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Remedies (Law 0368) Outline

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Sandra Watson
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University of Memphis

Remedies (LAW 0368)

INTRODUCTION: 1/10 BASIC REMEDIAL TOOLS/ REMEDIES AT LAW & IN EQUITY
 What are the doctrinal rules/Substantive rights involved?
 What remedies are available? Focusing on common law remedies for this class.
 When multiple remedies are available, which remedy/combo of remedies is the best? (what’s most difficult/costly to prove?)
 Once we have a sense for the doctrinal rules, what defenses/counterarguments might be raised?
2 overarching principles (they work in tandem):
1- 3 types of remedies
a. First, Damages
b. Restitution
c. Finally, injunctive relief
i. Temporary, permanent
2- Consider first legal remedies, & then go to equitable remedies
a. legal- damages, restitution
b. equitable- restitution, injunction, specific performance
i. 3 types of injunction: TRO (or restraining order), preliminary injunction, permanent injunction
Generally:
 The Broad Principles of remedial law:
o (1) compensate for rights, but avoid under- or over-compensation
o (2) avoid economic waste
o (3) maintain a degree of efficiency in administering remedies
D: What remedy will I receive if I win? P: What remedy must I provide if I win?
Types of Remedies: (p. 3-6)
“Preventive” AKA Injunctions: prevents harm before it happens
 Policy: dont wanna restrain B but also dont wanna make A suffer damages (benefit cost econ. test)
 TN Rule Civ. Pro 65.01: Injunctive relief may be obtained by (1) restraining order, (2) temporary injunction, or (3)
permanent injunction in a final judgment. A restraining order shall only restrict the doing of an act. An injunction
may restrict or mandatorily direct the doing of an act.
o So obvi restraining order is only negative but others can be either
 TN Rule Civ. Pro 65.02:
o (1) Every restraining order or injunction shall be specific in terms and shall describe in reasonable detail, and
not by reference to the complaint or other document, the act restrained or enjoined.
 Notice is important here
o (2) Every restraining order or injunction shall be binding upon the parties to the action, their officers, agents
and attorneys; and upon other persons in active concert or participation with them who receive actual notice
of the restraining order or injunction by personal service or otherwise.
 Basically everyone who gets notice of this is bound- not just the parties but also their agents must follow
this order
 Why do they need notice? Due process & fundamental fairness
 Fed Rule Civ Pro 65: TRO, preliminary injunction, permanent injunction.
 Types of injunctions
o Negative v. affirmative
 Negative: don’t do X (don’t sell painting, knock down building) (restraining order is only negative)
 Cts like better b/c easier to enforce than affirmative
 Affirmative: do X (rehire P against whom u discriminated, tear down building)
Interlocutory ( “ TRO, prelim., permanent injunction (“Extraordinary relief” b/c not based on full trial on the merits)
 Interlocutory relief is expedited relief for a short term that a court may give before final adjudication of a case on the merits
 ABUSE OF DISCRETION STANDARD
 TRO: preserves status quo to prevent irreparable harm
o Smith: ask for TRO when bulldozer is warming up and heading towards building
o Negative: preserving- saying DON’T do anything
o Short term until the time of hearing (normally 2 weeks)
o concerned about someone taking action that can’t be undone so wanna freeze things

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Remedies (LAW 0368) Remedies outline

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