Abstract

http://ssrn.com/abstract=497283
 
 

Footnotes (383)



 


 



The Prophylactic Remedy


Tracy A. Thomas


University of Akron School of Law


Buffalo Law Review, Vol. 52, Spring 2004

Abstract:     
This article is the first complete normative and descriptive treatment of the modern civil rights remedy - the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and theoretical parameters of the prophylactic remedy. By so doing, it attempts to establish a framework for the use of prophylactic remedies by the courts and to deflate the criticism of certain skeptics who mischaracterize such remedies as overly broad misuse of judicial power.

Ultimately, the article has two goals. The primary purpose of the article is to provide an analytical framework that will enable judges, lawyers, and scholars to understand the contours of prophylactic relief. Accordingly, the article identifies trans-substantive remedial principles of prophylactic relief apparent in modern Supreme Court precedent regarding the appropriate character, scope, and use of prophylactic relief. The second and more ambitious goal of the paper is to dispel the myth that prophylactic relief is an overly broad remedy arising from the judge's personal political activism. A close analysis of the Supreme Court's decisions demonstrates quite the contrary - that prophylactic remedies are based upon solid doctrinal and theoretical principles legitimizing its continued use as a viable and necessary remedy.

Number of Pages in PDF File: 77

Keywords: prophylactic, remedies, Supreme Court, equity, constitutional, civil rights

JEL Classification: K1, K4

Accepted Paper Series





Download This Paper

Date posted: February 10, 2004  

Suggested Citation

Thomas, Tracy A., The Prophylactic Remedy. Buffalo Law Review, Vol. 52, Spring 2004. Available at SSRN: http://ssrn.com/abstract=497283

Contact Information

Tracy A. Thomas (Contact Author)
University of Akron School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,829
Downloads: 142
Download Rank: 121,755
Footnotes:  383

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.297 seconds