Remedies
Reading Assignment
For class on 10/26, we will briefly finish discussing permanent relief and begin discussing
preliminary injunctive relief. Review Willing and read pages 350-58. Keep in mind the following
questions:
Willing (p. 342) – Other Reasons to Deny Injunctions
1.
We will discuss various reasons courts don’t grant injunctions even if there is irreparable
injury – these involve antipathy to injunctions against crime/libel, prior restraints.
2.
Review the note on specific performance of personal services contracts at p. 324. This
reading also reflects another policy reason to deny an injunction. I will lecture a little on
this.
Winter v. NRDC
1. The SCT discusses the standard for preliminary relief right after heading III.A. on p. 350.
a. How is a court supposed to apply that standard after Winter? Must a plaintiff meet all 4
elements separately? Or can a court apply those factors as a sliding scale/balancing act?
b. What difference does it make to apply the factors in these different ways?
c. Given the way the Court frames the issue, does it make a difference to the outcome in
Winter whether a court uses a sliding scale or “must meet all four elements” version of
the preliminary injunction test? Could you have framed the “harms” to plaintiff and
defendant differently in Winter?
2. Irreparable Injury.
a. What does it mean for injury to be irreparable in the context of preliminary injunctions?
i. Why doesn’t plaintiff have it in Winter? Would it have made a difference in
Winter if plaintiff NRDC could had shown that prior to a trial on the merits the
Navy’s exercises with sonar would have likely resulted in the demise of a
particular marine species? How is that harm different from the way the
plaintiff’s harm was actually characterized?
b. We will also discuss irreparable injury in the context of the Raiders case p. 447 n.11.
Status Quo
1. Courts frequently talk about the need to issue an injunction only to preserve the status quo.
Why?
a. Is it all that easy to determine what the status quo is in a given situation? Even if
you use the “last actual peaceable unconstested status quo” can you tell what that is?
b. What was the status quo in Winter?
c. In O Centro (p. 357 n.4)?
2. Does the status quo argument add anything to the four factor test?
3. In what kinds of cases does the status quo argument matter most?