The Trial Judge's Equitable Discretion Following eBay v. MercExchange

Abstract:     
The judge's choice between discretion and a rule is ubiquitous. In this article, I analyze the portion of discretion that the Supreme Court in eBay v. MercExchange claimed for the judge's equitable decisionmaking in the course of establishing a four-point test for granting a permanent injunction.

After setting the stage for the modern judge's equitable discretion, I turn three related points. The first is the issue of a right without a remedy: does the judge have discretion to find that the defendant violated the plaintiff's substantive right but to decline to grant the plaintiff any remedy? The second is selecting a remedy: after finding that the defendant violated the plaintiff's right, how much discretion does the judge have to grant an injunction versus some other remedy? The third is measurement: after choosing to grant the plaintiff an injunction, what discretion does the judge have to determine the terms of that injunction?

In addition to disagreeing with the eBay Court's four-point test, I treat rules vs. standards; hierarchy vs. decentralization; and discretion under the Constitution, a statute, and the common law. After examining these subjects, I propose a frame of reference for a court to consult in deciding many discrete issues of equitable discretion.

Number of Pages in PDF File: 35

JEL Classification: K41

Accepted Paper Series