Sturm College of Law
Preliminary injunction, Injunction, Temporary restraining order, Stays, Equity, Remedies, Public law, Environmental law, Abortion, Civil rights, Voting rights, Nationwide injunctions, Circuit split
The law of preliminary injunctions has been evolving, in many instances away from its roots in equity and towards a more rigid and formalistic approach that raises the bar for when a preliminary injunction may be granted. This change has its roots in hostility at the Supreme Court to certain types of rights, such as abortion, voting rights, public health, and environmental protection, to name a few. In the aftermath of the Supreme Court’s 2009 decision in Winter v. Natural Resources Defense Council, a few circuits have adopted a strict, literal reading of some dicta from that case in order to dramatically reshape decades of circuit court precedent on preliminary injunctions. Specifically, that minority of courts have abandoned a more flexible approach to preliminary injunctions that allows a “sliding scale” to consider all relevant factors, in favor of raising the bar on the likelihood of success on the merits factor. These courts have further erred by treating the factors, traditionally balanced all together, as elements that each must be established individually. This mistake should not spread any further to circuits that have not yet decided the issue, and the Supreme Court should correct this mistake at its earliest opportunity.
Although preliminary injunctions are important in all cases, this article focuses on public law cases as opposed to private law cases. These cases typically involve some challenge to government action. Preliminary injunctions are often critical to ensuring that full judicial review of those actions is even possible, because if the election passes or the forest is cut down while the litigation plays out over many years, then the claims might become moot. However, injunctions should not automatically issue in these cases because often the government has a strong interest in acting without delay to solve problems facing society. Faced with this dilemma, courts are best empowered to use a the flexible balancing approach which has been the hallmark of equity jurisprudence. This article demonstrates why the minority of circuits have badly erred on this issue, lays out the doctrinal and policy reasons supporting a flexible approach, and responds to the arguments in favor of the rigid, inflexible approach coming down from the Supreme Court.
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Originally published as Kevin J. Lynch, Preliminary Injunctions in Public Law: The Merits, 60 Hous. L. Rev. 1067 (2023).
Kevin J. Lynch, Preliminary Injunctions in Public Law: The Merits, 60 Hous. L. Rev. 1067 (2023).
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