Austin S. Martin (Massey & Gail LLP) has posted Consent-to-the-Law Decrees on SSRN. Here is the abstract:
Federal courts have long embraced obey-the-law injunctions and consent decrees as practical tools to efficiently resolve disputes. But the theory behind courts’ authority to use these tools rests on legal fictions, thin justifications, and conflicting case law. And when courts combine the two, their underlying doctrines clash. Consent decrees that contain obey-the-law injunctions, or “consent-to-the-law decrees,” violate basic rules of contract theory and longstanding principles of equity embodied in Federal Rule of Civil Procedure 65(d). Moreover, most consent-to-the-law decrees fail the Supreme Court’s alternative to Rule 65(d) under National Labor Relations Board v. Express Publishing Co., 312 U.S. 426 (1941), which permits a district court to issue an obey-the-law injunction where it rests on factual findings about the defendant’s conduct. Recent FTC practice shows how the government can secure sweeping consent-to-the-law decrees—even against sophisticated corporate defendants—that swallow other doctrines designed to balance flexibility and finality in judicial remedies.
To avoid judicial aggrandizement and promote respect for longstanding equitable restrictions on judicial power, federal courts evaluating proposed consent-to-the-law decrees should force the parties to develop a factual record related to the defendant’s conduct giving rise to the dispute. District courts should reject or decline to enforce consent-to-the-law decrees that lack a factual foundation. Appellate courts should similarly presume consent-to-the-law decrees invalid under Rule 65(d) unless the parties can demonstrate that the district court made sufficient factual findings to satisfy Express Publishing. Stricter adherence to Express Publishing and Rule 65(d) will prevent roving judicial enforcement and protect defendants’ rights.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum