Samuel Bray, ‘The Myth of the Mild Declaratory Judgment’

Abstract:
When plaintiffs in an American court seek prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or decide to seek both together, raises an obvious question. What is the difference between them? 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 mildness thesis, showing how these rationales cannot be squared with the way the declaratory judgment and the injunction are actually used.

This Article also offers an alternative account of the relationship between the declaratory judgment and the injunction. In many contexts these remedies are substitutes, but they are 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 management: the injunction has, and the declaratory judgment lacks, a number of features that allow a court to conveniently and efficiently manage the parties. There is also a difference in timing: the declaratory judgment is sometimes available at an earlier stage of a dispute. Thus management and timing, not strength, offer the best explanation for how these remedies differ. The argument developed here has implications not only for remedies but also for other areas of law, including justiciability and fee-shifting.

Bray, Samuel L., The Myth of the Mild Declaratory Judgment (September 23, 2013). Duke Law Journal, Forthcoming; UCLA School of Law, Public Law and Legal Theory Research Paper; UCLA School of Law, Law-Econ Research Paper.

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