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1/ I am pleased the @akronlawreview published my piece, "Beyond the Elements: Erie and the Standards for Preliminary and Permanent Injunctions" as part of its "Erie at Eighty" symposium! I have uploaded the final revised version to SSRN, as well. papers.ssrn.com/sol3/papers.cf…
2/ I argue that, even when federal and state standards for injunctions seem compable, a federal court adjudicating a state-law claim should still decide which competing body of law to apply, rather than assuming it doesn't matter and defaulting to federal law and precedent.
3/ I previously argued in "The Federal Equity Power" that equity isn't a single, unified, freestanding body of law. Rather, the body of equitable principles a court must apply to a claim depends on the body of law from which the claim arises. papers.ssrn.com/sol3/papers.cf…
4/ Thus, a federal court must apply federal equitable principles to federal claims, and state equitable principles to claims arising under state law, as in diversity and supplemental jurisdiction cases.
5/ This follow-up article answers the "so what" question. It points out that are often both "facial" and "precedential" distinctions between state and federal bodies of equitable remedial principles.
6/ "Facial" distinctions are when similar-sounding standards are phrased slightly differently from each other. How likely to succeed on the merits must the plaintiff be? Must an injunction affirmatively be in the public interest, or merely not against the public interest?
7/ Facial distinctions also include how the various requirements for injunctive relief relate to each other. Must a plaintiff separately establish each element? May a stronger showing of one element offset a weaker showing on others?
8/ The heart of the article - its main and controversial contribution - is that even when federal and state standards are facially identical, there inevitably are "precedential" distinctions between them. papers.ssrn.com/sol3/papers.cf…
9/ An element/factor from a particular jurisdiciton's doctrinal test is a proxy for the body of precedents from that jurisdiction applying/interpreting it. Different jurisdictions have reached some different conclusions about whether particular injuries count as "irreparable,"
10/ They've sometimes reached different conclusions over whether certain alternate remedies quality as "adequate," or how to measure the public interest.
11/ Even when federal and state courts haven't reached squarely different conclusions on an issue, different bodies of precedent deal with different fact patterns, providing different sets of binding guideposts for adjudicating cases.
12/ Thus, because competing doctrinal tests from different jurisdictions are stand-ins for those jurisdictions' respective bodies of caselaw construing them courts shouldn't dodge the Erie issue by simply declaring federal and state standards look the same.
13/ This argument has potentially broader application in Erie, reverse-Erie, and general choice-of-law cases, but the main focus of this article is encouraging federal courts adjudicating state law claims to face and resolve the Erie question about equitable remedial principles
14/ I'm honored to publish this piece as part of @AkronLawReview symposium on Erie alongside such scholars as @Capricelroberts, Ernest Young, @brianlfrye, @sharonsandeen, Michael Green, Laura Little, Kermit Roosevelt, @CamillaHrdy and many others! papers.ssrn.com/sol3/papers.cf…
