Remedies

Question 1

Mathews v. Eldridge TEST

Answer 1

Mathews v. Eldridge TEST -

○ What process is due when the government itself seeks to effect a deprivation on its own initiative:

1) the private interest that will be affected by the official action;
2) the risk of an erroneous deprivation of such interest through the procedures used and the probably value, if any, or additional or substitute safeguards;
3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Question 2

Interim Injuctive Relief

Answer 2

General Standards:

• Likelihood of success on merits.
• No adequate remedy at law.
• Irreparable harm - if granted/not granted.

Two Kinds:

1. Temporary Restraining Order (TRO): an injunction pending the determination of a preliminary injunction. 65(a)
2. Preliminary Injunction: an injunction pending the resolution of the merits of the litigation. 65(b)

Question 3

Injunctions

Answer 3

1. TRO
   
   • Can be issued ex parte.
   • Time limit - 14 days usually, extendable another 14 days
   • Doehr declared unconstitutional
2. Preliminary Injunction
   
   • throughout trial
   • Supreme Court gold standard
   • briefed and litigated before issued
3. Permanent Injunction
   
   • ruling at verdict
   • Structural injunction - example - prison that is unsafe or unfair, court will issue perm inj requiring the prison fix it.
4. Declaratory Judgement
   
   • A gentler form of relief than an injunction; tells the parties what their respective rights are

Question 4

Attorneys Fees

(5 elements)

Answer 4

1. American Rule: parties must normally pay their own attorneys, win or lose
2. Plaintiffs can often negotiate contingent fee contracts
3. Some statutes provide for fee shifting
4. Two methods for calculating fees:
   
   • Percentage of fund: some percentage of fund recovered without regard to number of hours invested
   • Lodestar: number of hours times reasonable hourly rate (and sometimes a multiplier for exceptional cases)
5. Some courts use percentage of fund but with lodestar cross check

Question 5

Ex parte

Answer 5

• motions for orders that can be granted without waiting for a response from the other side
• Generally, these are orders that are only in place until further hearings can be held, such as a temporary restraining order.
• Typically, a court will be hesitant to make an ex parte motion. This is because the Fifth Amendment and the Fourteenth Amendment guarantee a right to due process, and ex parte motions–due to their exclusion of one party–risk violating the excluded party’s right to due process.

Question 6

Punitive Damages

(4 elements)

Answer 6

1. Unlike criminal sanctions, punitive damages are awarded to the π not the state, over and above any proved damages.
2. Ordinarily available ONLY when the Δ behavior is so outrageous or malicious that it fairly warrants a criminal-like sanction.
3. Sufficient evidence to justify an award of punitive damages? question of law for a court to decide
4. Amount of punitive damages? discretion of the jury.

Question 7

Interim Injunctive Relief TEST

(3 elements)

Answer 7

1. Likelihood of success on merits.
2. No adequate remedy at law.
3. Irreparable harm - if granted/not granted.

Question 8

Attorney Costs

(3 methods)

Answer 8

1. Percentage
   
   • Divorcing it from time spent
2. Lodestar
   
   • Reasonable hourly rate x number of hours x a possible multiplier
3. Contingency Fee - % of recovery if win, zero if lose

American Rule - each party pays legal fees.

• exceptions: by statute, or sanctions.

Fee Shifting - incentive for taking inj/decl cases where there is no money