Ten Thoughts on Starbucks, Corp. v. McKinney
Brief responses based on the second oral argument this morning:
- Starbucks wins.
- The Court will hold, as it should, that the four-factor test should be applied. The general principle here (see Weinberger v. Romero-Barcelo, Nken, e.g.) is that we presume all the traditional principles of equity apply unless there is a clear statement by Congress setting them aside.
- Note that the four factors do not exhaust the equitable considerations (there are maxims, defense, other equitable principles). In Justice Gorsuch’s phrase, “the full considerations of equity.”
- Note, too, that insisting on the four-factor test does show that equity is a developing tradition. The four-factor test did not exist in 1947. So the logic here has to be: the statute references equity, equity includes the considerations for a preliminary injunction, some of those traditional considerations have been crystallized in the four-factor test, and so courts should use the four-factor test for injunctions under the statute
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