Ok, I tried to post a comment and Blogger won't let me, so I'm pasting it here....
Anon: No worries. I just saw your second post. I disagree about this, though...
"Thus, there would be no need to discuss the rationale for equitable relief in a fraud case here."
The cases talked on and on about how the fact that there were badges of fraud made it preferable that an action at law (for damages on a contract) would now be able to receive equitable relief.
Previously, a plaintiff had to choose. If they brought a suit at law, they were limited to legal remedies (ie. damages). If they brought a suit in equity, then they were limited to equitable rememdies (ie, SP, injunction). If there is a sufficient showing of fraud, then plaintiff is now allowed to "mix" equity and legal remedies, so to speak.
The reason for that is public policy- the judicial process is rendered futile by the fraudulent acts of the defendant. So, you have to show that there was sufficient evidence of fraud in the first place to get to the point where you can even qualify to ask for equitable relief.
Breach of contract allows you to get damages for breach, right? Well, if there is fraud, then that's a whole new ball game. That was the point the cases were making. Once you establish the fraud, you have to meet all the elements to actually get the equitable relief you are seeking. That's the test where you argue all the facts of the harm (of not getting the injunction) to plaintiff and end with the five public policy reasons for why plaintiff getting the injunction not only helps him, it helps the public interest at large, innocent third parties, other creditors who might rush the defendant, etc.
Kind of like if you submit a summary judgment motion to the court, you always start with the rationale why summary judgment can be granted. Sure the judge knows that, but you put it in there anyway to show that YOU know that and to educate the court like they are a two year old (wasn't that in a Denzel Washington movie?)
Just sayin'.
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2 comments:
Perhaps we only disagree on emphasis. I would say that the reason the cases emphasized the rationale for equitable relief in contract cases was because they were no longer requiring a plaintiff to demonstrate an inadequate remedy at law. Within the clear legal right prong, I would say there's no reason to discuss that rationale - it doesn't move your argument forward; the courts have already made that decision.
I suppose, though, if you had time, there is no harm in repeated unnecessary rationale.
And, by the way, I did the same as you - drafted the facts early on as I read. Seemed more efficient.
On the evidence essay, no worries about prop 8 - it didn't affect anything, and my only mention was boilerplate, and that it doesn't affect hearsay, privileges, or the CC.
On the foreign law: funny, but one guy near me yesterday when it was over was talking loudly about how he thought the foreign law stuff was key to the whole memo. Everyone around him was either doubtful or deeply worried. Count me in the doubtful camp.
Good luck tomorrow. I'm an attorney applicant, so got to skip today and sit in the hotel hot tub. I'm expecting for tomorrow community property, corporations, and remedies crossed with an MBE subject, and for the PT, a fact finding memo.
Yeah, I think we actually agree... my "clear legal right" discussion was the smallest of all of them. I started with the change in the rationale by the recent case precedent and then went on to the three prongs of the test.
I am SOOOO hoping for a fact finding memo. I think if it's remedies it will be with torts. Contract remedies have been there quite a bit recently. Full contracts and Corps would be welcome. I suck at CP, though. Hopefully doing every last one for the last five years will help! :)
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