I’ve revised my brief essay known as Equity’s Role in Defining Property Rights, and this passage is likely to be related for readers keen on treatments, standing, and fairness:
Critically, this safety of property rights is tailor-made, and it doesn’t need to be only a reiteration of the property proper within the type of an injunction. In different phrases, one ought to be cautious to not assume that an injunction is solely on all fours with the scope of the fitting 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 court docket can come again and modify or dissolve it, with out altering the underlying property proper.
Probably 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 treatments 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 need to 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 capabilities. One perform is to channel fairness’s focus. Analogous to standing doctrine, they tie fairness to one thing extra concrete and particular, making certain that the dispute might be put “on the map,” so to talk.
If you want to read more, the essay is here. And the way in which 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.
