The Myth of the Mild Declaratory Judgment

Abstract

When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or seek them together, raises an obvious question: How are they different? The standard answer is that the declaratory judgment is milder and the injunction is stronger. This “mildness thesis” has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. Three rationales have been given for why the declaratory judgment is milder, each focused on something the declaratory judgment is said to lack: a command to the parties, a sanction for disobedience, and full issue-preclusive effect. This Article critiques the rationales for the mildness thesis, demonstrating that they cannot be squared with the way the declaratory judgment and the injunction are actually used.

This Article also offers an alternative account of the choice between these remedies. In many contexts they are substitutes, but not always perfect substitutes. This Article therefore explores the conditions under which each remedy has a comparative advantage when used prospectively. Central to this account is judicial management. The injunction has — and the declaratory judgment lacks — a number of features that allow a court to effectively manage the parties. There is also a difference in timing, because the declaratory judgment is sometimes available at an earlier stage of a dispute. This account clarifies the choice between these remedies, and it has implications for the doctrine of ripeness.

Keywords: remedies, declaratory judgment, injunction, ripeness, equity, uncertainty, contempt, issue preclusion, justiciability, ripeness

JEL Classification: K40