by Michael C. Dorf
I spent an hour yesterday on the phone with a very smart but very perplexed reporter trying to understand the various nuances of the many issues addressed by Judge Pitman in his opinion granting a preliminary injunction against Texas SB 8 in the case brought by the Department of Justice. That's completely forgivable. These issues are hard enough to explain over the course of a semester in my Federal Courts class. And at least some aspects of the SB 8 litigation involve novel applications of complex doctrines.
Here I want to focus on a fairly basic idea that permeates Judge Pitman's analysis. He repeatedly states that private litigation is inadequate to vindicate the constitutional right to abortion in Texas, given the procedural trapdoors in SB 8. Why does he keep coming back to that point? I think there are at least two reasons.
First, Judge Pitman wants to ward off a criticism--offered anticipatorily by Texas in its submissions--that his ruling licenses the federal government to sue any state any time it allegedly violates anybody's constitutional rights. By pointing to the inadequacy and de facto unavailability of other remedies, Judge Pitman preemptively rebuts the criticism that his decision will open the floodgates to litigation by the federal government against states.
Second, Judge Pitman needs to show that the United States is entitled to an equitable remedy. By long tradition, however, equitable relief--i.e., an injunction ordering a defendant to do something or refrain from doing something--is only available when there is no adequate "remedy at law"--typically defined to mean a damages lawsuit but for our purposes also an after-the-fact remedy such as the ability to raise the constitutional right to an abortion as a defense to a civil action. As Judge Pitman shows in detail, by design, SB 8 erects numerous obstacles to remedies in the ordinary course of a civil action. Thus he shows that there isn't an adequate after-the-fact remedy, and therefore prospective equitable relief is justified.
I believe that Judge Pitman's ruling is correct--which is not to say that I'm entirely confident that it will be affirmed by the Fifth Circuit and/or SCOTUS, whose jurists might take a different view from mine about the procedural issues, the underlying right to abortion, or both. In any event, I want to put all of that aside for now to focus on what everyone has long taken for granted: the traditional rule that a court should not issue an injunction where there is an adequate remedy at law. I'll argue that the rule is unjustified.
First, a bit of background. At the time of the adoption of the Constitution, courts of equity were a parallel system to courts of law in both England and the colonies-then-states. Why? Mostly because of a highly path-dependent history. The official courts of law in England--the "King's bench"--operated under strict, often highly formalistic rules. A sensible solution would have been to relax or change those rules when they produced injustice, but instead, chancery courts, also called courts of equity, developed in England to mitigate the harshness of English law courts. Although courts of equity would eventually themselves become encrusted with arcane procedural rules (as Dickens explored in Bleak House), in principle an equity court was empowered to act more flexibly to achieve justice. In practice, the chief differences between law and equity were jurisdictional and procedural: courts of law heard criminal cases and lawsuits seeking money damages for completed wrongs, whereas equity courts heard cases seeking an injunction of some sort; and courts of law used juries, whereas the chancellor (the judge in a court of equity) did not.
At the Founding, states maintained separate courts of law and equity, as some do even today. However, from the beginning Congress invested federal courts with both the powers of law courts and equity courts. A federal judge would hear a case on either the law "side" or the equity "side." That distinction was abolished in 1937 with the adoption of the Federal Rules of Civil Procedure; Rule 2 declares that there is only one form of action, thus merging law and equity. Nonetheless, even in the federal courts, vestiges of the old separation remain.
Perhaps the clearest vestige is the Seventh Amendment, which preserves the right to a jury trial in "suits at common law." Supreme Court case law construes this provision and related doctrines to ensure a civil jury trial in civil cases seeking damages, but injunctive relief still comes from the judge acting alone. (Where a plaintiff seeks both damages for past wrongs and an injunction against future similar wrongs, the Supremes have said that the court ought to order the rulings in such a way as to prioritize the jury determination of the damages action.)
In addition to the Seventh Amendment's division of labor, sub-constitutional doctrines limit the scope of equitable remedies. Here, for example, is a familiar statement of the proposition from a 1992 SCOTUS case (omitting internal quotation marks and citations): "It is a basic doctrine of equity jurisprudence that courts of equity should not act when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief."
Basic doctrine? Sure. Sensible? Not so much. To see why, consider that in ordinary life we typically think the opposite. The adage an ounce of prevention is worth a pound of cure reflects the folk wisdom that it typically makes sense to avoid a problem rather than remedy it. Better, say, to take the COVID vaccine and dramatically reduce the risk of serious infection, hospitalization, and death than to wait for an infection and then hope that monoclonal antibodies or a ventilator keep you alive. Likewise in many settings, it is better to obtain compliance with a legal duty in advance than to have to sue afterwards in an effort to undo the damage.
To be sure, one could liberalize the availability of injunctive relief by narrowly construing what constitutes an "adequate" remedy at law. But in fact, the case law construes much of what we might conventionally think an inadequate remedy to be an adequate one. There are any number of reasons why a post-hoc damages remedy may be less useful than prospective injunctive relief. The defendant may have inadequate assets to satisfy a judgment (or the assets may be difficult to reach); even if the defendant can satisfy a judgment, the delay in obtaining one could be long; there may be substantial legal uncertainty about whether the defendant is even liable, so that acting first in reliance on the possibility of retrospective relief carries risks. (That last example describes the situation of the SB 8 targets, even though they would be the defendants in a lawsuit in the Texas courts.)
Accordingly, although there may well be reasons why a court would think a post hoc damages remedy is preferable to injunctive relief in any particular case, there is no good reason to systematically prefer the former. Before concluding, however, I'll consider two objections.
First, one might think, and courts sometimes say, that injunctive relief is more intrusive than an order to pay damages. Depending on the size of the damages award and the nature of the injunctive relief--for example, whether it requires ongoing supervision--that can be true, but it is not universally so. Moreover, injunctive relief is in one important sense less intrusive. Suppose a patent case in which defendant has infringed plaintiff's valid patent. An injunction to defendant to cease selling the infringing product precisely remedies the problem, at least prospectively. By contrast, a damages award requires the court to calculate the economic value of the infringement, which is speculative and complicated. Here is how Judge Posner put the point in a 1992 case involving a contract dispute between Walgreens and a landlord on whose property one of its stores was located:
The benefits of substituting an injunction for damages are twofold. First, it shifts the burden of determining the cost of the defendant's conduct from the court to the parties. If it is true that Walgreen's damages are smaller than the gain to Sara Creek from allowing a second pharmacy into the shopping mall, then there must be a price for dissolving the injunction that will make both parties better off. Thus, the effect of upholding the injunction would be to substitute for the costly processes of forensic fact determination the less costly processes of private negotiation. Second, a premise of our free-market system, and the lesson of experience here and abroad as well, is that prices and costs are more accurately determined by the market than by government.
Second, one might think that the Constitution limits the circumstances in which federal courts can issue injunctions to those that were available at the Founding. To tie this objection to the constitutional text, one would say that when Article III vests "the judicial power" in federal courts, it vests the power as it was known in 1789.
That objection strikes me as misguided. Even in the context of the Seventh Amendment, where the constitutional text requires the preservation of the earlier practice, the Supreme Court has quite sensibly said that preservation does not mean freezing every aspect of civil practice involving juries as it existed in 1791. What the Court said in Galloway v. United States about the permissibility of the directed verdict under the Seventh Amendment seems at least as applicable to the permissibility under Article III of injunctive relief even where a damages remedy might be possible:
The [Seventh] Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing. Nor were "the rules of the common law" then prevalent, including those relating to the procedure by which the judge regulated the jury's role on questions of fact, crystalized in a fixed and immutable system. On the contrary, they were constantly changing and developing during the late eighteenth and early nineteenth centuries.
Judge Pitman is right that the remedies available for SB 8's egregious violation of the constitutional right to abortion are woefully inadequate, indeed nearly nonexistent. That suffices to show the propriety of injunctive relief. But as a general matter, the threshold for injunctive relief is too high and rests on nothing more solid than historical accident. Or as O.W. Holmes, Jr. wrote in The Path of the Law: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."