Remedies
Reading Assignments
For 10/8, we will finish discussing the reading from Monday. Review WT Grant and
related questions. Also read pp. 221-32. Keep in mind the following questions:
1.
Is the ripeness issue in Nicholson the same as the one presented in Al Murbati?
What is the difference? Do the defendants in Nicholson have a propensity to do
what plaintiffs seek to keep them from doing? If so, why is the issue not ripe?
What could plaintiffs in Nicholson have argued to make the threatened injury
seem more ripe?
2.
What does the plaintiff seek to enjoin the defendant from doing in Pepsico? Is
that illegal? Why does the court find that the injunction should issue anyway?
How is this situation different from Nicholson?
3.
In some ways, both Nicholson & Pepsico raise the issue of when prophylactic
relief should be available – i.e., when should P get an injunction that clearly goes
beyond the actual wrongful conduct (even to the point of prohibiting lawful
conduct) in order to reduce the likelihood of unlawful consequences.
a. When, if ever, should such relief be available? What limits should there
be on such relief? Does it comport with the notion of rightful position we
saw guiding damages estimations?
b. What is the line between an injunction that is necessary prophylaxis and
one that is too intrusive – consider the cases in nn. 5-8 after Pepsico.
i. We will especially talk about the case in n. 5 (Wilson Metal
Casket).
ii. Given the facts of Wilson Metal Casket, is the scope of the court’s
injunction justified? What are the arguments for and against such
an injunction?
iii. Prophylactic relief is usually used when narrower injunctions have
failed or are clearly unlikely to achieve the desired result. What
injunctive relief should the court order in Wilson Metal Casket if
the original injunction it ordered doesn’t work?
c. Why can’t we view the requested/original injunctions in Al Murbati
(assuming it was ripe) and Marshall simply as prophylactic injunctions?
Are there problems with labeling them as such? How are they different
from the injunctions in Pepsico or in the notes following?