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 mildness thesis has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. 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. When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. © 2018 Springer Science+Business Media, LLC, part of Springer Nature If we supplement the C&M framework to take account of law as a system, we can bring it closer to Calabresian law and economics. Extending the C&M framework to treat it as a system helps prevent the C&M framework from flattening the law out. The article shows how the Calabresi and Melamed (C&M) framework exhibits gaps that can be addressed by systems theory these include narrow entitlements to engage in specific activities, liability rules that allow an affected party to buy out an activity (Rule 4), opportunistic behavior by parties that destabilizes liability rules, and the role of equity as an institutional response. These assumptions include a preference for narrow, concrete concepts and a skepticism about traditional doctrines and baselines-and ultimately Legal Realism’s extreme nominalism and the strong bundle of rights picture of property. Recognizing law as a complex system requires a rethinking of some Realist-inspired assumptions that underpin economically inspired analysis of law. As an applied field, law and economics looks to law in choosing the appropriate analytical tools from economics-something that Calabresi has identified (in strong form) as law and economics as opposed to economic analysis of law.
This article argues that Calabresi and Melamed’s “Cathedral” framework of property rules, liability rules, and inalienability rules needs to be extended using the tools of complex systems theory in order to capture important institutional features of the law.
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