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For more than two centuries, no clause of the US 'Constitution' has been more central to debates over federal power than the 'Necessary and Proper Clause'. For an interpreter today, it is inevitable to wonder if everything worth saying has already been said. Yet the Clause remains at the heart of major debates in this country, including the recent landmark case of 'National Federation of Independent Business v Sebelius'. In that case the Court eventually got around to upholding the 'Affordable Care Act' under the taxing power, but only after holding that the individual mandate could not be justified under the 'Necessary and Proper Clause'. The individual mandate, the Chief Justice wrote, might be \"'necessary' to the Act's insurance reforms,\" but it was \"not a 'proper' means for making those reforms effective.\" Necessary, but not proper. Whether the conclusion was right or not, it was exactly the kind of close reading that one would expect a court to give to the Clause, since it authorizes only congressional actions that are \"necessary and proper.\" Or does it?

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants' behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts. This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor model to a multiple-chancellor model, but the vulnerabilities in the latter did not become visible until the mid- to late twentieth century, when there were changes in how judges thought about legal challenges and invalid laws. Only with those changes — only in the second half of the twentieth century — did the national injunction emerge. This Article proposes a single clear rule for the scope of injunctions against federal defendants. A federal court should give what might be called a \"plaintiff-protective injunction,\" enjoining the defendant's conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This rule is based on equitable principles and on the scope of the \"judicial Power\" granted by the Constitution of the United States.

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law, such as mistakes about how to identify fiduciary relationships and about the content and enforcement of fiduciary duties. Still other failings sound in constitutional law, including the attempt to locate the genre of the Constitution in the categories of private fiduciary law. These criticisms suggest weaknesses in the new and increasingly influential attempt to develop fiduciary constitutionalism.

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a \"hold in place\" order, blocking actions by the parties that would undermine the efficacy of the court's remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court's remedial options.

When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or seek them together, raises an obvious question: How are they different? The standard answer is that the declaratory judgment is milder and the injunction is stronger. This mildness thesis has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. Three rationales have been given for why the declaratory judgment is milder, each focused on something the declaratory judgment is said to lack: a command to the parties, a sanction for disobedience, and full issue-preclusive effect. This Article critiques the rationales for the mildness thesis, demonstrating that they cannot be squared with the way the declaratory judgment and the injunction are actually used. This Article also offers an alternative account of the choice between these remedies. In many contexts they are substitutes, but not always perfect substitutes. This Article therefore explores the conditions under which each remedy has a comparative advantage when used prospectively. Central to this account is judicial management. The injunction has—and the declaratory judgment lacks—a number of features that allow a court to effectively manage the parties. There is also a difference in timing, because the declaratory judgment is sometimes available at an earlier stage of a dispute. This account clarifies the choice between these remedies, and it has implications for the doctrine of ripeness.

Abstract When an officer challenges her removal by the president, what relief is available? This article shows that the appropriate remedy will typically be a declaratory judgment. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, there should be a presumption that the federal courts will prevent her removal during the pendency of the litigation. Otherwise, the presumption should be against interim relief. This approach is grounded in the principles of equity, and it prevents “flipping” back and forth in who occupies the office during the litigation.

The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and natio nal 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 begins to evaluate 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 taken no account of 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.

This Article identifies, justifies, and explains the parameters of a largely ignored but important category of cases—what is here called \"preventive adjudication.\" In this category of cases, courts offer opinions without any \"command\" to the parties, and these opinions are meant to avoid future harm, not remedy past harm. Despite receiving little attention in the legal literature, preventive adjudication is pervasive throughout the law. It happens in declaratory judgment actions about wills, patents, and unconstitutionally vague statutes; in paternity and maternity petitions; in petitions to have missing persons declared dead; in boundary disputes; in actions to quiet title. This Article explains what preventive adjudication is and how it should and should not be used. Preventive adjudication is intuitively appealing, because it helps people avoid harm and clarifies the law. But there are downsides to deciding cases in advance instead of waiting for remedial adjudication. The argument for preventive adjudication is therefore a qualified one. This Article identifies not only the merits of preventive adjudication but also the crucial limiting principles. One limiting principle is administrative and error costs; another is the adequacy of discounting (that is, taking into account the uncertainty of future events). People discount for many kinds of uncertainty, and discounting is usually adequate for uncertainty caused by law. But discounting is inadequate when the law causes uncertainty about inescapable threshold questions for human behavior, such as legal parenthood, citizenship, marital status, or death. Discounting is also inadequate for uncertainty about property rights because of how uncertainty undermines the rationales for having property rules in the first place (such as encouraging efficient investment and information gathering by property owners). In short, where discounting is inadequate, preventive adjudication is especially valuable. This Article also shows how this normative understanding of preventive adjudication can be translated into the actual practice of courts in the United States. Legal systems in the United States have two ways of determining which cases should be decided by preventive adjudication: sometimes they rely on judicial discretion to decide if preventive adjudication is appropriate in each case (\"retail sorting\"); and sometimes they specify categories of cases in which preventive adjudication is available(\"wholesale sorting\"). An analysis of both approaches shows that wholesale sorting—which is common in state courts but not in federal courts—better aligns the actual practice of preventive adjudication with the cases in which it is justifiable.

One would expect the fields of ‘law and economics’ and ‘remedies’ to have substantial interaction, but scholars in each field largely ignore those in the other. Thus, law and economics scholars blunder in their description of the law of remedies, and remedies scholars are cut off from economic insights. For scholars who are in these fields, this article offers a critique, as well as suggestions for cooperation. For all legal scholars interested in melding conceptual and economic analysis, it offers a cautionary tale of disciplinary fragmentation.