Monday, April 30, 2012
Mark Gergen (Berkeley), John Golden (Texas), & Henry Smith (Harvard) have posted The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions (Columbia) on SSRN. Here's the abstract:
A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, L.L.C. asserted that it was merely upholding “traditional principles” regarding when injunctions should issue. But in circuit after circuit and for subject matter ranging from federal constitutional law to state tort law, lower courts have understood eBay to abrogate longstanding approaches. Focusing on the law for permanent injunctions, this Article examines the eBay opinion and the far-reaching changes that have resulted. For a better perspective on these changes, this Article discusses how courts historically have addressed equity’s traditional concerns with risks of irreparable injury and the balance of hardships. Finally, this Article provides a normative account of the structured sets of equitable presumptions and safety valves that current understandings of eBay threaten to sweep aside.