Sid Delong on Speech Act Theory and SCOTUS's Notorious eBay Opinion

When SCOTUS Says It’s So, It’s So:
A Speech Act Analysis of the eBay Opinion
Sidney W. DeLong

Suppose that in the Spring of 2006, you had been grading final exams in your Remedies class. You had posed a question about whether a property owner could obtain a permanent injunction against a neighbor who was threatening to misappropriate some of the owner’s property. Several classes had been devoted to the rules and principles on which courts enter permanent injunctions.

One student began his answer as follows:

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Notwithstanding its superficial precision and its confident tone, you gave this answer no points because you identified at least six substantive errors in it. The most glaring mistake is that says that issuance of a permanent injunction requires a plaintiff to “demonstrate that it has suffered an irreparable injury.”

That statement is wrong in at least two ways. First, because an injunction is intended to prevent future injury, it is never necessary that the plaintiff demonstrate that it has already suffered an injury. More importantly, the student fails to say that a court will not issue an injunction unless the plaintiff demonstrates that it will suffer injury in the future if the defendant is not enjoined. (The other obvious errors are discussed at the end of this post.)

Now suppose that, in an exam review after the end of the semester, the student who wrote that paragraph unexpectedly defended his answer by drawing your attention to a hot-off-the-presses Supreme Court slip opinion in eBay v Mercexchange, L.L.C, 547 U.S. 388, 390 (2006) where, (miraculously?) the identical 85-word paragraph appeared. The student demanded to know how his answer could be “wrong” if it coincided exactly with Justice Thomas’s opinion? How would you have explained his grade?

I would have found this to be a formidable task. Just saying “Well, the Court just got it wrong!” as I would have to a colleague would have sounded arrogant if not megalomaniacal to a student, even though it is exactly what I thought. Incidentally, I am not alone in this view.  See, e.g. Laycock and Hansen, Modern American Remedies (Concise 5^th Ed. 2019) 353-57 (below, right); Mark P. Gergen, John M. Golden, & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203 (2012).  But how can I explain what “wrong” means in such circumstances?

Not wishing to get into waters this deep, I think instead I would have invoked speech act theory to explain how the court could have been “right” and the student wrong. In speech act theory, despite all appearances, this was not a case of two different people saying the same thing. The two identically worded utterances are different speech acts that are doing different things.

The student’s answer consisted of assertions, which are speech acts that make a statement of fact. Assertions are either true or false. Unhappily, the student’s statements about the law of permanent injunctions were all false and misleading, which I could easily prove.

Although the Supreme Court’s opinion used identical language, it performed a completely different speech act. Rather than being assertions, the Court’s language was a series of performative utterances, sometimes known as declarations. Performative utterances are what most people think of when they think of speech acts and they are particularly characteristic of legal speech. According to speech act theorist John Searle (below left) “Declarations bring about some alteration in the status or condition of the referred to object or objects solely in virtue of the fact that the declaration has been successfully performed.” When uttered by the right persons under the right circumstances, declarations or “explicit performatives” change the world in the way mentioned in the utterance.

In a successful declaration, just saying something makes it so. “I hereby declare the meeting to be adjourned” adjourns the meeting. “The motion is hereby overruled” overrules the motion. “I hereby accept your offer” accepts the offer. The speaker’s use of the legal-sounding adverb “hereby” is a universal signal of an explicit performative. Although the word may be omitted when it is tacitly understood, “hereby” can be added to any performative phrase without changing its meaning or effect.

John Searle, Image by FranksValli, CC BY-SA 4.0 
via Wikimedia Commons

Unlike assertions, declarations are neither true nor false: instead, they are effective or ineffective, depending on who does the declaring and under what circumstances. When an umpire yells “You’re out!” in a baseball game, the runner is out. When a fan yells “you’re out” in identical circumstances the runner is not out. When a law student writes, “A plaintiff must demonstrate that it has suffered an irreparable injury,” his writing has no declarative effect and does not affect the law. When five justices of the Supreme Court write the same sentence in an opinion, the words have a declarative effect, which creates the rule it just announced.

But it gets a bit more complicated. Often an utterance can have both assertive and performative illocutionary force. “The bar is closed” when said by a disappointed patron to a hopeful arrival is an assertion and is either true or false. But when it is loudly announced by the publican to the patrons in the bar, it is a declaration that becomes “legally” effective upon its utterance: Saying it closes the bar. But in those circumstances, it is also a true statement by the publican about the bar’s status. As such it is an assertion whose purpose is to give information to the hearers.

The same expression can thus serve two functions, formally closing the bar and truthfully informing the patrons of that sad fact. Searle called such hybrid expressions “assertive declarations.” An assertive declaration in a judicial opinion would simultaneously change the law in some way and truthfully assert that the law had become the way it described.

Finally, to complicate things still further, whether an utterance is an assertion, a declaration, or an assertive declaration depends on its correct interpretation by the hearer. The “illocutionary force” or speech act status of an utterance is always a matter of interpretation, no less than is its meaning.

What then is the speech act status of the eBay Court’s statement that, under the familiar four-factor test, the issuance of a permanent injunction requires a plaintiff to “demonstrate that it has suffered an irreparable injury”? If it was only an assertion, like the student’s answer, then it was false, as a host of Remedies authorities have confirmed. See above. It completely misstated existing law.

On the other hand, if the Court had written an explicit performative: “We hereby rule that a permanent injunction requires a plaintiff to demonstrate that he has suffered an irreparable injury,” that utterance would have been neither true nor false because it would not be an assertion. It would instead have been legally effective to change the law of injunctions in federal courts. It would have been formally unobjectionable, although of course subject to criticism as to its wisdom.

But did the court intend for its statement to be declarative of law despite its omission of “hereby”?  Ostensibly, the court was merely reporting the existence of a “well-recognized four factor test” and reciting part of that test. In this, it was mistaken. Its declaratory powers do not include the power to change facts.

But the Court did more than assert the existence of the test as a fact. It implicitly adopted the test as its own and used it to resolve the case. In doing so, it declared the four-part test to be federal law, even if, as Gergen et. al. have suggested, “accidental” law.

As an “assertive declaration,” the paragraph became not only legally effective but, as a consequence, also became factually true as a description of federal law. In other words, the paragraph became a true assertion about federal law as soon as it was published, as does any successful assertive declaration. Saying it made it so.

Should my hypothetical student then have won the argument over his exam? Technically, his statements were false and misleading when he wrote them but they became true only later with the publication of eBay. Moreover, even after eBay, the non-federal law applicable to the exam hypothetical remained unchanged. I continued to teach subsequent classes the actual tests for permanent injunctions in courts uninfluenced by eBay and that its effect on federal court cases that do not involve patents is still uncertain. There is no sign that the Court itself is inclined to clarify the ruling and that is where things stand.

But I confess, if any of my students had been sharp enough to find the eBay opinion and make that argument in an exam review, he or she would have earned a grade increase for initiative.

Postscript: My brief enumeration of inaccuracies in the eBay paragraph follows. Although Justice Thomas authored the opinion, any blame for its mistakes was equally shared by the entire Court because none of them was challenged or corrected.

Of course, the first misstatement was that the announced “four-factor test” was “well-established.” Although many courts have articulated four requirements for permanent injunctions, none have stated this test. Nor was the announced test expressly supported by the authorities the Court cited: T Weinberger v Romero-Barcelo, 456 U.S. 305, 311-313) (1982); Amoco Production Co. v. Village of Gambell, 480 U.S. 31, 42 (1987).

As noted, the court incorrectly stated that the plaintiff must demonstrate that it had suffered an injury and it fails to state that the plaintiff must demonstrate that it will suffer an injury in the future. It is both insufficient and unnecessary for a plaintiff seeking a permanent injunction to demonstrate that it has suffered an irreparable injury. It is, instead, necessary to demonstrate that the plaintiff will suffer such an injury if the defendant is not enjoined. While it is sometimes probative that the plaintiff has already suffered injury of the form sought to be enjoined, it is always necessary to show that the injury will be sustained in the future. If such future risk is proved, it is unnecessary to prove that the injury has already been sustained.

The opinion next says that the plaintiff must show both that it has suffered an irreparable injury and that remedies available at law, monetary damages, are inadequate to compensate for that injury. These statements split a single prerequisite into two: irreparable injury and inadequate remedy at law. Authorities agree that an injury is irreparable precisely because, and only when, money damages (the remedy at law) would be inadequate to compensate for it.  If the rule is confused in this way, some courts may be misled into believing that two different things must be demonstrated.

The opinion says that the plaintiff must demonstrate “that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted.” At best, this is a half-truth, which holds only if the defendant has acted innocently. If so, a court may deny an injunction if the cost to the defendant of complying with the injunction greatly exceeds the cost to the plaintiff of suffering the irreparable harm if the injunction is denied. But if the defendant has acted deliberately or recklessly, the injunction will issue even if the balance of hardships favors the defendant, Whitlock v Hilander Foods, Inc., 720 N.E. 2d 302 (Ill. App. Ct. 1999) (Enjoining defendant to remove encroaching construction where the trespass was reckless.) A rule prohibiting injunctions on the basis of balancing of the hardships would under some circumstances permit “efficient conversion,” by giving parties a right of “private condemnation” whereby they may tortiously appropriate the plaintiff’s property and force it to accept monetary payment for it.

The eBay opinion fails to state the universal requirement that the plaintiff must demonstrate that the balance of the equities favors issuance. One who seeks equity must do equity, must come into court with “clean hands.” If the plaintiff has acted inequitably, the injunction will usually be denied. A defendant who has acted wrongfully may be enjoined in circumstances in which an innocent defendant might not be.

The eBay opinion requires that a plaintiff prove that public policy will be served by an injunction rather than requiring the defendant to prove the opposite. Under such a rule, a plaintiff seeking an injunction against a deliberate trespass will be required to make a public policy argument. The Court was thinking of the kinds of high-profile, public law injunctions that come across its desk rather than the more prosaic, property-related injunctions that make up the business of most trial courts. “Public policy” is rarely at issue in such cases.

Finally, the opinion suggests that property interests should not be routinely protected by injunctions against deliberate acts of infringement unless the balance of hardships favors the plaintiff. While this extraordinary requirement may be justifiable in patent cases to address the special problem of extortion by “patent trolls,” it has never been applied to injunctions that protect ordinary property interests that are not subject to compulsory licensing. Balancing hardships has a role in injunctive relief against innocent defendants, but it is not part of a plaintiff’s prima facie case and the test does not apply in cases of deliberate wrongdoing. At least, it did not before eBay.

But, as Professor Laycock pointed out, once the Supreme Court makes a legal mistake, it ceases being a mistake and becomes the law of the land.  Saying it makes it so.