REMEDIES - FALL 2025 - PROF. GEORGE W. CONK - FORDHAM LAW SCHOOL
Office: 8-108 gconk@fordham.edu
Monday - Wednesday 2:00 - 3:25 PM Eastern
Room 4-04
It is the right of the supreme power to make laws; but further, it is its duty likewise...But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty.
Those rights then which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be be more effectually invested in every man than they are; neither do they receive any additional strength when when declared by municipal law to be inviolable.
On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.
The remedial part of a law is so necessary a consequence of the former two [declaratory and directory] that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. That is what we mean properly, when we speak of the protection of the law.
William Blackstone, Commentaries on the Law of England, Vol 1 [1765] Of the Rights of Persons, § II of the Nature of Laws in general
Article III- U.S. Constitution
2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
- John Marshall, in Marbury v. James Madison, Secretary of State, 5 US 137 (1803)
Week 1 – How Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.
Opening lecture: What constrains judges? Law, Equity, natural law, and the problem of slavery from the founding to the Civil War.
Read:
Somerset v. Stewart (1772) Speech of Lord Mansfield at p. 510
Gouverneur Morris re slavery at Federal Convention 1787
Prigg v. Pennsylvania [1842] (case brief)
Blogpost: My response to Prof. Helmholz's First Things review of Vermeule's Common Good Constitutionalism
slides: Magna Carta to Emancipation
Benjamin Cardozo The Nature of the Judicial Process - Adherence to Precedent Lecture IV Excerpts from Cardozo Lecture IV
Week 2
Amendment XIV - Constitution of the United States of America
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What part of "all" does not mean "all"?
The Constitution, in Article III gave courts of the United States the powers of the English law courts and chancery courts of equity. Section 2 declares:
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States"
The Judiciary Act of 1789 implemented that principle.
If the Supreme Court could uphold an order that all persons anywhere to cease interference with the mails or interstate commerce [as did the leaders of the American Railway Union - [striking in solidarity with the workers of the Pullman Car Company, Pullman, MO by directing their members to refuse to handle Pullman sleeping cars anywhere] , does a "universal injunction" exceed the powers of a judge of the United States?
In the Debs case (below) the Supreme Court in 1885 wrote:
We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." 158 U. S. 579
Does the scope of the injunction issued and upheld in In Re Debs 158 U.S. 564 (1885) comport with limitation on the injunction barring an executive order in TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.v. CASA, INC., ET AL.ON APPLICATION FOR PARTIAL STAY No. 24A884. Argued May 15, 2025—Decided June 27, 2025*
Plaintiffs (respondents here)—individuals, organizations, and States— filed three separate suits to enjoin the implementation and enforcement of President Trump’s Executive Order No. 14160. See Protectingthe Meaning and Value of American Citizenship, 90 Fed. Reg. 8449. The Executive Order identifies circumstances in which a person born in the United States is not “subject to the jurisdiction thereof” and is thus not recognized as an American citizen. The plaintiffs allege that the Executive Order violates the Fourteenth Amendment’s Citizenship Clause, §1, and §201 of the Nationality Act of 1940. In each case, the District Court entered a “universal injunction”—an injunction barring executive officials from applying the Executive Order to anyone, not just the plaintiffs
The applications do not raise—and thus the Court does not address—the question whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.
Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.
Universal injunctions are not sufficiently “analogous” to any relief available in the court of equity in England at the time of the founding. Grupo Mexicano, 527 U. S., at 318–319. Equity offered a mechanism for the Crown “to secure justice where it would not be secured by the ordinary and existing processes of law.” G. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91. This “judicial prerogative of the King” thus extended to “those causes which the ordinary judges were incapable of determining.” 1 J. Pomeroy, Equity Jurisprudence §31, p. 27.
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