship 411
Notes on the Economics of Undue Hardship 414
Co-operative Insurance Society Ltd. v. Argyll Stores
(Holdings) Ltd. 416
Notes on Practicality and Private Litigation 420
3. Other Reasons (and More of the Same Reason) 423
eBay Inc. v. MercExchange, L.L.C. 423
Notes on Confusion in the Supreme Court 426
Willing v. Mazzocone 429
Notes on Defamation Damages and Insolvent Defendants 433
Notes on Prior Restraints 435
Notes on the Right to Jury Trial 438
Notes on Avoiding a Multiplicity of Suits 439
B. Preliminary or Permanent Relief 440
1. The Substantive Standards for Preliminary Relief 440
Winter v. Natural Resources Defense Council, Inc. 440
Notes on Preliminary Relief 444
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Notes on Preserving the Status Quo 448

Coyne-Delany Co. v. Capital Development Board 450
Notes on Injunction Bonds 453
2. The Procedure for Obtaining Preliminary Relief 456
Carroll v. President and Commissioners of Princess Anne 456
Notes on Temporary Restraining Orders 458
Sampson v. Murray 460
More Notes on Irreparable Injury 464
Notes on Preliminary Procedure 465
C. Prospective or Retrospective Relief 470
1. Suits Against Officers in Their Official Capacities 470
Edelman v. Jordan 470
Notes on Prospective-Only Remedies 474
Notes on the Evolution of Eleventh Amendment
Doctrine 478
Notes on the Reasons for Sovereign Immunity 484
2. Suits Against Officers in Their Personal Capacities 486
Harlow v. Fitzgerald 486
Notes on Qualified Official Immunities 490
Notes on Enforcing New Rules of Law 496
Notes on the Fear of Damage Remedies 499

CHAPTER 6
REMEDIES AND SEPARATION OF POWERS 501

A. More on Governmental Immunities 501

1. Consented Suits Against the Government 501
Stone v. North Carolina Department of Labor 501
Notes on the Public Duty Doctrine 505
Notes on the Governmental/Proprietary Distinction 510
Notes on the Discretionary Function Exception 511
More Notes on Federal Waivers of Immunity 513
2. Suits Against Officers Absolute Immunity 517
Van de Kamp v. Goldstein 517
Notes on Prosecutorial Immunity 522
Notes on Other Absolute Immunities 525
B. Creating Causes of Action 530
Bivens v. Six Unknown Named Agents 530
Notes on Implied Remedies for Constitutional
Violations 534
Alexander v. Sandoval 536
Notes on Implied Remedies for Statutory Violations 540
C. Initiating Criminal and Administrative Remedies 545
Linda R.S. v. Richard D. 545
Notes on Private Initiation of Criminal Remedies 548
Federal Election Commission v. Akins 548
Notes on Private Initiation of Administrative Remedies 553
D. The Right to Jury Trial 558
Chauffeurs Local No. 391 v. Terry 558
Contents xvii

Notes on the Evolution of the Federal Right

to Jury Trial 565
Notes on Characterizing Claims as Legal or Equitable 568
Notes on Specialized Tribunals 571

CHAPTER 7
PREVENTING HARM WITHOUT COERCION:
DECLARATORY REMEDIES 573

A. Declaratory Judgments 573

1. The General Case 573
Nashville, Chattanooga, & St. Louis Railway v. Wallace 573
Notes on Declaratory Judgments and Ripeness 575
Notes on Declaratory Judgments, Irreparable
Injury, and Supplemental Relief 577
Cardinal Chemical Co. v. Morton International, Inc. 579
Notes on the Young Dilemma 583
Notes on Declaratory Judgments and Tactical
Advantage 586
2. The Special Case of Interfering with State Enforcement
Proceedings 589
Steffel v. Thompson 589
More Notes on the Young Dilemma 593
Notes on the Steffel Solution 595
Doran v. Salem Inn, Inc. 597
Notes on Preliminary Injunctions Against
Prosecution 599
Notes on Federal Litigation After State-Court
Judgments 602
B. Quiet Title and the Like 603
Newman Machine Co. v. Newman 603
Notes on Bills to Quiet Title and Related Actions 606
C. Reformation 610
Hand v. Dayton-Hudson 610
Notes on Reformation 613
D. Declaratory Relief at Law 615
Notes on Nominal Damages 615
Notes on Quo Warranto 616
Notes on Coram Nobis 617

CHAPTER 8
BENEFIT TO DEFENDANT AS THE MEASURE OF RELIEF:
RESTITUTION 619

A. Restitution from Innocent Defendants and Some

Who Are Treated as Innocent 619
1. Introducing Restitution Mistake 619
Blue Cross Health Services, Inc. v. Sauer 619
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Introductory Notes on Restitution 621

Notes on the Grounds for Restitution 625
Somerville v. Jacobs 627
Notes on Mistaken Improvers 629
Notes on Other Grounds for Restitution 632
2. Measuring Restitution from the Innocent and More
Restitutionary Causes of Action 634
a. Court Orders Later Reversed 634
State v. A.N.W. Seed Corp. 634
Notes on Court Orders Later Reversed 637
b. Unenforceable Contracts and Quantum Meruit 638
Anderson v. Schwegel 638
Notes on Measuring Restitution from Innocent
Defendants 640
Farash v. Sykes Datatronics, Inc. 643
Notes on the Benefit Requirement 646
B. Recovering More than Plaintiff Lost 649
1. Disgorging the Profits of Conscious Wrongdoers 649
Olwell v. Nye & Nissen Co. 649
Notes on Recovering More than Plaintiff Lost 651
Notes on the Causes of Action for Restitution
Against Wrongdoers 655
Maier Brewing Co. v. Fleischmann Distilling Corp. 658
More Notes on Recovering More than Plaintiff Lost 661
2. Measuring the Profits 665
Sheldon v. Metro-Goldwyn Pictures Corp. 665
Notes on Apportioning Profits 669
Hamil America, Inc. v. GFI 671
Notes on Calculating Profits 676
3. Breach of Contract 678
a. Disgorging the Profits from Opportunistic Breach 678
Snepp v. United States 678
Notes on Contracts to Preserve Confidential
Information 681
May v. Muroff 683
Notes on Disgorging the Profits from Breach
of Contract 683
b. Rescission 686
Mobil Oil Exploration and Producing Southeast, Inc. v.
United States 686
Notes on Rescission 688
Notes on Election of Remedies 691
Notes on Losing Contracts Where the Benefit
Cannot Be Returned 692
Notes on Other Grounds for Rescission 694
C. Restitutionary Rights in Specific Property 695
1. Constructive Trusts 695
Paoloni v. Goldstein 695
Notes on Constructive Trusts 697
Ruffin v. Ruffin 700
More Notes on Constructive Trusts 701
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In re Leitner 703
Notes on Constructive Trusts in Bankruptcy 706
2. Tracing the Property 711
In re Erie Trust Co. 711
Notes on Tracing 713
In re JD Services, Inc. 717
Notes on the Mechanics of Tracing 719
Notes on Advanced Tracing Issues 722
Tracing Problems 725
3. Equitable Liens and Subrogation 726
In re Mesa 726
Notes on Equitable Liens 729
Mort v. United States 733
Notes on Subrogation 736
Notes on Indemnity and Contribution 740
D. Defenses and the Rights of Third Parties 741
1. Bona Fide Purchasers 741
Newton v. Porter 741
Notes on Tracing into the Hands of Third Parties 743
2. Payment for Value 748
Banque Worms v. BankAmerica International 748
Notes on Paying Debts with Other Peoples Property 751
E. Replevin, Ejectment, and the Like 754
Notes on Replevin, Ejectment, and the Like 754

CHAPTER 9
ANCILLARY REMEDIES: ENFORCING THE JUDGMENT 759

A. Enforcing Coercive Orders: The Contempt Power 759

1. The Three Kinds of Contempt 759
International Union, United Mine Workers v. Bagwell 759
Notes on the Three Kinds of Contempt 766
Notes on Coercive Contempt 769
Notes on the Yonkers Confrontation 771
Colin Diver, The Judge as Political Powerbroker:
Superintending Structural Change in Public Institutions 774
2. How Much Risk of Abuse to Overcome How Much Defiance? 775
a. Perpetual Coercion? 775
Anyanwu v. Anyanwu 775
Notes on Perpetual Coercion 778
b. Anticipatory Contempt 783
Griffin v. County School Board 783
Notes on Contempt of Anticipated Injunctions 787
Notes on Contempt Statutes 790
3. The Collateral Bar Rule 791
Walker v. City of Birmingham 791
Notes on the Duty to Obey Erroneous Injunctions 798
John Leubsdorf, Constitutional Civil Procedure 804
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4. The Rights of Third Parties 805

Planned Parenthood Golden Gate v. Garibaldi 805
Notes on Contempt Proceedings Against Third Parties 809
Notes on the Array of Theories for Binding
Third Parties 812
Notes on the Notice Requirement 817
5. The Maxim That Equity Acts in Personam 818
6. Drafting Decrees 820
Notes on the Requirement That Injunctions
Be Specific 820
Notes on the Rule Against Incorporating Other
Documents 825
Drafting Your Own Injunction 827
B. Collecting Money Judgments 829
1. Execution, Garnishment, and the Like 829
Credit Bureau, Inc. v. Moninger 829
Notes on Execution 830
Notes on Exemptions 834
Dixie National Bank v. Chase 837
Notes on Garnishment 839
Notes on Other Means of Collecting 841
Note on Bankruptcy 845
Notes on Collecting Money from the Government 846
2. Coercive Collection of Money 848
In re Marriage of Logston 848
Notes on Collecting Family Support 852
Notes on Coercing the Payment of Money
in Other Contexts 857
More Notes on the Irreparable Injury Rule 860
3. Preserving Assets Before Judgment 861
City of New York v. CitiSource, Inc. 861
Notes on Attachment 865
Notes on Prejudgment Freeze Orders 867
W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. 868
Notes on Receivership 870
Notes on Ne Exeat 873

CHAPTER 10
MORE ANCILLARY REMEDIES: ATTORNEYS FEES
AND THE COSTS OF LITIGATION 877

A. Fee-Shifting Statutes 877

City of Riverside v. Rivera 877
Notes on the American Rule 881
Notes on Exceptions to the American Rule 882
Notes on One-Way Fee Shifting 885
Notes on the Amount of the Judgment as a Constraint
on Attorneys Fees 888
Contents xxi

Notes on the Prevailing-Party Requirement 890

Notes on Calculating the Lodestar 892
B. Attorneys Fees from a Common Fund 894
In re Cabletron Systems, Inc. Securities Litigation 894
Notes on the Common-Fund Rule 899
Notes on Contingency Enhancements 901
Notes on Competing Approaches to Calculating
Fee Awards 902
Notes on Costs 908
C. Ethical Issues in Fee Awards 909
Evans v. Jeff D. 909
Notes on Ethical Problems in Fee-Shifting Cases 917
Notes on Ethical Problems in Common-Fund Cases 921

CHAPTER 11
REMEDIAL DEFENSES 925

A. Unconscionability and the Equitable Contract Defenses 925

Muhammad v. County Bank 925
Notes on the Reach of Equitable Defenses 930
Notes on Unconscionable Contracts 931
B. Unclean Hands and In Pari Delicto 935
Pinter v. Dahl 935
Notes on Unclean Hands and In Pari Delicto 938
C. Estoppel and Waiver 941
1. Equitable Estoppel 941
Geddes v. Mill Creek Country Club, Inc. 941
Notes on Equitable Estoppel 945
Notes on Estoppel Against the Government 947
2. Waiver 949
Carr-Gottstein Foods Co. v. Wasilla, LLC 949
Notes on Waiver 954
Notes on Waiver by the Government 956
D. Laches 957
Pro-Football, Inc. v. Harjo (D.C. Cir. 2005) 957
Pro-Football, Inc. v. Harjo (D.C. Cir. 2009) 958
Notes on Laches 961
Notes on the Relation Between Laches and Statutes
of Limitations 963
E. Statutes of Limitations 966
1. Continuing Violations 966
Klehr v. A.O. Smith Corp. 966
Notes on Continuing Violations 968
Notes on Limitations of Federal Claims 972
2. The Discovery Rule 973
Debiec v. Cabot Corp. 973
Notes on the Discovery Rule 980
3. Fraudulent Concealment 984
Knaysi v. A.H. Robins Co. 984
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Notes on Fraudulent Concealment 987

Notes on Estoppel to Assert Limitations 989
Notes on the Policy Choices in Statutes of
Limitations 990

CHAPTER 12
FLUID-CLASS AND CY PRES REMEDIES 993

In re Pharmaceutical Industry Average Wholesale Price

Litigation 993
Notes on Class Actions for Damages 997
Notes on Fluid-Class Recoveries and Cy Pres
Distributions 999
Notes on Affirmative Action as a Fluid-Class Remedy 1003
Notes on Partly Identifiable Victims 1006

APPENDIX
PRESENT VALUE TABLES 1009

Table of Cases 1013

Table of Statutes, Rules, Constitutions, Treaties, Restatements, and More 1031
Table of Secondary Authorities 1037
Index 1047