Some New Papers on Equitable Remedies

1.  Samuel Bray has a new paper on ssrn titled The Supreme Court and the New Equity.  Here is the abstract:

The line between law and equity has largely faded away. The distinction between legal and equitable remedies has been a holdout, yet even there the conventional scholarly wisdom favors erasing the distinction. But something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has directly repudiated this conventional wisdom. These cases range across many areas of substantive law—from commercial contracts and ERISA to habeas and immigration, from intellectual property to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations.

This Article describes and evaluates the Court’s new equity cases. Faced with many federal statutes authorizing equitable relief, the Court has looked to history and tradition to determine what counts as an equitable remedy and also to determine the circumstances in which equitable relief should be given. There have been some blunders, and the Court has glossed over the complexity of equity’s history. On the whole, however, the Court’s new equity cases represent a reasonable response to an enduring challenge—how to make sense of equitable doctrines in a world without equitable courts. This conclusion will prove controversial for scholars in remedies and in various substantive fields, but even those who disagree will need to grapple with the new equity cases, for they may shape the law of remedies for decades to come.

2.  Ronald Cass has posted a paper (forthcoming in the Minnesota Journal of Law, Science & Technology) titled Patent Litigants, Patent Quality, and Software:  Lessons from the Smartphone Wars, on ssrn.  Here is the abstract:

Commentators, public officials, and scholars have sounded alarms over the smartphone patent wars — hundreds of cases asserting infringement of patents by makers of smartphones and tablet computers — often suggesting broad, categorical “fixes” to problems this litigation reveals. In general, these recommendations sweep too broadly, throwing out good claims as well as bad and needed remedies as well as questionable ones. However, calls for attention along two margins promise improvements. One factor, the identity of the enterprise asserting patent rights, already is being used by courts in considering appropriate patent infringement remedies but its use needs to be refined. The other factor, patent quality — especially in software patents, where the existence of parallel schemes of intellectual property protection exacerbates quality problems — is even more critical to the way the system operates. Addressing the patent quality issue (which is distinct from patent clarity or patent notice) can do more than other reforms to reduce costs without reducing innovation incentives.

3.  Jacob Sherkow has published a paper titled Preliminary Injunctions Post-Mayo and Myriad, 67 Stan. L. Rev. Online 1 (2014), available here.  From the paper:

The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on patentable subject matter in over thirty years. And later this term, the Court will decide yet another patent eligibility case: Alice Corp. v. CLS Bank International. While the effects of the Mayo and Myriad decisions on patent law have been widely discussed, they have recently played a fascinating—and less explored—role in another area of law: preliminary injunctions. In several recent patent cases, the contours of Mayo and Myriad have driven district courts to deny preliminary injunctions on patent eligibility grounds. This has subtly altered the texture of the preliminary injunction standard in patent infringement disputes, causing district courts to place greater emphasis on difficult, scientifically complex questions of patent eligibility at nascent stages of litigation. While time—and appeals—will tell whether this change remains viable, this shift in the preliminary injunction standard provides a fascinating, practical case study as to one law: the law of unintended consequences.