The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions

47 Pages Posted: 25 Apr 2012  

Mark P. Gergen

University of California, Berkeley - School of Law

John M. Golden

University of Texas at Austin - School of Law

Henry E. Smith

Harvard Law School

Date Written: March 2012

Abstract

A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, L.L.C. asserted that it was merely upholding “traditional principles” regarding when injunctions should issue. But in circuit after circuit and for subject matter ranging from federal constitutional law to state tort law, lower courts have understood eBay to abrogate longstanding approaches. Focusing on the law for permanent injunctions, this Article examines the eBay opinion and the far-reaching changes that have resulted. For a better perspective on these changes, this Article discusses how courts historically have addressed equity’s traditional concerns with risks of irreparable injury and the balance of hardships. Finally, this Article provides a normative account of the structured sets of equitable presumptions and safety valves that current understandings of eBay threaten to sweep aside.

Suggested Citation

Gergen, Mark P. and Golden, John M. and Smith, Henry E., The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions (March 2012). Columbia Law Review, Vol. 112, No. 2, 2012; U of Texas Law, Public Law Research Paper No. 220. Available at SSRN: https://ssrn.com/abstract=2046149

Mark P. Gergen

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

Henry E. Smith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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