Cardozo Law Review
Publication Title (Abbreviation)
Cardozo L. Rev.
Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court’s ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed’s Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.
This Article challenges this prevailing understanding, including past attempts to apply the Cathedral framework to constitutional rights. It argues that a constitutional or statutory right receives the greatest available level of protection when it is secured by an injunction. A court’s decision about whether to issue an injunction is likely to make the biggest difference in protecting a public law entitlement where: (i) high transaction costs otherwise may deter or prevent rightholders from enforcing their rights (such as where administrative exhaustion requirements exist or the threatened violation is “fast moving”); or (ii) the benefits of violating the right will accrue primarily to politically influential people or groups, while violations are inflicted primarily on members of unorganized or politically weak groups.
Because of the importance of injunctions in public law cases, procedural, jurisdictional, and other related rules should be reformed to reduce the unique obstacles that hinder plaintiffs in such cases from obtaining injunctive relief, and make injunctions available on a wider, more consistent, and substantively defensible basis. Moreover, the Cathedral framework should be modified as it applies to public law cases, to more accurately reflect the important distinction between actually being protected by an injunction (“complete property-rule” protection), and merely having a substantial likelihood of being able to obtain one (“potential property-rule” protection).
© 2014 Michael Morley.
Michael T. Morley,
Public Law at the Cathedral: Enjoining the Government, 35
Cardozo L. Rev.
Available at: https://ir.law.fsu.edu/articles/625