Declaratory Judgment vs. Injunction

October 3, 2013 § Leave a comment

Samuel Bray, an assistant professor at UCLA School of Law, sent me a link to an article, The Myth of the Mild Declaratory Judgment, that he has authored on the distinction and relationship between declaratory judgment and injunction. It’s a topic you might find helpful (a) when making strategic decisions about litigation, and (b) if you have to prepare a trial memo or appellate brief on the subject.

Here’s an abstract of the article:

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.

Maxims: Clean Hands

October 2, 2013 § Leave a comment

“He who comes into equity must come with clean hands.”

This maxim is the source of the so-called “Clean Hands” doctrine that every chancery practitioner has encountered at one time or another.

Judge Griffith’s description is apt today. Here’s what the judge said (paragraphs added):

” … [N]o person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity, or illegality.

“It does not exclude a party because in some other matter his conduct may have been reprehensible; it refers only to the subject matter of the particular suit in hand.

“The wrongful conduct which will bar the complainant need not be so gross as to be a crime punishable as such, nor so positive as within itself to form the basis of a legal action. It may be described as such wilful misconduct, inequity or fraud  with respect to the immediate transaction as would be condemned and pronounced wrongful by homest and fair-minded men.” Griffith § 42, p. 44.

As Judge Griffith goes on to say, the doctrine of clean hands is purely defensive in nature, and can not be used by a party to acquire rights to which he or she would otherwise not be entitled. It is not required that it be pled, and the court may apply it, even on its own motion, at any time that it becomes evident in the course of litigation that it has come into play.

The doctrine acts as a form of estoppel. A former wife was estopped from obtaining a judgemnt of contempt against her ex-husband when it was established that she had failed to comply with the judgment herself. Brennan v. Brennan, 605 So.2d 749, 752 (Miss. 1992). See also, Banks v. Banks, 648 So.2d 1116, 1126 (Miss. 1994).

Laches

October 1, 2013 § Leave a comment

We discussed yesterday the maxim that “Equity aids the vigilant and not those who slumber on their rights.” Equity will not act where one party gains an advantage by delaying taking action.

The maxim is embodied in the equity doctrine of laches. Although it resembles the effect of statutes of limitation, laches is not based on, limited to, or bound by any statute of limitations. Judge Griffith explained it this way (broken into paragraphs):

“It is a rule peculiar to and inherent in courts of equity; and it applies where it would be practically unjust to give a remedy, either because the applicant has by his conduct done that which might be fairly regarded as a waiver of his remedy, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were to be afterward asserted.

“A long or protracted delay in the prosecution of rights is presumed to have produced the situation last mentioned and equity looks with so little favor upon such prosecutions that it will not entertain them, although no express statute of limitations is available, — unless facts are shown which will rebut the preseumption of injustice arising out of the apparently undue delay, or which will excuse the same.” Griffith, § 33, pp. 35-36.

Laches is independent of any statute, and gives rise to a rebuttable presumption of unfairness. It is within the discretion of the chancellor. Griffith, § 33, p. 36, fn. 24a.

 

 

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