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Law of Remedies: Damages--Equity--Restitution,9780314011237
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Law of Remedies: Damages--Equity--Restitution

by
Edition:
2nd
ISBN13:

9780314011237

ISBN10:
0314011234
Format:
Hardcover
Pub. Date:
7/1/1993
Publisher(s):
West Group
List Price: $103.00

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This is the 2nd edition with a publication date of 7/1/1993.
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Summary

Authoritative text illustrates the possible applications of difficult rules, explains requirements, assesses arguments, and offers options in uncertain situations. Reviews equity and nonmonetary remedies, principles of damages, and restitution. Details harms to interests in tangible property, explores interference with economic rights, and discusses invasion of civil rights and dignitary interests. Addresses personal injury, fraud, and other unconscionable conduct. Also identifies mistakes in contracting and gift transactions, remedies for breach of contract, and unenforceable contracts.

Table of Contents

Introduction to Remedies
The Basic Remedies
The Province of Remedies Law
1(1)
The remedial issues
1(1)
Remedial law vs. substantive law
1(1)
Remedial law vs. procedural law
2(1)
The main kinds of remedies
2(1)
Availability
2(1)
Damages
3(1)
Damages as compensation
3(1)
Forms of the damages remedy
3(1)
Noncompensatory money awards
3(1)
Conventional damages
4(1)
Restitution
4(1)
Restitution as restoration to prevent unjust enrichment
4(1)
Example
4(1)
The special sense of ``restoration'' to mean disgorgement of gains
4(1)
Restitution in specie
5(1)
Special forms of restitution
5(1)
Coercive Remedies
5(1)
Injunctive remedies and the contempt power
5(1)
Named forms of coercive remedies
6(1)
Other forms of injunction
6(1)
Expanding injunctive relief
6(1)
Provisional injunctions
7(1)
Declaratory Remedies
7(1)
Non-judicial Remedies: Alternative Dispute Resolution and Self-Help
8(1)
Self-help
8(1)
Administrative relief
8(1)
Alternative dispute resolution
8(1)
Essential Issues
9(3)
Remedies ``At Law'' and Remedies ``In Equity''
Provisional and Permanent Remedies
Remedies and Enforcement Devices
Execution of Money Judgments ``at Law''
12(1)
Adjudication of liability, not a command to pay
12(1)
Traditional execution writs
12(1)
Statutory base in modern law
12(1)
Contempt Sentences to Enforce Coercive Remedies
13(1)
Decree issuing a command in personam
13(1)
Law and equity and coercive orders
13(1)
Examples of contempt powers
13(1)
Non-contempt enforcement of in personam orders
14(1)
Garnishment
14(1)
Supplementary Proceedings or Creditors Bills in Equity
14(1)
Equitable Liens and Constructive Trusts
15(1)
Judgments for Possession of Property at Law
15(1)
Receivers and Masters
16(1)
Receivers
16(1)
Masters
16(1)
Receiver-masters under civil rights or restructuring injunctions
16(1)
Public Law and Private Law Remedies
Public Law Remedies Generally
17(1)
Public issue litigation
17(1)
Public law remedies generally
17(1)
Factual variation and the variability of injunctive relief
18(1)
Institutional Restructuring Litigation
18(1)
Discrete and Particular Differences in Public and Private Remedies
19(1)
Statutory injunctions
19(1)
Attorney fees
20(1)
The Scope of Remedial Issues
The Importance of Remedial Scope
20(1)
The Scope of Remedial Issues
21(1)
Remedial issues arise when the plaintiff has a cause of action
21(1)
Remedial issues
21(1)
Applying the Limitations
21(1)
Substantive law
21(1)
Process or procedural law
21(1)
Theories are not remedies
22(1)
Remedial Analysis: Matching Right and Remedy
Rights and Remedies
22(1)
Principle: remedies congruent with rights
22(1)
Examples
22(1)
Corollary
23(1)
Knowing the right by knowing the remedy
23(1)
Denying rights in the belief that remedies are not measurable or practical
23(1)
The puzzle of discorrelate rights and remedies
24(1)
Practical Constraints and Conventional Remedies
24(1)
Judicial resources
24(1)
Judicial roles
25(1)
The limits of proof: conventional remedies
25(1)
Forms of conventional remedies
25(1)
Examples of conventional remedies
25(1)
Reasons for conventional remedies
26(1)
Importance of conventional measures
26(1)
Remedies exceeding rights
26(1)
Choosing Among Several Potentially Acceptable Remedies
27(2)
Remedial Analysis: Comparing Remedies
Remedial Analysis: Counting Costs and Benefits
Choosing Remedies in the Light of Costs and Benefits
29(1)
Efficiency
30(1)
Efficiency as maximizing human satisfactions
30(1)
The Pareto superior idea of efficiency
30(1)
The Kaldor-Hicks test of efficiency
30(1)
Efficiency vs. right
31(1)
Efficiency in selecting a remedy: the painting sale example
31(2)
Efficient breach
33(1)
The music group example
33(1)
Applying efficient breach ideas to the music group case
33(1)
Arguments against efficient breach
34(1)
Waste
35(1)
Remedy Costs Exceeding Relevant Legal Benefits
36(1)
Remedy Costs Exceeding Legal Loss or Harm
36(1)
Measuring Remedy Benefits: The Subjective Benefit Case
37(1)
Counting on conventions
37(1)
The logger and the plaintiff's tree
37(1)
Proven subjective value to the plaintiff
37(1)
Waste, entitlement and efficiency in the tree replacement
38(1)
Measuring Remedy Benefits: The Case of Benefits to Third Persons or the Public
38(1)
Considering public benefit from tree replacement
38(1)
Is it correct to consider benefits to those who have no rights?
39(1)
Considering public rights in natural resources
39(1)
Measuring Remedy Costs and Deterrence
39(1)
Net cost to the defendant after considering his gains
39(1)
Externalized costs
40(1)
Effective deterrence
40(1)
Transaction Costs
41(1)
Rights and Efficiencies
41(1)
Remedies and Trial Strategy
Remedy Chosen to Maximize Threat to the Defendant
42(1)
The costly injunction example
42(1)
The constructive trust-lis pendens example
43(1)
Remedy Chosen to Enhance Procedural Advantage or Avoid Disadvantage
43(1)
The equity non-jury trial example
43(1)
The discovery and proof example
44(1)
The injunction bond example
44(1)
Remedy Chosen to Avoid Defenses
45(1)
Discretionary defenses to equitable remedies
45(1)
Remedial immunities
45(1)
Remedy Chosen to Enhance Enforcement of Decrees or Collection of Judgments
45(1)
The claim of equitable ownership or security interest example
45(1)
The coercive order example
45(3)
Equity and Nonmonetary Remedies
History, Development and Meanings of Equity
Introduction to Equity and Equitable Remedies
An Introductory Overview
48(1)
Historical Law and Equity Court Systems
48(1)
Coercive Remedies in Equity
49(1)
Contempt in Equity
49(1)
Substantive Law in Equity
49(1)
Procedure in Equity
49(1)
Discretion in Equity
50(1)
---Equitable Defenses
50(1)
---Measure of Relief
50(1)
Adequacy of Legal Remedy or Irreparable Harm Test
50(1)
Merger of Law and Equity
51(1)
Terminology: ``Equity''
51(1)
Equitable Remedies
51(1)
Coercive Remedies
51(1)
Injunctive relief
51(1)
Example of injunctive relief
52(1)
Injunctions under other names
52(1)
Specific performance
53(1)
Declaratory Remedies
53(1)
Restitutionary Remedies
53(2)
Meanings of Equity
55(1)
Meanings of Equity and ``Equitable''
55(1)
Fairness, morality, and flexibility
55(1)
The body of equity precedent, doctrine, and attitude
56(1)
Distinctive remedies
56(1)
Effect of Determination that a Claim or Defense is Equitable
57(1)
What makes a claim ``equitable'' today?
57(1)
Equitable in the sense of fair, moral, or just
57(1)
Equitable in the sense that an equitable remedy is sought
57(1)
Strategic possibilities
58(1)
The Development of the Equity Court
The Chancellor as Writ Maker
58(1)
Limits on the Effectiveness of Common Law Courts
59(1)
The Chancellor as a Political Power
59(1)
The Chancellor as a Judge
60(1)
The chancellor's court
60(1)
The chancellor's procedure
60(1)
The chancellor's rules
61(1)
The chancellor's jurisdiction
61(1)
The chancellor's theory of power: The dual system and the in personam order
62(1)
Substantive Rules Developed from Ethical Principles of Equity
The Remedial and the Substantive
63(1)
Remedial Equity
63(1)
Substantive Equity
64(1)
Equity's Place in the Law of Uses and Trusts
64(1)
Equity's Place in the Law of Mortgages
64(1)
Equitable Conversion and Other Substantive Equity
64(1)
Substantive Equitable Defenses: Equitable Estoppel and Similar Conceptions
64(2)
Discretion in Equity
The Role of Discretion: Limiting and Tailoring Equitable Relief on Ethical Grounds
In Summary
66(1)
Discretion to Deny or Limit Relief in Equity
66(1)
Equitable Defenses
66(1)
Balancing
67(1)
Measuring or Shaping the Remedy
67(1)
The Appropriate Role of Discretion
67(1)
Unclean Hands
68(1)
General Rule and Its Effect
68(1)
General rule
68(1)
As a purely equitable defense
68(1)
Spurious unclean hands cases: substantive meanings and pari delicto
68(1)
Extending judicial discretion to bar rights
69(1)
Relatedness of Improper Conduct to Claim
69(1)
Related misconduct required to invoke the defense
69(1)
A narrow formula
70(1)
A discretionary formula
70(1)
Improper conduct not causing injury to defendant
70(1)
Commentary: A Suggested Analysis
71(1)
Excluding rule-of-law and substantive defenses
71(1)
Exclusing equitable defenses that would bar a legal claim
71(1)
If a pure equitable defense is invoked, is the misconduct serious?
71(1)
Determining relatedness
71(1)
Values at stake and alternative sanctions
72(1)
Contract Defenses in Equity
72(1)
Unconscionability
73(1)
Mutuality of Remedy
74(1)
Laches
75(1)
Generally
75(1)
Laches a bar to equitable claims
75(1)
Laches defined
75(1)
Limitations on the defense
75(1)
Bases
76(1)
Law and equity
76(1)
Laches as a partial defense only
76(1)
Public interests
77(1)
Effect of Statutes of Limitations
77(1)
Application of statutes of limitations to equitable claims
77(1)
The ``analogous'' statutes of limitations
77(1)
Balancing Equities, Hardships and Public Interests
78(1)
In General
78(1)
Equitable defenses without balancing
78(1)
Balancing equities and hardships
78(1)
Balancing Equities
79(1)
Equities
79(1)
Examples
79(1)
Good faith, fault, motive
79(1)
Balancing Hardships
79(1)
Hardship rules
79(1)
Hardship to the defendant
80(1)
Hardships to the plaintiff
80(1)
Balancing Interests of the Public and Third Persons
80(1)
Public interest balancing as cost-benefit analysis
81(1)
Measuring, Shaping, or Tailoring the Remedy
81(3)
The Role of Equitable Discretion in Equity
84(2)
Remedial Limits Based on Power and Policy: Adequacy and Practicability
Adequacy of Legal Remedy or the Irreparable Harm Rule
86(1)
Adequacy Test
86(1)
Historical Basis
86(1)
The Irreparable Harm Formulation
87(1)
Relative Adequacy
88(1)
Adequacy as a Non-discretionary Rule; ``Equity Jurisdiction''
88(1)
Distinguishing Other Rules
88(1)
Examples
89(1)
Rule Inapplicable to Substantive Equitable Rights
89(1)
Establishing Irreparable Harm
90(1)
Patterns of Irreparable Harm/Inadequate Legal Remedy
90(1)
Patterns and factors in determining inadequacy
90(1)
``Unique'' or special entitlements
90(1)
Repeated acts, multiplicity of suits
91(1)
Legal remedy available but not collectible
91(1)
Damages cannot be measured with reasonable certainty
91(1)
The Adequacy Test Today: Reality and Debate
92(1)
Adequacy Today
92(1)
The rule declines
92(1)
Emerging issues
92(1)
Coercive Remedies: The Advocates
93(1)
Owen Fiss
93(1)
Douglas Laycock
93(1)
Coercive Remedies: Doubters and Disbelievers
94(1)
Doug Rendleman
94(1)
Edward Yorio
95(1)
Specific Performance
95(1)
Disfavoring specific performance
95(1)
Favoring specific performance
96(1)
Moral theories of performance
96(1)
Party autonomy
97(1)
Some Assessments
97(1)
Practicality and Public Policy as Limits On or Guides to Equitable Remedies
98(1)
Substantive Policy
98(1)
Compelling personal service
98(1)
Forbidding speech
98(1)
Weighing public needs
98(1)
Practicality, Convenience, Judicial Resources
99(1)
Supervision
99(1)
Certainty in specific performance
99(1)
Deference and Practical Caution
100(1)
State court injunctions against other state courts
100(1)
Federal courts enjoining state court proceedings
100(1)
Procedures, Jurisdiction, and Enforcement
Law and Equity Toady-The Merger of Law and Equity and the Right of Jury Trial
The Merger of Law and Equity
101(1)
Generally
101(1)
Merger
101(1)
Scope
102(1)
Substantive and Procedural Merger
102(1)
Procedural merger and the jury
102(1)
Merger and substantive law
103(1)
Remedial Merger
103(1)
Merger and remedial law
103(1)
Merger and Jury Trial-Equity Jury Rules
104(1)
Constitutional Rights to Jury Trial ``at Common Law''
104(1)
States Granting Equity Jury Trial
105(1)
Advisory Juries in Equity
105(1)
Characterizing a Case: Equitable or Legal?
105(1)
In Summary
105(1)
Distinguishing characteristics
105(1)
Substantive and remedial tests of equitable status
105(1)
Judicial approaches generally
106(1)
Remedies Sought as Test of Equitable or Legal Character
106(1)
The remedial test
106(1)
Money claims for restitution
106(1)
Money claims for restitution with equitable enforcement: constructive trusts
107(1)
Money claims for restitution with equitable enforcement: accounting for profits
107(1)
The Dairy Queen case
108(1)
The stockholder's derivate suit
108(2)
The preference/fraudulent conveyance litigation; bankruptcy
110(1)
Substantive Tests of Legal or Equitable Character: Equity without Coercion
111(1)
The substantive test
111(1)
Mortgages
111(1)
Trusts
112(1)
Rescission and other declaratory decrees
112(1)
Estoppel and other equitable doctrines
113(1)
Statutory Claims
114(1)
Generally
114(1)
Power of the legislature to prescribe non-jury trials
114(1)
Indiscriminate equity: the case of Title VII
115(1)
Evaluating Approaches
116(1)
Jury Trial in Mixed Law and Equity Cases
117(1)
Clean-up or Incidental Jurisdiction
117(1)
Whole case tried in equity
117(1)
Examples
117(1)
Efficiency and waiver theories
117(1)
Severance or Separate Trials
118(1)
Trial of equity issues first, controlling legal issues by res judicata
118(1)
Trial of the law claim first
118(1)
The Dairy Queen Rule
118(1)
Abolishing incidental jurisdiction?
119(1)
Mode of trial after incidental jurisdiction is abolished
119(1)
Example
119(1)
Effects and strategies
119(1)
Current status
120(1)
In the states
120(1)
Equitable Claim with Legal Counterclaim: Beacon Theatres
121(1)
The Federal rule
121(1)
In the states
122(1)
Affecting Jury Trial by Res Judicata: The Order of Trial
122(2)
Effect of Jury Trial on Tailoring or Modifying the Decree
124(1)
Discretion and Other Equity Power
124(1)
Preliminary Relief Unaffected by Dairy Queen
124(1)
``Jurisdictional'' Issues in Equity Courts
Jurisdiction and Power
124(1)
Spurious Jurisdiction
124(1)
``Equity jurisdiction''
124(1)
Jurisdiction to Preserve the Court's Power to Act
125(1)
Error distinguished
125(1)
True jurisdictional limitations
125(1)
The bootstrap corollary
125(1)
The Mineworkers case
126(1)
Interstate Equity
127(1)
Jurisdiction over person or property required
127(1)
Remedial limits of jurisdiction quasi-in rem
127(1)
Contract to sell land example
127(1)
Expanded personal jurisdiction permitting in personam remedies
127(1)
Affecting foreign land titles
128(1)
Example
128(1)
In personam orders affecting foreign land
129(1)
Compelling acts in foreign states
129(1)
Enforcement of Equity Decrees
Methods of Enforcement
130(1)
Contempt Sanctions
130(1)
Non-parties Subject to Liability for Contempt
130(1)
Raising Defenses to the Contempt Charge
131(1)
Decretal Transfer of Title, Liens and Trusts
131(1)
Enforcing Possession Through the Sheriff's In Rem Seizure
132(1)
Receivers
132(1)
Masters
133(1)
Enforcing Money Decrees
133(1)
Supplemental Proceedings
134(1)
Sanctions for Contempt
135(1)
General Categories
135(1)
Imprisonment
135(1)
Imprisonment for Debt
135(1)
Coercive Fines
136(1)
Compensatory or Remedial Sanctions
136(1)
Defendant's Profits as a Remedial Sanction
137(1)
Denying the Right to Litigate
137(1)
Other Sanctions
138(1)
Enforcement of Equity Decrees by Contempt Powers-Civil vs. Criminal
138(1)
Determinate, Coercive and Remedial Sanctions
138(1)
Criminal sanctions require criminal trial procedures
138(1)
Sanction imposed determines civil or criminal nature
138(1)
Tests applied
139(1)
Examples of criminal and civil sanctions
139(1)
When a determinate sanction is coercive
139(1)
The special rule for remedial or compensatory sanctions
140(1)
Where Coercive Effects Are Impossible, Diminished, Unnecessary or Exhausted
140(1)
The core cases: when the court's decree has no further force
140(1)
---Decree reversed on appeal
141(1)
---Prohibitory and mandatory decrees
141(1)
---Orders to testify
141(1)
Beyond the core: when the injunction prohibits but does not mandate acts
142(1)
---The Michigan rule
142(1)
---The Pennsylvania rule
142(1)
---Decisions approving coercive contempt in prohibitory injunction cases
143(1)
---Evaluations
144(1)
Exhausted or diminished coercive effect
144(1)
The Supreme Court's test
145(1)
Consequences of the Criminal Contempt Classification
145(1)
General Rule: Criminal Protections Apply
145(1)
Examples
146(1)
Jury Trial
146(1)
Limited Punishment
147(1)
Persons Subject to Contempt
148(1)
General Rule
148(1)
Parties, Persons in Concert or Abetting Them
148(1)
Independent Interest or Activity of the Contemnor Negating Concert
149(1)
Agents
150(1)
Successors and Privies
150(1)
Injunctions In Rem and Other Expansive Injunctions
151(1)
Resurrecting In Rem Injunctions?
152(1)
Contempt Liability of Named Defendant for Acts of Third Persons
153(1)
Review: The Collateral Bar Rule
153(1)
Liability for Disobedience of Unreversed Erroneous Order
153(1)
Nonliability for Disobedience of Void Order
153(1)
The Example of Walker v. City of Birmingham
154(1)
Exception: Opportunity for Meaningful Hearing on the Merits
154(1)
Exception: Lack of Jurisdiction
155(1)
The Mine Workers Bootstrap Rule
155(1)
State Cases
156(1)
Media Restraints
156(1)
Non-media Defendants
157(1)
Comment
157(1)
Inability to Comply and Related Defenses
158(1)
Burden of Proving Ability or Inability to Comply
158(1)
Compensatory Fines
159(1)
Nebulous Injunctions: The Order That Cannot Be Understood
159(1)
Modification of Decrees
160(1)
Modification Permitted Generally
160(1)
Role of Modification in Enforcement
160(1)
Consent Decrees: Modification Permitted
161(1)
The Swift Case
161(1)
Modifying the Rigid Rule
161(1)
Discretion
162(1)
Injunctions
Permanent Injunctions
Injunctions Generally
162(1)
Injunction as a Coercive Order
162(1)
Mandatory vs. Prohibitory Injunctions
163(1)
Classification
163(1)
Formal but not substantive differences
163(1)
Reluctance to use mandatory injunctions
163(1)
Preventive, Reparative and Structural Injunctions
164(1)
Reparative and preventive injunctions
164(1)
Structural injunctions
164(1)
Other Compulsions
164(1)
Injunctions with specific names
164(1)
Prerogative writs
165(1)
Prohibition and mandamus
165(1)
Bases for Grant or Denial of Injunctive Relief
165(1)
Grounds and Cases for Injunctive Relief
165(1)
The Adequate Legal Remedy and Balance of Equities and Costs
166(1)
Traditional adequacy or irreparable harm rule
166(1)
Balance of benefits and costs or disadvantages
166(1)
Non-monetary costs
166(1)
Economic costs
166(1)
Alternative remedies as a benchmark for measuring benefit of the injunction
167(1)
Injunctions undercutting rule for minimizing damages
167(1)
Risk of error
167(1)
Subject Matter: Injunctions Protecting or Limiting Property and Economic Rights
168(1)
Property Rights
168(1)
Economic Rights
168(1)
Crimes
169(1)
Subject Matter: Injunctions Facilitating Procedure, Tactics, or Review
170(1)
Tactical, Procedural and Review Injunctions
170(1)
Enjoining Civil Litigation
171(1)
Enjoining abusive litigation
171(1)
Enjoining litigation temporarily to prevent irreparable loss of rights
171(1)
Enjoining litigation to control choice of forum
171(1)
Federal courts enjoining state litigation
172(1)
Bills of peace
172(1)
Interpleader
173(1)
Traditional interpleader
173(1)
Examples
173(1)
Traditional limiting rules
173(1)
Federal statutory interpleader
174(1)
Federal rule interpleader; comparisons
175(1)
Interpleader to compel equitable distribution of limited funds
175(1)
Potentials for expanding interpleader
175(1)
Enjoining Criminal Prosecutions
176(1)
Subject Matter: Injunctions Protecting Personal Rights
177(1)
Property Right/Personal Right Distinction
177(1)
Political and Civil Rights
177(2)
Religious Matters
179(1)
Defamation
179(1)
Other Cases
179(1)
Statutory Injunctions
Adequacy or Irreparable Injury Requirement in Statutory Injunction Cases
180(1)
Statutory construction in mandatory and permissible statues
180(1)
Authorization read to eliminate irreparable injury requirement
180(1)
In preliminary relief cases
181(1)
Discretion to Deny the Statutory Injunction
181(1)
Statutory construction issues
181(1)
The Schoenbrod principle
181(1)
Refusing and tailoring the statutory injunction
182(1)
Insisting on the statutory injunction
182(1)
Discretion to deny remedies, not discretion to deny rights
182(1)
Adding Relief Not Specified in Statutes
183(1)
Provisional Injunctions and Other Injunctive Procedures
Preliminary Injunctions and Temporary Restraining Orders Generally
184(1)
Types of Provisional Relief
184(1)
Permanent injunctions
184(1)
Preliminary injunctions
184(1)
Temporary restraining orders
184(1)
Other forms of provisional relief
185(1)
Types of Cases
185(1)
Tangible and intangible property
185(1)
Economic and contract rights
186(1)
Constitutional, personal, and public rights
186(1)
Error potential
187(1)
Standards for Issuance of Provisional Injunctive Orders
187(1)
Standards
187(1)
Main factors
187(1)
The special irreparable harm requirement
187(1)
Unstructured factors
187(1)
Structured factors
188(1)
Imperfections
188(1)
The Leubsdorf rationale and reformulation
189(1)
Example under the Leubsdorf formulation
189(1)
Preliminary injunction when the plaintiff is unlikely to win
190(1)
Role of quantification
190(1)
Judicial acceptance of the Leubsdorf standard
191(1)
Critics and Evaluations
192(1)
Critics
192(1)
Tune-up changes wrought by the Leubsdorf formula
193(1)
Significant change wrought by the Leubsdorf formula
193(1)
What Counts as Irreparable Harm
193(1)
Harm not preventable by permanent injunction and not compensable in damages
193(1)
Timber cutting example
194(1)
Timing of the final hearing as a factor
194(1)
The museum example
194(1)
Tailoring to avoid or limit irreparable harm
195(1)
Irreparable harm to public or third-party interests
195(1)
Remote irreparable harm
195(1)
The Security Requirement
196(1)
General Rule
196(1)
Bond required
196(1)
Purposes
197(1)
Bond as Limit of Liability
197(1)
Majority view: liability limited to amount of the bond
197(1)
Minority view: plaintiff is personally liable
198(1)
Expanding liability by a special undertaking
198(1)
Alternative damages claims by the wronged defendant
199(1)
Restitution claims by the wronged defendant
199(1)
Discretion to Dispense with Bond or Refuse Claims against It
199(1)
Mandatory bond
199(1)
Discretionary bond under state statutes
200(1)
Four stages or points for the exercise of discretion
200(1)
Open-ended discretion
201(1)
Limited discretion
202(1)
Triggering the Bond Liability
202(1)
Damages Recoverable
203(2)
Comments on the Bond Requirement
205(1)
Judicial Review of Injunctions
206(1)
Appeals of Injunctive Orders
206(2)
Principles of Damages
Introducing Damages Law: Terms, Goals and Methods
Terminology and Concepts
208(1)
Money award and in rem enforcement
208(1)
Harm or loss distinguished
209(1)
Specie remedies distinguished
209(1)
Restitution distinguished
210(1)
Compensatory and Non-compensatory Goals
210(1)
Non-pecuniary injury
211(1)
Non-compensatory characteristics of non-pecuniary injury damages
211(1)
Three reasons for awarding non-compensatory damages
211(1)
Punitive damages
212(1)
Proof, Convention and Substantive Policy in Damages Measurement
212(1)
Substantive goals guiding damages measurement
212(1)
---Legal theory of the complaint
212(1)
---Incentive damages; a nuisance example
213(1)
---Incentive damages; a contract example
213(1)
---Economic waste
213(1)
Conventions in damages measurement
213(1)
Major Issues in Damages Law
214(1)
The role of damages in the remedial scheme
214(1)
The role of compensation in damages remedies
215(1)
Caps on damages and multipliers of damages
215(1)
The attorney fees issue
215(1)
Damages administration: periodic payments
215(1)
Summarizing Damages Rules
Measures of Damages
216(1)
General or market damages
216(1)
Special or consequential damages
217(1)
Substitution cost damages
217(1)
Standardized and pattern damages
217(1)
Punitive damages
218(1)
Litigation costs
218(1)
Adjustments for Time Differentials: Delay and Prepayment
218(1)
Interest
218(1)
Reduction to present value
219(1)
Adjustments for Benefits Reaped or Harms Avoided by the Plaintiff
219(1)
Collateral source benefits
219(1)
Direct benefits
219(1)
Avoided and avoidable consequences
219(1)
Basic Damages Measures or Approaches
Measures and Elements of Damages
220(1)
The Specific Element Approach: Personal Injury and Related Cases
220(1)
The Yardstick or Measured Approach: Property and Contract Cases
220(1)
Three types of damages measurement
220(1)
Nominal Damages and Standardized Surrogate Damages
221(1)
Nominal Damages
221(1)
Meaning
221(1)
Where the plaintiff has no cause of action
221(1)
When substantial damages are recoverable
221(1)
When nominal damages are recoverable
221(1)
Why nominal damages
221(1)
Standardized Surrogate Damages
222(1)
General Damages or Market Measures
223(3)
Consequential Damages
226(3)
Substitution Costs
229(2)
Individuating Damages: Protecting the Plaintiff's Personal Values
231(1)
Duplication of Damages
231(1)
Adding Two Measures for One Loss or Wrong
231(1)
General damages plus substitution cost damages
231(1)
General damages and profits
232(1)
The Relative Accuracy of Damages Measures: A Comment
232(2)
Proving Consequential Damages: Special Requirements, Limited Alternatives
Rules Inhibiting Consequential Damages Claims
234(1)
Pleading
234(1)
Certainty: pecuniary loss must be realized
234(1)
Certainty: proof as to amount
234(1)
Proximate cause and Hadley limits
235(1)
Avoidable consequences
236(1)
Alternative Claims to Escape the Limitations
236(1)
Objective substitutes for profit loss
236(1)
Value of the chance; preponderance of the evidence
236(1)
Value of chances that are bought and sold
236(1)
Value of chances for which there is no market
237(1)
Percentage chance without a market: the pig that missed the fair
237(1)
Authority for and against value of the chance
237(1)
Would value-of-the chance always limit the recovery to less than compensation?
238(1)
Constructing Market Value: Definitions and Evidence
Constructing a Hypothetical Market
238(1)
No market
238(1)
Willing buyer and seller: looking for information to construct a ``market''
239(1)
Scope and related material
239(1)
Opinion Evidence of Value
239(1)
Expert opinion
239(1)
Owner opinion
240(1)
Other opinion testimony
240(1)
Data for Constructing a Value
240(1)
Market reports
240(1)
Comparable sales
240(1)
Offers and prior sales
241(1)
``Capitalization of income'' or discounted cash flow
241(1)
Capitalization: passive income requirement
242(1)
Capitalization: figuring the discount rate
242(2)
Other methods
244(1)
Interest Adjustments
Interest and Prejudgment Interest
244(1)
Background and Summary
244(1)
Interest as compensation, restitution and incentive
244(1)
Historic attitudes towards interest
245(1)
Residual reluctance to award interest for pre-judgment losses
245(1)
Computation
245(1)
Categories of Interest
245(1)
General Rules
246(1)
Rule against interest on unliquidated sums
246(1)
Interest permitted on liquidated or ``ascertainable'' damages
247(1)
Example of ascertainable damages
247(1)
Effect of disputes, defenses and counterclaims
248(1)
Other limitations on interest
248(1)
Sidestepping the Traditional Limitations
248(1)
Extending the Realm of the Ascertainable
248(1)
Generally
249(1)
Examples of extension
249(1)
The future of the ``ascertainable'' standard
250(1)
Claiming Interest or Costs as Special Damages
250(1)
Claiming Interest in Lieu of Rental Value or Lost Profits
250(1)
Claiming Interest as Restitution
251(1)
Contract, Express or Implied
252(1)
Statutes
252(2)
Attacking the Traditional Limitations
254(1)
Compensation, restitution, and incentives
254(1)
Plaintiff's real losses
254(1)
The defendant's real gains
255(1)
Incentives to delay
255(1)
Reduction to present value argument
255(1)
Fairness to defendant arguments
255(1)
Computation of Interest
256(1)
Accrual
257(1)
Elements of Damages Included
258(1)
Other Limitations on Prejudgment Interest
258(1)
Judgment Interest
259(1)
Damages and Variations in Dollar Value
Topic and Scope
259(1)
Reduction to Present Value
260(1)
Reduction to present value required
260(1)
Reasons for rule
260(1)
Methods for computing
260(1)
Inflation
260(1)
Effect of future inflation on future losses considered
260(1)
General methods for considering inflation
261(1)
Adjusting for inflation by finding the ``real'' interest rate
261(1)
Treating future inflation and present value reductions as a wash
261(1)
Periodic payments
261(1)
Distinguishing other adjustments from inflation adjustments
261(1)
Foreign Currency Fluctuations against the Dollar
262(1)
Dollar judgments; conversion from foreign currency
262(1)
Example of conversion date options
262(1)
Breach date rule
263(1)
Judgment date rule
263(1)
Payment date rule
263(1)
Criticizing the breach date rule
263(1)
Supporting the payment date rule
264(1)
Making payment date work
264(1)
Judgments in foreign currency
264(1)
Which currency is the rightful currency
265(1)
Making the plaintiff whole
265(1)
Restitution
265(1)
Benefits to the Plaintiff from the Defendant's Acts
Collateral Source Benefits
266(1)
General Rule
266(1)
No credit to the defendant for collateral benefits to the plaintiff
266(1)
Insurance and similar benefits
267(1)
Gifts and public benefits
267(1)
Replacement of support and tax savings
267(1)
Rationales
267(1)
Donor's intent
267(1)
Subrogation
268(1)
Plaintiff paid
268(1)
Windfall
268(1)
Measurement and prejudice
268(1)
Unspoken rationales
269(1)
Statutory Changes
269(1)
Statutes fostering a credit
269(1)
Allocating and computing the credit
269(1)
Direct Benefits
269(1)
General Rule
269(1)
Exceptions or Limitations
270(1)
Minimizing Damages: Avoidable Consequences Rules
General Rule
270(1)
General scope of avoidable consequences rules
270(1)
The four rules of avoidable consequences
271(1)
Example
271(1)
Burden of proof
272(1)
Applications and Amplifications
272(1)
First rule
272(1)
Second rule: reasonableness assessments
272(1)
Third rule
273(1)
When minimizing adds assets
273(1)
Special rule for leases
274(1)
Rationales and Limitations
274(1)
Efficiency and fairness
274(1)
Relative fault or ability to minimize
274(1)
Substantial rights
274(1)
Strategically placed defendants
275(1)
Comparative Fault vs. Avoidable Consequences
275(1)
Recovery of Attorney Fees and Costs in Litigation
General Rule and Summary
276(1)
The General Rule
276(1)
The general rule
276(1)
Development of the American Rule
277(1)
Rationales
277(1)
The Attacking Arguments
277(1)
Other legal systems
277(1)
The main arguments
278(1)
Indemnity: two way fee shifting
278(1)
Fees as damages: one way fee shifting
278(1)
Fees as incentives
278(1)
The Common Fund, Substantial Benefit and Private Attorney General
279(1)
Fee Sharing under the Common Fund Rule
279(1)
The common fund rule
279(1)
Examples
280(1)
Restitutionary basis for fee sharing
280(1)
Restitution and the ``volunteers'' rule
281(1)
Common fund and conflict of interest
281(1)
Fee Shifting under the ``Substantial Benefit'' Extension
281(1)
Extending common fund ideas
281(1)
Hall v. Cole
282(1)
Potential coverage
282(1)
Criticizing the restitutionary argument in substantial benefit cases
282(1)
The Private Attorney General
283(1)
Serrano v. Priest
283(1)
Status of the private attorney general doctrine
283(1)
The benefit element
284(1)
Comparisons to substantial benefit rule
284(1)
Coincidence of burden and benefit
285(1)
The public policy elements
285(1)
Attorney Fees as Damages and Sanctions
285(1)
Fee Recovery as Damages: The Principle
285(1)
Contractual Obligations to Protect against Litigation Costs
286(1)
Explicit contracts
286(1)
Injunction bonds
286(1)
Title warranty
287(1)
Other implicit agreements
287(1)
Tort, Indemnity, and Sanction: Obligations Imposed by Law
288(1)
Indemnity without express contract
288(1)
Third person litigation
289(1)
Beyond the third party limitation
289(1)
Malicious prosecution and similar damages cases
290(1)
Litigation misconduct
290(1)
Contempt of court
291(1)
Development of the Civil Rights Fee Statutes
291(1)
Fee Award Statutes Generally
291(1)
Development of the Civil Rights Fee Award
292(1)
Narrow fee statutes
292(1)
The private attorney general rationale in Piggie Park
292(1)
Attempts to extend the rationale
293(1)
Alyeska: the Supreme Court rejects the extension
293(1)
Section 1988
293(1)
Eligibility and Entitlement Generally
293(1)
Routinely awarded to prevailing plaintiffs
294(1)
Routinely denied to prevailing defendants
294(1)
Awarded as costs, not ``damages''
294(1)
Fee awards can be claimed by clients' lawyers
294(1)
Only prevailing plaintiffs recover
295(1)
Eligibility and Entitlement: Prevailing Party Rules
295(1)
General Rules
295(1)
Standard
295(1)
Prevailing without relief
295(1)
Relief without prevailing: interim success
295(1)
Preliminary injunction shown to have been erroneous
296(1)
Preliminary injunction mooted
297(1)
Preliminary injunction with immediate fees
297(1)
Criticisms and limits on immediate fees
297(1)
Prevailing by settlement
298(1)
Prevailing by defendant's unilateral reform; moot cases
299(1)
Fee Measurement: In Summary
300(1)
Fee Measurement: Basic Methods
301(1)
Evaluating Time Invested by Cost-Benefit Analysis: The Private Case Comparison
301(1)
Disproportionate fees
301(1)
Riverside
301(1)
Riverside dissenters
302(1)
Riverside plurality; weighing social benefits against fee costs
302(1)
Reciprocity in litigation costs
303(1)
Alternative grounds for attacking time invested
303(1)
Percentage Fees
303(1)
Standardized Fees
304(1)
Fee Measurement: Reduction for Partial Success
305(1)
General Rule
305(1)
Difficulty in Applying the Limited Success Rule
305(1)
Judging success
305(1)
The complaint-judgment test
305(1)
The reasonable expectation test
305(1)
Proportionality test
305(1)
Reductions
306(1)
Fee Measurement: Enhancement and Multipliers
306(1)
Enhancement for Quality, Difficulty, Results or Like Factors
306(1)
Enhancements under Johnson factors approach
306(1)
Enhancements/multipliers denied under hourly rate or lodestar approach
306(1)
Permissible enhancements under the hourly rate method
307(1)
Contingency or Risk Enhancements
308(1)
The risk problem
308(1)
The Leubsdorf proposal
308(1)
Pre-Blum decisions
309(1)
Delaware Valley II
309(1)
Delay Enhancement
309(1)
Fee Measurement: Effect of Client's Fee Contract
310(1)
Punitive Damages
The General Rules
Punitive Damages Allowable
310(1)
Introduction and Summary
310(2)
Punitive Damages Generally
312(1)
Definition, basis, and terms
312(1)
In-court misconduct
313(1)
Origin and discretion as to amount
313(1)
State of authority for punitive damages
313(1)
Traditional jury role and amounts
314(1)
New limitations on or review of jury's role
315(1)
Settings for Exclusion of Punitive Damages
315(1)
Equity
315(1)
Contract claims
315(1)
Arbitration
315(1)
Free speech areas
315(1)
Statutory claims
316(1)
Settings for Grant of Punitive Damages
316(1)
Persons Liable
317(1)
Mental capacity
317(1)
Minors
318(1)
Employers, public entities, public utilities
318(1)
Persons Who May Sue
318(1)
Bases of the Traditional Punitive Damages Award
318(1)
Punishment and Retribution: Just Deserts
318(1)
The Mental State Required
319(1)
Conduct
319(1)
Tests for state of mind
319(1)
State of mind: intentional risk-taking vs. intentional harm
319(1)
Limited value of tests
320(1)
Illustrative cases
320(1)
Gross Negligence and Mental States
320(1)
Torts Based on Bad Faith, Malice or Serious Wrongs
321(1)
Deviant Applications of the Rules
321(1)
Abuse of Power
321(1)
Deterrence and Other Purposes of Punitive Damages
322(1)
Deterrence
322(1)
Deterrence as a goal and measure
322(1)
Deterrence by removing profit from profitable torts
323(1)
How tortious activity may continue to be profitable after paying compensatory damages
323(1)
``General'' deterrence by imposing costs of all harms done to everyone
324(1)
Injunctive deterrence with punitive awards
325(1)
Deterrence by example to others
326(1)
Deterrence and just deserts
326(1)
Litigation Finance and Added Compensation
327(1)
Litigation finance; compensation for attorney fees
327(1)
Litigation finance; incentives to sue
327(1)
Forcing a choice between attorney fee and punitive damages
328(1)
Punitive Damage Litigation: The Main Problem
Proof Standards
328(1)
Financial Condition of Defendant
328(1)
Permitting Evidence of the Defendant's Finances
328(1)
General rule admitting proof of financial condition
328(1)
Theory of the rule
329(1)
Is proof required?
329(1)
California requirement of proof
329(1)
Countering Prejudice Resulting from Wealth Evidence
330(1)
Defendant's introduction of financial evidence
330(1)
Limits on wealth discovery
330(1)
Prejudice at trial; bifurcation
330(1)
Types of Financial Information Admissible
331(1)
Types of wealth-net worth, income
331(1)
Other uses of profits evidence
332(1)
Surrogates for profits proof
333(1)
Proof of insurance against punitive damages
333(1)
Vicarious Liability for Punitive Damages
334(1)
The Restatement Complicity Rule
334(1)
The Liberal Rule
334(1)
Alternatives
334(1)
Differential in Punitive Awards Between Principal and Agent
335(1)
Punitive Liabilities of Insurers for Wrongs of Insureds
335(2)
Multiple Punitive Liability
337(4)
Scope of Punitive Liability: Causation and Persons and Injuries Outside the Risk
341(1)
The Actual Damages Requirement
341(1)
The Rule
341(1)
Interpretations of the Rule
341(1)
Criticisms of the Rule
342(1)
Reinterpreting the Rule
342(1)
Case Development
343(1)
The Ratio Rule
343(1)
Relationship of Punitive to Compensatory Damages
343(1)
Relationship of Punitive Damages to Potential Harm From Defendant's Conduct Conduct
344(1)
Criticisms
344(1)
The Ratio Rule and Judicial Review
345(1)
The Ratio Rule and Jury Instructions
345(1)
Constitutional and Statutory Challenges to Punitive Damages
345(1)
Constitutional Attacks on Punitive Damages
345(1)
Double jeopardy
345(2)
Excessive fines under the Eighth Amendment
347(1)
Due process
347(1)
Due process and jury guidance
347(1)
Due process and post-trial review
347(1)
First Amendment
348(1)
Legislative Limitations on Punitive Damages
349(1)
Multiple damages statutes as caps
349(1)
``Tort reform'' legislative caps and limitations
349(1)
Constitutionality of caps
350(1)
Construction of capping statues
350(1)
Redirecting the award from plaintiff to the state
351(1)
Statutory confrontation of fairness issues
351(1)
Statutory enhancement of judicial control
351(1)
Adjustments and Computations
352(1)
Factors in Fixing the Amount of Punitive Damages
352(1)
``Factors''
352(1)
Culpability factors
353(1)
Deterrence factors
353(1)
Litigation support factors
354(1)
Criticisms
354(1)
Disharmony among the factors
354(1)
Absence of evidence
354(1)
The Debate Over Punitive Damages
355(1)
Criticizing, Defending and Reforming Punitive Damages
Fairness Criticisms
355(1)
Economic Criticisms
356(1)
Evaluating the Criticisms
356(2)
Multiplied Damages
Nature of Multiple Damages Statutes
358(1)
Typical statutes
358(1)
Differences between multiplied and punitive damages
359(1)
Non-punitive purposes under some statutes
359(1)
Issues Affected by Punitive or Nonpunitive Nature
360(1)
Punitive multiplication precluding common law punitive damages
360(1)
Nonpunitive multiplication-effect on common law punitive damages
360(1)
Nature of statutory damages as affecting compensatory award
361(1)
Nature of statutory damages as affecting other issues
361(1)
Computation under Multiple Damages Statutes
361(1)
Which measure of damages is multiplied?
361(1)
Order of credits and multiplication
362(3)
Restitution
The Nature of Restitution
Restitution and Unjust Enrichment
Core Ideas of Restitution
365(1)
Definitions and Goals
365(1)
Defendant's gains, not plaintiff's losses
365(1)
Money restitution in excess of damages
366(1)
Unjust enrichment basis of restitution claims
366(1)
Substantive and remedial sides of unjust enrichment
366(1)
Applications
366(1)
Contract breach; unenforceable contracts
366(1)
Mistake
367(1)
Torts and subtortious wrongs
367(1)
Other cases
368(1)
Measuring Benefits for Restitution
368(1)
Different measures
368(1)
Identifying benefits with the gains they produce
368(1)
Relation of Restitution to Damages
369(1)
Remedial differences
369(1)
Remedial similarities
369(1)
Characterizing the award as restitution or damages
369(1)
Relation of Restitution to Equity
370(1)
Terminology
370(1)
The Substantive Side of Restitution: Unjust Enrichment
371(1)
Introducing the Meanings of Unjust Enrichment
371(1)
Unjust enrichment as the basis of liability
371(1)
Benefits to defendant where title remains in the plaintiff
372(1)
Benefits to defendant where title passes through misconduct
372(1)
Benefits to defendant resulting from breach of contract
373(1)
Benefits to defendant from money or services without misconduct-Mistakes and other disruptions in contracting
373(1)
Benefits conferred without mistake or contract
374(1)
Where restitution is the only basis of liability: substantive unjust enrichment issues
374(1)
Restitution/Unjust Enrichment Claims to Establish New Rights
375(1)
Restitution as a means for recognizing rights in intangibles
375(1)
Is ``unjust enrichment'' too vague?
376(1)
Qualifying and Limiting Unjust Enrichment Claims: Protecting Innocence and Autonomy
376(1)
Protecting autonomy under the volunteers rules
376(1)
Protecting innocent purchasers
376(1)
Protecting defendants who have changed position
377(1)
Protecting public policy
377(1)
Introducing the Procedural and Terminological Side of Restitution
377(1)
Diversity and Unity
377(1)
Equity
378(1)
Law
378(1)
In Personam and In Rem Procedures
378(1)
The Measurement of Restitution-The Remedial Side of Restitution
379(1)
Remedial Problems: Choosing Restitution and Its Measure
379(1)
The remedial issues in restitution
379(1)
Measurement of defendant's benefits
379(1)
Major measures
379(1)
Choosing among the measures
380(1)
Unjust enrichment and punitive damages
380(1)
Remedy choice
380(1)
Relation of Substance and Remedy
381(1)
Substantive-remedial entanglement
381(1)
Example of services under an unenforceable contract
381(1)
Which decision comes first, substantive or remedial?
382(1)
Substantive decisions influenced by existence of a mild remedy
382(1)
Substantive decisions influenced by radical remedy
382(1)
Restitution at Law-Terminology and Development
In Summary
383(1)
Plaintiff Has Legal Title: Ejectment and Replevin
383(1)
Plaintiff Has no Legal Title But Claims in Assumpsit on Analogy to Contract
383(1)
Implying a Contract to Do Justice
383(1)
An Example
384(1)
The Terminology
384(1)
Development of Restitution When Plaintiff Had Title: Ejectment and Replevin
384(1)
Development of Restitution When Plainfiff Had No Title
384(1)
Implied in fact contracts
384(1)
Implied in law contracts-quasi-contract and restitution in assumpsit
385(1)
Examples
385(1)
Quasi-contract: meaning, function and confusion
385(1)
Unjust enrichment basis first recognized
386(1)
The common counts
386(1)
---Money paid to the defendant's use
386(1)
---Money had and received
387(1)
---Use and occupation of land
387(1)
---Goods sold and delivered
387(1)
---Quantum meruit
388(1)
---Quantum valebant
388(1)
Waiver of Tort and Suit in Assumpsit
388(1)
Lamine v. Dorrell
388(1)
The agency theory
389(1)
Limitations on waiver of tort
389(1)
The Future of Restitution Law
390(1)
Restitution in Equity-Terminology and Procedure
Equitable Restitutionary Devices Generally
391(1)
Law Courts' Limits: Protection of Legal Title
391(1)
Equity Courts' Ability to Ignore Legal Title
391(1)
Major Restitutionary Remedies in Equity
391(1)
Four Potential Effects of Tracing Remedies
392(1)
The Constructive Trust
392(1)
In Summary
392(1)
The Mechanism of the Constructive Trust
392(1)
The constructive trust and quasi-contract
392(1)
Mechanisms and procedures of the constructive trust
393(1)
Requirement of res or property
393(1)
Other liabilities not excluded
394(1)
Operation and Effects of the Constructive Trust
394(1)
Capturing the defendant's gains
394(1)
---Example
395(1)
---Tracing
395(1)
Preferences and priorities
395(1)
---Example
395(1)
---Combining profits and priorities
396(1)
---Priorities and tracing
396(1)
Recovery of specific property
397(1)
Equity trials---Nonjury trial
397(1)
---Adequate remedy at law
397(1)
Constructive trust effects without constructive trust terminology
398(1)
Grounds for the Constructive Trust
398(1)
Basis in unjust enrichment
398(1)
Earlier limitations
399(1)
Application of constructive trusts today
399(1)
When constructive trust is limited to cases of wrongdoing
400(1)
Donees and purchasers
400(1)
Constructive Trust in Relation to Other Trusts
401(1)
The Equitable Lien
401(1)
Liens Generally
401(1)
Agreements and Other Lien Sources
401(1)
Equitable Liens by Agreement
401(1)
Equitable Liens Judicially Implied to Prevent Unjust Enrichment
402(1)
Where Constructive Trust is Excessive
402(1)
Where the Constructive Trust Assets are Deficient
403(1)
Lien and Trust Comparisons
403(1)
Lien and Trust Differences
404(1)
Subrogation
404(1)
Subrogation as Substitution
404(1)
Subrogation Based on Unjust Enrichment; Terminology
405(1)
The Surety and Insurer Examples
405(1)
The Mortgage Example
406(1)
Priorities
406(1)
Tracing
407(1)
Garnishment and Subrogation
407(1)
Contribution and Indemnity and Subrogation
408(1)
Accounting and Accounting for Profits
408(1)
Development of Common Law and Equitable Accounting
408(1)
Common law action of account
408(1)
Equity accounting
409(1)
Accounting for Profits Today
409(1)
Accounting to deal with complex accounts
409(1)
Accounting as discovery
410(1)
Accounting to capture profits and force proof from the defendant
410(1)
Grounds for the accounting for profits; is accounting limited to fiduciaries?
410(1)
Profit recovery against non-fiduciaries
411(1)
Burden of proof against non-fiduciaries
411(1)
Burden to prove business expense deductions
412(1)
Burden to prove basis for apportionment of profit between innocent and wrongful acts
412(1)
Accounting for profits in law and equity
413(1)
Rescission
414(1)
Meaning of Rescission
414(1)
Rescission
414(1)
Avoidance
414(1)
Termination
414(1)
Distinct from restitution
415(1)
Methods of Rescission
415(1)
Mutual agreement
415(1)
Unilateral rescission; rescission at law
415(1)
Judicial rescission; rescission in equity
415(1)
Grounds for rescission and restitution
416(1)
Reformation
416(1)
Reforming Documents to the Parties' Intent
416(1)
Constructive Trust Compared
417(1)
Rescission Compared
417(1)
Law and Equity; Reformation With or Without Physical Alteration
417(1)
Some Nontraditional Reformation
418(1)
Equitable Conversion
419(1)
Raw Doctrine
419(1)
The seller as trustee under a specifically performable contract
419(1)
The tracing element
419(1)
Consequences of Equitable Conversion
420(1)
Profit from the vendor's breach
420(1)
Risk of loss
421(1)
Affecting nature of the property as personalty or realty
421(1)
A Comment
422(1)
Specific and Substitutionary Restitution
Measurement of Restitution
General Principles and Substantive Policy
423(1)
Scope and Direction
423(1)
Unjust Enrichment
423(1)
Types of Benefit and Measures
423(1)
Substantive Policy and Measurement
424(1)
Market Measures of Restitution
425(1)
Direct Money Payments
425(1)
Increase in Market Value of Defendant's Assets
426(1)
General rule
426(1)
Example: mistaken improvements to property add to its value
426(1)
Defendant's subjective purpose affecting value
426(1)
Measuring personal use value
426(1)
Date for measurement
427(1)
Unrealized gains
427(1)
Value of Services in the Labor Market
428(1)
Market value of services, regardless of assets they produce
428(1)
When increased asset value is a limitation
429(1)
Market rate for services includes normal ``profits''
429(1)
Market Use Value
429(2)
Consequential Benefits Measures of Restitution
431(1)
Consequential Damages and Consequential Benefits
431(1)
Consequential benefits compared to consequential damages
431(1)
Distinctions between consequential and market measures
431(1)
Levels of consequential benefits
432(1)
Consequential Benefits from Transfer of Entitlements
432(1)
Gains from transfer in a rising market
432(1)
Gains from a transfer above market rate
432(1)
Consequential Benefits from Use
433(1)
Receipt of rental or interest income
433(1)
Savings from defendant's own use of the plaintiff's entitlement
433(1)
Collateral profit
434(1)
Adjustments and Problems in Collateral Profit Cases
434(1)
Expense deductions
434(1)
The apportionment problem
435(1)
The trademark-copyright examples
435(1)
Apportionment required
435(1)
Burden of proving apportionment
436(1)
Counterpart problems in damages law
436(1)
Profits recovery and the separation of risk from opportunity
437(1)
The Breacher's Profits in Contract Cases
438(1)
General rule
438(1)
The trust or equitable conversion exception
438(1)
Fiduciary breach: the Snepp case
438(1)
When Is Restitution Properly Measured by Consequential Benefits?
439(1)
Factors
439(1)
A generalization
439(1)
Measure to limit vs. measure to expand liability
439(1)
Consequential benefits from property title to which remains in the plaintiff
439(2)
Consequential benefits from property or money, to which the plaintiff has no legal title
441(1)
Guides to and Limitations on Measures of Restitution
441(1)
Contract Price As a Guide or Ceiling
441(1)
Contract transactions permitting restitution
441(1)
Contract price as evidence of amount of benefit
442(1)
Contract price or expectancy not a ceiling on buyer's restitution
442(1)
Contract price or expectancy not a ceiling on seller's restitution
442(1)
The full performance liquidated sum rule
443(1)
Costs and Reliance Expenses
443(1)
Benefits Passed on, Consumed, Destroyed or Offset by Losses
444(1)
Benefits passed on
444(1)
Benefits consumed or destroyed
444(1)
Benefits offset by loss
445(1)
Combining Restitution With Other Remedies
446(1)
Compensatory Damages and Restitution
446(1)
Punitive Damages and Restitution
447(1)
Defenses and Limitations
Defendant's Change of Position
Changed Position May Defeat Restitution
448(1)
Related Rules
448(1)
Types of Cases
449(1)
Benefits Passed on
449(1)
Benefits Expended or Consumed
449(1)
Loss, Harm, or Destruction
450(1)
Bona Fide Purchasers for Value and Discharge for Value
Bona Fide Purchasers
450(1)
Rule Summary
450(1)
General Rule-Legal versus Equitable Title
451(1)
Where legal title remains in O
451(1)
Where legal title passes to purchaser
451(1)
Trust example
451(1)
Fraudulent purchase example
452(1)
Equitable remedies against bona fide purchasers who take legal title
452(1)
Restating the rule
452(1)
Purchase and value
453(1)
General Rule-Equitable Title versus Equitable Title
453(1)
Conflicting equitable interests illustrated
453(1)
First in time, first in right
453(1)
Qualifying and limiting the first in time rule
453(1)
Modifications and Exceptions: Commercial Sales, Land Titles and Security Transactions
454(1)
Traditional rules undesirable in commercial sales
454(1)
Voidable title technique
455(1)
Entrusting statutes
455(1)
Land title recording
455(1)
Motor vehicle purchases
456(1)
Modifications and Exceptions: Money, Choses in Action and Negotiable Instruments
456(1)
Discharge for Value
456(1)
Mistaken Payment Used to Satisfy a Valid Claim Against a Third Person
456(1)
General rule
456(1)
The example of Weiner v. Roof
456(1)
The example of Banque Worms
457(1)
The example of Gaffner v. American Finance Co.
457(1)
Mistaken Payment Used to Satisfy a Void Claim
458(1)
Rationales and Policies
459(1)
Discharge for value as a changed position rule
459(1)
Discharge for value as a bona fide purchaser rule
460(1)
Policies
460(1)
The Requirement of Restoration or Tender by the Plaintiff
``At Law''
461(1)
Pre-suit restoration or tender required for rescission ``at law''
461(1)
What is rescission ``at law''
461(1)
What counts as a tender
461(2)
``In Equity''
463(1)
Pre-suit tender or restoration not required for rescission ``in equity''
463(1)
Restoration ultimately determined at trial in equity rescission
463(1)
Qualifications to the Requirement of Tender at Law
464(1)
Items the plaintiff is entitled to keep
464(1)
Where tender would be useless
464(1)
Amounts to be tendered indeterminate
464(1)
Where the adjustment remedy is not rescission
464(1)
Reform of the Tender Rules
465(1)
Measure of Restoration Required of the Plaintiff
466(1)
Unsolicited Benefits-Volunteers and Intermeddlers
Rule, Background and Summary
467(1)
Factual Context
467(1)
Denial of Restitution to ``Volunteers and Intermeddlers''
467(1)
Arguing and Resolving Cases
468(1)
Unifying Principles
468(1)
Categorizing Cases
469(1)
Underlying Principles in Unsolicited Benefit Cases
469(1)
Incidental Reasons for Denying Relief
469(1)
Economic and Moral Reasons
470(1)
Personal Autonomy: the Defendant's Right of Free Choice
470(1)
Free Choice in Non-consensual Transactions
471(1)
Choice in Contracts and Consensual Transactions
471(1)
Limits of Choice
472(1)
Limits of Principle
472(1)
Benefits in Cash or Specific Chattels
472(1)
Restitution Generally Allowed
473(1)
Mistaken cash payments
473(1)
Specific chattels
473(1)
Contribution for contenant improvements later realized in cash
473(1)
Restitution Sometimes Denied
474(1)
Payment of another's debt
474(2)
Overpayment of taxes
476(1)
Intentionally Conferring Non-cash Benefits Where Parties Could or Did Contract
476(1)
Situations and Principles
476(1)
Tacit, Vague or Ambiguous Understandings
477(1)
Implications derived from parties' dealings
477(1)
Family and neighborly services
477(1)
Submission of ideas
478(1)
Business or professional services
478(1)
No Contract Between Parties Who Are in Position to Bargain
479(1)
Non-liability
479(1)
Freeriders problems
480(1)
Contract Between Parties on General Subject Matter
480(1)
Existence of an express contract
480(1)
Example of the failed land purchase
480(1)
Example of the insured's expense saving the insurer liability
481(1)
Variations on the insurer example
482(1)
Three-Party Dealings; Improvement by Subcontractors
482(1)
Implications of non-contracting
482(1)
Examples
482(1)
Subcontractors enriching a landowner
483(1)
Non-cash Benefits Realized in Cash Later
484(1)
Intentionally or Innocently Conferring Non-cash Benefits Where Bargaining Is Not Possible
484(1)
Emergency, Preservation of Property or Life, Necessaries
485(1)
Improvers of Chattels, Extenders of Credit
486(2)
Mistaken Improvers of Land
488(1)
Acceptance or Opportunity to Reject: Lawyers and the Common Fund
489(1)
Acceptance of a Benefit
489(1)
Realization of a Benefit in Cash
489(1)
Ambiguities in Acceptance and Realization
489(1)
Ability to Reject the Benefit and the Common Fund Attorney Fee Rule
490(4)
Harms to Interests in Tangible Property
Land
In General
Harms to Interests in Land Generally
Elements in Selecting and Measuring Remedies
494(1)
Types of remedies
494(1)
Interests in land
494(1)
Physical security, use and enjoyment and pure possession interests
494(1)
Role of legal theory
494(1)
Means of harm
495(1)
Defendant's state of mind
495(1)
Damages Generally
495(1)
Physical harms to the land
495(1)
Interference with possession
496(1)
Interference with use and enjoyment
496(1)
Adjustments
496(1)
Restitution Generally
496(1)
Injunction and Possessory Relief
496(1)
Threat of future harm, inadequate remedy at law
496(1)
Injunction to affect title and possession
497(1)
Encroachment cases
497(1)
Costs and benefits of injunctive relief
497(1)
Interests in Physical Integrity of Land and Structures
Harms to Interests in Physical Integrity of Land and Structures: Damages
Basic Measures of Damages for Physical Harm to Property: Diminished Value vs. Repair Costs
497(1)
Alternative Measures
497(1)
Windfall and Waste
498(1)
Idiosyncratic and Personal Uses
499(1)
Choosing Between Diminished Value and Repair Costs: The Permanency Test and Restatement Test
500(1)
Ceilings on Repair Costs Recoveries
500(1)
Repair Costs as a Ceiling on Diminished Value Claim
501(1)
Allowance of Repair Costs in Environmental Damage Cases
502(1)
Repair or Restoration Costs to Prevent or Minimize External Harm
502(1)
Analogies under Environmental Statutes
502(1)
The Superfund Act
503(1)
Persons liable
503(1)
Elements of recovery
503(1)
Response costs
504(1)
Natural resource damage
504(1)
Restoration costs in excess of resource value? The efficiency argument
505(1)
Restitution or damages
505(1)
Limits on Replacement Costs in Analogous Eminent Domain Cases
506(3)
Adjustments Required When Repair Costs Are Allowed
509(1)
Deduction for Appreciated Value
509(1)
Waste
510(1)
Harms to Interests in Physical Integrity of Land and Structures: Damages for Severance
Severance Cases Generally
510(1)
Good Faith Trespassers
511(1)
Bad Faith Trespassers: Three Punitive Approaches
511(1)
Harsh Measure of Damages
511(1)
Punitive Approaches Compared Generally
511(1)
Traders Who Purchase Severed Articles
511(1)
Harms to Interests in Physical Integrity of Land and Structures: Restitution for Severance
Trespasses That Do Not Justify Restitution
511(1)
Restitution for Taking
512(1)
Restitution to Capture the Defendant's Gains
512(1)
Harms to Interests in Physical Integrity of Land and Structures: Injunctive Relief
Interests in Use and Enjoyment
Harms to Interests in Use and Enjoyment: Damages for Nuisance
Substantive Background: Nuisance and Trespass
513(1)
Nuisance Damages Generally
514(1)
Objective or Market Measures
514(1)
Diminished market value
514(1)
Diminished rental value
515(1)
Costs of repair or abatement
515(1)
Ceilings on recovery of repair or abatement costs
515(1)
Damages Not Based on Property Value or Repair
515(1)
Personal discomfort, illness and anguish
515(1)
Combining claims for discomfort and claims for diminished value
516(1)
Damages Incentives to Abate
517(1)
Regulatory Takings
517(1)
Harms to Interests in Use and Enjoyment: Injunctive Relief
Substantive Background and Summary
517(1)
Doctrine Limiting Nuisance Injunctions
518(1)
Adequacy of Legal Remedy, Irreparable Harm
518(1)
Adequacy test
518(1)
Balancing Hardships and Equities
518(1)
Threshold, rights, and remedies types of balancing
518(1)
Rights-balancing
518(1)
Remedies balancing generally
519(1)
Equities and misconduct
519(1)
Hardships and economic waste
520(1)
Public interests and social utility
521(1)
Public interests against the injunction
521(1)
Public interests favoring the injunction
521(1)
The Remedial Options in Nuisance Cases
522(1)
Four Basic Remedial Choices
522(1)
Traditional choices
522(1)
The fourth option: a compensated injunction
523(1)
Spur Industries
523(1)
Acceptance of Spur Industries
523(1)
Form and Terms of the Remedy: Fine-Tuning Injunctions
523(1)
Nebulous injunctions
523(1)
Scope and limits of injunction
524(1)
Incentive injunctions and incentive damages
525(1)
Economic and Other Perspectivies
525(3)
Effects of Statutes on Nuisance Injunctions
528(1)
Easements
528(1)
Harms to Interests in Exclusive Possession
Harms to Interests in Exclusive Possession: Damages For Non-Harmful Trespasses, Use, Or Occupation of Land
In General
528(1)
Damages and Mesne Profits
529(1)
Nominal Damages
529(1)
Rental Value or Mesne Profits
529(1)
Generally
529(1)
Objective or market measure; irrelevance of defendant's losses
530(1)
Objective measure; irrelevance of plaintiff's lack of loss
530(1)
Trespasser's profits; damages and restitution distinguished
531(1)
Subjective tests
531(1)
Periodic and Sub-optimal Uses
532(1)
Improvements Added by Trespasser
532(2)
Dispossession-Restitution for Use and Occupation
Ejectment
534(1)
Forcible Entry and Detainer, Summary Ejectment
535(1)
Injunctive Protection of Possession Generally
535(1)
Adequacy and Irreparability Rules
536(1)
General rules
536(1)
Repeated or continuing trespasses
536(1)
Injunctions Where Title to Land Is in Issue
536(1)
General rule
536(1)
Provisional relief
537(1)
Enjoining economic activity while title is in issue
537(1)
Exceptions to the title rules
538(1)
Injunctions Transferring Possession of Land
538(1)
No transfer of possession by preliminary injunction
538(1)
Broader rule statements
538(1)
Easements
539(1)
Injunctive Protection Against Encroaching Structures
539(1)
Adequacy, Title and Possession in Encroachment Cases
539(1)
Adequacy
539(1)
Title and possession
540(1)
Hardships and Equities
540(1)
Balancing hardships
540(1)
Guiding policies
540(1)
Equities
540(1)
Hardships or economic costs
541(1)
Refusing to balance hardships and equities
541(1)
Procedural and Remedial Impacts of Permanent Invasions
Statutes of Limitations, Res Judicata and the Permanent Harm Doctrines
General Rules for Permanent Invasions
542(1)
What Invasions Are ``Permanent''?
543(1)
Incentives in the Permanent Nuisance Issue
543(1)
The Plaintiff's Dilemma
544(1)
Consequential and Punitive Measures in Land Cases
Consequential, Multiple and Punitive Damages
General Rules *
Duplicative Recoveries: Recovering Both Consequential and General Damages
544(1)
Punitive Damages
545(1)
Personal Property
General Damages: Diminished Market Value
General Rules
545(1)
General Damages Rules
545(1)
Taking and destruction
545(1)
Taking: supplementary measures
545(1)
Harm to chattels
546(1)
Applications
546(1)
Alternatives and Special Damages
546(1)
Repair or replacement costs
546(1)
Adjustments when repair or replacement costs are awarded
546(1)
Unique goods, goods without market value
547(1)
Special and punitive damages
547(1)
Time for Assessment of Market Value
547(1)
Steady Markets
547(1)
Delayed Replacement and Fluctuating Markets
548(1)
The Problem
548(1)
The stand-pat rule
548(1)
Highest value to trial rule
549(1)
New York rule: highest value in reasonable time
549(1)
Place or Market for Assessment of Market Value
550(1)
Geographical Markets
550(1)
``No market''
550(1)
Adjustments for transportation costs
550(1)
Economic Markets-Wholesale versus Retail Markets
551(1)
Retailer and consumer
551(1)
Manufacturer, maker or shipper
551(1)
Evidence of Value
552(1)
Replacement and Repair Costs
Replacement and Repair Costs as Alternative Measures of Damages or as Limits on Recovery
552(1)
Accounting for Overhead in Repairs Cases
552(1)
Direct Costs of Repairs
552(1)
Overhead Costs Attributable to Repairs
553(1)
The overhead claim
553(1)
Rejection of overhead claims
553(1)
Acceptance of overhead claims
554(1)
Overhead and profits recovery
554(1)
The simple calculation
554(1)
The cumbersome calculation
554(1)
Why the gross profit recovery is right
555(1)
Proof; spurious overhead
555(1)
Credits for Appreciation in Value Resulting From Repair or Replacement
555(1)
General Rule: Deduction for Increased Value
556(1)
Deduction allowable
556(1)
Types of increased value
556(1)
Qualifications to the rule
556(1)
Proof of Enhanced Value: Accounting Depreciation vs. Market Value
557(1)
Accounting for enhancement by use of diminished market value test
557(1)
Accounting for enhancement by use of depreciation formulas
557(1)
Depreciation formulas
557(1)
Intuitive and other adjustments for depreciation
558(1)
Cases demanding extraordinary proof or extreme degrees of depreciation
558(1)
Calculating Depreciation Adjustments
559(1)
Depreciation
559(1)
``Appreciation''
559(1)
Additional adjustment when plaintiff will not realize enhanced value immediately
559(1)
Integral parts of a larger whole
560(1)
Credits for Return of Converted Chattel or Its Use in Plaintiff's Interest
561(1)
Special or Consequential Damages for Harm to, Taking or Destruction of Personal Property
Special or Consequential Damages Generally
561(1)
Loss of Profits and Other Loss of Use Claims
561(1)
Measures: Loss of Profits, Increase of Expense
561(1)
Profits and increased expenses recoverable
561(1)
Proof required
561(1)
The avoidable consequences rules
562(1)
Duplication
562(1)
Measures: Cost of Hiring a Substitute Chattel-``Lease-in'' Costs
562(1)
Rental value distinguished; rule
562(1)
Recovery when no substitute is actually hired
562(1)
Limited recovery for overworked substitutes
563(1)
The spare boat doctrine
563(1)
Measures: Rental Value-The ``Lease-Out'' Value
563(1)
Rental value vs. substitute chattel cost
563(1)
Rental value as general damages
564(1)
Measures: Interest
564(1)
Mandatory or optional measure
564(1)
Prejudgment interest rules
565(1)
Probable Use-Market Value of the Use or Actual Loss?
566(1)
Three types of limited loss
566(1)
Brooklyn Terminal
566(1)
Private automobile cases
567(1)
Other commercial chattels
567(1)
General damages/special damages dichotomy and the actual loss problem
568(1)
The anomaly in lost use cases
568(1)
Choosing a measure of damages
569(1)
The interest compromise
569(1)
Characterization and the Question of Deductions
570(1)
Erroneous characterizations as rental value claims
570(1)
AT & T v. Connecticut Light
570(1)
The deduction problem
570(1)
Conversion and Destruction Cases
571(1)
Traditional conversion rule
571(1)
Destruction rules
571(1)
Contemporary rules
571(1)
Time Period
572(1)
Intangible and Sentimental Losses; Emotional Harmsand Punitive Damages
572(2)
Special Property: Pets and Other Animals
574(1)
Other Personal Property
575(1)
Unique Goods and Those Without Market Value
In General
575(1)
Property Used in Production of Income
576(1)
Major Factors in Valuing No-Market Income Property
576(1)
Depreciation
577(1)
``New for old''
577(1)
Depreciation and the Standard Oil Case
577(1)
Property Held for Personal Use
577(2)
Property With Artistic or Historic Value
579(1)
Use of Market Value
579(1)
Markets for unique historical and artistic items
579(1)
Where there is no market
579(1)
Artist's Remedies for Alteration of Art after Sale: ``Moral Rights' Legislation
580(1)
Common law and civil law
580(1)
Statutory changes
581(1)
The federal Visual Artists Act
581(1)
Remedies under the federal statute
582(1)
Salvage Value of Art and ``Moral Rights of Artists''
582(1)
Diminished value rule
582(1)
Dilution of artist's standards or goodwill by sales of damaged work
582(1)
Moral right and economic waste
582(1)
Wholesale or Retail Value of Art
583(1)
Appended Note to § 5.16(4)
583(1)
Note on Remedies Under State Moral Rights Statutes Possibly Preempted Under Federal Law
583(1)
Specific Recovery of Chattels
Generally
583(1)
Replevin: Recovery at Law and Due Process
583(1)
Traditional Procedure
583(1)
Constitutional Limitations
584(2)
Injunction: Equitable Recovery of Chattels
586(1)
Inadequate Legal Remedy
586(1)
Provisional Equitable Relief and Constitutional Requirements
587(1)
Restitution in Money
Waiver of Tort and Suit in Assumpsit for Conversion
588(1)
Measure of Recovery in Assumpsit for Converted Chattels
589(1)
Sale Price and Market Value
589(1)
General rules
589(1)
Variations: market value of goods sold
590(1)
Variations: subjective value to converter
590(1)
Savings to the Defendant
590(1)
The Olwell case
590(1)
Observations on Olwell
591(1)
The Ablah case
591(1)
Profits of the Defendant From Use of Goods
591(1)
Profits generally
591(1)
Measuring the benefit
592(1)
Attributing benefit to plaintiff's goods rather than to defendant's labor
592(1)
Constructive Trusts and Equitable Liens
592(1)
Equitable Relief and Its Advantages
592(1)
Relief Against Fiduciaries
593(1)
Non-fiduciary Cases
593(1)
Reasons for Limiting Equitable Relief
594(1)
Adequacy of Legal Remedy
594(1)
Adequacy Test in Fiduciary Cases
594(1)
Is the Legal Remedy Adequate in Non-fiduciary Cases?
594(1)
Judicial Response to Adequacy Test in Non-fiduciary Cases
595(2)
Interference with Economic Rights
Misappropriation of Money-Tracing
Conversion and ``Assumpsit''
597(1)
Constructive Trusts, Equitable Liens and Subrogation in General
598(1)
The Necessity of Tracing
599(1)
Tracing or Identification Required
599(1)
Tracing Monies; Debt vs. Constructive Trust
599(1)
Swollen Assets
600(1)
Circumstantial Evidence in Tracing
601(1)
Mingled Funds
601(1)
Tracing to a Commingled Fund
601(1)
Proportionate share in the fund
601(1)
Property purchased by use of the entire fund
602(1)
Rules for Tracing After Withdrawals
602(1)
First in, first out rule
602(1)
Hallett Rule: wrongdoer's funds withdrawn first
602(1)
``Evidence'' tracing to withdrawals
603(1)
Option rule
603(1)
The Restatement Proportionate Shares Rule
604(1)
Limits on Tracing to a Fund Partially Depleted and Restored--The Lowest Balance Rule
605(1)
Trust or lien on fund's lowest balance
605(1)
Denial of recovery where low balance not provable
605(1)
Computing low balance
605(1)
Wrongdoer's purpose to restore trust funds
606(1)
Mingling Funds of Several Victims
606(1)
Assessing the Tracing Problem
607(1)
Injunctive Recovery of Money--Freezing Assets
607(5)
Patent Infringement
Substantive Background
Summary of Remedies
Compensatory Damages
Restitution, Including Infringer's Profits
Injunctive Relief and Destruction of Infringing Articles
Equitable Defenses
Attorney Fees
Punitive and Multiple Damages
Copyright Infringement
Substantive Background
Summary of Remedies
Compensatory Damages
Restitution, Including the Infringer's Profits
Injunctive Relief and Destruction
Equitable Defenses
Attorney Fees
Punitive and Multiple Damages
Trademark Infringement
Substantive Background
Summary of Remedies
Compensatory Damages
Restitution, Including the Infringer's Profits
Injunctive Relief and Destruction of Infringing Goods
Equitable Defenses
Attorney Fees
Punitive and Multiple Damages
Misappropriation of Intangible Work Product Not Protected by Copyright or Patent
Misappropriation: Scope and Substantive Background
Privately Communicated Ideas: Submission of Ideas in Expectation of Payment
612(1)
Elements of a Claim
612(1)
Submission of ideas
612(1)
Elements of the claim
612(1)
Publicly Communicated Ideas or Work Products: Misappropriation
613(1)
Substance and Remedy
613(1)
Substantive and remedial interaction
613(1)
General rule
613(1)
Interference with Contracts and Opportunities Generally
Scope and Substantive Background
Damages
613(1)
Restitution
614(1)
Wrongdoer's Gains Recoverable
614(1)
Injunction and Specific Peformance
614(1)
Against the Contracting Party
614(1)
Efficient Breach and Remedies for Interference With Contract or Opportunities
615(1)
Interference by Wrongful Acquisition of Property at Death of Another
Types of Claims
615(1)
Forms of interference: murder, fraud, and other wrongs
615(1)
Relevenace of factual differences
615(1)
Interference by Unconstitutional Regulation of Land Use: ``Regulatory Takings''
Substantive Background
Damages
Injunctions
Interference by Unconstitutional Regulation of Land Use: ``Regulatory Takings''
Substantive Background
Taking by Regulation
616(1)
Diminished Rental Value or Equivalent
616(1)
Civil Rights Theories-Dne Process or Equal Protection
Limiting Recoveries to Special Damages
Wrongful Discharge and Job Discrimination
Scope, Background and Summary
617(1)
Traditional At-Will Employees and Common Law Wrongful Discharge
617(1)
Advent of Statutory Law
618(1)
Strategy Issues
618(1)
Law and Equity
619(1)
Summary
619(1)
Common Law Wrongful Discharge
Statutory Wrongful Discharge: The Legislative Background
Statutory Wrongful Discharge-The Remedies
Statutory Job Discrim.ination and Equity: Jury Trial
Statutory Job Discrimination and Equity: Discretion
Statutory Job Discrimination and Equity: Equitable Defenses
Lawyer Malpractice
Context and Scope
620(1)
Primarily an economic tort
620(1)
Non-representational lawyer torts
620(1)
Representational settings
620(1)
Litigation malpractice
620(1)
Damages Summary
620(3)
Bad Faith Breach of Contract
Invasion of Civil Rights and Dignitary Interests
Dignitary Invasions Generally
Background and Scope
623(1)
Presumed and General Damages
624(2)
Remedies for Defamation
Substantive Background
626(1)
Summary of Remedies
627(1)
Presumed or General Damages Under Common Law Rules
628(1)
Constitutional Limits on Presumed and Punitive Damages
629(1)
Presumed or General Damages: Relationship to Emotional, Reputational, and Nominal Damages
630(1)
The Free Standing Claim for Emotional Distress Damages
630(1)
Emotional Distress Without Defamation: Constitutional Concerns
630(1)
Constitutionally permissible
630(1)
Reputational Harm Generally
631(1)
Reputational Harm---Understanding and Belief of Accusations
631(1)
Reputational Harm-Prior Reputation, Prior Publications, and the Libel Proof Plaintiff
631(1)
Reputational Harm-Retraction
631(1)
Economic Damages
631(1)
Punitive Damages
632(1)
Restitution
632(1)
Publisher's Profits in Non-defamation Cases
632(1)
Non-monetary Relief: Injunction, Reply, and Declaratory Judgment and Reform Proposals
632(1)
Injunctions denied
632(1)
Free speech
633(1)
Expungement orders
633(1)
Retraction and Right of Reply
634(1)
The Annenberg Proposals
634(1)
Remedies for Other Dignitary Claims
Dignitary Torts Generally
635(1)
Dignitary Torts: Damages
635(1)
Presumed General Damages
635(1)
Presumed damages rules
635(1)
Application to particular torts
636(1)
Constitutional Limits Generally
637(1)
The Special Case of Privary Invasion
638(1)
Injunctive Relief
638(1)
General Rules
638(1)
Traditional view: no equitable protection
Contemporary view
638(1)
Adequacy of legal remedy
638(1)
Grounds for denial of injunction
638(1)
Constitutional Civil Rights Torts
Scope and Substantive Background
Presumed General Damages
638(1)
The Federal Rule against Presumed Damages
638(1)
The rule in Carey v. Piphus
638(1)
Resolving the ambiguity: Stachura
639(1)
What Counts as Actual Injury?
640(1)
No injury in rights violation
640(1)
Emotional and other consequences of a rights violation
640(1)
Compensatory and Punitive Damages
640(1)
Injunctive Relief
640(1)
``Private'' or Individual Injunctions
640(1)
Structural or Institutional Injunctions
641(1)
Re-structuring institutions
641(1)
Bi-polar vs. representative or ``legislative'' litigation
641(1)
Terminal remedies vs. ongoing administration
642(1)
Judicial supervision of institutional reform; masters and receivers
642(1)
Right-remedy: correlation vs. dis-correlation
643(1)
Remedies for rights vs. remedies against social attitudes
644(1)
Comment on Structural Injunctions
644(1)
Attorney Fees and Remedial Strategy Issues
645(2)
Personal Injury and Death
Damages for Personal Injury
Damages for Personal Injury
647(1)
Compensation Elements Generally
647(1)
Compensatory, lump-sum awards
647(1)
Elements
647(1)
Permanent or future harm
647(1)
Elements apply in injury claims generally
648(1)
Limits and Adjustments
648(1)
Limits; attorney fees
648(1)
Adjustments for delayed payment
648(1)
Adjustments for inflation and present value
648(1)
Comparative fault reductions
649(1)
Tax savings adjustments
649(1)
Avoidable consequences and collateral sources
649(1)
Earning Capacity and Lost Income
649(1)
Earning Capacity---Wage Distinction
649(1)
Recovery for wage and other income loss
649(1)
Recovery for impaired earning capacity
649(1)
Rules applied
650(1)
Homemakers
650(1)
Medical and Other Expenses
650(1)
Expenses Generally
650(1)
General rule
650(1)
Diagnostic, Medical Monitoring or Medical Surveillance Expenses
651(1)
Recovery for diagnosis in absence of symptoms
651(1)
Medical surveillance
651(1)
Mental and Physical Pain and Suffering
652(1)
Recoverability
652(1)
Pain award required
652(1)
Emotional states produced by injury
652(1)
Loss of enjoyment in life
653(1)
Is loss of enjoyment independent of pain and suffering?
653(1)
Is consciousness of pain or loss required?
654(1)
Recovery for distress at reduced life expectancy
655(1)
Traditional view: no additional independent recovery for reduced expectancy
655(1)
Cases allowing recovery for reduced expectancy independent of emotional or pecuniary harm
656(1)
Fear of Future Harm
656(1)
Types of recovery for future heam
656(1)
Fear recovery permissible
656(1)
Where there is no present injury or tort
657(1)
Abolishing or Limiting Pain and Suffering Awards
657(1)
Proposals and statutes
657(1)
Criticisms: overdeterrence without compensatory function
658(1)
Criticisms: no measurement, unfairly inconsistent awards
659(1)
Limited symbolic value of pain award
659(1)
Compelled purchase of insurance
659(1)
Financing litigation costs with pain awards
659(1)
Consortium
660(1)
Punitive Damages
661(1)
Future Damages
661(1)
The Special Cases of Wrongful Pregnancy, Wrongful Birth, and Wrongful Life Claims
Substantive Background
661(1)
Wrongful conception or pregnancy
661(1)
Wrongful birth
661(1)
Wrongful life
662(1)
Wrongful Birth, Wrongful Life and Misadoption
662(1)
Child-rearing expense
662(1)
Pain and emotional distress
663(1)
Wrongful Conception or Pregnancy
664(1)
Generally: expense, wage loss, pain and distress
664(1)
Child-rearing expense-the majority
664(1)
Child-rearing expense-the minority
665(1)
Genetic defects in wrongful pregnancy cases
666(1)
Offsets
666(1)
Offsets; the ``benefits'' rule
666(1)
Wrongful pregnancy and presumed benefit
666(1)
Wrongful pregnancy and ``actual'' benefit
667(1)
Wrongful pregnancy: emotional benefits offsetting economic loss?
667(1)
Wrongful pregnancy: undiminished recovery of child-rearing expenses
667(1)
Wrongful birth
668(1)
Comment
668(1)
Avoidable Consequences-``Mitigation'' of Damages
669(1)
Wrongful Death and Survival Actions
Substantive Background and Remedial Summary
670(1)
Substantive Common Law Rules
670(1)
Three rules
670(1)
Effect
671(1)
American Survival and Death Statutes
671(1)
Judge-made claims
671(1)
Wrongful death statutes
671(1)
Survival statutes
672(1)
Hybrid statutes
672(1)
Changing Purposes and Enduring Problems
672(1)
Social welfare purposes
672(1)
Property protection purposes
672(1)
Maldistribution of dependents' recoveries
672(1)
Pecuniary vs. non-pecuniary claims
673(1)
Survival Statute Damages
673(1)
Two forms of survival actions
673(1)
General rule
673(1)
Exclusion of particular elements
673(1)
Recovery of particular elements
673(1)
Punitive Damages
674(1)
Wrongful Death Statute Damages-Summary
674(1)
Wrongful Death Statute Damages-Economic Damages
674(1)
Non-Economic Damages
675(1)
Nominal Damages, Punitive Damages, Interest
675(1)
Death Damages-Damages Affected by Events Subsequent to Death
675(1)
Post-death Changes in Damages Generally
675(1)
Are damages fixed at the time of death?
675(1)
Events bearing on damages to survivors
675(1)
Remarriage of a spouse, death of a survivor and altered needs of dependents
675(1)
Adjustments: Delayed Payment of Past Damages - Interest
Adjustments: Future Damages: Reduction to Present Value and Inflation Adjustment
Summary
676(1)
Adjustments for Future Damages Generally: Establising the Loss Period
676(1)
Loss Periods Generally
676(1)
Relevance of loss period
676(1)
Loss periods in permanent injury cases
676(1)
The Life Expectancy Loss Period
676(1)
Mortality tables admissible
676(1)
Nature of mortality tables
676(1)
Limits of mortality tables
677(1)
Individualized health information
677(1)
Prejudicial health information
677(1)
Policy Issues on Mortality Tables
677(1)
Ethnic and gender distinctions
677(1)
Implications of a compensatory purpose
678(1)
Gender discrimination rulings on mortality tables
678(1)
Reduction to Present Value
Inflation and Loss of Increased Future Income
Periodic Payments, Structured Settlements and Court Ordered Funds
Adjustments: Benefits to the Plaintiff
Summary
Direct Benefits to the Plaintiff
Collateral Source or Collateral Benefit Rule
Plaintiff's Income Tax Benefits
679(1)
Adjustments: Avoidable Consequences and Comparative Negligence
Apportionment Systems: Casual Apportionment, Avoidable Consequences and Comparative Fault
679(1)
Avoidable Consequences Rules: Minimizing Damages
680(1)
Comparative Negligence
680(2)
``Seat Belt'' Defenses
682(1)
Statutory Caps on Damages-``Tort Reform'' Limits
Summary
683(1)
The tort reform movement
683(1)
Tort reform changes
683(1)
Types of statutes
684(1)
Types of Damages Capped
684(1)
Noneconomic limits only
684(1)
Limit on recovery of actual damages
684(1)
Dual caps
684(1)
Types of Cases or Defendants to Which Cap Applies
684(1)
Application to cases generally
684(1)
Application of specified claims or defendants
685(1)
Indirect Caps and Substitute Compensation Systems
685(1)
Constitutionally
686(1)
Statutes unconstitutional
686(1)
Statutes constitutional
686(1)
Construction
687(1)
Effects
688(1)
Alternatives
689(1)
Restitution in Personal Injury Cases
Murder-and-inherit cases
689(1)
Murder-and-publish cases
690(1)
Adoption of ``Son of Sam'' statutes
690(1)
Effect on wrongdoer's profits
690(1)
Effect on victim's recovery
690(1)
Constitutional challenges to the statutes
690(2)
Equitable Relief in Personal Injury Claims
692(2)
Summary
692(1)
Injunctive Enforcement of Liability-Enjoining Payment
692(1)
Securing payment before judgment
692(1)
Injunctive creation of medical monitoring funds
692(2)
Frauds and Misrepresentation
Substantive Background and Remedial Summary
Damages for Deception
Damages Measure in Intentional Fraud Cases
694(1)
In General
694(1)
The ``Out-of-Pocket'' Measure
695(1)
General damages: out-of-pocket measure
695(1)
Special meaning of ``out-of-pocket''
695(1)
Example of out-of-pocket measure
695(1)
The ``Loss of Bargain'' Measure
695(1)
General damages: the benefit of the bargain or loss bargain measure
695(1)
The ``value'' form of the loss of bargain measure
696(1)
Example of the value form
696(1)
The ``cost''form of the loss of bargain measure
696(1)
Example of the cost form
696(1)
Flexible Measures
697(1)
Measure optional with the plaintiff or flexibly applied by the court
697(1)
Consequential Damages
697(1)
Special or consequential damages
697(1)
Measures of Damages for Negligent or Innocent Representation
697(1)
Liabilities for innocent misrepresentation
697(1)
Rescission for innocent misrepresentation
697(1)
Recovery of out-of-pocket damages for innocent representations
698(1)
Consequential or Special Damages
698(1)
Specials Recoverable in Addition to General Damages
698(1)
Emotional Distress Damages in Misrepresentation Cases
698(1)
Interests Protected-General Rule
698(1)
Emotional distress recovery denied
698(1)
Emotional distress recovery allowed
699(1)
Scope of the rule against emotional distress recovery
699(1)
Punitive Damages in Misrepresentation Cases
699(1)
Limitations of Damages under Causation and Proximate Causation Doctrines
699(1)
Scope of Risk and Loss Problems
699(1)
Cause in Fact
700(1)
The but-for rule
700(1)
Transaction causation where same loss would have occurred anyway
700(1)
Transaction causation where loss causation can also be fairly assumed
700(1)
When defendant could have fulfilled his duty by either a casual or non-casual act
701(1)
Proximate Cause: Losses Outside the Risks Associated with the Representation
702(1)
Cause-in-fact with unrelated losses
702(1)
The factory explosion example
702(1)
Transaction causation, price causation
702(1)
Four Approaches to the ``Proximate Cause'' Problem
702(1)
Allowing full recovery
702(1)
Denying all recovery
703(1)
Full recovery in limited cases: misrepresentation interpreted broadly to cover all risks
704(1)
Proximate cause approach: allowance of true general damages
704(1)
Segregating Misrepresentation Damages from Extraneous-Force Damages
705(1)
Market value at purchase date as basis
705(1)
General (unrealized) damages
706(1)
Out-of-Pocket measure example
706(1)
Loss of bargain measure example
707(1)
Comment
707(1)
Restitutionary Remedies for Deception: Rescission, Constructive Trusts and Other Remedies
Recission and Restitution
708(1)
Is Damages Causation Required to Suppoprt Rescission?
708(1)
Existence of Damage as a Prerequisite to Restitution
708(1)
General rule
708(1)
``Proximate cause'' limits
708(1)
Avoiding proximate cause limits by claiming rescission?
708(1)
The damages solution
709(1)
Restoration Required of the Plaintiff
709(1)
Restitution Required of the Defendant
709(1)
Restitution Allowable
709(1)
Benefits to be restored to the plaintiff generally
709(1)
Third person liability for restitution
710(1)
Recovering defendant's gains from a sale
710(1)
Gains the plaintiff would not have made
711(1)
Gains the defendant would have made anyway
711(1)
Recovering appreciation in value in excess of defendant's gains-possible options
711(1)
---The Rothko case
712(1)
Restitution Plus Damages: Election of Remedies
Traditional Rules Generally
712(1)
General rule
712(1)
Examples
712(1)
Election rules inapplicable to inconsistent theories
713(1)
Rationales for Election Doctrine
713(1)
The duplication theory of election doctrine
713(1)
The first rule: the either/or rule
713(1)
The second rule: pre-trial election forced
713(1)
Nontraditional Recoveries
714(1)
Allowing both restitution and compensatory consequential damages
714(1)
Restitution plus loss-of-bargain damages
714(1)


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