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Full-Text Articles in Law
Ebay Rx, Tracy A. Thomas
Ebay Rx, Tracy A. Thomas
Tracy A. Thomas
From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the …
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas
Tracy A. Thomas
The categorization of a separate type of “prophylactic” injunction and its continued prevalence in the courts provides a framework by which to evaluate the legitimacy of broad injunctions. Such broad injunctive relief has been conventionally theorized as simple judicial activism, and has been attacked accordingly. The theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. Rather than striking down all broad injunctive relief as the dominant discourse demands, the concept of the prophylactic injunction provides language through which jurists and lawyers can navigate the real issues of …
The Prophylactic Remedy: Normative Principles And Definitional Parameters Of Broad Injunctive Relief, Tracy A. Thomas
The Prophylactic Remedy: Normative Principles And Definitional Parameters Of Broad Injunctive Relief, Tracy A. Thomas
Tracy A. Thomas
This article is the first complete normative and descriptive treatment of the modern civil rights remedy -- the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and …