Category Archives: Remedies

My New Forthcoming Article: “Reckoning with the Undead Irreparable Injury Rule”

Remedies

I have written this draft article, forthcoming in the Review of Litigation festschrift for Doug Laycock. Here is the abstract:

This article is written for a festschrift honoring the scholarship of Professor Douglas Laycock. In his most important work in the field of Remedies, The Death of the Irreparable Injury Rule, Laycock made and supported a strong positive claim about the “irreparable injury” rule. He argued that the rule purportedly governing a court’s choice between granting an injunction at the time of final judgment and awarding damages to a wronged plaintiff did no actual work. Laycock also made a compelling normative case for jettisoning the rule.

More than three decades later, the irreparable injury rule is stubbornly undead. Like a cinematic zombie that is not alive but can still do harm, the rule continues to do no work but courts go through the motions of asking about irreparable injury when deciding whether or not to grant a permanent injunction at the end of a case. Such reasoning creates confusion in the law and perpetuates a fuzziness of reasoning that Laycock rightly finds intolerable. Yet no court has formally abandoned the rule. Indeed, the United States Supreme Court in the 2006 eBay case not only endorsed the irreparable injury rule’s application to permanent injunctions; it did so in a confusing and oddly duplicative way, having bad repercussions throughout the federal judiciary.

Part I briefly describes Laycock’s argument about the irreparable injury rule and its reception in the courts. Part II considers and critiques the key arguments for retaining the irreparable injury rule, describing the dangers of unbridled judicial discretion and fuzzy thinking. Part III explains the approach of the Restatement (Third) of Torts: Remedies and its potential to make the irreparable injury rule less relevant.

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2024 Supplements to Laycock and Hasen, Modern American Remedies 5th Edition, and to Concise 5th Edition, Now Available for Free Download

Remedies

You can find the 2024 Teachers’ Update to Laycock & Hasen, Modern American Remedies (5th edition) at this link.

You can find the Teachers’ Update to the Concise 5th Edition at this link.

Highlights:

  • Current through the end of the Supreme Court’s October 2023 term, considering developments in presidential immunity (Trump v. United States), the right to a jury trial in administrative agency proceedings (Jarkesy), statute of limitations issues involving challenges to administrative regulations (Corner Post),and prevailing party standards for granting attorneys’ fees (Stinnie)
  • Extensive analysis of the debate over the propriety of universal (nationwide) injunctions
  • Detailed consideration of qualified immunity cases and critiques
  • New developments in punitive damages law, including consideration of the Johnson & Johnson talc cases

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Important New Student Note: “Voting Wrongs and Remedial Gaps”

Remedies, voting

There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:

Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.

This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.

I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.

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Remedies Scholars Brief Filed in Chisom Judicial Elections Voting Rights Case Before En Banc Fifth Circuit

judicial elections, Remedies, Voting Rights Act

Remedies scholars Doug Laycock, Doug Rendleman, Caprice Roberts and I have filed this amicus brief in the Fifth Circuit, which is considering en banc Louisiana’s challenge to the consent decree in the Chisom case. It was written by a great team at O’Melveny featuring Kevin Kraft, Daniel Mateer, Stuart Sarnoff, and David Kelley.

From the Introduction:

The district court did not abuse its discretion in refusing to terminate—but offering to consider modification of—the Consent Decree requiring the State of Louisiana (the “State”) to continue to comply with Section 2 of the Voting Rights Act (“Section 2”) in an Orleans Parish-based district elections for the Louisiana Supreme Court. By its plain language, the Consent Decree is intended to apply prospectively to “ensure” the State’s continued compliance with Section 2 in the Orleans Parish-based district, ROA.98–99, until the State has made a sufficient evidentiary showing that relief from the terms of the Decree is warranted under Rule 60(b)(5). 

As the State has failed to offer any evidence of future compliance with Section 2, and given recent judicial findings that it continues to violate Section 2 as to other elections, it has not met its burden, rendering its present motion to terminate the Consent Decree inadequate as a matter of law. 

The Supreme Court has required that courts take federalism concerns seriously when a state asks to modify or terminate a consent decree imposed by a federal court. But invoking the term “federalism” does not allow the state to evade having to make its required evidentiary showing. In this case, the district court properly indicated it would consider modifying the Consent Decree in a flexible way in light of federalism principles if and when the State comes forward with actual evidence justifying modification. That day, however, has not yet arrived. 

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Are the Courts Likely to Sustain the $65 Million in Punitive Damages Awarded Against Trump in the E. Jean Carroll Defamation Case?

Remedies

A jury just found Donald Trump liable for over $83 million in the E. Jean Carroll defamation case. Of that, about $65 million are punitive damages.

Are the punitive damages likely to be sustained if challenged (as they will be) judicially?

To begin with, there’s the question whether the compensatory damages will stand. If they are found to be excessive, then the punitive damages would likely be gone as well, and a new trial on both damages held. I don’t have an opinion on the excessiveness of the compensatory damages because I did not pay close enough attention to the evidence at this latest trial.

But the punitive damages question presents different issues. Apart from any state court review, the U.S. Supreme Court has held that punitive damages sometimes are unconstitutional under the due process clause and require independent review (one of the leading cases here is State Farm v. Campbell).

The purpose of punitive damages is to punish and deter, and wealthier defendants would likely need a higher punitive damage award to be deterred. Also, Trump appears to be a recidivist, continuing to defame Carroll, which would justify a higher award.

That said, the Supreme Court has said that the wealth of the defendant cannot justify an otherwise unconstitutional award, and that when substantial compensatory damages are awarded (as they were in this case), then a punitive award should be in a relatively low ratio to compensatory damages (like a 1:1 ratio, meaning damages in the $18 million range).

It’s fairly common for a jury to award very high punitive damages to a rich defendant who has engaged in egregious conduct, only to see the punitive award lowered either by the trial court or on appeal.

We’ll see what happens, but the full $65 million in punitive damages is uncertain to stand.

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Now Available in Time for Winter/Spring Classes: The Fifth Edition of My Student Study Aid, Remedies: Examples and Explanations

Remedies

Hot off the presses with a 2024 cover date:

Examples & Explanations for Remedies, Fifth Edition

The Fifth Edition of Examples& Explanations: Remedies provides a bridge between law school and the real world.

A favorite classroom prep tool of successful students that is often recommended by professors, the Examples& Explanations (E&E) series provides an alternative perspective to help you understand your casebook and in-class lectures. Each E&E offers hypothetical questions complemented by detailed explanations that allow you to test your knowledge of the topics in your courses and compare your own analysis.

New to the Fifth Edition:

  • Integration of recent Restatement Third, Torts: Remedies sections on compensatory damages and injunctions
  • New critiques of the theory of efficient breach in contract
  • Incorporation of recent Supreme Court authority on contempt, including the mental state required for civil contempt proceedings
  • New analysis of the ability to obtain punitive damages for suits in equity and restitution
  • Consideration of new Supreme Court statements about ripeness standards for declaratory judgments
  • Discussion of garnishment orders regarding new methods of payment, such as Venmo or Paypal


Professors and students will benefit from:

  • Updated materials on wrongful death, survival, and loss of consortium claims
  • Expanded material on reasonable certainty, mitigation, offsetting benefits, and collateral sources in damages
  • Updated discussion of ripeness and mootness issues, and the scope of injunctions
  • The integration of the new Restatement and its impact on the field of Remedies
  • Extensive practice questions on institutional reform litigation/structural injunctions
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Access Archived Audio of AALS Panel on Remedies: Remedies in the Restatement

Remedies

I participated in this panel and you can listen here. The sound quality is not good. Here’s the description from the catalogue (Doug Laycock could not make it but was honored with a lifetime achievement award–you can hear that at the end of the recording):

SECTION ON REMEDIES, CO-SPONSORED BY INTELLECTUAL PROPERTY AND TORTS
AND COMPENSATION SYSTEMS
Solana, First Floor, South Tower, Marriott Marquis San Diego Marina
Remedies in the Restatements
Moderator: Zahr Said, University of Washington School of Law
Speakers: Shyamkrishna Balganesh, Columbia Law School
Richard L. Hasen, University of California, Los Angeles School of Law
Douglas Laycock, University of Virginia School of Law
Jean C. Love, Santa Clara University School of Law
Pamela Samuelson, University of California, Berkeley School of Law
This session will discuss questions relating to the remedies portion of current Restatement projects on torts
and copyright, as well as more general questions about opportunities and challenges generated by intersections between the field of remedies and the specific subject areas of such Restatements.
Business meeting at program conclusion.

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

pedagogy, Remedies

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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