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Injunctions: Too Much and Too Little

Updated: Oct 17, 2019

In policy and legal circles, judicial injunctions have gotten a bad reputation. Not totally without justification, with judicial activists wielding their equitable powers as a political weapon to veto acts of a politically accountable branch. But that’s not the end of the story.

Judges didn’t arrogate to themselves the power to enjoin public policies nationally before the 1960s. Injunctions blocking a federal policy action have multiplied in the 21st century. Twenty were issued in the Obama administration’s two terms. Judges have issued about 40 nationwide injunctions in 2 1/2 years of the Trump administration.

“No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction,” writes UCLA law professor Samuel Bray. Supreme Court Justice Clarence Thomas calls nationwide injunction “legally and historically dubious.” Attorney General William Barr notes, “The first judge to issue an injunction effectively nullifies the decisions of all other courts that have already been issued — not only other courts’ decisions, but even those of higher appellate courts in other circuits.”

There’s rightful concern whenever a lone federal district judge undoes a policy action of the Congress or an administration. An appointed jurist unilaterally making a policy determination, undercutting an electorally accountable policy actor, not only looks bad, it smells rank. It infringes citizens’ private property rights, John Locke would say, because we have property rights in our persons (including due process) as well as in our possessions.

Yet, courts routinely issue far less sweeping injunctions. For instance, prohibitory injunctions — restraining orders — keep creeps away from ex-wives. Such unsung injunctive relief protects those wronged or threatened. Injunctions appropriately used are tools of justice.

In the arena of patents, until 2006 injunctions typically followed a court’s determination that a patent is valid and being infringed. Courts weighed equities. Unsurprisingly, equitable relief is necessary to the exercise of one’s exclusive rights the patent secures. Otherwise, the patent infringer can keep making and selling knockoffs, and you can’t force him out of what’s justly your exclusive market. And such injunctions apply only to the parties.

The Supreme Court’s eBay v. MercExchange upended appropriate equitable remedy. “In the ensuing decade, courts increasingly declined to enjoin infringers from continuing the infringing activity, which has led to a concomitant decrease in the value of intellectual property,” write former Federal Circuit Chief Judge Paul Michel and IP attorney Matthew Dowd. “More troubling, the availability of an injunction is highly dependent on the identity of the patent holder— creating the very categorical rules that the unanimous Court, including Justice Kennedy, stated should not be applied.“

Deplorably, eBay has sown the whirlwind. And on a quite flimsy basis. Michel and Dowd observe “the only issue all Justices agreed upon was that, in their view, the Federal Circuit had misstated the applicable standard, not that the facts did not warrant an injunction.” EBay’s Kafkaesque application by lower courts amounts to a categorical rule against issuing injunctive relief to patent owners! Forget justice delayed; justice denied is justice denied.

If ever there were a gross injustice from courts denying property rights, the post-eBay categorical rule sits in the top tier. The scope of harm from eBay rivals that of nationwide political injunctions. Both reflect rogue actions under color of law.

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