Syllabus Remedies Spring 2023

Granville Sharp's abolitionist pamphlet Published in London and Philadelphia 1772

The `woolsack' where the Chancellor of England sat when hearing petitions in equity

 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

Remedies Spring 2023 – Outline 
Updated  3/28/23

Prof. George W. Conk - Senior Fellow, Stein Center for Law & Ethics Room 7-179

Wednesday evenings 6:00 – 8:50

Classroom 4-08

N.B. - I will add below each week's material.  the OUTLINE above is a general overview.  It will be further developed as we proceed.
Our subject in this course is the nature of judicial power: what it can accomplish, how it is constrained.
We are in a period of epochal change in how the United States Supreme Court sees itself and its role.  This course changes with it - often as a conrary current. - GWC

Week 1 – How Should Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.

Theme: Justice vs. Positive Law
Slides: from the Magna Carta to Emancipation

James Somerset’s case (1772) Oral argument and decision on writ of habeas corpus nota beneSpeech of Lord Mansfield at 509-510

Fugitive Slave Clause (1787) 
(annotated) Article IV, Section 2, Clause 3 
Prigg v. Pennsylvania, 41 U.S. 539 (1842) [excerpted]

What remedy did Lord Mansfield, et alii,  grant? Blackstone in 1765 wrote that slavery "cannot subsist in England",  What remedial options did the English high court have? The Law Lords neither emancipated Somerset, nor vindicated  Stewart's property right.  What considerations might have motivated the judges?
Read my review of  Vermeule's  book Common Good Constitutionalism.  He says that courts making constitutional decisions are managing political risks.  Rather than a "precautionary" approach to minimize risk, Judges should  should seek to advance the common good, which he defines as  
not the sum of individual goods, but the indivisible good of a community ordered to justice, belonging jointly to all and severally to each”.  Judges therefore should and must be guided in their judgments by “justice, peace, and abundance” as the “legitimate ends of government”.
What remedy would a `Vermeulian' judge have granted in the Somerset case?  And - below - in the gun case regarding new Jersey's post-Bruen amendments.

Gun control after NY State Rifle & Pistol v. Bruen.
Excerpts, etc. Majority Opinion of Thomas, J. 
Supreme Court Docket # 20-843
SLIDES State Gun Control after Bruen

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

Guided by History: Protecting the Public Sphere Under Bruen – Joseph Blocher and Reva Siegel (NYU L Rev 2023)

Judge Renee Bumb, District of New Jersey, has enjoined parts of the post-Bruen New Jersey law 
NJ A4769 /2022-2023.  In it New Jersey's Governor and Legislature seek to limit carrying a gun to places where the owner has announced consent to carrying guns. 
Read her opinion in Koons v. Reynolds (Civ. No. 22-7464) 

 Governor Murphy explained the measure tried to balance public safety with the Supreme Court's commands.  According to Judge Bumb in Koons v. Reynolds the U.S. Supreme Court in Bruen directs that courts NOT engage in the weighing and balancing of competing interests that is standard fare in equity courts considering injunctive relief. They must ask instead whether "the Nation's" traditions support the regulations a state imposes on the right of armed self defense.

 Has the Supreme Court usurped the power of judges? of State Legislators?  In an amicus brief in a similar New York case on appeal fifteen states cite public health considerations.  Does the plain text of the Second Amendment foreclose such considerations? Is my draft editorial in defense of the New Jersey law effective?
Is the Supreme Court majority's ruling  consistent with Benjamin Cardozo's view of precedent?
with Harvard professor Adrian Vermeule's Common Good Constitutionalism? 
Which view do you favor?  Or neither?

 In Koons v. Reynolds? In Bruen?
The New Judicial Power Grab Chafetz, 67 St. Louis U. L.J. 635 (2023)

Weeks 2 and 3 The Administrative State Under Siege?

Slides - Administrative Procedure Act - Review of Agency Decisions

W.E.B DuBois – The Freedmen’s Bureau – The Atlantic, March 1901

Like Stanford's Mark Lemley who criticizes THE IMPERIAL SUPREME COURT, Georgetown's Josh Chafetz is a strong critic of judicial aggrandizement.

Read: Josh Chafetz The New Judicial Power  GrabChafetz, Josh, The New Judicial Power Grab (January 10, 2023). St. Louis University Law Journal, Vol. 67, Forthcoming, Available at SSRN:
How do you assess his critique?  Is the Court's new thrust (e.g. overturning Roe v. Wade and voiding New York's gun control laws) a power grab?  Was the U.S. Supreme Court's 1954 voiding the racial segregation of public schools laws of a dozen states also an institutional power grab?  Is either or both rulings an improper assertion of judicial power? 

See, e.g. Judicial review under the Administrative Procedure Act [5 USC 702, et seq. [right of review], 706 [standard of review], 801-808 [Congressional Review Act of 1996 [CRA] establishing legislative review and disapproval procedures]

At least since the Freedmen's Bureau there has been hostility to the administrative state.   When Franklin D. Roosevelt led Congress to create the "alphabet agencies" - SEC, NLRB, FCC, etc. there was immediate resistance - fear of bureaucratic overreach, et.  the Short answer was the 1946 Administrative Procedure Act.  The APA regulated rule-making via the Notice and comment process, and instituted guidelines for judicial review of agency decisions.  In recent years, accelerating in the Trump years, the administrative state has been seen as at  risk.

Some, like the Chief Justice John Roberts and Justice Neil Gorsuch disparage the administrative state as a drag on liberty. Read Kisor v. Wilkie, 139 S. Ct. 2400  (2019)[Gorsuch concurring]

Others - like Mila Sohoni have defended it.


Redeeming the Administrative State. Yale Journal on Regulation. 

Kill the Leviathan? - blogpost- GWC

My thinking has been aided by The Major Questions Quartet [blogpost] by San Diego law professor Mila Sohoni, 136 Harvard L. Rev. 262 [2022]

Sohoni in her new article in the Harvard Law Review helpfully frames the development of the doctrine from a rule of statutory interpretation to a substantive infringement on Congressional power [the clear statement demand] and the discretion of administrative agencies via the recently coined Major Questions Doctrine.

Week 1  Read posts (and links) regarding the eviction moratorium  case Alabama Association of Realtors v. DHHS,  and the OSHA case NFIB v. Department of Labor, 

Week 2 we will look at Biden v. Missouri nursing home vaccines case] and the EPA case. West Virginia v. Environmental Protection Agency]

 Week 1 Links:

In your opinion is the eviction moratorium sufficiently supported by the Public Health law  42 U. S. C.§264(a)?

Read: Supreme Court Strikes Down Federal Eviction Moratorium

[Supreme Court opinions are linked HERE and in the blogpost (but in the post it is not displaying blue)

Read: NFIB v. OSHA [per curiam opinion, Gorsuch concurring, Breyer dissent]

Supreme Court Eviction Order Threatens Vaccine Mandates

Senate Votes to Scrap Vaccine Mandate

Some Brief Thoughts on Gorsuch's Opinion in NFIB v. Osha - Election Law Blog

In your opinion was the vaccinate or test emergency order sufficiently supported by the Occupational Safety and Health Act?

WEEK 2 - Administrative Procedure and the "Major Questions Doctrine"

More discussion questions: compare the NFIB/OSHA decision to the Medicare/Medicaid cases

In Biden v. Missouri Docket # 21A-240 the United States Supreme Court in a 5-4 ruling allowed a November 2021 Department of Human Services Regulation to stand. It provided   "to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021)."

Justice Alito, in his dissent, said that the emergency rule compels 10 million health workers to be vaccinated or be "fired".  The rule, he says is based on a "hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court."

Isn't 10 million people enough to treat this emergency rule - adopted without Notice and Comment - as a "major question" which Congress must authorize with "particular clarity" according the to Major Questions Doctrine  voiced first in Alabama Realtors, and embraced most strongly in West Virginia v. EPA? [Docket # 20-1530].  In the West Virginia case the court majority discussed:

the “major question doctrine.” .... Under that doctrine, EPA explained, courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Ibid. (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014)

Isn't Samuel Alito correct that the scale of the emergency order is surely a "major question" and that the "speak clearly" requirement is not satisfied by a "hodgepodge" of statutes?   Isn't the fact that this order is an expedited emergency rule nder [5 USC § 553(b)(3)(B)not subject to the usual slow moving Notice and Comment Procedure of the APA 5 USC 553 which gives any interested parties the opportunity to be heard?  And isn't this the kind of tyranny of which John Roberts warned in City of Arlington v. FCC. where he wrote - in dissent:

“accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.


The so-called "Major Questions Doctrine" and its demand for Congressional clarity confront a limits of foresight by legislators of which Aristotle wrote 2,700 years ago..  Adrian Vermeule wrote recently in The Original Scalia that "The classical lawyer draws upon aequitas or epikeia to resolve ambiguities, interpret generalities, or otherwise clarify, limit or supplement the law." The Philosopher himself wrote in Equity:

n  Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if  that held good always  which in fact only holds good usually.

n  Aristotle - Rhetoric - Book I, para 13

Christopher Walker (University of Michigan) writes that the Major Questions doctrine is here to stay.  Therefore Congress should devise a Rapid response procedure similar to the Congressional Review Act, 5 USC 801-808 Do you think his proposal is a good one?  Feasible?

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


The post above began as an introduction to Daniel Walters new law review article The Major Questions Doctrine at the Boundaries of law, morphed into a contemplated lecture which I didn't give, and now is a recap and reflection on the challenges to review of federal administrative agency actions in light of the latest developments and our discussion his week and last.

The New Abortion Battleground

Presidential Proclamation on 50th Anniversary of Roe v. Wade

In the State of the Union Address President Biden said:

Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman’s constitutional right to choose.

The Vice President and I are doing everything we can to protect access to reproductive health care and safeguard patient privacy. But already, more than a dozen states are enforcing extreme abortion bans.

Make no mistake; if Congress passes a national abortion ban, I will veto it.

State referenda and Legislation

Michigan Proposal 22-3  (passed 55/4

New Jersey Reproductive Freedom Act A6260

Next  we look at Dobbs v. Jackson Womens Health Organization, 142 S. Ct. 2228 and its aftermath.  The issues are explored in The New Abortion Battleground  in the January issue of the Columbia Law Review by David Cohen, Greer Donnelly, and Rachel Rebouche.

Eric Segall has a good discussion with Cohen on Segall's Supreme Myths Podcast, Episode 67.

I find particularly troublesome the warm reception in Dobbs of the amicus brief by Australian natural law theorist John Finnis and U.S. conservative Catholic Robert George.
There can be rational difference about the point at which a human foetus is entitled to the full protection of the law, as Peter Steinfels discusses HERE.
Samuel Alito in Dobbs makes several references to the Finnis brief.  If state laws are to be subject to "rational basis" review Justice Alito and others (like Neil Gorsuch whose Oxford doctoral dissertation was supervised by Finnis) could support criminal prosecution of women who used the abortifacient mifepristone, a prospect raised by Alabama's Attorney General which I discuss in this post.

GenBioPro has challenged a West Virginia law aimed at the use of Mifepristone, as I discuss HERE.

  Another challenge to mifepristone by a group called the Alliance for Hippocratic Medicine.  On February 10 the State of New York and 21 other states filed an Amicus brief opposing issuance of a preliminary injunction.  
The Department of Justice Opposition to Motion for Preliminary Injunction

Weeks  Five and Six
Equity and Equitable Defenses
 Lecture -Intro to Equity and Equitable Defenses
Ch. 2 Remedies
Read: case book pages 16-36

The big picture: Equitable Discretion then and now 
Read: Keenan: Judge-Made Equity (2023) Read: Abstract, then pages 1-11.
Gallogly: Article III Equity (forthcoming, 123 Yale L.J.) Read: How would Article III Equity Work In Practice, pages 91-102

The least Dangerous Branch?  

SLIDES - Student loans, CDC Evictions, OSHA Vaccines

Biden v. Nebraska Supreme Court Docket




    (a) Waivers and Modifications.--
            (1) In general.--Notwithstanding any other provision of law, 
        unless enacted with specific reference to this section, the 
        Secretary of Education (referred to in this Act as the 
        ``Secretary'') may waive or modify any statutory or regulatory 
        provision applicable to the student financial assistance 
        programs under title IV of the Act as the Secretary deems 
        necessary in connection with a war or other military operation 
        or national emergency to provide the waivers or modifications 
        authorized by paragraph (2).

[[Page 117 STAT. 905]]

            (2) Actions authorized.--The Secretary is authorized to 
        waive or modify any provision described in paragraph (1) as may 
        be necessary to ensure that--
                    (A) recipients of student financial assistance under 
                title IV of the Act who are affected individuals are not 
                placed in a worse position financially in relation to 
                that financial assistance because of their status as 
                affected individuals;
SEC. 5. <<NOTE: 20 USC 1070 note.>> DEFINITIONS.

    In this Act:
            (1) Active duty.--The term ``active duty'' has the meaning 
        given such term in section 101(d)(1) of title 10, United States 
        Code, except that such term does not include active duty for 
        training or attendance at a service school.
            (2) Affected individual.--The term ``affected individual'' 
        means an individual who--
                    (A) is serving on active duty during a war or other 
                military operation or national emergency;
                    (B) is performing qualifying National Guard duty 
                during a war or other military operation or national 
                    (C) resides or is employed in an area that is 
                declared a disaster area by any Federal, State, or local 
                official in connection with a national emergency; or

                    (D) suffered direct economic hardship as a direct 
                result of a war or other military operation or national 
                emergency, as determined by the Secretary.
            (3) Military operation.--The term ``military operation'' 
        means a contingency operation as such term is defined in section 
        101(a)(13) of title 10, United States Code.
            (4) National emergency.--The term ``national emergency'' 
        means a national emergency declared by the President of the 
        United States.

 Big Questions on Agency rights to sue by Amy Howe//ScotusBlog

Biden Loan relief gets Cold Reception - Amy Howe

Oral Argument - Biden v Nebraska. Transcript 

Opening Statement - SG Elizabeth Prelogar 383 words, 2 minutes

Memorandum of the Department of Justice in support of the student loan forgiveness plan

Elizabeth Goitein - Emergency Powers are a Slippery Slope - Washington Post. 

Jed Shugerman: amicus brief in support of Nebraska, et al.

Elizabeth Warren Accuses John Roberts of Acting as Super Legislator - Kate Riga Talking Points Memo

Caring About `Fairness' is a Political Choice - Jay Willis, Balls & Strikes

Ascertaining the Majorness of Student Debt Relief:

Strict Scrutiny podcast

Professors Su, Shugerman, Davidson. Goitein - Emergency Podcast 11

Alabama Realtors v. Department of Health and Human Services

Does the Alabama Realtors case blocking a Department of Health & Human Services anti-eviction moratorium represent a reasonable restraint on Executive Branch overreach?

Eviction Moratoriums Save Lives - GWC

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

Is Ian Millhiser's warning well taken?  We can expect conflicting rulings in post-Dobbs cases regarding Mifestiprone.  What, if any restraint should trial court and appellate judges exercise?

12 States Sue FDA re Mifestiprone restrictions  NY Times 2/25/2023

Biden Administration braces for Adverse Ruling that could ban abortion pills - NY Times 

A new goal for abortion bills: punish or protect doctors - NY Times


Week 2 of Equity: Equitable defenses

SLIDES: Equitable Defenses
Read: pages 37-63; 71-81 
(Hypo-Estoppel and Immigration)
Read: Trial by Jury: 81-100

: Jury Trial
15 USC 77q Fraudulent Interstate Transactions

Week Seven - Restitution and Unjust Enrichment

SLIDES: Restatement 3rd - Restitution and Unjust Enrichment
SLIDES - Restitution, part 2

Week Seven -Unjust Enrichment and Restitution
See Outline 


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

Read blog post: Rule by Injunction?

Slides: Contempt power - part 1 

SLIDES: The Duty to Obey and the Collateral Bar Rule

SLIDES - 1963

Casebook pages 162-177


SLIDES Declaratory Judgment

Federal Rule of Civil Procedure 65

SLIDES - Injunctions, Part 1

SLIDES - Mifestiprone Orders

Chapter 4 -Injunctions and Declaratory Judgments; standards for issuance, Persons bound, Notice, Temporary Restraining Orders, Preliminary Injunctions, Bonds.

Pages 189-236

Pages 244 - 286

WEEKS 10 - 11

Structural Injunctions and the Triumph and Fall of School Integration in the United States Supreme Court

SLIDES Second Founding to Brown
Elizabeth and Hazel - David Margolick
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

SLIDES - Desegregation and Re-Segregation

WEEK 11 - The peak and the descent

SCOTUS Bars voluntary school desegregation plans
Read Breyer Dissent - Parents Involved v Seattle , 551U.S. 701  (2007)[note particularly highlighted segments]

Metropolitan area remedial busing and other uses and limits of the remedial power.

pages 396-403 Missouri v. Jenkins

*Milliken v. Bradley, 418 U.S. 717 (1974) [Read Syllabus, Marshall dissent]
SLIDES - Detroit and Kansas City
Marshall dissent

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

Boston Busing Crisis - VIDEO

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.


Restatement 2d, Torts § 431

What Constitutes Legal Cause

 The actor's negligent conduct is a legal cause of harm to another if

o   (a) his conduct is a substantial factor in bringing about the harm, and

o   (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.


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

Torts - Remedies - TD 2- ALI - Black Letter Rules (4/2023)
Seffert v. LA Transit, 364 P 2d 337 
Instructing the jury
SLIDES - Cause in Fact - Proximate Cause

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)

NY Pattern Jury Instructions (Damages - selected) PJI 2277 to 2320


Mass Tort History - SLIDES

SLIDES - DePuy/ASR Hip Implant Settlement

SLIDES  Ground Zero worksite tort claims


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 andthe Development of Tort Doctrine and Practice , 69 Rutgers U. L. Rev. 1139 (2017)

BY George W. Conk

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


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

WEEK 13 Class Action Economic Loss Settlement

SLIDES: General Rules for Measuring Compensatory Damages

Restatement 3rd Torts Remedies -Tentative Draft No. 2 - 2023:

General Rules for Measuring Compensatory Damages

Economic Loss Rules:

Council Draft: Restatement of the Law: Economic Harm (2015)

The BP Deepwater Horizon Oil Spill of 2010

 Circuit Judge John Minor Wisdom DISSENT


Note that the Court supervised settlement has been paid out.
So the court link to the settlement is a dead link.

Settlement Order Punitive Damages

Louisiana ex rel Gust v. MV Testbank 524 F. Supp. 1170 (E.D.La. 1981)
Louisiana Ex Rel Gust v. M/V Testbank,  752 F.2d 1019 (5th Cir. 1985)
Dissent by Circuit Judge John Minor Wisdom.