Public Law at the Cathedral: Enjoining the Government
51 Pages Posted: 8 Jun 2014 Last revised: 24 Sep 2016
Date Written: June 6, 2014
Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court’s ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed’s Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.
This Article challenges this prevailing understanding, including past attempts to apply the Cathedral framework to constitutional rights. It argues that a constitutional or statutory right receives the greatest available level of protection when it is actually protected by an injunction. A person whose rights are protected by an injunction enjoys substantially more protection than someone who simply has a substantial likelihood of being able to obtain injunctive relief in court, or even the right to pursue damages. A court’s decision about whether to issue an injunction is likely to make the biggest difference in protecting a public law entitlement where: (i) high transaction costs may deter or prevent rightholders from seeking an injunction (such as where administrative exhaustion requirements exist or the threatened violation is “fast moving”); or (ii) the benefits of violating the right will accrue primarily to a substantial number of politically influential people or groups, while violations are inflicted primarily on members of unorganized or politically weak groups.
Because of the importance of injunctions in public law cases, procedural, jurisdictional, and other related rules should be reformed to ameliorate the unique obstacles which plaintiffs in such cases must presently overcome, and make injunctions available on a wider, more consistent, and substantively defensible basis. Moreover, the Cathedral framework should be modified as it applies to public law cases, to more accurately reflect the important distinction between actually being protected by an injunction (“complete property rule” protection), and merely having a substantial likelihood of being able to obtain one (“potential property rule” protection).
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