Remedies - Tuesdays and Thursdays - 2:00 - 3:25 Room 3-09
Principles of Remedies Law - Russell L. Weaver and Michael B. Kelly
What is law?
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
Week 1
Thursday, January 16
Read PRINCIPLES - Chapter 1 - Overview - Introduction (pages 1-5)
Opening lecture
WEEK 2
Tuesday, January 21, 2025
- Clause 8 Presidential Oath of Office
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– 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.
Constitution of the United States of America
ARTICLE II, Section 3
[The President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section 1 Function and Selection
What would Alexander Hamilton say to John Roberts about Trump v. U.S. - the majority ruling that even a former President is in some respects absolutely immune from prosecution? Would Justice Cardozo find that to be an appropriate example of "adherence to the pervading spirit of the law"?
Alexander Hamilton, Federalist No. 69
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.
John Roberts, C.J., Trump v. United States (2024)
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
Associate Justice Sonia Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting in Trump v. U.S. :
Today's decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, **, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
Associate Ketanji Brown Jackson dissenting in Trump v. U.S.A.:
"To say that someone is im mune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the frst place. Conferring immunity therefore “create[s] a privileged class free from liability for wrongs inficted or injuries threat ened.” Hopkins, 221 U. S., at 643."
***
The boldness of the majority opinion may be seen in two amicus briefs filed in the Supreme Court. See the Docket of Case # 23-939 Trump v. United States of America
The first brief- by former Senator John Danforth, former 9th Circuit Judge J. Michael Luttig, et alii argues: A PRESIDENT WHO VIOLATES FEDERAL CRIMINAL STATUTES TO TRY TO STAY BEYOND HIS TERM IS ATTEMPTING TO VIOLATE THE EXECUTIVE VESTING CLAUSE AND THE TWENTIETH AMENDMENT.
A second brief on behalf of Retired Four Star Generals and Admirals , and Former Secretaries of the U.S. Army, Navy and Air Force argues: I Petitioner’s claimed immunity would undermine our nation’s foundational commitment to civilian control of the military II. Petitioner’s claimed immunity wouldundermine the military’s adherence to the rule of law and thus its orderly functioning and public trust III. Petitioner’s claimed immunity, by implicating the peaceful transition of power in particular, threatens national security.
Joe Biden, January 15, 2025:
“We need to amend the Constitution to make clear that no president, no president is immune from crimes that he or she commits while in office”.
Special Counsel Jack Smith has filed his final report. He concludes:
"As set forth in the original and superseding indictments, when it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power. "
Transcript - Trump sentencing hearing - NY - January 10, 2025
Judge Merchan entered judgment on the verdict of a New York Supreme Court jury which pronounced the President-elect guilty of 51 counts of falsifying business records.
Tuesday, February 4, 2025
****
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.
Arc of Justice? Magna Carta to 1868.
Is any element of the 1689 Bill of Rights relevant to an assessment of the wave of Trump Executive Orders, and the turmoil at Department of Justice and U.S. AID - the Agency for International Development?
Justice vs. Positive Law
Somerset’s case – speech of Lord
Mansfield at 510
Fugitive
Slave Clause
– 1789
Prigg v. Pennsylvania, 41 U.S. 539 (1842)
"The clause in the Constitution of the United States, relating to fugitives from labour, manifestly contemplates the existence of a positive, unqualified right, on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain."
Slides – magna carta to Emancipation in the U.S.
Resource page – Slavery,
Natural law, and positive law
The Administrative State Under Siege?
*SLIDES - Review under the Administrative Procedure Act
W.E.B DuBois – The
Freedmen’s Bureau – The Atlantic, 1901
* Judicial review under the Administrative
Procedure Act
[N.B.: 5 USC 552, 553, 702-706, 802]
SLIDES - Quis custodiet custodes? Who watches the watchmen?
SLIDES Dellinger, Special Counsel v. Bessent, Sec'y of commerce
NPC Observer - blog
| Wed, Feb 12, 7:17 PM (21 hours ago) |  | ||
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In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any such action found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;(B) contrary to constitutional right, power, privilege, or immunity;(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or(D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious
This action seeks declaratory and injunctive relief and vacatur under the Administrative Procedure Act (“APA”) with respect to the Office of Management and Budget’s January 27, 2025, Directive for Heads of Executive Departments and Agencies (M-25-13), with the subject, “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs”
TEMPORARY RESTRAINING ORDER
The legal standard for a Temporary Restraining Order (“TRO”) mirrors that of a preliminary injunction. The Plaintiff States must show that weighing these four factors favors granting a TRO:
- 1. likelihood of success on the merits;
- 2. potential for irreparable injury;
- 3. balance of the relevant equities; and
- 4. effect on the public interest if the Court grants or denies the TRO.
State of NY v. Trump docket
The Trump Executive Orders - Radical Constitutionalism?
- By Bob Bauer and Jack Goldsmith
* Vermeule & Sunstein: The Structure of the Modern State is Under Attack NY Times 2020
*FCC v. Consumer Research: Scotusblog - Supreme Court agrees to review FCC subsidies under non-delegation doctrine -
*Public Citizen - amicus brief
SCOTUS Docket for FCC v. Consumer Research
Opinion below - 5th Circuit holds that in the the Telecommunications Act of 1996 Congress delegation to FCC of power to assess fees to establish universal phone service is an unconstitutional tax which violates * Article 1, S. 1 of the Constitution by the delegation to private carriers and the FCC the Universal Service Fund fee added to cell phone bills
BACKGROUND:
Review: Sunstein
and Vermeule - Law & Leviathan
EXECUTIVE ORDERS and other PRESIDENTIAL ACTIONS
Over a dozen DOJ Prosecutors discharged
Deep background:
Context - Congressional Research Service –
`Major
Questions Doctrine’
[April 2022]
The Major Questions Doctrine (November 2022)
The Major Questions Quartet – Mila
Sohoni, 136 Harvard L. Rev. 262
Tuesday, February 18
The death of Chevron deference – is it a harpoon in the heart of the administrative state?
*SLIDES APA Review, Spring 2025
*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
NRDC:* TheSupreme Court Ends Chevron Deference: What Now?
Loper Bright v. Raimondo [*read Syllabus, Kagan dissent]
*Josh Chafetz – Congress in a post-Chevron
world - TESTIMONY
*Adrian Vermeule - LoperBright Delegation Replaces Chevron Delegation
Background - Loper Bright Amicus briefs
* Amicus Brief -Natural Resources Defense Council - in support of respondents
Professor Thomas Merrill - amicus brief in support of neither party
AFL-CIO - Amicus Brief
Senator Ted Cruz, Speaker Mike
Johnson and 34 other M.C.'s in support of petitioners - Amicus Brief
Thursday,
February 20, 2025
The New Abortion
Battleground-After the death of Roe v. Wade
SLIDES - abortion rights
-Dobbs
v. Jackson Women's Health 19-1392 [2022]
Texas judge enjoins and fines NY doctor $100K for providing abortion pills to Texas woman - February 13, 2015
Dr. Karen Carpenter also indicted in Louisiana.
Is this what leaving it up to the states means?
Gov. Kathy Hochul says she will not allow Dr. Carpenter to be extradited. Does NY have that right?
Office of Legal
Counsel – *The
Comstock Act – Application to Mailing of Prescription Abortifacient Drugs
*Republican
Legislators Reply to OLC, January 2023
Vermeule and Casey – *Comstock
Act Bars Mailing of Mifepristone (blogpost)
Tuesday, February 25
Declaratory Judgment Actions
Weaver, Remedies Law, Chapter 8, pp. 157-164
NY CPLR 3001 Declaratory Judgments
Uniform Declaratory Judgment Act
Thursday, February 27
Restitution and Unjust
Enrichment
Read: Weaver, Principles - Ch.
7 Restitution, pp 133-155
General principles, defenses,
measuring the enrichment, Special Restitutionary Remedies–Constructive trusts,
equitable liens, subrogation, and statutory liens.
Thursday, February 27
Declaratory Judgments - read Weaver - Ch. 8, pp. 157-164
Uniform Declaratory Judgment Act - 1922
Jeannette Rankin Brigade v. Chief, Capitol Police, 342 F. Supp. 575 (D.D.C. 1972)
Tuesday March 4 and Thursday March 6
ENFORCEMENT OF EQUITABLE REMEDIES
Read Weaver,
Principles - Chapter 3 - Contempt
Enforcement
of Equitable Remedies: Civil and criminal contempt of court; jury trial,
procedural requirements, collateral challenges to injunctions
Tuesday March 11
Weaver
Chapter 4 -Injunctions and Declaratory Judgments; standards for issuance,
Persons bound, Notice, Temporary Restraining Orders, Preliminary Injunctions,
Bonds.
Federal
Rules of Civil Procedure Rule 65
Norris LaGuardia Act [1932]
Thursday, March 13
Injunctions –
abuses and limits
The Pullman Strike – Melvin Urofsky - Brittanica
AFL-CIO - Biden
is first President to walk a strike picket
line
National
Labor Relations Act, 9 USC 151, et seq.
U.S. v.
United Mineworkers, 330 U.S. 258 (1947)
U.S.A. v. PATCO 524 F. Supp 160 (1981)
Tuesday March 18
Watch
recorded Webinar All
Oppression Shall Cease: A History of Slavery, Abolitionism, and the Catholic
Church by Christopher J. Kellerman, S.J. (Orbis Books,
2022). Moderator: George W.
Conk
Panel: Welcome: Dean Matthew Diller
Introduction: Tania Tetlow, President, Fordham
University
Discussants: Fr. Kellerman
Vincent Rougeau [President, Holy Cross College;
past President Association of American Law Schools]
Maureen O’Connell [LaSalle University Theology
Department and author of Undoing the Knots - Five Generations of American Catholic
Anti-Blackness]
Thursday, March 20
Structural
injunctions, Public School Integration – rise and fall; Reparations; the Death
of Affirmative Action]
Integration
and Desegregation of Public Schools
Plessy
v. Ferguson [1896]
Brown
v. Board of Education II, 349
U.S. 294 (1955)
Justice Bradley to
U.S. District Judge Woods (1871)
SLIDES -
Prologue to Brown
SLIDES Introduction
to Integration, part 1 -START at Slide 26
SLIDES -
School integration - Founding to Brown
March
11, 13, 2025
A
decade after Brown = a stone wall
SLIDES - The
Founding to the Second Founding to American Apartheid
SLIDES U.S. v. Jefferson
County
Video: Boston busing crisis
*U.S. v. Jefferson County Bd of Ed., 372 F. 2d 836 (5th Cir. 1966)
*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
From
Brown v. Topeka II (1955) through Swann v. Charlotte Mecklenberg, 402
U.S. 1 (1971),
Milliken v. Bradley [Detroit] 418
U.S. 717 (1974), and Seattle
(2007)
John
Roberts, C.J. in Parents Involved v Seattle, 55 U.S. 701 (2007):
We have
emphasized that the harm being remedied by mandatory desegregation plans is the
harm that is traceable to segregation, and that
“the
Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U. S. 267, 280,
n. 14 (1977). See also Freeman, supra, at
495–496; Dowell, 498 U. S., at 248; Milliken v. Bradley, 418 U. S. 717, 746
(1974). Once Jefferson County achieved unitary status, it had remedied the
constitutional wrong that allowed race-based assignments. Any continued use of
race must be justified on some other basis.
Stephen
Breyer – dissent in Parents Involved v, Seattle
Richard
Rothstein Debunking the Modern Myth of
Residential Segregation
SPRING BREAK MARCH 17 – 21
Tuesday
March 25
MARCH
25 The Contempt Power
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
Gompers
v. Buck Stove & Range, 221 U.S. 418 (1911)
United Mineworkers of America v. Bagwell, 512
U.S. 821 (1994) [read syllabus]
The
"Smith Act", 18 U.S.C. 2385 -
Advocating Overthrow of Government - f/k/a Alien Registration Act
Yates v. United
States, (1957)
*Read
blogpost: Strategies of
Judicial Aggrandizement – Josh Chafetz
Thursday
MARCH 27
*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)
APRIL
1
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)
APRIL
3, APRIL 8,
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
Defamation and
Privacy TD 3 Black Letter
Compensation
or punishment??
* The Texas J&J
hip implant verdicts
* Federal
Rules of Evidence
703 Bases of an Expert Opinion
704 Opinion on an Ultimate Issue
*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)
69 Rutgers U.
L. Rev. 1139 (2017)
Vioxx
drug cases - NJ vs. Texas
Mark
Lanier - you tube - search "mark lanier harvard tort war stories
"
(See Lanier #6 the Vioxx
cases)
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)
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Damages - General |
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Damages — Effect of Instruction — Personal Injury Case Verdict Sheet |
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Medical Expenses (Non Auto) |
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Duty To Mitigate Damages By Medical And Surgical Treatment |
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Loss of Earnings |
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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
APRIL
10, APRIL 15
Mass
tort remedies – Thursday November 7 & Tuesday November 12
Judicial
Panel on Multi-District Litigation - 2022 Report
8 USC 1407 MDL
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
THURSDAY
APRIL 17 – EASTER BREAK – NO CLASS
Tuesday
APRIL 22
Ch.
6 Damage Remedies – General Principles
THURSDAY
APRIL 24 – LAST CLASS
*
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)
Environmental Disaster Class Actions – the BP
Gulf of Mexico Oil spill
4
Environmental
Disaster Class Actions – the BP Gulf of Mexico Oil spill
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