Remedies - Syllabus - Spring 2021

A summons



SYLLABUS - REMEDIES - SPRING 2021

Prof. George Conk
Senior Fellow, Stein Center for Law & Ethics
gconk@law.fordham.edu 

  
LIVE  Via ZOOM  

 [all classes are recorded - but live Zoom sessions must be attended to satisfy ABA good and regular attendance requirements]

Mondays and Wednesdays 2:30 - 3:55
 VIA ZOOM  [no class February 15 and March 10]

ZOOM CLASS MEETING ID:   https://fordham.zoom.us/j/93249200772

Passcode: remedies

Absences: advance notice via email required.

Zoom office hours:   by appointment
 

All page references are to:
Weaver, et al.  Remedies -   A Contemporary Approach
Fifth  Edition (West Academic Interactive casebook series)   
 ISBN:  978-1-68467-575-3

Learning objectives (Dropbox)

  

There are two pages on my blog Torts Today dealing with course requirements.
The first is Policies - which has the grading options (take-home exam, term paper, UCWR), etc.  
The second is this syllabus page with the proposed schedule, reading assignments, etc.
 
Powerpoint Slides are used in class.  I will provide a copy via email at the time of class and I will post the slides on this syllabus page.
The slides are not a course outline.  They contain points I want to highlight, discussion questions, resources, etc.  

You can access the ebook version of the casebook via West Academic. 
Much of the material will be accessed as links on the TortsToday blog or in email from me.

The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  Oliver Wendell Holmes, Jr.  The Common Law (1881)

Week 1

What do presidents do?

Article II, Section 1

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Article II, Section 3:

...he shall take Care that the Laws be faithfully executed..

Addresses- Biden, Lincoln, Obama, Trump Blogpost

What lessons do you draw from today's inaugural address? From the Gettysburg and other Presidential addresses?

SLIDES: Inaugurals

What do Judges Do?

 
"The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding....
 We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it..., not even Mr. Herbert Spencer’s Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."
Oliver Wendell Holmes, Jr. - The Path of the Law (1897)

Read blogpost: Life and death - complicity and conscience 

Watch: John Roberts - Baseball Umpire analogy VIDEO




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

 Are judges politicians in robes?
SLIDES: Are judges partisans?

John Roberts has said that there are no Republican judges or Democratic judges, just judges.  

The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court  By Marty Lederman [Georgetown] Balkinization - October 6, 2018

Background resource: The Nature of the Judicial Process   Benjamin N. Cardozo (1921) Full text of all four lectures



Week 2

Judicial Review 


Epidemics and the Law
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
Be prepared to say which Justice is closest to your view and why?
Cuomo - Small gatherings are the big threat now: VIDEO

Leave well enough alone: 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 most of California Governor Gavin Newsom's emergency orders. Harvest Rock church has filed an "emergency" application for relief in the Supreme Court.
Who should the Biden/Garland Justice Department back?

Background:
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


What 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.    
 

A vaccine mandate?

 As the virus surges, and hospitals in some places are exhausted.

When and how should the law's commands be invoked?  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?

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

 How New York City Vaccinated 6.3 million in less than a month in 1947

Red States and Covid Vaccination Mandates - Michael Duff Workers Compensation Law Prof Blog

Michelle Mello proposes that mandates should be considered.  She offers 6 factors: 1) need - if social distancing and masks are insufficient, 2) identification of highest risk groups (see, e.g. CDC), 3) Adequate supply, 4) transparency re risk and benefit, 5) compensation and care for any adverse reactions, 6) slow uptake by the public has made the campaign unsuccessful.

Michelle Mello: Ensuring Uptake of Vaccines for Sars Cov 2 (New England Journal of Medicine)

Pope Francis:  Corona virus vaccines should be available to everyone. National Public Radio

Do you agree with Pope Francis?  Why?  Does the United States have a responsibility to use its production capacity to supply vaccines to poor countries?  At whose expense?

 
 
Week  3  Judicial Review of Statutes, Presidential Orders and Federal Regulations

 What is the source of the right to vote? When can it be taken away?  Does the fact that African Americans and Latin Americans have higher rates of conviction of crimes or poverty than others make restrictions on voting rights a denial of equal protection of the laws? Should inability to pay a fine support a denial of the right to vote? Are "civic rights" such as the right to vote or serve on a jury entitled to less protection than "individual rights"?

Read blog post: Jones v. DeSantis (United States Court of Appeals for the 11th Circuit) Atlanta: 11th Circuit en banc upholds financial restrictions on voting by former felons

See Also:

In Kanter v. Barr:  919 F. 3d 437 (7th Circuit 2019) the Court of Appeals faced two statutes - one federal, one state, which barred convicted felons from owning a gun.  Kanter pleaded guilty to Medicare fraud and agreed to repay the United States $25 million in restitution.  He was barred by statute from owning a gun.  The majority found that Congress had repealed the right of felons to apply to the Bureau of Alcohol, tobacco, and firearms for individual exemptions.  Kanter, backed by gun rights organizations, asserted that the Supreme Court had, in the 2008 Heller v. District of Columbia cases established that the right to bear arms is a personal right rooted in the Second Amendment.  As a non-violent felon neither the state nor the national government could bar him from possession of firearms.

The majority concluded that one convicted of a non-violent financial crime may, as a felon, be barred by a state from possessing a gun. Evidence showed that non-violent felons are more likely to engage in violence than those who have not committed serious crimes.  The two judge majority wrote:

"In sum, the government has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away those convicted of serious crimes. Because Kanter was convicted of a serious federal felony for [Medicare fraud] conduct broadly understood to be criminal, his challenge to the constitutionality of § 922(g)(1) is without merit."

But then Circuit Judge [now Supreme Court Justice] Amy Coney Barrett dissented in Kanter:

[T]he parties [the U.S.A. and Wisconsin have not] introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. " (emphasis added)

"As I explain below, none of these rationales supports the proposition that the legislature can permanently deprive felons of the right to possess arms simply because of their status as felons. The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than "felons"—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness." 

Who has the better of the argument - the majority or Judge Barrett?

Do you agree that "civic rights" such as the right to vote or serve on a jury are entitled to less protection than an "individual right" such as the right to own a gun?

Lecture: Judicial review and the Administrative Procedure Act


Overview of Equitable Remedies

slides : Introduction to Equity
Casebook - * read pages 1 - 37
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

 
Week 4
Ch. 2 -Equitable Defenses

READ: 
pages 38-86
Unclean hands; unconscionability, laches, estoppel

                                                                                                                                                          Ch. 2 Trial by Jury
READ: pages 87 - 108  Brief summary of cases.
READ SLIDES
Why have jury trials been in decline?  Should they be?

Week 5
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)
W.E.B. DuBois  The Freedmen's Bureau, The Atlantic, March 1901

Does consent have any meaning in the employment context?
Read: Skuse v. Pfizer,  N.J. 2020 (Read Syllabus AND Rabner dissent)

In the attorney client setting?
Read opinion of the court: Delaney v. Sills (linked in blogpost):
What should a lawyer tell a client before the client signs the Sills Cummis retainer agreement?
SLIDES -Delaney v. Sills (Dickey)

Writing Assignment: in 100 words explain how a client should be advised  before signing a retainer agreement with an arbitration clause like that in Delaney v. Sills Cummis.


Background

Kindred Nursing Centers v. Clark (U.S. 2017) read syllabus only - for background
Commercial Arbitration Rules and Mediation Procedures - American Arbitration Association
Administrative Fee Schedule - AAA Commercial Rules
Filing fees - New York State Courts
Uniform Arbitration Act-  
National Conference of Commissioners of Uniform State Laws
Uniform Collaborative Law Act National Conference of Commissioners of Uniform State Laws

California 
Assembly Bill 5 - Worker status and independent contractors
Proposition 22 [an initiated state statute] exempts app-based drivers from the employee protections of AB 5

Week 6
Contempt, Sanctions, Enforcement 
SLIDES - Introduction to Contempt of Court  

Ch. 3 The duty to obey: collateral challenges
 The Duty to Obey and the Collateral Bar Rule
READ: Pages 162-187
SLIDES - Contempt of court and the collateral bar rule
You may read the excerpts in the casebook or the full texts:
U.S. v. United Mine Workers330 U.S. 358 (1947)
Walker v. Birmingham388 U.S. 307 (1967)
With which justice would you cast your vote in Walker v. Birmingham?
(200 words)
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 documents:

Background videos:
John L. Lewis - testimony before Congress on the Centralia mine disaster during the time of government seizure of the mines.
John L. Lewis announces miners' return to work...but contempt cases continue
Nina Simone - Mississippi goddamn (3 minutes)
 Birmingham - Good Friday 1963 - Smithsonian channel(2 minutes) 
Alabama 1963 - TV news report (10 minutes)

Watch M.L. King, Jr. on Meet the Press - NBC TV -(1965) discussing civil disobedience  (25 minutes)
 

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

Week 7
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
 Read blog postChelsey Nelson Photography v. Louisville 
Was the injunction against the Louisville LGBT protective ordinance correct?


 
Week 8 - 
Ch. 4 Injunctions  
Read pages 234-283 
Injunctions: Standards, TROs. Persons Bound
Injunctions: Notice and Bond Requirements
SLIDES - NY CPLR and Federal Rule of Civil Procedure 65
SLIDES - Injunctions -Chapter 4 - Part 1
SLIDES - Injunctions - Chapter 4 - Part 2 to page 248
   
STAYS pending appeal
 SLIDES - Stays Pending Appeal
Read: pages 341-346
 Rule 8 Stay or Injunction Pending Appeal - Federal Rules of Appellate Procedure
Steve Vladeck: The Supreme Court Needs to Show its Work - The Atlantic

Week 9
Ch. 4 Injunctions and Declaratory Judgments
Permanent injunctions, framing the injunction, conditional injunctions, Appeals of Injunctions
SLIDES: Permanent Injunctions

Class
Read:
pages 283-328
p. 336-347
Executive summary: Injunctions and Declaratory Judgments - pp. 436-441

 
Week 10 - 11 (4 classes)
The Structural injunction: School integration
Opening lecture: School integration from 1868 to 1968

School Busing:
Metropolitan area remedial busing and other uses and limits of the remedial power.
Lecture - Busing - Swann v. Charlotte Mecklenberg
 

SLIDES - Swann 
Battle for Busing - Charlotte-Mecklenberg - NY Times Retro Report (10 minutes)

 Detroit - Desegregation stops at the city limits
SLIDES - Detroit and Kansas City
 
Read:
pages 396-403 Missouri v. Jenkins
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.

The Resistance
Brown II 349 U.S. 294 (1955)
U.S. v. Jefferson County (1967)
en banc majority opinion and decree - When courts and President aligned
Background 
Recorded class: November 24, 2020 Structural Injunctions - School integration from Brown to Detroit - 1954 - 1974

Week 12

Ch. 5 
RESTITUTION AND UNJUST ENRICHMENT
General principles, defenses, measuring the enrichment,
SLIDES - Ch. 5 - part 1
SLIDES - Ch. 5 - PART 2 Special Restitutionary Remedies

Read: 
pages 443-471
Hypos Mitigating Losses, and The Drifting Boat Rescue, p. 453
Read:
page 474-515 
Read: 520-530
Constructive trusts, equitable liens, priority over other creditors, circumventing debtor exemptions, subrogation


Week 13
Damage remedies
Read:
Restatement Torts, 3rd - REMEDIES - Preliminary Draft #1, October 2020  Appendix "Black Letter Rules"
Casebook pages 531-591
SLIDES - Damages - Part 1
SLIDES - Damages - Part 2
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
Scope of liability/proximate cause - Restatement 3rd, NJ, NY

Resources
NJ Model Civil Jury Charges (Damages - Chapters 6,7,8)
NY Pattern Jury Instructions (Damages - selected)

Week 14 Damages - Mass tort [MDL] and class action settlements

Mass tort settlement ASR DuPuy Hip Implants - settlement website
SLIDES - ASR v/ DePuy/J&J settlement
Resources - Background

George W. Conk - Deadly Dust - Occupational Health and Safety as a Driving Force...69 Rutgers L. Rev. 1139 (2017)
Alexandra D. Lahav, Mass Tort Class Actions - Past, Present and Future, 92 NYU L. Rev. 998 (2017)
NJ Workers Compensation Disability Schedule - 2021

Class action - Settlement of economic losses under the Oil Pollution Act
Deepwater Horizon - BP Gulf Oil Spill settlement
SLIDES BP class action  under the Oil Pollution Act
SLIDES - settlement (2014)
Economic and Property Damage Claims
FAQ
NOAA explainer - Deepwater Horizon
Oil Pollution Act of 1990 - (OPA) key provisions
Prof. John Goldberg  Memo to BP claims administrator Kenneth Feinberg  re extent of BP's civil liability for damages

Resources/Background:
George W. Conk - Diving into the Wreck - BP and Kenneth Feinberg's Gulf Coast Gambit - 17 Roger Williams University Law Review 137 (2012)  ABSTRACT
 Reference Guide on Estimation of Economic Damages

Week 15 - Punitive Damages
Read: pages 805-860
Damages Executive Summary pages 885-886



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