Questions to Ask to See if Court Should Issue
Permanent Injunction (i.e., after full trial)
 Does P have irreparable injury? – Threshold question
 In whose favor to the equities balance – is their undue
hardship to D if injunction granted vs hardship to P if not?
 Affirmative Defense – D must raise
 Other reasons to deny Injunction?
Willing: More reasons to deny injunctions equity policy & injunctions against libel
Maxim:
Equity will not enjoin a libel.
Why?
1.
How we originally viewed “property”
2.
Libel is a fact-based inquiry
Injunctions
against
libel/speech
–
1st
amendment policy reasons to deny injunctions
 SCT has strong presumption against injunctions barring
speech.
 This is true even if the speech is subject to subsequent criminal
punishment or civil lawsuits.
 Rationales supporting presumption against injunctions
restricting speech (aka prior restraints)
1.
Injunctions chill more speech than subsequent punishment/civil
lawsuits.
2.
Injunctions prohibiting speech tend to be ex ante determinations
of harm.
So how does court treat different kinds of
injunctions against speech?
• Injunctions barring speech (e.g., suppressing it) = prior restraints
• Unless they involve certain “low value speech” – e.g., obscenity,
commercial speech
• Maybe libel, invasion of privacy IF narrowly drafted
• Even here courts won’t issue injunctions until after a FULL
TRIAL on the merits – preliminary relief almost never allowed.
• Injunctions regulating only time, place, and manner of speech and which
don’t regulate the content of speech are generally okay
• E.g., prophylactic injunctions against protestors in Chapter 4
Specific performance of personal services
contracts – another reason to deny injunctions
• What is a personal services contract?
• A legal agreement between two parties based on individual efforts of one
party – i.e., special or unique talents of a particular party
• Courts are reluctant to specifically perform personal services contracts:
• Impractical
• Involuntary servitude
• Courts will sometimes negatively enforce such contracts:
•
If the contract period is still running – court will not allow the breaching party to
work for anyone else (i.e., negative enforcement)
•
If the contract period is no longer running – courts are unwilling to negatively
enforce unless there are exigent circumstances or if there is an express covenant not to
compete after the K period
Injunctions and the criminal law
• Conventional wisdom:
• Equity won’t enjoin a crime.
This is generally true – court’s won’t enjoin the commission of a crime
because it (1) short circuits D’s rights to criminal procedure safeguards at a
criminal trial, (2) interferes with the prosecutor’s discretion to prosecute
(or not) a particular violation, and (3) doesn’t clearly provide advantages
over a criminal trial.
But there are a few exceptions:
(1) National emergencies
(2) Public nuisance
(3) Criminal statute provides for injunctive relief
A general framework re what to think about when
determining whether a court should grant a permanent
injunction:
Does P have
irreparable injury?
1) Unique goods/land
2) Loss of control of
property
3) Damages difficult to
estimate
4) P is insolvent
5) Recovering damages
requires a multiplicity
of suits
In whose favor do the
equities balance?
Other reasons to deny
the injunction?
Is harm to D from 1) Supervisory
burden
granting the injunction
on the courts
disproportionate to P’s 2) Interference with free
harm from not granting?
speech
3) Reluctance to enjoin
personal
services
What are the relative
contracts
culpabilities of P & D and
how do they relate to 4) Equity won’t enjoin a
crime
balancing?
5) General public policy
When thinking about
considerations
(e.g.,
harm, don’t forget about
bankruptcy)
“ripeness” too
Preliminary Relief
 Preliminary relief is relief designed to provide a temporary
injunction pending a full trial on the merits.
 Can be in the form of a preliminary injunction (usually
after a mini, trial-lite hearing) or a temporary restraining
order (usually after an emergency, barely-like-a-hearing-atall hearing)
 What standards apply to granting such injunctions?
 How does the irreparable injury/adequate legal remedy rule
play out here?
Four
factors
courts
consider
when
determining whether to grant preliminary
injunctions
• Likelihood of success on the merits
• Irreparable injury to P in the absence of preliminary relief
• Balance of the hardships/equities
• Public interest
• How do courts apply these factors when considering whether
to grant a preliminary injunction?
Courts Different Approaches to the Four-Factor Test
Before Winter – Approach # 1
 P must meet all 4 factors to get preliminary injunction; P must show:
 A likelihood of success on the merits at trial
 That P likely will suffer irreparable injury without preliminary
injunction
 That the balance of equities tips in P’s favor
 That the public interest tips in P’s favor
 This is a very strict version of the test for preliminary injunctive
relief. Why?
Court’s Different Approaches to the Four-Factor
Test Before Winter – Approach # 2
 Four factors are applied as a sliding scale:
 Courts should balance the interests of all parties and weigh the
damage to each, mindful of the moving party’s burden to show
the possibility of irreparable injury to itself and the probability
of success on the merits.
 In other words, a large showing on harm or likelihood could tip
the balance for P but doesn’t necessarily need to show will win on
both. If you deal better w/ math, can conceptualize the balancing
(roughly) as:
 Is P X Hp > (1-P)Hd?
 Why use a sliding scale version instead of strict version?
Winter v. NRDC
• P seeks order forcing Navy to prepare an EIS prior to continuing
sonar exercises
• Is it likely to prevail on the merits of the legal issue (i.e., needs EIS)?
• If so, why does the SCT say the lower court erred?
• Which version of the four-part test for preliminary injunctions does
SCT use?
• Lower courts after Winter:
Would it really matter in Winter which version
of the test was used?
• What is the nature of P’s alleged harm if the injunction doesn’t
issue?
• What is the nature of D’s alleged harm the injunction issues?
• Toward whom does the balance of equities tip?
• Where does the public’s interest lie?
“Irreparable” harm
injunction stage:
at
the
preliminary
 All versions of the prelim. inj. test require P to have irreparable harm.
Does that mean something different here than with permanent
injunctions?
 Timing of Harm: injury must necessarily occur before a trial on the merits
 Nature of Harm: small, incremental harms aren’t good enough here - $
really CANNOT be adequate substitute. Courts want to see significant
harms for which damages are truly inadequate.
• What if the Winter P’s could show a specific marine species was likely to
die within a year because they couldn’t reach a traditional mating habitat
as a likely result of Navy’s actions. Trial can’t be held for 18 months.
• La Coliseum v. NFL (p. 356) – why isn’t loss of the Raiders irreparable
injury to the Coliseum at the preliminary injunction stage when it clearly
was at the permanent injunction stage?
Preliminary injunctions & the “status quo”
Conventional Wisdom:
Preliminary injunctions are only granted to preserve the status quo
(aka last peaceable contested status quo).
Why?
What is the “status quo” – just how
manipulable is this concept?
In Winter?
In El Centro?
What does the “status quo” concept add to courts’ use of the four
factor balancing test – i.e., when is it most likely to make a
difference?