The Immortality of Equitable Balancing

10 Pages Posted: 24 May 2010

Date Written: May 24, 2010


Can a court refrain from enjoining the violation of a statute on the basis that compliance would be an undue hardship on the defendant? “No,” answers Jared Goldstein in an article in the Virginia Law Review, “Equitable Balancing in the Age of Statutes”. At the behest of the review, I wrote a comment in which I answer “yes”, but with a proviso. A court may refrain from enjoining the violation on the basis of hardship of a sort that the legislature did not consider in formulating the statutory rule violated if doing so would be consistent with the statute’s goals. Because this principle honors the decisions that the legislature did make, it is not an affront to separation of powers. Indeed, because courts do generally take this approach, it is a background understanding in the enactment of modern statutes. Statutes should be interpreted accordingly unless the legislature expresses a contrary intention.

A principled undue hardship defense reconciles separation of powers with the need for flexibility when a statute applies to a situation of a sort not contemplated by the legislature. Aristotle saw the need for such flexibility. The need is much greater today because legislatures work in a world that, compared to Aristotle’s, changes faster and is more complex. That is why we have the Chevron doctrine in agency implementation of statutes and the undue hardship defense in equitable enforcement of statutes.

Keywords: Injunction, equitable discretion, balancing the equities; undue hardship

Suggested Citation

Schoenbrod, David, The Immortality of Equitable Balancing (May 24, 2010). Virginia Law Review, Vol. 96, 2010, NYLS Legal Studies Research Paper No. 09/10 #37, Available at SSRN:

David Schoenbrod (Contact Author)

New York Law School ( email )

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New York, NY 10013
United States
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