Remedies - Syllabus - Fall 2024

Benjamin Cardozo in The Nature of the Judicial Process :

A judge “legislates only between gaps. He fills the open spaces in the law. . . [R]estrictions . . . are established by the traditions of the centuries, by the example of other judges, his predecessors, and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law.”

Article III, Constitution of the United States

Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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 Week 1

Tuesday

Read PRINCIPLES - Chapter 1 - Overview - Introduction (pages 1-5) SLIDES - OVERVIEW

Read PRINCIPLES Chapter 2 - Equity and Equitable Remedies (pages 7-15) SLIDES - intro to equity

The Law Courts and the Chancery Courts –  

 

How  should Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.




Thursday:

Justice vs. Positive Law - Arc of Justice? Magna Carta to 1868.

John Locke - 1689 - Second Treatise of Government

Man being born …, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, … hath by nature a power … to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men...

Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation…And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property.

Judge William Blackstone - Commentaries - 1765 

Somerset against Stewart [1772]

Read – speech of Lord  Mansfield at pages 509-510, supra 

Somerset's barrister Serjeant William Davy argued "However, it has been asserted, and is now repeated by me, this air [of England] is too pure for a slave to breathe in : I trust, I shall not quit this Court without certain conviction of the truth of that assertion"

Did Davy win that point?


Declaration of Independence 1776

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. . . .Massachusetts Constitution 1780


Fugitive Slave Clause – 1789

Prigg v. Pennsylvania, 41 U.S. 539 (1842)

pages **48 to**53

13th Amendment

Slides – magna carta to Emancipation in the U.S. (updated and corrected 828 1140 PM)

Resource page – Slavery, Natural law, and positive law

 



Weeks 2 & 3 Administrative Procedure Act 

Second Treatise of Government

John Locke (1689)

Sect. 13.    To this strange doctrine, viz. that [any one in the state of nature may punish another for the evil he has done], I doubt not but it will be objected, that it is unreasonable for men to be judges in their own cases…. And hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men.

I easily grant, that civil government is the proper remedy for the inconveniencies of the state of nature…. But … remember that absolute monarchs are but men; and if government is to be the remedy of those evils, which follow from Men’s being judges in their own cases, … I desire to know … how much better it is than the state of nature, where one man, commanding a multitude, has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases, without the least liberty to any one to question or controul those who execute his pleasure? …

Is John Locke correct? Did Congress overreach in Dodd-Frank?  IS the SEC judge, jury and executioner

Tuesday, September 3

Read:

Administrative Procedure Act 5 USC 552, et seq. Review - particularly the highlighted sections

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)

Congressional Research Service  Judicial review under the Administrative Procedure Act

David French: Overturning Chevron will Rebalance the Constitutional Order

Amicus Brief -Natural Resources Defense Council - in support of respondents in Loper Bright

AFL-CIO - Amicus Brief in Loper Bright

Lecture: Deadly Dust - the struggle for the creation of the Occupational Safety and Health Administration

SLIDES - DEADLY DUST

Slides - Judicial review under the Administrative Procedure Act (pre-Loper and Pre-Jarkesy) 

SLIDES - Remedies- Objectives and Constraints


 

Thursday, September 5  

Are Jarkesy v. SEC  and Loper Bright v. Raimondo victories for liberty or blows to democratic controls ? 

Weaver, Principles of Remedies Law, Right to Trial by Jury, pages 26-30

How competent are juries? Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)  Quimbee video

The King and the Dean: Melvin Belli, Roscoe Pound, and the Common Law Nation - John Fabian Witt


15 USC 77h-1 – authority of Securities and Exchange Commission

15 USC 77t – Injunctions and prosecution of offenses

Securities and Exchange Commission v. Jarkesy (2024)

 

SLIDES  Trial by Jury - 2024 - Common law to Jarkesy v. SEC

Week 3 

Tuesday, September 10

The death of Chevron deference – is it a harpoon in the heart of the administrative state?


SLIDES - Loper Bright Review

*Josh Chafetz – Congress in a post-Chevron world - TESTIMONY

*Adrian Vermeule - Loper Bright Delegation Replaces Chevron Delegation

*Loper Bright – Supreme Court opinions

Reviews of Sunstein and Vermeule, Law and Leviathan:

Conor Casey - Modern Law Review (2021)   

by Paul Gowder: Law & Leviathan

Amicus briefs

Professor Thomas Merrill - amicus brief in support of neither party

Amicus Brief -Natural Resources Defense Council - in support of respondents

AFL-CIO - Amicus Brief


Senator Ted Cruz, Speaker Mike Johnson and 34 other M.C.'s in support of petitioners - Amicus Brief


Thursday, September 12

*Slides - Judicial Supremacy? Chevron and the Major Questions Doctrine

Congressional Research Service: Major Questions Doctrine’

*CRS Update: May 2022 - Major Questions Doctrine

*Two views of the major questions doctrine - Cass Sunstein

Mila Sohoni - The Major "Questions Quartet

Blogpost - Conk, The most dangerous branch? 


Tuesday, September 17

Equity and Equitable Remedies

Read Weaver and Kelly, Principles, Chapter 2 Equity and Equitable Remedies, pages  7- 30

Lecture SLIDES - Equity and Equitable Remedies


 Thursday September 19

Equitable Defenses

SLIDES - Equitable Defenses


Tuesday, September 24 and Thursday, September 26

The abortion battleground 


After the death of Roe v. Wade - Dobbs v. Jackson Women's Health. What next? State and federal responses to Dobbs. 

SLIDES - after Dobbs

Some argue (like the *amicus brief of Catholic  legal philosopher John Finnis and Robert George that "Unborn Children are Constitutional Persons Entitled to Equal Protection of the Laws".  Justice Alito writes that the dissent shows "no regard for a State's interest in protecting pre-natal life".

What will be the consequences of this ruling by the Supreme Court?  Would state laws barring out of state travel? interstate shipment of abortion-inducing drugs?  or  "Facetime" consultation with doctors about obtaining an abortion? be consistent with Justice Alito's majority opinion which declares " it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives".

* Can Women be prosecuted for obtaining an abortion? - read blogpost 

Thursday, September 26

SLIDES - The Comstock Act

FDA Mifepristone Label - January 2023

Office of Legal Counsel, U.S. Dept. of Justice, December 23, 2022:

Application of Comstock Act to Drugs that can be used for abortion

*Vermeule & Casey: The Comstock Act Bars the Mailing of Mifepristone.

*Does the Comstock Act bar the manufacturer of mifepristone from mailing the drug? - read blogpost

*Emily Bazelon - The Comstock Act is a key issue

Does FDA permission to prescribe a drug override state laws banning abortion?

 

 Background

Trump Camp says menstrual surveillance is OK - Talking Points Memo

DHHS Final Rule, April 26 2024, protecting privacy of private health information

Members of Congress object to DHHS Rule protecting privacy of personal health information related to abortion

Impact of Dobbs - Guttmacher Institute

Policy Analysis: Medication Abortion Accounted for 63% of All US Abortions in 2023—An Increase from 53% in 2020

Amicus briefs: The Guttmacher Institute, Its Experts and Partners Call on the US Supreme Court to Follow the Science and Protect Medication Abortion Access 

The new abortion battleground - David S. Cohen et al, Columbia Law Review (2023)

FDA v. Alliance for Hippocratic Medicine, Supreme Court, 2024

Ropes & Gray: Supreme Court preserves status quo in regulation of Mifepristone.

Ohio Constitution referendum protecting abortion right passes

Bloomberg School of Public Health: Alabama Supreme Court Recognizes Wrongful Death Action for Frozen Embryos

NPR: Alabama Governor signs IVF protection bill


Contempt - Tuesday October 1 and Thursday, October 3

Weaver- Principles  of Remedies Law - Chapter 3 - Contempt, pages 31 -55

SLIDES - Introduction to Contempt of Court 

18 U.S.C. 401 Power of Court

Contempt of Congress  2 U.S.C. §§192 - 194 Refusal of witness to testify or produce papers

The "Smith Act", 18 U.S.C. 2385 - Advocating Overthrow of Government - f/k/a Alien Registration Act

Yates v. United States, (1957)

In Re Debs,  158 U.S. 564 (1895)

Gompers v. Buck Stove & Range, 221 U.S. 418 (1911)

United Mineworkers of America v. Bagwell, 512 U.S. 821  (1994) [read syllabus]

*Read blogpost: Strategies of Judicial Aggrandizement

Thursday October 3

*NPR  50 years after Letter from a Birmingham Jail 

Letter from a Birmingham Jail -ML King - 1963

Mississippi goddamn - Nina Simone

Walker v. Birmingham, 388 U.S. 307 (1967)

SLIDES - 1963

SLIDES The Collateral Bar Rule

 See discussion questions at slide **

A criminal defendant can assert the unconstitutionality of the law under which he/she is charged.
But one charged with criminal contempt cannot raise that defense in a criminal contempt proceeding.  He/she must obey the order, challenge the constitutionality of the the injunction in the court which issued the order - and appeal that denial.

Does the collateral bar rule protect people from abusive use of injunctions? 
Is it needed to preserve order?
Were Martin Luther King, and Rev. Wyatt T. Walker justly jailed for contempt of the Alabama court's injunction?  If not - why not?


Background/ Context:

Alabama 1963 - TV news report

 Watch M.L. King, Jr. on Meet the Press (1965) discussing civil disobedience 

Congressional Research Service - Congressional Contempt Power (2017)



Tuesday, October 8   

Restitution and Unjust Enrichment

Restatement of the Law - Restitution and Unjust Enrichment - selected sections

Slides: Restitution, Part 1

SLIDES Restitution, Part 2

Read Chapter 5 – Restitution, page 133-156

 General principles, defenses, measuring the enrichment, Special Restitutionary Remedies – Constructive trusts, equitable liens, subrogation, and statutory liens


Thursday, October 10

Read Weaver, Chapter 8 Declaratory Judgments

 pages 157-164

SLIDES - Declaratory Judgment


Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575 (D.D.C. 1972) 

Tuesday, October 15

The  civil rights injunction 

 A decade after Brown = a stone wall

SLIDES - The Founding to the Second Founding to American Apartheid




Thursday, October 17
*Brown v. Board of Education of Topeka Kansas - Brown II 349 U.S. 294 (1955)
from the opinion of C.J. Warren ^^^^
"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies [fn 4] and by a facility for adjusting and reconciling public and private needs. [fn 5] These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling."


 SLIDES U.S. v. Jefferson County
*Griffin Bell - DISSENT in Jefferson County

 *1961 - Executive Order 10925 - Affirmative action - John F. Kennedy


 
Civil rights act of 1964 - signed July 2, 1964
Title IV  Desegregation of Public Education Civil Rights Act of 1964

 


 



SLIDES - Prologue to Brown
SLIDES Introduction to Integration, part 1 -START at Slide 26
SLIDES - School integration - Founding to Brown
 

 
 
Tuesday, October 22

From Brown v. Topeka (1954) through Charlotte (1972), Detroit (1974), and Seattle (2007)

*How the government built white suburbs 

Walter Cronkite - CBS -  video: The Battle for Busing

SLIDES Swann v. Charlotte Mecklenberg

Read Syllabus: Swann v. Charlotte Mecklenberg [1971]


SLIDES - Detroit & Kansas City

Detroit: Bradley v. Milliken - District Court - excerpt

*Milliken - Syllabus by Clerk, SCOTUS

*Milliken - Marshall dissent

 
Milliken v. Bradley, 418 U.S. 717 (1974)
*Milliken - bullet point highlights

 

RESOURCES
Book Review: Freedom's Dominion by Jefferson Cowie (winner of the Pulitzer Prize - 2023)
The Resegregation of Jefferson County - by Nikole Hannah Jones

Busing - Supreme Court Restricts Equity Powers of District Courts - Elizabeth Warren - Rutgers Law Review - 1975

Segregation in suburbia: Levittown's Legacy
The Color of Law
The Federal role in housing segregation: Economic Policy Institute amicus brief in Texas Department of Housing v. Inclusive Communities Project
Housing Apartheid, American Style

Rothstein Color of Law - Excerpt

Thursday October 24

*White Parents Express Outrage St. Louis Public Radio 
-Francis Howell Schools - St. Louis County, Missouri  - Read article AND Listen to the two audio excerpts linked in the article - the first by a white parent, the second by a Black woman graduate of integrated schools.

Seattle v. Parents Involved, 551 U.S. 701 (2007) Read Syllabus

Kennedy - Concurring

Stevens dissent in Seattle

*Stephen Breyer – dissent in Parents Involved v. Seattle

An alternative: "robust and realistic rational basis review"?
9th Circuit Judge Alex Kozinski concurring opinion in Parents Involved v. Seattle 
Segregation in suburbia: Levittown's Legacy
The Color of Law - Richard Rothstein
SLIDES - Parents involved v. Seattle
SLIDES - Where are we now?
SLIDES Re-segregation - What did Brown accomplish?
Justice David Souter - Constitutional interpretations, 2010
SLIDES - Thomas vs. Breyer


Tuesday October 29 and Thursday October 31
Compensatory Damages

*Seventh Amendment - Constitution of the United States
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

*Read Weaver, Remedies, Chapter 9, DAMAGES 
Remedies - Restatement 3rd, PD 2 App. A Compensatory Damages
*Remedies -  Restatement 3rd - Appendix B  - PD 5
Remedies - 3rd Restatement - PD 5 - 2024 - full text
Restatement 3rd - Torts - Defamation and privacy - TD 3 2023


Compensation or punishment??

* Federal Rules of Evidence 

*Forensic economist report
 Economic loss - Daniel Jones - death 


Deep background 
McCormick - Science, Experts and the Courts, 29 Texas L Rev. 611  (1941)
Joseph Page, Pound, Belli and the Personal Injury Bar, 26 T.M. Cooley L. Rev. 637-679 (2009)
 
Vioxx drug cases - NJ vs. Texas
Mark Lanier - you tube - search "mark lanier harvard tort war stories " 
McDarby v. Merck, NJAD , 401 N.J. Super. 10 (2008) 

Attorney advertising- Carborundum claims

Instructing the jury
*SLIDES - Cause in Fact - Proximate Cause  
Comparative Fault - NJ Model Civil Charge 7.31

California Civil Jury Instructions - Judicial /Council of California
Damages 3900, et seq.
Excerpted 3900-3933   Black Letter only

NJ Model Civil Jury Charges (Damages - Chapters 6,7,8)
Damages - General
8.10Damages — Effect of Instruction — Personal Injury Case Verdict SheetWordPDF
8.11AMedical Expenses (Non Auto)WordPDF
8.11BDuty To Mitigate Damages By Medical And Surgical TreatmentWordPDF
8.11CLoss of EarningsWordPDF
NJ Charge 8.11E - pain and suffering
NY Pattern Jury Instructions (Damages - selected) PJI 2277 to 2320

Scope of liability/proximate cause - Restatement 3rd, NJ, NY

 Mass tort remedies – Thursday November 7 & Tuesday November 12

MDLs – Personal injuries and product liability claims

Occupational disease and third-party asbestos product liability claims

Schedule of disabilities - NJ Workers Compensation Act

Johnson & Johnson hip implant cases- the structured settlement grid

MASS TORT SETTLEMENTS

Mass Tort History - SLIDES

SLIDES - DePuy/ASR Hip Implant Settlement

SLIDES  Ground Zero worksite tort claims

BACKGROUND

Before Black Lung the Hawks Nest Tunnel Disaster Killed Hundreds - NPR, January 20, 2019 7 minutes

Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice , 69 Rutgers U. L. Rev. 1139 (2017)

BY George W. Conk

Alvin K. Hellerstein, D.J., Aaron Twerski, and James Henderson, MANAGERIAL JUDGING: THE 9/11 RESPONDERS' TORT LITIGATION  (2012)

WTC Disaster - Lung Function After 7 years - Video

Billions for mass torts - Litigation Finance - video

Judge Hellerstein - Statement re WTC Cleanup Settlement

Judicial Panel on Multi-District Litigation - 2022 Report

8 USC 1407 MDL

FRCiv Pro 23 - class actions


Philip Landrigan 9/11  Lessons Learned - Worker Health and Safety

Firefighters - presumptions

Pulmonary Function of firefighters after 9/11 Exposure

John Fabian Witt: The Transformation of Work and the Law of Workplace Accidents 1842-1910, 107 Yale L.J. 1467 (1998)

Health trends among 9/11 Responders - 2011 - 2021 - Pre-hospital and Disaster Medicine - Cambridge University

Tuesday November 19

* Aggregate Settlements - SLIDES

THE FEDERAL ASBESTOS PRODUCT LIABLITY MULTIDISTRICT LITIGATION (MDL-875): BLACK HOLE OR NEW PARADIGM? Hon. Eduardo C. Robreno, 23 Widener L. J. 97 (2013)

* MDL 875 - Slide show  Judge Edward Robreno - EDPA (2016)


Amchem Products v. Windsor,  521 U.S.  591 (1997)

Restatement of the Law, 3rd Torts Products Liability (1998) 

' 2  Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

   (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

    (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

    (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. 

 

Environmental Disaster Class Actions – 

the BP Gulf of Mexico Oil spill

November 21




 Environmental Disaster Class Actions for economic loss–the BP Gulf of Mexico Oil Spill
Thursday, November 21
majority  "PATRICK E. HIGGINBOTHAM, Circuit
Judge:
We are asked to abandon physical damage to a
proprietary interest as a prerequisite to recovery for
economic loss in cases of unintentional maritime tort.
We decline the invitation.
"
Rather than limiting recovery under an automatic application of a physical damage requirement, I would analyze the plaintiffs' claims under the conventional tort principles of negligence, foreseeability, and proximatecausation.26I would confine Robins to the "factual contours" of that case: A plaintiff's claim may be barred only if the claim is derived solely through contract with an injured party.
Chapter 1 - Unintentional infliction of economic loss

Slides 




Diving into the wreck: BP and Kenneth Feinberg's Gulf Coast Gambit - George W. Conk, Roger Williams L. Rev. (2012)

Thursday November 21 and Tuesday November 26 
DAMAGES

California Civil Jury Instructions - Damages 3900, et seq.
NJ Model Civil Jury Charges (Damages - Chapters 6,7,8)
NY Pattern Jury Instructions (Damages - selected) PJI 2277 to 2320
Scope of liability/proximate cause - Restatement 3rd, NJ, NY

Questions and Hypos: 
Casey's inhaler, p. 532 - What items of damage will be recoverable by Casey?

Fraud must be plead with particularity.  Why is it treated differently from ordinary civil notice pleading?  
Insider selling - p. 567
 

Slides

Restatement 3rd - Torts - Remedies - Damages - black letter approved 2021 


WTC Disaster - Lung Function After 7 years

The end of the Federal Prosecutions of Trump

SLIDES - Will Donald Trump ever be held accountable?

Have the voters exonerated him?

Discussion Questions

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