Friday, June 6, 2014

'Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964'

The title of this post comes from this upcoming paper by Professor Michael Morley, the abstract of which states:

The four-factor test for issuing injunctions under federal laws that the Supreme Court endorsed in eBay, Inc. v MercExchange, L.L.C. requires courts to make quintessentially policy judgments and affords them tremendous discretion to decline to grant relief. Courts face additional challenges in determining whether the eBay standard governs injunctions under laws such as the Civil Rights Act, how it should apply in such circumstances, or whether it should be modified. 

This Article offers a new framework for statutory injunctions. Courts should neither apply a single, uniform standard in determining whether to issue such injunctions, nor vary the standard depending on the nature of the statute being enforced. Rather, the proper approach depends on the nature of the relief a plaintiff seeks — in particular, whether the plaintiff seeks remedial relief, to repair harm she already has suffered, or prospective relief, to prevent further statutory violations. A court should grant a plaintiff’s request for a remedial order, if possible, unless the combined burdens or harm that it would cause for the defendant and third parties overwhelmingly outweigh the benefit to the plaintiff. Conversely, when a successful plaintiff has standing to seek prospective relief, a court automatically should enjoin repeated, ongoing, or impending statutory violations, and wait until subsequent contempt proceedings to determine the propriety of enforcing the injunction under the circumstances. 

While remedial injunctions play a valuable role, Congress should avoid relying on prospective injunctions as statutory remedies. Instead, it should enable courts to directly apply civil and criminal contempt-type remedies for statutory violations, rather than requiring plaintiffs to first take the “intermediate” step of obtaining an injunction.

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