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The Immortality of Equitable Balancing

Professor Goldstein argues that courts should not weigh the burden on defendants in deciding whether to enjoin statutory violations. Such an undue hardship defense to a preventive injunction in statutory cases would, he reasons, allow courts to upend the policy choice that the legislature made in enacting the statute. 

Goldstein sees this practice as a threat to legislative policy choices, because he views equitable discretion as giving judges open-ended discretion to reach whatever result makes sense to them.  He shares this premise with Professors Abram Chayes and Zygmunt Plater; Chayes, however, wanted courts to have broad discretion in formulating injunctions in public law cases while Plater, like Goldstein, seeks to deny discretion to allow violations to continue.  Plater wrote over a quarter century ago. Goldstein makes a valuable contribution not only by dealing with subsequently decided cases, but also going back in time to challenge the Supreme Court’s assumption that the courts have allowed an undue hardship defense for many centuries.

Wal-Mart, AT&T Mobility, and the Decline of the Deterrent Class Action

The justification for class actions rests on two main grounds: compensating victims whose claims are too small to be brought individually and deterring wrongdoing by aggregating claims to facilitate private enforcement. These two rationales overlap and compete with one another, as does their application to class actions certified under different subdivisions of Federal Rule of Civil Procedure 23. Broadly speaking, class actions certified under subdivision (b)(3) focus on compensation to individual class members, with deterrence resulting only from the defendant’s exposure to liability for paying such compensation, while class actions certified under subdivision (b)(2) focus on injunctions that prevent or deter future wrongdoing, without regard to the relief awarded to individual class members. In the recent decisions in Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility LLC v. Concepcion, the Supreme Court cast further doubt on the deterrent function of the class action. More precisely, it sacrificed deterrence when compensation could not be accurately given. Wal-Mart restricted the remedies available in (b)(2) class actions to exclude individual monetary relief, and it also restricted the conditions under which any class action could be certified. AT&T Mobility restricted the conditions under which plaintiffs could get to court to bring a class action in the face of contracts requiring individual arbitration. These decisions are all the more significant for being widely misunderstood.

Why Custom Cannot Save Copyright’s Fair Use Defense

I want to thank Richard Epstein for his thoughtful comments on my article, The Questionable Use of Custom in Intellectual Property, and the Virginia Law Review for asking me to reply to them.  In my underlying article I bring to light the tremendous impact that custom has on both de facto and de jure intellectual property (“IP”) law, and criticize the general preference of courts to incorporate such custom into the law. I set forth reasons why custom is of particularly limited value in the IP context. My position is not that custom has no relevance to an inquiry of what might be a fair or appropriate use of another’s IP. Instead, my position is more nuanced. Customs should be considered only for a normative proposition—such as what constitutes a fair use—when the specific custom was developed in a representative manner, is aspirational in nature (rather than simply a litigation-avoidance strategy), is applied to represented parties, and where an independent evaluation is made of what impact such a custom would have if broadly adopted.

In his response to my article, Professor Epstein reinforces his defense of the use of custom in the law and suggests that, at least in some instances, his position holds true in the context of IP.  Because Epstein focuses his response on copyright law and the copyright fair use defense, I will generally do the same in this reply. It is worth noting, however, that my article sweeps more broadly, considering customs involving trademarks, patents, and publicity rights.

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