The Purpose of the Preliminary Injunction
The Purpose of the Preliminary Injunction has just been published (a hearty thanks to the Vanderbilt Law Review editors). Here’s a quick recap of the argument and several other contributions. The topic is timely, given the increasing centrality of preliminary injunctions in the federal courts.
The core argument is that the preliminary injunction should be less focused on the merits, because its purpose is preserving the efficacy of the court’s ultimate remedial options.
Part I works through the blackletter law about the preliminary injunction, showing that its characteristics do not make sense if the court is effectively deciding the merits. These characteristics are that it’s temporary, it is not determinative (e.g., not law of the case and usually has no preclusive effect), it’s based on partial evidence, and it requires irreparable injury. The argument here is consistent with Lackey v. Stinnie earlier this term, which held that getting a preliminary injunction does not count as success on the merits for fee-shifting.
For irreparable injury, I work with a good distinction that Cass Sunstein made about two kinds of irreparability: significant, incommensurable harm, and a loss of options for a decisionmaker. These two kinds of irreparability converge for the preliminary injunction: “The court asks whether it needs to act now, with a preliminary injunction, to preserve its ability to act in the future (e.g., preventing significant, incommensurate harm with a final injunction).”
Part II shows the collapse of the four-factor test into the merits, especially suits against the government. The Fifth Circuit has has been a driver here, but the changes can be seen across the circuits. There are multiple causes, but one of them—an unlikely cause—is Winter v. NRDC. Because the Court was rejecting a preliminary injunction and a final injunction, it didn’t say all the usual things about the preliminary injunction being provisional and not deciding the merits. And Winter has been influential in framing the preliminary injunction analysis; it is cited in more than 20,000 federal cases.
That’s all set up, and Part III gives an affirmative argument about what the preliminary injunction is for. One of the disputed questions about the preliminary injunction is the idea of preserving the status quo. Does that make any sense? Is that a relatively late development in the equity tradition?
I find the idea of status quo preservation to be deeply embedded in the equity tradition, and to be illustrative of equity’s concern with preventing unjust and opportunistic behavior by litigants. And I argue that preserving the status quo is instrumental: “The preliminary injunction is preserving the status quo as a means of safeguarding the efficacy of the court’s remedial options.” I concede that the status quo idea can cause confusion, with choices about baselines being impossible to avoid, but I also find it helpful as a device for encouraging judicial restraint. On the history, I reach different conclusions than John Leubsdorf and Tom Lee.
Part IV applies this to what I call the “new law problem.” This is the problem of how a judge is supposed to preserve the status quo when there is a challenge to a new legal norm (e.g., a statute, rule, or executive order—though strictly speaking, an executive order is not law). Is the status quo the new legal norm? Or what was happening before the new legal norm? Others have recognized this problem of picking the status quo when a new law is challenged (e.g., Justice Kavanaugh’s concurrence in the grant of stay in Labrador v. Poe). I propose a set of shifting presumptions to make sure both the interests of the challengers and the interests of the government are considered, doing so in a more principled and consistent fashion than is happening at present.
Part V sums it all up in a page and a half.
Three other points to highlight:
It’s sometimes said that a plaintiff has irreparable injury because the government defendant has sovereign immunity. That’s not obviously right. In footnote 152, I work through the main case said to support that proposition.
There has been a recent trend in the Fifth and Sixth Circuits to treat ordinary compliance costs with a government rule as irreparable injury (see pp. 854-855). That approach to irreparable injury is inconsistent with the purpose of the preliminary injunction. It’s also directly counter to the Supreme Court’s decision in Petroleum Exploration v. Public Service Commission of Kentucky (discussed on p. 856).
If you want a recent example of preliminary injunction analysis that rows against the tide of focusing on the merits, I recommend Judge Bibas’s opinion in Delaware State Sportsmen’s Association v. Delaware Department of Safety & Homeland Security. The classic opinion arguing for the preliminary injunction as a way to preserve the status quo is Judge McConnell’s concurrence in Centro Espirita Beneficente Uniao do Vegetal. Both opinions are excellent.
And here’s how the piece ends:
The centrality of the preliminary injunction raises questions about the judicial role within a political system that is democratic and divided. At present, the United States is combining a culture of heightened judicial polarization and forum shopping with a device for accelerated resolution that has an unusually high ratio of judicial intuition to evidence. The results are predictable.
This Article offers a different path forward for the federal courts. It critically reconstructs the idea that the preliminary injunction preserves the status quo, allowing a better vantage point for judges to see what the preliminary injunction is for. This interim measure is designed to protect the court’s ultimate remedial options. That protection is needed in equity because its remedies, not always scaling smoothly like damages, can be vulnerable to being exploited during the time lag of litigation. Equity protects from exploitation—yet equity, too, needs protection.
A coda: if you find yourself wanting more on the preliminary injunction, there are two draft companion pieces to The Purpose of the Preliminary Injunction. One of them offers an empirical look at preliminary injunctions in the federal courts (along with suggestions for how to use the four-factor test): that’s Preliminary Injunction Realism. The other one offers a purely normative analysis of the preliminary injunction, without the concerns for doctrinal fit that run through the article discussed in this post. That normative analysis is in Preliminary Injunctions on a Blank Slate.