two women and one baby

Tort now, pay later.  Or not.  So the discussion went in tonight's Remedies class.  So when is injunctive relief available?

Is it the danger of irreparable harm so that a legal remedy would be inadequate?  When it comes to real estate, is it that the nearly absolute right to use, or not to use, one's property trumps the neighbor's wishes?

Money doesn't make up for some losses, such as risk of physical harm due to domestic violence, or inability to exercise civil rights, or the loss of something unique, such as Great-grandma's crockery.

Under replevin, specific performance is granted even if there is no irreparable harm- specific property is granted back to plaintiff based on the rule of law.  If damages are too speculative or it is too difficult to prove economic harm, the court may also consider injunctive relief.

Courts must also balance the hardships between the plaintiff's harm if the injunction is not granted, and the cost/harm to the defendant if it is.  Solomon must split the baby in the end.

the original position

As defined by Rawls, the idea of the original position is that a well-ordered society is made of those who accept the same political concept of justice, and that they have arrived at this agreed concept by starting from behind the 'veil of ignorance'.  This veil precludes one from seeing the role that they have or will have in society, including the advantages or disadvantages that tend to issue from differences of wealth, intelligence, gender and race.

Thus each person represents a free and equal person, independent of the social position of the person they represent.  A free and equal person has the capacity for a sense of justice-they can understand and apply the rules; and they have the capacity to be motivated by what is of value in the human life.

It's a lot like deciding on the rules before you deal the cards.  And everyone gets the same number of cards.  Poker, anyone?

You say pareto, I say potato

In Remedies this week we were discussing structured injunctions-injunctions used to address a systemic violation of constitutional rights, such as segregation in schools, or discriminatory hiring practices by the state.

The conversation got away from us a bit, and after class it continued down an alternate path.  The upshot was discovery that at least some seem to espouse the 'bootstrap' mentality.  The disadvantaged, such as minorities or women, need only to pull themselves up by their virtual bootstraps and make something of themselves.  Those who follow this line of thinking are quick to offer examples (sometimes themselves) who have done so, as proof positive of the rightness of this way of thinking.  I came away from the conversation disturbed and disappointed.

But all was not in vain, because after a brief email exchange with my son about something entirely different, I found myself looking at John Rawl's Justice as Fairness essay.  All that I could not articulate properly, the ideas percolating in my brain, my own innate sense of the fair way to approach societal, economic and educational issues-all this finds a friend in Rawls.

Brave hearts

Sitting at the sidewalk table at Pete's with an iced green tea, a cookie and my Bus Orgs textbook.  Warm in shorts and a t-shirt, and listening to life swirl around me.  It's a beautiful October Saturday afternoon, and I wish I could forget that Monday morning cometh.

All these people passing by are going someplace, or so it seems.  Each has their own dragon to slay but it's hard to guess at what that is as they stroll, shuffle, skip and meander by.  I wonder what Don Quixote would say if he sat beside me.

Present value

What is tomorrow worth?  If I can spend the day to my satisfaction, what is it worth to me today?  We middle aged persons know that anticipation is often more enjoyable than reality.

In the world of lawsuits, torts and compensation, the present value of tomorrow's dollar is, while uncertain, an important topic of discussion.

But I want to know what tomorrow's time is worth.  All 24 hours of it.  If I were hungry, or cold, or sick, it might be worth a meal, a blanket, cessation of pain.  Instead I worry about petty things, like what to wear, how to navigate the office politics, and whether to read Remedies or Bus Orgs.  Upon reflection, I'm not sure I've put the right price on tomorrow.