Syllabus / class schedule/ reading assignments
Remedies Fall 2019
Prof. George Conk
Senior Fellow, Stein Center for Law & Ethics
gconk@law.fordham.edu
Tuesdays - 6:00 - 8:50
Room 4-04
NOTE: The first meeting of this class will be Tuesday, September 3!!!!
All page references are to:
Weaver, et al. Remedies - Cases, Practical Problems, and Exercises
Fourth Edition (West Academic Interactive casebook series)
ISBN: 978-1-63460-445-1
Learning objectives (Dropbox)
Slides, handouts, and notes
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 page with the proposed schedule, reading assignments, etc.
If you are on call: please present the issues in the case as a defender of the majority. If you are assigned a dissent - defend it. If you are assigned to present other materials - take the same approach. I may assign another to be devil’s advocate.
All should be prepared to discuss the Hypo’s as designated below.
Slides: are used in class. I will provide a printed copy at the time of class and a dropbox link. The slides are not an outline. They contain points I want to highlight, discussion questions, etc.
Laptops: YES. You will need them to access the electronic version of the casebook, slides, and other materials on the internet.
Class 1 Overview and Equitable Remedies
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
Lecture
East Bay Sanctuary Covenant v. Trump
(9th Circuit Court of Appeals, December 7, 2018)
Asylum Act: 8 U.S.C. 1158
Order denying stay of District Court TRO (majority opinion)
Dissent (by Leavy, J.)
Class 2 Ch. 2 -Equitable Defenses
pages 38-86
Unclean hands; unconscionability, laches, estoppel
Class 3
Ch. 2 Trial by Jury
pages 87 - 108
Why have jury trials been in decline?
Arbitration
Lecture: Arbitration and the scope of the Federal Arbitration Act
Should mandatory arbitration clauses in shrink wrap contracts be barred?
Read: blogpost: Uber drivers cannot be compelled to arbitrate OT claims - 3rd Circuit
Kernahan v. Home Warranty (blogpost - read court opinion and NJSBA Argument )
Kindred Nursing Centers v. Clark (U.S. 2017) read syllabus only - for background
Assignment: draft a mandatory arbitration clause in a consumer contract that will pass muster. MAXIMUM 100 words!!!
Chapter 3 Enforcement of Equitable Decrees
Remedies Fall 2019
Prof. George Conk
Senior Fellow, Stein Center for Law & Ethics
gconk@law.fordham.edu
Tuesdays - 6:00 - 8:50
Room 4-04
NOTE: The first meeting of this class will be Tuesday, September 3!!!!
All page references are to:
Weaver, et al. Remedies - Cases, Practical Problems, and Exercises
Fourth Edition (West Academic Interactive casebook series)
ISBN: 978-1-63460-445-1
Learning objectives (Dropbox)
Slides, handouts, and notes
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 page with the proposed schedule, reading assignments, etc.
If you are on call: please present the issues in the case as a defender of the majority. If you are assigned a dissent - defend it. If you are assigned to present other materials - take the same approach. I may assign another to be devil’s advocate.
All should be prepared to discuss the Hypo’s as designated below.
Slides: are used in class. I will provide a printed copy at the time of class and a dropbox link. The slides are not an outline. They contain points I want to highlight, discussion questions, etc.
Laptops: YES. You will need them to access the electronic version of the casebook, slides, and other materials on the internet.
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)
Class 1 Overview and Equitable Remedies
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
Lecture
East Bay Sanctuary Covenant v. Trump
(9th Circuit Court of Appeals, December 7, 2018)
Asylum Act: 8 U.S.C. 1158
Order denying stay of District Court TRO (majority opinion)
Dissent (by Leavy, J.)
Class 2 Ch. 2 -Equitable Defenses
pages 38-86
Unclean hands; unconscionability, laches, estoppel
Class 3
Ch. 2 Trial by Jury
pages 87 - 108
Why have jury trials been in decline?
Arbitration
Lecture: Arbitration and the scope of the Federal Arbitration Act
Read: blogpost: Uber drivers cannot be compelled to arbitrate OT claims - 3rd Circuit
Kernahan v. Home Warranty (blogpost - read court opinion and NJSBA Argument )
Kindred Nursing Centers v. Clark (U.S. 2017) read syllabus only - for background
Assignment: draft a mandatory arbitration clause in a consumer contract that will pass muster. MAXIMUM 100 words!!!
Chapter 3 Enforcement of Equitable Decrees
October 3- recorded class (start at 45:00)
page 109-144
Civil v. criminal contempt
Class 4
Ch. 3 The duty to obey: collateral challenges
pages 172-193, 194 -196
U.S. v. United Mine Workers
Walker v. Birmingham
Background:
Ch. 4 Injunctions and Declaratory Judgments
Civil v. criminal contempt
Class 4
Ch. 3 The duty to obey: collateral challenges
pages 172-193, 194 -196
U.S. v. United Mine Workers
Walker v. Birmingham
Background:
Watch M.L. King, Jr. on Meet the Press (1965) discussing civil disobedience
Historical deep background:
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)
Ch. 4 Injunctions and Declaratory Judgments
October 13, 2020 recorded class. Starts at 14:00
pages 197-242, Hypo 4.21 The Hazardous Waste Incinerator
Overview - injunctive and declaratory relief, standards for declaratory relief, standards for injunctive relief - preliminary relief, mandatory and prohibitive relief
Class 5 - Ch. 4 Injunctions and Declaratory Judgments
pages 235-255
Notice requirement, Bonds
Scope: The national injunction problem: East Bay Sanctuary v. Barr preliminary injunction 7/24/19; limiting scope (9th Circuit 8/16/2019); comments ImmigrationProfBlog 8/16/2019.
See Torts Today blogpost: Supreme Court, over Sotomayor dissent, stays 9/9/19 nationwide injunction issued by Judge Tigar (read Tigar order and Sotomayor dissent - both linked in the blog post)
Where do you fall - with the majority or the dissent?
Ch. 4 Injunctions and Declaratory Judgments
pages 294-327
Permanent injunctions, framing injunctions
Class 6
Ch. 4 Injunctions and Declaratory Judgments
Legislative reapportionment:
Harper v. Lewis Injunctive Order (10/28/19)
Reference:
Harper v. Lewis - complaint
Common Cause v. Lewis full text (excerpt - justiciability) (9/3/19)
Voting rights materials: dropbox
Brennan Center - Harper v. Lewis (resource)
U.S. v. Jefferson County Bd. of Ed., 380 F. 2d 385 (5th Cir, en banc 1967)
Read:
* en banc majority opinion and decree
*Judge Griffin Bell's dissent
See Public school integration page for background
Class 8
School Busing:
Metropolitan area remedial busing and other uses and limits of the remedial power.
* Swann v. Charlotte-Mecklenberg, 402 U.S. 1 (1971)
Detroit - Desegregation stops at the city limits
*Milliken v. Bradley, 418 U.S. 717 (1974)
Forgotten history: how the federal government segregated America - Excerpt from The Color of Law by Richard Rothstein
Class 9
The New York City Specialized High Schools
Christa McAuliffe Intermediate School PTO v. DeBlasio DROPBOX LINK
Motion for Preliminary Injunction - Memorandum of Law
Memorandum of Law in Opposition to Motion for Preliminary Injunction
Opinion and Order - Denying Motion for Preliminary Injunction, etc. 2/25/19
Background
District 3 plan - Video
The elite high schools
The Specialized High Schools Admission Test Overhaul Plan
Test Unrest: New York City's Examination High Schools
by Aaron Saiger 21 City Law 1 (2015)
Specialized High Schools Admissions Could be Delayed - Chalkbeat
Is there a viable solution? - the State constitutional law approach
Fact sheet
Class 10
Ch. 5 Restitution
Executive summary: Injunctions and Declaratory Judgments - pp. 453-458
pages 459-488, Hypos 5.19, 5.20, 5.21
General principles, defenses, measuring the enrichment,
Ch. 5 Restitution - special restitutionary remedies
pages 490 - 499 (499-547 reading only)
Constructive trusts, equitable liens, priority over other creditors, circumventing debtor exemptions, subrogation
Ch. 6 Damage Remedies
pages 549-594 Casey’s inhaler; 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
Class 11
Ch. 6 Damage Remedies
pages 612-666
Limits of market measures
Subjective value, pain, suffering, distress, and loss of joy
Class 12
Ch. 6 Damage Remedies
pages 672-720
Indignity and intangible losses, wrongful death, loss of consortium
Economic losses:
personal injury Mary Smith case
wrongful death Daniel Jones case
Mass tort settlement - ASR DuPuy Hip Implants
Class 13
Ch. 6 Limitations on Recovery
pages 720-765, Hypos 6.55, , 6.5, 6.57, 6.58, 6.59, 6.60
Causation, foreseeability, certainty avoidable consequences and related doctrines, collateral source rule
Background: Reference Guide on Estimation of Economic Damages
Federal Judicial Center - Reference Manual on Scientific Evidence - 3rd edition
pages 197-242, Hypo 4.21 The Hazardous Waste Incinerator
Overview - injunctive and declaratory relief, standards for declaratory relief, standards for injunctive relief - preliminary relief, mandatory and prohibitive relief
Class 5 - Ch. 4 Injunctions and Declaratory Judgments
pages 235-255
Notice requirement, Bonds
Scope: The national injunction problem: East Bay Sanctuary v. Barr preliminary injunction 7/24/19; limiting scope (9th Circuit 8/16/2019); comments ImmigrationProfBlog 8/16/2019.
See Torts Today blogpost: Supreme Court, over Sotomayor dissent, stays 9/9/19 nationwide injunction issued by Judge Tigar (read Tigar order and Sotomayor dissent - both linked in the blog post)
Where do you fall - with the majority or the dissent?
Ch. 4 Injunctions and Declaratory Judgments
pages 294-327
Permanent injunctions, framing injunctions
Class 6
Ch. 4 Injunctions and Declaratory Judgments
Legislative reapportionment:
Harper v. Lewis Injunctive Order (10/28/19)
Reference:
Harper v. Lewis - complaint
Common Cause v. Lewis full text (excerpt - justiciability) (9/3/19)
Voting rights materials: dropbox
Brennan Center - Harper v. Lewis (resource)
pages 397-429
Structural injunctions - integrating Kansas City schools, legislative reapportionment
$2 Billion estimate for Kansas City Schools a shock
Structural injunctions - integrating Kansas City schools, legislative reapportionment
$2 Billion estimate for Kansas City Schools a shock
Class 7
Brown v. Board of Education of Topeka Kansas - Brown II 349 U.S. 294 (1955)U.S. v. Jefferson County Bd. of Ed., 380 F. 2d 385 (5th Cir, en banc 1967)
Read:
* en banc majority opinion and decree
*Judge Griffin Bell's dissent
See Public school integration page for background
Class 8
School Busing:
Metropolitan area remedial busing and other uses and limits of the remedial power.
* Swann v. Charlotte-Mecklenberg, 402 U.S. 1 (1971)
Detroit - Desegregation stops at the city limits
*Milliken v. Bradley, 418 U.S. 717 (1974)
Forgotten history: how the federal government segregated America - Excerpt from The Color of Law by Richard Rothstein
New York State's Extreme School Segregation - The Civil Rights Project//UCLA
Class 9
The New York City Specialized High Schools
Christa McAuliffe Intermediate School PTO v. DeBlasio DROPBOX LINK
Motion for Preliminary Injunction - Memorandum of Law
Memorandum of Law in Opposition to Motion for Preliminary Injunction
Opinion and Order - Denying Motion for Preliminary Injunction, etc. 2/25/19
Background
District 3 plan - Video
The elite high schools
The Specialized High Schools Admission Test Overhaul Plan
by Aaron Saiger 21 City Law 1 (2015)
Specialized High Schools Admissions Could be Delayed - Chalkbeat
Is there a viable solution? - the State constitutional law approach
Latino Action, et al. v. New Jersey
ComplaintFact sheet
Executive summary: Injunctions and Declaratory Judgments - pp. 453-458
pages 459-488, Hypos 5.19, 5.20, 5.21
General principles, defenses, measuring the enrichment,
Ch. 5 Restitution - special restitutionary remedies
pages 490 - 499 (499-547 reading only)
Constructive trusts, equitable liens, priority over other creditors, circumventing debtor exemptions, subrogation
Ch. 6 Damage Remedies
pages 549-594 Casey’s inhaler; 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
Class 11
Ch. 6 Damage Remedies
pages 612-666
Limits of market measures
Subjective value, pain, suffering, distress, and loss of joy
Class 12
Ch. 6 Damage Remedies
pages 672-720
Indignity and intangible losses, wrongful death, loss of consortium
Economic losses:
personal injury Mary Smith case
wrongful death Daniel Jones case
Mass tort settlement - ASR DuPuy Hip Implants
Class 13
Ch. 6 Limitations on Recovery
pages 720-765, Hypos 6.55, , 6.5, 6.57, 6.58, 6.59, 6.60
Causation, foreseeability, certainty avoidable consequences and related doctrines, collateral source rule
Background: Reference Guide on Estimation of Economic Damages
Federal Judicial Center - Reference Manual on Scientific Evidence - 3rd edition
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