The Feel of a Case: Virtue Decision-making as the Correct Approach for Deciding Cases in Equity

Authors

Diego M. Pestana

First Page

17

Document Type

Article

Abstract

Section I of this Article will provide a brief history of Law and Economics, beginning with its origins in the judicial philosophy of legal realism as espoused by Oliver Wendell Holmes. Section II will discuss the American Hospital case, where Judge Posner memorialized the Leubsdorf- Posner Formulation for granting preliminary injunctions. Section III examines the effect of American Hospital on the lower courts in the Seventh Circuit. Section IV will discuss how the Supreme Court has dealt with preliminary injunctions as well as the factors the Court provided district courts to consider. Section V will describe Professor Solum's idea of virtue jurisprudence. Section VI will analyze the American Hospital decision using the factors put forth by the Supreme Court and the virtue jurisprudence detailed by Professor Solum. Finally, Section VII will provide a conclusion, arguing that an application of equitable principles articulated by the Supreme Court, which are applied based on the "feel" of the case, combined with virtue jurisprudence is the correct solution for courts deciding cases in equity.

Recommended Citation

Diego M. Pestana, The Feel of a Case: Virtue Decision-making as the Correct Approach for Deciding Cases in Equity, 31 St. Thomas L. Rev. 17 (2018).
Available at: https://scholarship.stu.edu/stlr/vol31/iss1/3