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Brainstorming Question 2: Remedies + Constitutional Law

This is a tough one. My mind immediately goes to first amendment issues; injunctions against the government…. I worked my way through some of my Constitutional Law and Remedies outlines and tried to pluck out a few issues for you to review. But I strongly suggest you thoroughly review these topics in the most comprehensive outlines you have.  The title in the email for Question 2 lists Remedies first. This suggests that the question will be more Remedies heavy than Constitutional Law. 

Punitive damages

Must be specially plead in the complaint.

They may be awarded for “willful, wanton or malicious conduct.”  Examples include intentional/malicious conduct where the defendant is intentionally misrepresenting known material facts with the intention to deprive another of their legal rights and/or subjecting a plaintiff to cruel or unusual hardship with complete disregard.  Although they are rarely awarded in negligence cases, they can be if the defendant’s conduct was in “reckless disregard for others.”  

There is a constitutional element to this.  That is, a Due Process limitation.  When the award for punitive damages are “grossly excessive” it will be invalid under the Due Process Clause of the 5th and 14th Amendments. 

1.     Did the defendant have “fair notice of the possible magnitude” of the punitive damages?

2.     How reprehensible was the defendant’s conduct?

3.     What is the disparity between the actual or potential harm suffered and the award?

4.     What is the difference between the punitive award and the criminal/civil penalties otherwise authorized for comparable misconduct.

Generally, there is a violation when the award is 10 times compensatory damages.  But watch out for particularly egregious conduct.  In such cases, going over might be permitted.

Non-party damages may be used to determine the “reprehensibility” factor but may NOT be used to determine the amount.   


Constitutional defamation and Remedies

Review all the nuances for a constitutional defamation claim in your thickest, deepest outline. 

Generally, the elements of tort defamation with the addition of fault and falsity if the plaintiff is a public official, public figure or when the statement is an issue of public concern.  Plaintiff must prove by clear and convincing evidence that the statement was false. The statement must be viewed by a reasonable person to be a “statement of fact” as opposed to parody or opinion.  Proving fault requires actual malice, knowledge or reckless disregard for the truth.  (There is a defamation crossover on my portal under Corporations Feb 2015 TBA).

Remedies in defamation cases:

Compensatory damages due to economic losses caused by the defamation. 

The outlines state that restitution is generally not a remedy because the defamer doesn’t usually gain a benefit.  But in the world of social media and the race to increasing your followers, I would at least give lip service to both sides in such a fact pattern. 

No injunctive relief for a future defamatory statement.  This is based on the rationale that damages are the adequate remedy.  Another rationale is that “equity only protects property rights.” But the REAL reason we don’t allow for injunctive relief is that a court of equity will not enjoin a threatened defamation because of the 1st amendment guarantee of free speech as such a restraint would be “prior restraint” of speech. 

Declaratory relief alongside an injunction may be a good remedy to prevent repetition of a defamatory statements after a finding that the statement was in fact defamatory.


Prior restraints on Speech

Know the elements, steps and what is required to obtain an injunction/TRO.  

Any injunction that would restrict a First Amendment activity in a public forum should be scrutinized because they present a risk of censorship and discriminatory application.  The test to know is whether the injunction is content neutral.  Know the difference between content based and content neutral.


The Exception to the 11th Amendment

Review the 11th Amendment and when and how it bars suits against the state. The 11th will prohibit a federal court from hearing a claim for damages against a state government unless:

1.     State consented to allow the suit in federal court

2.     Plaintiff is the US or another state, or

3.     Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th amendment, such as the civil rights statute.

Review the 14th Amendment exception to the 11th Amendment.  There should be a blurb in most of your commercial outlines if you look at the deepest one you have.  Congress can remove the states 11th Amendment immunity under its power to prevent discrimination under the 14th Amendment.  This allows suits against states and officers for damages when they violate civil rights, equal protection and due process rights.  One outline uses the The Equal Pay Act as an example.  Under this, an employee can sue a state.  The remedy set by Congress must be proportionate or allow prospective injunctive relief preventing unconstitutional conduct or mandating constitutional compliance. 

Amy Parekh