I’ve revised my brief essay known as Equity’s Role in Defining Property Rights, and this passage may be related for readers taken with cures, standing, and fairness:
Critically, this safety of property rights is tailor-made, and it doesn’t should be only a reiteration of the property proper within the type of an injunction. In different phrases, one must be cautious to not assume that an injunction is just on all fours with the scope of the suitable in query. On the contrary, an equitable treatment could also be phased in or phased out, expanded prophylactically, restricted due to laches or unclean fingers or undue hardship, or made conditional on acts to be taken by the plaintiff or defendant or each. And even after an injunction is issued, the courtroom can come again and modify or dissolve it, with out altering the underlying property proper.
Essentially the most well-known exposition of a opposite view, conceiving of the scope of an injunction as coextensive with a property proper, is Professor Guido Calabresi and Douglas Melamed’s One View of the Cathedral. That article is correct to emphasise the safety of property with equitable cures just like the injunction. However the Cathedral‘s mistake is to disregard how the safety of property rights by fairness is distinct from the definition of property rights. The scope of 1 doesn’t should be the scope of the opposite.
These property exceptions—these doctrines that fairness won’t do x, y, or z, besides to guard property rights—serve a number of features. One perform is to channel fairness’s focus. Analogous to standing doctrine, they tie fairness to one thing extra concrete and particular, guaranteeing that the dispute might be put “on the map,” so to talk.
If you wish to learn extra, the essay is here. And the best way equitable doctrines (just like the requirement of a proprietary curiosity) can work analogously to standing doctrine is taken up in Debs and the Federal Equity Jurisdiction, coauthored with Professor Aditya Bamzai.
