The Myth of the Mild Declaratory Judgment

Article excerpt


When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or seek them together, raises an obvious question: How are they different? 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 rationales for the mildness thesis, demonstrating that they cannot be squared with the way the declaratory judgment and the injunction are actually used.

This Article also offers an alternative account of the choice between these remedies. In many contexts they are substitutes, but 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 judicial management. The injunction has--and the declaratory judgment lacks--a number of features that allow a court to effectively manage the parties. There is also a difference in timing, because the declaratory judgment is sometimes available at an earlier stage of a dispute. This account clarifies the choice between these remedies, and it has implications for the doctrine of ripeness.



I. The Mildness Thesis

II. Assessing the Rationales for the Mildness Thesis

    A. The Command Rationale
    B. The Sanction Rationale
    C. The Preclusion Rationale
    D. Underlying Mistakes of the Rationales for Mildness

III. Rethinking the Differences Between Declaratory Judgments
     and Injunctions

     A. The Dimension of Management

        1. The Spectrum of Need for Judicial Management
        2. The Managerial Features That the Injunction Has
           and the Declaratory Judgment Lacks

     B. The Dimension of Timing
     C. Evaluating the Dimensions of Difference
     D. Summary

IV. Implications for Remedies and for Ripeness



In the initial litigation over the Patient Protection and Affordable Care Act, (1) there was a moment of curious confusion. A district court held the act unconstitutional, (2) and the remedy it gave was a declaratory judgment. (3) In response, the Department of Justice filed an unusual Motion to Clarify, claiming that, because the court's decision was a declaratory judgment, it would not have any legal effect until appeals were concluded. (4) The district court rightly rejected that claim. (5) But it is striking that this kind of basic question about the declaratory judgment's effect was even in dispute. This confusion is symptomatic of a broader misunderstanding of the declaratory judgment and its connection to the central nonmonetary remedy in American law, the injunction. (6)

The standard account of the relationship between these two remedies is that the injunction is the stronger remedy and the declaratory judgment is the milder one. That account, which is here called the mildness thesis, has been prominently advanced by the Supreme Court: "The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy." (7) Many scholars have echoed the mildness thesis, including Professors Owen Fiss (8) and Peter Schuck. (9) Lower federal courts have repeatedly embraced it. And its status as conventional wisdom is confirmed by its appearance in treatises and practice manuals, in briefs by leading practitioners, in student notes, and in the Restatement (Second) of Judgments. (10)

Yet scholars and courts have not settled on a single rationale for why the declaratory judgment is milder. …