5.3.11 Complex Litigation

MIDTERM handed out tonight- Due next week

Contract Remedies

Equitable -ONLY come into play when a legal remedy will not due
-specific performance
-injunctions CR 65 must prove irreparable harm, and likely to prevail on the merits
-rescission - undo contract, in case of fraud or misrepresentation
-reformation - "scrivener's error" typo, or other mistake in contract
-restitution
-quiet title - asking court for pronouncement of rights and interests of parties, exception to "ripeness"
-declaratory relief - does this particular event trigger coverage?
-constructive trust - court imposes trust on material (similar to injunction, holds the item in third party hands)

Legal (Monetary relief) - Three interests to protect.
1. Expectation- (aka "benefit of the bargain")- gain or profit you would have expected under the contract
2. Reliance- Losses suffered as a result of changing position (due to reliance)
3. Restitution- Return of the benefit conferred on the breaching party (give the item or money back, etc.)
Remember: Can seek BOTH equitable AND legal remedies

"Courtney"
Paid $20,000 (for horse worth 10k, told it was worth 50k)
FMV $10,000
Represented value $50,000
Expectation interest $30,000 -give back the horse
Reliance interest $10,000 -keep the horse
Restitution interest $20,000 -give back the horse
Fraud $40,000

"Brittany"
Paid $20,000 (for horse worth 20k, told it was worth 25k)
FMV $20,000
Represented value $25,000
Reliance $0
Restitution $20,000

"Crystal"
Paid $20,000 (for a horse worth 10k, told may eventually be worth more)
FMV "unlimited potential"
Represented value $10,000
Expectation interest $0
Restitution $20,000

Limitations on Damages
1. Reasonable certainty (must be able to ID damages with reasonable certainty)
2. Forseeability- Hadley v Baxendale (1854)
3. Mitigation - must affirmatively take steps to reduce their damages
4. Cannot IMPROVE position through breach of performance
Court hates to give damages without you proving what your damages actually were.

Liquidated Damages Clause
1) Reasonable in amount AND
2) Actual damages difficult to calculate
Only applies in certain cases.

"Time is of the essence" clauses do not trigger breach unless time really IS of the essence (performance loses most or all value if not timely rendered)
-Often included along with liquidated damages clause



First Amendment

1. Speech
2. Religion
3. Press
4. Assembly
5.

Establishment Clause-
Separationist View (minority)- Wall of separation between church and state
1947 Justice Hugo Black, Everson v. Board of Ed.

Accomodationist View- Requires government not hinder nor prefer religion but may neutrally assist all religion. Justice Warren Burger, Lemon v. Kurtzman (1971)
Test- 3 factors
1. Is there a valid secular (non-religious) purpose? -YES
2. Is the primary purpose to advance or hinder religion? -NO
3. Is there excessive entanglement? (need for constant monitoring) -NO

EX can government furnish school buses taking children to religious schools?
1. Yes
2. No
3. No
Answer- Pass

EX Can government furnish books on secular subjects to religious schools?
1. Yes
2. No
3. No
Answer- Pass

EX Can government subsidize teachers salaries for secular subjects in religious schools?
1. Yes
2. No
3. Yes
Answer- Fail
Prayer in School-
Engel v. Vitale (1962)
-Non-denominational prayer

Zorach v Clausen (1982)
Bible Study
Released time or dismissed time programs


"In God we trust"
Originally- from star spangled banner
Through rote repetition they have lost all meaning, used to impart solemnity.
81% of general population would vote for prayer in schools
We do not get to vote on amendments