The Myth of the Mild Declaratory Judgment

By Bray, Samuel L. | Duke Law Journal, February 2014 | Go to article overview

The Myth of the Mild Declaratory Judgment


Bray, Samuel L., Duke Law Journal


III. RETHINKING THE DIFFERENCES BETWEEN DECLARATORY JUDGMENTS AND INJUNCTIONS

If the declaratory judgment and the injunction should not be distinguished in terms of strength, how should they be distinguished? This Part offers an alternative. As noted above, in many cases in which a plaintiff seeks prospective relief, a declaratory judgment and an injunction are interchangeable. Both resolve uncertainty about the law, and both bind the losing party. For an inventor who fears a patent infringement suit, or for an antiwar protestor who fears prosecution, it will ordinarily make no difference at all whether the court gives the protection of a declaratory judgment or an injunction.

But, despite these similarities, the two remedies are not perfectly interchangeable. In particular, the injunction has a number of features that make it better suited, all else being equal, to management of the parties. (168) The declaratory judgment lacks these features. Yet it is available at an earlier stage in some disputes than the injunction is. These dimensions of difference--management and timing--more accurately distinguish the declaratory judgment and the injunction than the dimension of strength can.

A. The Dimension of Management

The central difference between the declaratory judgment and the injunction in contemporary American law is management, in the sense of continuing judicial direction and oversight of the parties. The injunction enables a high degree of management. The declaratory judgment does not. As a result, the decision to grant one or the other of these remedies should chiefly be a decision about the degree of direction and oversight that the relationship of the parties requires of the court.

On this dimension, it is important to distinguish between two analytical categories. The first category is the situations in which the injunction and the declaratory judgment are used. The second is the features of the injunction and the declaratory judgment that affect each remedy's potential for management. As will be seen, the injunction is used in situations in which continuing direction and oversight of the parties are needed, and it has features that are conducive to this direction and oversight. In contrast, the declaratory judgment is used primarily in situations in which a high degree of management of the parties would be unnecessary or impracticable, and it pervasively lacks features that such management would require.

To recognize the interaction of both analytical categories is to avoid a mistake implicit in the mildness thesis: the mistake of thinking of a remedy entirely in the abstract, apart from how it is used. Rather, the meaning of a remedy is constructed through the interaction of its features with the situations in which it is used within a legal community.

1. The Spectrum of Need for Judicial Management. In federal court, declaratory judgment actions are especially frequent for disputes about the validity of patents or other forms of intellectual property, for suits by insurers to establish whether they have a duty to defend an insured, and for pre-enforcement challenges to legislative and executive action. (169) In state court, declaratory judgment actions are commonly used to resolve ownership of property, to clarify the construction of contracts, to determine legal status, or to challenge administrative action. (170) In all of these situations, what the court is being asked to solve is a problem of legal uncertainty. If the court clarifies the application of the law with a declaratory judgment, then that judgment will provide the only management the parties are likely to need going forward because they will know how to act. In many of these cases, any further management would also be infeasible. For instance, when an insurer sues to determine whether it has a duty to defend, surely the judge does not want to supervise the insurer, and to tell it either how many depositions would be necessary to fulfill that duty or when it should settle the case. …

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