Equity Isn't Venti for the Government

Tomorrow the Supreme Court will hear oral argument in Starbucks Corp. v. McKinney. Read more in this piece at ScotusBlog by Ronald Mann. The question concerns the standard for injunctions sought by the NLRB.

Here is a note from the forthcoming edition of Ames, Chafee, and Re on Remedies, my casebook with Emily Sherwin:

NOTE ON GOVERNMENT PLAINTIFFS IN EQUITY
Does it matter that the plaintiff is the government? Or do the same equitable powers and limitations apply? Cf. National Labor Relations Board. v. P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7th Cir. 1990) (Posner, J.): "The issuance of an injunction is the exercise of an equitable power, and is subject to the equitable constraints that have evolved over centuries in recognition of the heavy costs that injunctions can impose (including costs to innocent third parties) and the potential severities of contempt. . . . The principles of equitable jurisprudence are not suspended merely because a government agency is the plaintiff."

Comments

[Michael P]

Equity is not (a) twenty (ounce drink) for the government? Am I missing a double meaning of "venti" here?

[Voize]

It is a drink size at Starbucks.

[Michael P]

Yes, and it's a drink size because it's the Italian word for twenty. I haven't measured, but the cup seems to be about 20 ounces in capacity.

[loki13]

It's a (kinda) joke / reference.

He means that the government doesn't get, um, supersized equity.

Or, put another way, the government doesn't get special rules when they are moving in equity that other litigants don't. Or at least, he is making the argument that they shouldn't.

[Voize]

The venti-sized hot drinks are 20 ounces, but for some reason the cold ones are 24.

[loki13]

So what you're saying is ...

Private litigants get hot equity, but government serves equity like it serves revenge ... COLD.

[Bob from Ohio]

The equities should impose a higher burden on the government.

[Aubrey LaVentana]

Every power the government has, is a right that the governed people have surrendered to it. That justifies hightened scrutiny of how and why the government exercises any power.

[Drewski]

A higher burden than what? Only the government can seek equity under this statute, which also sets the standard. You appear to be advocating for judicial legislation - literally changing the statute.

[Drewski]

Yes, when a statute passed by Congress explicitly gives an agency power to request an injunction under a particular standard, courts should follow the statutory standard. What a stupid way of framing the issue. The government is not being given special treatment by the courts, but by Congress - there is exactly one standard in question and it only applies to the government. Other parties cannot seek this relief.

The actual issue is how closely the statutory standard tracks to that of traditional grants of equity, but has nothing to do with the government as a party, only the language of the statute.

[loki13]

I would agree with your point- the issue is not the government as the party, but the language of the statute.

And from there, the issue is the ability of statutes to change traditional rules of equity. Which is an interesting issue, given the history of equity, but not something I am an expert in, so my opinion wouldn't have much to back it.