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 from occurring (e.g., suppressing it) are
disfavored prior restraints
• Unless they involve certain “low value speech” – e.g., obscenity, commercial
speech
• Maybe libel, invasion of privacy if VERY 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 the time, place, and manner of speech and which
don’t regulate the content of speech are generally okay
• E.g., prophylactic injunctions against abortion protestors in Chapter 4
Specific performance of personal services contracts –
another policy reason to deny an injunction
• What is a personal services contract?
•
A legal agreement between two parties based on the individual efforts of one party –
i.e., special or unique talents of a particular party
• Courts are reluctant to specifically perform contracts for personal services:
•
•
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-at-all hearing)
 What standards apply to granting such injunctions?
 How does the irreparable injury/adequate legal remedy rule play out
here?
Four factors that 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 Can Use 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.
 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
• What order does P seek in Winter? Is it likely to prevail on the merits of
the legal issue?
• 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?
The nature of “irreparable” harm at the preliminary
injunction stage:
 Note that all versions of the test require P to have irreparable harm for the
preliminary injunction to issue. Does irreparable harm mean something
different here from the permanent injunction context?
 Timing of Harm:
 Nature of Harm:
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?