My law school was one of many that required a Remedies class during our final year of classes. What I have discovered over time is that a lot of law schools offer Remedies only as an elective and have no specific recommendations about when it should be taken. As a result, many students opt to take electives closely aligned with practice areas they want to pursue once they are licensed.
For a number of reasons, I encourage you to forget about that extra more specific elective and take Remedies instead. It will not only help you once you are practicing law, but more importantly, it will help you pass the bar exam.
1. A Remedies Class will Help you Start to see Cases the Way your Clients see those Cases.
Clients do not come into your office and say, “have I got a contracts case for you!” It is much more likely that the client comes in angry because some deal has fallen through. The client is stuck with merchandise that can’t be sold elsewhere, and this may have ramifications to the financial stability of the client’s business. The client wants money – damages. Now your job is to figure out what legal theories will support a lawsuit to recover those damages.
A remedies class will teach you about the types of legal actions that will help you get those damages for your client. It will also cause you to ask what damages are available under the UCC? Is anything available beyond expectation damages? Is specific performance a possibility? It is issue-spotting on a whole different level.
2. A Remedies Class in your Final Year is an Effective Way to Start bar prep early.
Just look at a syllabus for a Remedies class, and you will see what I mean. Because the focus of the class is on the variety of remedies available, you will be re-exposed to a number of core subjects you studied early in your law school career.
Among the cases you study when covering the topic of damages will be those addressing Contracts (expectation, reliance, incidentals), Torts (foreseeability, punitives), and Property (fair market values, unpaid rents). The elements underlying each different type of claim will explain why damages cannot be viewed with a “one-size fits all” approach.
These cases teach you about the extraordinary situations when injunctive relief is available. This will usually take you into an exploration of Constitutional Law (fundamental rights, discrimination), and Property (encroachment, subsurface damage, taking/zoning). When considering the availability of an injunction, you will be forced to consider whether the rights being violated are important enough or at a stage where immediate action is required.
These cases explore various forms of contracts and whether specific enforcement is a viable alternative in a contract action or with a property transaction that has fallen apart. In an often-seen scenario on the bar exam, you might even ask whether ordering specific performance would violate a person’s 13th amendment rights under the Constitution not to be forced into involuntary servitude.
Does a new city ordinance potentially violate a person’s right to free speech? Can an action to challenge this ordinance be brought in a federal court, or is the claim limited to the state court, raising potential civil or criminal procedure issues?
The availability of restitution will take you across many subject areas, usually involving some form of fraudulent activity. For instance, did someone get a benefit from a contract that can no longer be enforced? Think about the concepts of quantum meruit or unjust enrichment. Or, did someone use another’s property and profit from that use? That profit may be subject to disgorgement. Consider if one person’s funds have been used to pay for or improve another person’s condo. Should a constructive trust be put into place or will an equitable lien suffice? The subject areas raised by these forms of restitution include Contracts, Tort, and Property at a minimum.
And don’t forget all the defenses you learn in a Remedies class!
One subject addressed in a Remedies class is what defenses can be raised to avoid liability. You will learn that different defenses are available based on whether the case involves a legal claim or an equitable one. Is a contract unconscionable or does it violate the statute of frauds? Does a case addressing a border dispute raise the possibility of laches or waiver? Defenses are always a good way to show a bar grader you have a full grasp of the subject matter being tested.
So, pencil in a Remedies class for some time during your last year of law school. Wake up those brain cells that you will need when you start your more complete bar review course. Get a head start!
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