Syllabus Remedies 2022 spring term

Remedies: Spring 2022

Prof. George W. Conk gconk@law.fordham.edu Rm 7-172

Senior Fellow, Stein Center for Law & Ethics

 See POLICIES for casebook, accountability, due dates, etc.

It is the right of the supreme power to make laws; but further, it is its duty likewise...But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty.

Those rights then which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be be more effectually invested in every man than they are; neither do they receive any additional strength when when declared by municipal law to be inviolable. 

On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.

The remedial part of a law is so necessary a consequence of the former two [declaratory and directory] that laws must be very vague and imperfect without it.  For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.  That is what we mean properly, when we speak of the protection of the law.

William Blackstone, Commentaries on the Law of England, Vol 1 1765

Of the Rights of Persons, § II of the Nature of Laws in general

Article III- U.S. Constitution

1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish... 

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

Weeks 1 to 3 [tentative]

Week 1 – How Judges decide: Precedent, Equity, and the Common law

SLIDES - BIVENS v. Six Unknown Agents

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971)

Egbert v. Boule No. 21-147 

Prof. Jennifer L. Mascott, Antonin Scalia School of Law - amicus brief

DOJ amicus brief

Brief of Amicus Curiae Institute for Justice


The Federal Eviction Moratorium Case

 Eviction Moratoriums Save Lives - GWC

The least competent branch: Scotus blocks life-saving fed eviction moratorium in Alabama Case - GWC


Looking deeper:

Podcast: Supreme Myths - Segall and Mortenson on the eviction moratorium and the non-delegation doctrine.

U.S. v. Texas

DOJ motion to vacate stay [Oct. 2021) of order of District Judge Pitman 

On what basis does the U.S. assert that it has standing to sue Texas?  What is Texas response?  Which is the more persuasive?

 United States v. Texas: Cert petition dismissed as improvidently granted

Background: 

As Supreme Court considers abortion case, can we assume the best about our opponents? | Michael Sean Winters / National Catholic Reporter

Owen Gallogly,  Article III Equity [work in progress]

42 USC 1983 - Civil Actions for Deprivation of Rights

Westfall Act : Exclusiveness of Remedy 28 USC 2679

Stephen L. Vladeck The Disingenuous Demise and Death of Bivens, Cato Supreme Court Review

 Benjamin Cardozo The Nature of the Judicial Process - Lecture IV Excerpts from Cardozo Lecture IV

[Full text] Cardozo Adherence to Precedent. The Subconscious Element in the Judicial Process.

Cooper et al: Roe and Casey Were Grievously Wrong - Harvard Journal of Law & Public Policy (2021)


Week 2 Judicial Review in the plague years

The Pandemic and the Law

 SLIDES 

If there is a right to bodily integrity, where is that located in law?  What constraints can properly be placed on people's choices regarding health care?   At what point does the risk of contagion outweigh individual autonomy?  Politicians necessarily take into account voters.  Are judges similarly obligated?

A roadmap:

The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause by Stephen I. Vladeck  OR  SSRN


The Free Exercise cases

Are gubernatorial pandemic Executive Orders an unreasonable burden on freedom of religion? Are courts competent to make such judgments? 

Brooklyn R.C. Diocese v. Cuomo <<<<Read blogpost and all six opinions of the Supreme Court [11/25/2020]

Be prepared to say which Justice is closest to your view and why?

 

 Justices revive case against NJ Governor's executive order

NJ Limit is well founded  NJ Law Journal Editorial

Do you agree that the New Jersey case is properly distinguished from that of New York?

 

 The 9th Circuit Court of Appeals has upheld 985 F.3d 771 most of California Governor Gavin Newsom's emergency orders.  Are these limitations reasonable?  Or do they place excessive burden on the ability of elected state officials to limit activities based on the advice - however imperfect - of the public health authorities to whom they turn for advice?

 

 

Background:

Laurence Tribe, Michael Dorf: Supreme Court puts religious rights over public health

Cuomo fears overwhelmed hospitals NY Times, November 30, 2020

 

Ideologues on the Supreme Court threaten the nation's health. Michael Sean Winters/National Catholic Reporter

John Fea (Messiah University) - Thoughts on Samuel Alito's Federalist Society Keynote

Mark Joseph Stern - Slate: Supreme Court radically redefined religious liberty in Tandon

 

 The Workplace Vaccine Cases

 SLIDES

When and how should the law's commands be invoked to compel conduct?  Should covid 19 vaccines be mandatory? For everyone? For the elderly? For `essential workers'? Until `herd immunity' is achieved?   For healthcare workers?  Should it be a state by state option? What deference should a judge give to the Senate's disapproval of vaccine mandates?

Should Scotus have narrowed its limits?  Did Scotus majority give proper consideration to the public interest?   Is the different result in the Medicare health workers case coherent?  Is the "major questions doctrine" well founded? Does it give adequate guidance?

Jacobson v. Massachusetts , 197 U.S. 11 (1905)

OSHA Test or Vaccinate Emergency Temporary Standard blocked - NFIB v. U.S. Department of Labor [Otherwise] 

Medicare vaccine Rule allowed Biden v. Missouri [stay lifted]

Showdown at SCOTUS: January 7 

The Court scheduled oral argument in the vaccine cases.  In the Missouri and Louisiana cases [21A240 Biden v. Missouri 21A241 Becerra v. Louisiana] the Biden administration seeks to stay injunctions issued by District  Judges in Louisiana and Missouri barring enforcement of a Medicare/Medicaid measure CMS Mandate [86 Fed. Reg. 61555-01 (November 5, 2021)]

In 21A244 NFIB v. DOL and 21A247 Ohio v. DOL the Court will hear business challenges to the OSHA test or vaccine mandate  In Becerra and NFIB the government seeks to uphold the order of a Sixth Circuit panel allowing the OSHA vaccination Rule to take effect.

Background:

OSHA Emergency Temporary Standard - Large Companies face January 4 Vaccination and Testing Mandate

 SenateVotes to End Vaccine Mandate - NY Times

When is an emergency not an emergency? 5th Circuit Orders a Halt of OSHA EmergencyVaccine and Testing Mandate

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402.

SixthCircuit Court of Appeals Panel (2-1) dissolves stays of enforcement of OSHAVaccinate or Test Emergency Temporary Standard

 

What, if any,  compensation is due front line and essential workers? And their families?  What about family members who are not employed but may have been infected by the covered employee? How could the presumption be rebutted?

New Jersey establishes rebuttable presumption of causation for "essential workers" who contract covid 19.  Senate Bill S 2380  NJ Governor signs EO 192 mandating covid 19 workplace protocols.    

 

 


Week 3 - Roe v. Wade - Dobbs v. Jackson Women's Health - Texas SB 8

Powerpoint slides

The key precedents

Roe v. Wade 410 US 114 (1973)

Planned parenthood of S.E. PA v. Casey, 505 US 833 (19920

John Roberts on precedent - concurring opinion in June Medical Services v. Louisiana (2020)

The Mississippi case

Dobbs v. Jackson Women's Health.  SCOTUS Docket 19-1392

Oral argument

Amicus Curiae: John Finnis and Robert George: Fetal personhood

Justice Barrett's moment of conscience - GWC May 27, 2021

Justice Barrett's Dilemma - GWC October 29, 2021

 

The Texas SB 8 cases

 Whole Women's Health Supreme Court Docket: 21-463

United States v. Texas Supreme Court Docket 21-588

Texas  SB 8 Timeline (ACLU press releases) 

Supreme Court Lets Texas Abortion Ban Case Drag On

JANUARY 20, 2022

Supreme Court Refuses to Block Texas Abortion Ban, Greenlights Bounty-Hunting Scheme

DECEMBER 10, 2021

Supreme Court Will Hear Texas Abortion Ban Cases

OCTOBER 22, 2021

Texas Abortion Ban Goes to the Supreme Court For a Third Time

OCTOBER 18, 2021

Supreme Court Ruling Ends Most Abortion in Texas

SEPTEMBER 2, 2021

Abortion Stops in Texas After Supreme Court Inaction

SEPTEMBER 1, 2021

 Whole Women's Health  v. Jackson - Supreme Court - December 10, 2021

Scotus denies motion to remand matter to District Court. Fifth Circuit - certified state law question to Texas Supreme Court - January 20, 2022 Breyer and Sotomayor dissents

Commentary

Josh Blackman: Sonia Sotomayor's flawed history

Robert George and Christopher Kaczor: Precedent is no obstacle to overturning Roe  

Rodger Citron and Dahlia Lithwick//SLATE: SCOTUS thinks it can end abortion because sexism is solved

Justice Barrett's Dilemma: George Conk

A new era of defiance? 5th Circuit may refer SB-8 to Texas Supreme Court - GWC


WEEK 4 Overview of Equitable Remedies

 Chapter 2 [Weaver]: Equity and Equitable Remedies (Ch.2),  Lecture: Historical background – England and America; natural law vs. positive law, inadequacy of remedies at law; judicial discretion; Equitable defenses: Unconscionability, unclean hands; laches, estoppel


Ch. 2 -Equity and Equitable Remedies 
READ: 
Somerset v. Stewart, 12 Geo. 3 1772
pages 9- 58, 71-74
[you can find the full text of the cases excerpted in the casebook HERE]

slides : Introduction to Equity

Lecture - historical background, equity in the U.S., Equitable remedies today: Standards - conscience, in personam, inadequacy of remedy at law/irreparable harm, discretionary nature of equitable relief

 

SLIDES Equitable Defenses
Discussion questions:
Hypo: Reconsidering the Sheridan Case - p. 44
Hypo: Ill-gotten gains and Child Support - p. 45

Hypo: Illegal Aliens and Back-pay - p.50
Hypo: Estoppel and the Neighbor's Garage - p. 74


Week 5 

Chapter 3 – Enforcement of Equitable Remedies: Civil and criminal contempt of court; jury trial, procedural requirements, collateral challenges

 

READ: Weaver casebook, pages 111- 142

Contempt, Sanctions, Enforcement -  
SLIDES - Introduction to contempt

Civil v. Criminal Contempt

U.S. v. Professional Air Traffic Controllers, p. 111

n  How do civil and criminal fines differ? What are the consequences of the fine being characterized as criminal rather than civil?

What makes the $5,000 fine imposed impermissible?

Yates v. U.S., p. 114

See slide # 7 for discussion questions

Hypo: Sex Abuse Allegations and Disclosure, p.142 and

Innes v. Marzano Lesnevich, N.B. fn. 3

See discussion questions in slides.

Ch. 3 The duty to obey: collateral challenges
SLIDES - The Duty to Obey and the Collateral Bar Rule

 

Read casebook: pages 162-187
 

You may read the excerpts in the casebook or the full texts:

U.S. v. United Mine Workers, 330 U.S. 358 (1947)

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

 

U.S.v. UMWA, p. 163

n  How does the majority reach the conclusion that the Norris LaGuardia Act does not apply?

n  Should the District Court have stayed its order pending resolution of a “substantial” challenge to its jurisdiction?

n  What justifies the injunction and contempt order despite “substantial doubt” about its jurisdiction?

 

 

Walker v. Birmingham, p. 170

See discussion questions at slide 38

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 abusive use of injunctions? Is it needed to preserve order?


Background:

John L. Lewis - testimony before Congress on the Centralia mine disaster during the time of government seizure of the mines.

Nina Simone - Mississippi goddamn

 

Alabama 1963 - TV news report

 

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


NPR 50 years after Letter from a Birmingham Jail 

Historical deep background:

In Selma - the movie - King is just one of many heroes

Rev. M.L. King, Jr., Letter from a Birmingham Jail (1963) 

A Call for Unity by Birmingham Clergymen 

An appeal for law and order and common sense (1963)


WEEK 6

Ch. 4 Injunctions and Declaratory Judgments
SLIDES - Declaratory Judgments
Read pages 189-233
 
Overview -   injunctive and declaratory relief, standards for declaratory relief, standards for injunctive relief - preliminary relief, mandatory and prohibitive relief
Casebook: pages 234-283  [not for classroom discussion)
Rule 65 - Injunctions and Restraining Orders - Federal Rules of Civil Procedure

 Read blog post: Chelsey Nelson Photography v. Louisville 
District Court Opinion 479 F Supp 3rd 543
SLIDES
Was the injunction against the Louisville LGBT protective ordinance correctly issued?



Background on Judicial Review

Catechism of the Catholic Church - Chastity and Homosexuality

Judicial Aggrandizement?  blogpost - George Conk

Americana Administrative Law - Beau Baumann - U.S. Dept. of Justice

Politicians in Robes - Laurence Tribe - NY Review of Books - March 10, 2022

The Supreme Court's Lawless Turn is Making Real Judges' Jobs More Difficult SLATE // By Dahlia Lithwick and Mark Joseph Stern

Week 7 - Arbitration

Arbitration
Opening Lecture: Arbitration, the National Labor Relations Act and the scope of the Federal Arbitration Act
SLIDES - Arbitration and Mediation

Read:
Federal Arbitration Act (FAA)

 
Does consent have any meaning in the employment context?
Read: Skuse v. Pfizer,  N.J. 2020 (Read Syllabus AND Rabner dissent)
Should this exception to the FAA be extended to race, national origin, or religious discrimination?  What is the basis for resistance?

Read Blogpost: Are Uber drivers exempt from the Federal Arbitration Act?  Jaswinder Singh v. Uber Technologies, 3rd Circuit (2019) 939 F.3d 210

Background - The gig economy

Assembly Bill 5 - TEXT 
Prop 22 Undermines Workers rights - North Bay Labor Council
Proposition 22 - App Based Drivers as Independent Contractors - BallotPedia

SB5 and Proposition 22 - Jackson Lewis blogpost (employer side lawyers)

Week 8 - Structural Injunctions - the origins and legacy of Brown v. Board of Education
The Declaration of Independence to 1896

SLIDES - The Founding to the Second Founding to American Apartheid

The Enforcement Acts

Read blogposts:

A First Black Professor Remembers her Segregated Education - NPR (6 minutes)
SLIDES - Brown to New Kent
1954-1968 Massive Resistance to Public School Integration
Brown II 349 U.S. 294 (1955)
U.S. v. Jefferson County (1967)
* en banc majority opinion and decree -
*Judge Griffin Bell's dissent
Discussion questions re Bell dissent



Metropolitan area remedial busing and other uses and limits of the remedial power.
 Busing  
SLIDES 
Read:

Read:
pages 396-403 Missouri v. Jenkins


WEEK 9 - Integration ends at the City Line
Detroit - 
SLIDES - Detroit and Kansas City


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

Background

Video: The Battle for Busing - Retro Report  (10 minutes)

Segregation in suburbia: Levittown's Legacy


Integrating Kansas City schools - the end of the line
Kansas City, Missouri

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.



Week 10

Week 10 Restitution and Unjust Enrichment

Chapter 5: Unjust enrichment, disgorgement, constructive trusts, equitable liens, subrogation

 SLIDES - Restitution - part 1

SLIDES - Restatement 3rd - Unjust Enrichment 

Read: Casebook

Executive Summary, pages 528-530

General principles, Defenses, Measuring the Enrichment, Constructive Trusts and Equitable Liens

 Pages 443-483

Hypotheticals for discussion:

p. 448 Variations on Beacon Homes

p. 449 – The lost tickets

p. 453 Mitigating Losses and The Drifting Boat Rescue

p. 458 Restitution from the Insured

p. 472 More on Beacon Homes

Subrogation Pages 520-526


German Civil Code - BGB (English)


Week 11 - Damages

Read:    

casebook pages 531-611

General damage principles - the basic measure of damages- make whole; fair market value; contract price; Property Damage applying market measures, losses beyond the value of the thing lost - consequential damages

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
Amorita - - an heirloom. slide set 2 


Slides

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


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

Week 13 - Mass Tort Settlements


The DePuy (J&J) ASR Hip Settlement - Brown/Greer Administrators



Settlement Order - Punitive Damages

Law Review Articles on  Mass Tort Litigation

Fallon - Common Benefit Fees 74 LaLRev371 (2014)

Hellerstein, Twerski, Henderson - Managerial Judging (2012) 98 Cornell L. REv. 127 (2012)

17 Roger Williams U. L. Rev. 137 (2012) By George W. Conk

The BP Oil Spill Settlement and the Paradox of Public Litigation  74 La. L. Rev. 397 (2013) By Samuel Issacharoff

George Conk, 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)







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