Debs and the Federal Equity Jurisdiction, a new article with Professor Aditya Bamzai, has just been published in the Notre Dame Law Review. You can read it here, and this is the abstract:
The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential ad- dresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs‘s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The United States has expressly invoked, or implicitly relied on, Debs in some of the most high-profile cases in recent years, including United States v. Texas.
This Article explains the equitable principles at work in Debs and shows how these principles still have a normative basis today. Collecting materials from traditional equity practice and historic treatments of Debs that have escaped the attention of the recent academic literature, this Article especially considers the connection that the Debs Court draws between equitable relief and a proprietary interest. It shows how the equity-property connection works as an empowering and limiting principle for the abil- ity of the United States to bring a suit in equity. And it offers guidance to the federal courts by explaining and defending the traditional contours of their equity jurisdiction.