Remedies
Reading Assignment
For class on 9/24, we will discuss damages available for dignitary torts and constitutional
violations – in keeping with the “damages that are hard to measure” theme. Read pp.
137-150. Keep in mind the following:
Damages for Dignitary Torts
1.
What torts fall into the category of dignitary tort?
2.
What did you think of plaintiff’s evidence of emotional distress in Levka? If
you were her attorney what might you have done differently to bolster her
claim of emotional distress?
3.
Which factor is most relevant when a court determines emotional distress –
plaintiff’s injury or defendant’s conduct or both? What are the risks in
focusing on either of these factors? Which factor best explains the results at
p. 141 n.2.
4.
How relevant are other jury verdicts when determining the appropriate
damages in these cases? What dangers are there in using comparator verdicts?
a. Consider the following questions – if Levka has appealed her case first,
would her verdict have been upheld because the court didn’t know about
the other outcomes yet? If they were handed down in the same amount
later would they have been too “small?” What does your response to these
questions suggest about how we should treat these verdicts?
Damages for Constitutional Violations
1.
Why did plaintiff in Carey v. Piphus only recover $1? How was the
plaintiff’s claim different from that in Levka?
2.
The Supreme Court in Carey ducks the question of whether constitutional
rights have an innate value – do they? How do you value the right to a
hearing before being kicked out of school? How do you value first
amendment or substantive due process rights?
We may also begin discussing common law and state statutory rules pertaining to awards
of punitive damages. This issue is DIFFERENT from the constitutional review of
punitive damages regarding excessiveness. I won’t have you read anything for this yet
but consider the following questions
1.
What are the purposes of awarding punitive damages?
2.
Why don’t compensatory damages adequately serve those purposes?