Remedies
Reading Assignment
For class on 10/22, read pp. 324-36 and 342-50 reasons courts may have for denying a permanent
injunction (even if plaintiff has shown irreparable injury). I am skipping eBay (p. 337) for the
moment – we will come back to it.
Keep in mind the following questions:
Balancing the Equities/Undue Hardship to the Defendant - Whitlock
1.
The issue involved in Whitlock is called “undue hardship to defendant” or “balancing of
the equities.” It is an affirmative defense and must be raised by the defendant. Courts
are supposed to weigh defendant’s hardship if injunction is granted against benefit to
plaintiff if injunction is granted (or hardship to plaintiff if denied). How does that
“balancing” play out in Whitlock?
2.
To what extent are the culpability of both plaintiff and defendant an issue in Whitlock?
How does culpability affect the balancing – is the court balancing or doing something
else?
3.
Why do you think so few cases settle after an injunction issues in cases like Whitlock?
Burden on the Courts - Co-Op. Insurance
1.
What remedy does plaintiff (Co-op Insurance) seek? Why doesn’t the trial court grant
that request? Why does the Court of Appeal reverse the trial court? With whom does
Lord Hoffman side?
2.
Is it too burdensome for D to perform this injunction? What is so difficult about ordering
a defendant to “keep the premises open for retail trade?” Consider how a court would
give content to that injunction.
3.
Although this is an English case, many American courts would rule the same way. Why
are courts so unwilling to grant injunctions like this when they are willing to grant
complex injunctions requiring judicial oversight in the structural injunction cases we
talked about briefly before break?
Willing – Other Reasons to Deny Injunctions
1.
The opinions discuss several traditional factors as relevant to determining whether to
grant an injunction – i.e., insolvency, multiplicity of suits, injunctions against libel, prior
restraints.
2.
We will discuss various reasons courts don’t grant injunctions even if there is irreparable
injury – these involve antipathy to injunctions against crime/libel, prior restraints.
3.
Review the note on specific performance of personal services contracts at p. 324. This
reading also reflects another policy reason to deny an injunction. I will lecture a little on
this.