18 December 2018

Beyond Monetary Compensation To Claimants, The Case For New Remedies

New Remedies That Prevent Future Harm, And Remedy Past Harm To Similarly Situated Persons, As Well As Compensating Past Harm To Claimants

There are some powers which courts either don't have, or rarely exercise, but should have, especially in public law cases (i.e. lawsuits involving governmental entities).

* The power to terminate the employment of someone, especially public employees and elected officials, who is found to have engaged in misconduct in an official capacity or related to that person's employment in a civil or criminal case. 

For example, if a police officer is found to have violated someone's civil rights, a court should have the power to order that the police officer who did so be terminated from his employment as a police officer.

* To revoke the occupational or business license of a party that is found in a lawsuit or criminal case, to have engaged in conduct that case that shows that the party is not fit to continue to engage in that occupation or business, or to prohibit a person in this situation from engaging in a type of occupation or business in the future when that occupation or business is not subject to a licensing requirement.

For example, someone who embezzled construction trust funds might have their general contractor's license revoked.

* The power to order a defendant who has been found to be engaging in conduct that violates a law or contractual obligation to act in a manner that conforms to that law or contractual obligation in all cases on a systemic basis, both going forward, and by proactively remedying the harm that people who aren't a party to the lawsuit have suffered in the past from the systemic practice.

For example, if a government agency or business is found to have compounded interest daily on a loan where interest is only legally allowed to be compounded annually, the party who committed the wrong should be required to calculate interest for everyone correctly going forward and to recalculated the interest owed in past transactions and make an adjusting payment going as far back as the statute of limitations extends. The offender should not simply be allowed to repay the plaintiff, while continuing to proceed illegally as to everyone else.

While, in theory, some of the remedies I discuss here could be ordered as injunctive relief, they very rarely are despite the fact that they make lots of sense.

While these remedies are particularly compelling in public law cases against governments, they also make sense in many lawsuits against non-governmental organizations and businesses, especially big businesses.

Background: Traditional Remedies

In a lawsuit, the principal remedy is the money judgment in favor of someone bringing a claim against one or more persons against whom a claim was brought. Money judgments can then be enforced by placing liens on real property, executing upon and attaching personal property (with a lien in place while the execution and attachment process proceeds), and by garnishment of amounts owed to the judgment debtor (e.g. wages) and financial assets of the debtor controlled by a third party (e.g. a bank account) including a special kind of garnishment involving limited liability entities called a "charging order."

There are a few other common remedies in lawsuits. One is an order to turn over possession of real property to someone (a writ of restitution) or to turn over possession of tangible personal property (the end result of a replevin action). Another is an order directing that the clerk of the court sign a document on behalf of a party who is obligated to do so but refuses to do so. 

Another remedy is an order declaring the legal rights of one or more parties to a lawsuit, such as determining who owns real property, who will become the owner of property following a divorce, what a contract provision means, or what the amount of rent owed between parties is when it is set by a formula or process whose amount isn't transparently obvious.

All of these rights are available more or less presumptively whenever a person bringing a claim can show an entitlement to relief. While courts are often called "dispute resolution" forms, more accurately, they are forums in which one enforces legal rights, whether or not there is a dispute. Indeed, the lion's share of judgments entered in the courts are money judgments issued by default or in uncontested cases.

A final kind of remedy available in a lawsuit is injunctive relief. But, unlike other kinds of remedies, injunctive relief is not presumptively available when someone breaks the law in a way that hurts someone else. Instead, one must not only show a legal harm to the person seeking relief caused by the person against whom relief is sought. One must also pass a screening test to determine if another more conventional remedy (a remedy at law) is available, to determine if irreparable harm will result from failing to issue an injunction, and that the injunction serves the public interest, in addition to determining, as one would in a request for any other remedy, that a legal right violated by the person seeking the relief has been violated or is imminently at risk of being violated by the person against whom an injunction is sought.

The courts also have special provisions for seeking preliminary relief before there is time to fully adjudicate a case on the merits. In a case where traditional remedies are sought this is called a request for a "pre-judgment writ of attachment" and in a case where injunctive relief is sought, this is called a "temporary retraining order" or "preliminary injunction." In those cases, one must also show a likelihood of success on the merits and an imminent need for action prior to a trial, and one must usually post a bond to cover harm caused in the event that the person requesting it does not prevail on the merits. (There is also a special preliminary remedy called a lis pendens in cases involving real estate that puts the world on notice that the property is the subject of a lawsuit and that anyone who obtains an interest in the property takes subject to the outcome of the lawsuit.)

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