Category Archives: Remedies

Now Available: 2021 Teachers’ Update for Laycock & Hasen, Modern American Remedies (5th edition)

The 2021 Teachers’ Update to Laycock and Hasen, Modern American Remedies (5th edition) covers Supreme Court developments through the end of the October 2020 term, including cases touching on the standards for emergency injunctions, the rules for disgorgement, and nominal damages and mootness.  It also discusses current controversies such as disputes over presidential immunity, qualified immunity, universal or nationwide injunctions, and other interesting developments in the lower courts.

You can find and distribute the Teachers’ Update to the regular edition at this link.

You can find and distribute the Teachers’ update to the concise edition at this link.

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Now Available: 2020 Teachers’ Update for Laycock & Hasen, Modern American Remedies (5th edition)

[Bumping to the top:]

The 2020 Teachers’ Update to Laycock and Hasen, Modern American Remedies (5th edition) covers Supreme Court developments through the end of the October 2019 term, including cases touching on the standards for emergency injunctions and rules for disgorgement.  It also discusses current controversies such as disputes over the publication of a book by former National Security Advisor John Bolton, presidential immunity, the continuing debate over universal or nationwide injunctions, and other interesting developments in the lower courts.

You can find and distribute the Teachers’ Update to the regular edition at this link.

You can find and distribute the Teachers’ update to the concise edition at this link.

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Teachers’ (and Students’) 2019 Update to Laycock & Hasen, Modern American Remedies (5th Edition) Now Available

[Bumping to the top with instructions for downloading by professors.]

This supplement is current through the end of the Supreme Court’s term ending June 28. It is free for use for instructors assigning the book and their students. There are separate versions for the regular and Concise editions of the book.

The 2019 Update to Modern American Remedies: Cases and Materials, Fifth Edition and Concise Fifth Edition by Douglas Laycock and Richard L. Hasen is now available for you to download.


This update is current through the end of the Supreme Court’s term ending June 28. It is free for use by instructors assigning the book as well as their students. There are separate versions for the regular and Concise editions of the book.


To download the update, go to the regular edition  or Concise edition page and scroll down to the Student Resources section. The 2019 Update to Modern American Remedies files include an extra password to unlock. You will find an additional document under the Student Resources section called 2019 Update Access Code that discloses the password.


To access additional teaching materials for these titles, you will need a validated professor account onWKLegaledu.com. If you do not yet have a validated professor account, you may register atWKLegaledu.com/my-account/register. Account validation may take 1-2 business days. Once validated, you may log into your account using your own personal login, go to the relevant product page and scroll down to access the Professor Resources. You’ll find the 2019 Update also posted under the Professor Resources for your convenience.

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American Law Institute: “Richard L. Hasen to Serve as Reporter on Restatement Third, Torts: Remedies”

Release:

Richard L. Hasen of UC Irvine School of Law has been added as a Reporter to one of ALI’s newest project, Restatement of the Law Third, Torts: Remedies. He will be joining Douglas Laycock of The University of Texas School of Law and UVA School of Law.


This project will address tort damages and other remedies. It will include issues related to identifying the types of recoverable damages, such as past and future lost wages, medical expenses, disfigurement, and pain and suffering, as well as measuring damages, including discounting future earnings to present value, the effect of taxes, and structured settlements.


Professor Hasen is a nationally recognized expert in election law and campaign finance regulation, writing as well in the areas of legislation and statutory interpretation, remedies, and torts. He is coauthor of leading casebooks in election law and remedies.

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Dates Set for NC CD9 Do-Over

NYT reports:

The state elections board, which concluded last month that fraud had tainted November’s voting for the seat, ruled on Monday that a new open primary would be held in the district on May 14 and a new general election on Sept. 10. If a second primary is required — a second-place candidate may request another round of voting if no one receives at least 30 percent of the vote — the general election would be pushed to November.

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Laycock and Hasen, Modern American Remedies (5th Edition AND Concise 5th Edition) Ready in Time for Spring Classes

This has been consuming most of my time for the last 9 months, and so glad the moment is here:

 

Modern American Remedies: Cases and Materials, Fifth Edition
Douglas Laycock, University of Virginia
Richard L. Hasen, University of California, Irvine

Pages: 1,104
ISBN: 9781454891277
Available November 2018

AND

Modern American Remedies: Cases and Materials, Concise Fifth Edition
Douglas Laycock, University of Virginia
Richard L. Hasen, University of California, Irvine

Pages: Approx. 860
ISBN: 9781454891260
Available November 2018

Below is more information on the full Fifth Edition

Modern American Remedies: Cases and Materials, Fifth Edition by Douglas Laycock and Richard L. Hasen will be available in November for use in Spring 2019 classes.

Modern American Remedies: Cases and Materials, Fifth Edition is highly respected for its original and logical conceptual framework, comprehensive coverage, excellent case selection, and authoritative and well-written notes. The text achieves a balance of public and private law, and teaches and critiques the basics of economic analysis as applied to remedies issues.

 

New to the Fifth Edition:

  • New co-author Richard L. Hasen, author of Remedies: Examples and Explanations, a problem-based study guide and secondary adoptable for the casebook
  • Key legal developments through the Supreme Court’s June 2018 decisions, including
    • litigation surrounding President Trump’s travel ban
    • Updated material on cy pres settlements in anticipation of Frank v. Gaos, the Supreme Court case involving Google
    • Recent case law regarding the Third Restatement’s approach to unjust enrichment
  • New, updated, or expanded notes on current issues, such as
    • The rise of nationwide injunctions in challenges to federal policy
    • Disputes over the scope of qualified immunity rules for government officials, especially police officers
    • Donald Trump, Stormy Daniels, and Michael Cohen’s business partner
  • A new drafting assignment involving an injunction in a case of same-sex harassment in employment
  • New principal cases:
  • Commercial Real Estate Investment v. Comcast of Utah, on new approaches to liquidated damages
  • Sunnyland Farms v. Central New Mexico Electric Coop, on proximate cause in tort and contract
  • Brown v. Plata, on structural injunctions and reform of prisons
  • Lord & Taylor v. White Flint, on specific performance of long term contracts
  • Armstrong v. Exceptional Child Center, on implied rights of action and the federal equity power
  • Bonina v. Sheppard, on measuring restitution from innocent defendants
  • In re Hypnotic Taxi LLC, on the standards for pre-judgment attachments
  • James v. National Financial, LLC, on unconscionability in consumer contracts
  • Arizona Libertarian Party v. Reagan, on laches in election cases

 

Professors and students will benefit from:

  • Strong conceptual organization based on remedies categories—compensatory and punitive damages, injunctions, restitution, declaratory judgments, enforcement of judgments (contempt and collections), attorneys’ fees, and remedial defenses—and in terms of daily teaching units of roughly equal length, each unit having a clear central theme
  • Appropriate balance of public and private law
  • Highly teachable and memorable cases, well edited and supported by informative and authoritative notes
  • Coverage and critique of basic law and economics as applied to key remedies issues
  • Plenty of information to support class discussion, case analysis, and applying concepts to varied fact patterns

 

Teaching materials include:

  • Cases and notes from previous editions omitted from the 5th Edition available online
  • Annual Professor’s Update or Supplement
  • Excellent Teacher’s Manual (as PDF or Word files), including:
    • Introduction
    • Transition Guide
    • Designing the Remedies Course
      • Introduction, daily teaching units, suggested assignment sheets
      • Sample Syllabi for a 1, 2, 3, 4, or 5 hour course
    • Suggestions for teaching the cases (all units, all chapters)
    • Wrapping Up: An Overview Lecture

 

 

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Donald Trump Apparently Complying with Twitter Declaratory Judgment, Unblocking Plaintiffs (Which He Does Not Have to Do)

DOJ has appealed the court ruling that President Trump cannot block people on Twitter. But the real news, as flagged by Cristian Farias, is that the President apparently has unblocked the plaintiffs in the lawsuit in the interim.

This unblocking is not something he has to do, and shows a compliance with the court decision that I wasn’t expecting.  As I blogged on May 24:

Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”….

The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues. And it made sense here for the court to piggy-back off that myth.

And yet, Donald Trump is a known norm breaker who has attacked the courts when they have decided against. It will be interesting to watch if the implicitly coercive declaratory judgment is enough to get Donald Trump to comply. Stephen Colbert even joked about it on The Late Show last night.

If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal….

 

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Court Uses Declaratory Judgment, Avoids Injunction to Get Trump to Unblock Twitter Followers: Will It Work?

I plan to do more blogging about Remedies, especially given my news about coming on the Laycock casebook. And here’s an especially nice illustration of an important Remedies issue in the news.

Yesterday  a federal court held that President Trump’s decision to block users on Twitter violates the First Amendment. This is big news, and Eugene Volokh gives his First Amendment take here.

But I wanted to point out an important Remedies issue. Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”

There’s a more extensive discussion near the end of the opinion. After noting a dispute over whether a court can issue an injunction against the President (there’s no doubt it could, the court says), it adds:

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,” Franklin, 505 U.S. at 803 (plurality opinion); see Utah v. Evans, 536 U.S. at 464 (citing Franklin, 505 U.S. at 803 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues. And it made sense here for the court to piggy-back off that myth.

And yet, Donald Trump is a known norm breaker who has attacked the courts when they have decided against. It will be interesting to watch if the implicitly coercive declaratory judgment is enough to get Donald Trump to comply. Stephen Colbert even joked about it on The Late Show last night.

If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal.

But I’m watching this Remedies issue quite closely.

 

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Rick Hasen Joining Doug Laycock as Co-Author of “Modern American Remedies;” 5th Edition Will Be Out in Time for January 2019 Classes

I am honored to be joining Doug Laycock as co-author on the new Fifth Edition of Modern American Remedies, the leading casebook in the Remedies area. The Fourth Edition is from 2010 (there are annual supplements). This will be a thorough updating of the book, and will be current through developments in the October 2017 Supreme Court term. The book will be out in the fall in time for spring classes.

Doug is the leading American scholar in the field of Remedies, and his book is the best casebook I know in any field. It is both scholarly and practical, and its sophisticated analysis is presented in plain English. Doug doesn’t hide the ball, and yet the book is challenging for students. I’ve been teaching from the book since 1997 and I feel my students are extremely well prepared for the bar and practice thanks to the book. It teaches students how to think conceptually and creatively about remedies, without getting caught up in a doctrinal, historical, and terminological morass.

I’ll have more to say about the content of the book in coming months, but if you have been wondering why blogging has been light lately, this has been an all-consuming project. I’m really excited to be a part of it!

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New Book from Me: Examples & Explanations for Remedies, Fourth Edition

For those teaching or taking a Remedies course, or who want to understand damages, injunctions, restitution and more, the new edition of my Remedies E&E is now out.

From the book’s description of what’s new for the 4th edition: 

  • A new discussion of the draft Restatement of the Law Torts (Third): Liability for Economic Harm’s treatment of the economic harm rule
  • A new discussion of special emotional distress rules for cases involving high risk of causing such distress, such as mishandling human remains and injuring pets
  • A new discussion of emotional distress damages for breach of contract
  • A new section discussing of the basis for temporary restraining orders, including the appealability of such orders (which has become a contested issue in challenges to Trump administration executive orders)
  • A new section discussing the controversy over the use of nationwide injunctions in highly charged political cases, a trend that has emerged to challenge policies of both the Obama and Trump administrations
  • A new discussion of restitutionary claims for constructive trusts involving disproportionate gains, such as lottery winnings, under both the common law and Restatement (Third) of Restitution
  • A new section on opportunistic breach of contract in Restitution, including the Supreme Court’s recent endorsement of the section in a 2015 case
  • A new section on the relationship between laches and statutes of limitations and new Supreme Court authority on the question

(Also available at Amazon.)

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