Freeze Frame: The Supreme Court’s Reaffirmation of the Substantive Principles of Preliminary Injunctions

Anthony DiSarro, Freeze Frame: The Supreme Court’s Reaffirmation of the Substantive Principles of Preliminary Injunctions, 47 Gonz. L. Rev. 51 (2011)


Though described as “”an extraordinary and drastic remedy,'” the preliminary injunction is frequently viewed as a simple case management device that should be used frequently by courts. In practice, however, preliminary injunctions can be terribly unfair to defendants.  The plaintiff is essentially seeking her desired outcome in the litigation without having to prove her entitlement to it.  The defendant is forced to defend against the merits of the plaintiff’s claims at the earliest stages of a lawsuit when she is still investigating potential defenses to them. The timing of the motion is determined by the plaintiff, and the resulting expedited discovery, briefing, and hearing schedule on the motion will likely be dictated by the plaintiff as the moving party.

If the motion is granted, the plaintiff will invariably get even more than what she wants. Most preliminary injunction orders restrain conduct beyond that which is alleged to be unlawful.  Courts are often receptive to requests for prophylactic measures in the injunctive decree so that the defendant will steer far clear of harming the plaintiff.  Even if a court does not intend to prohibit conduct other than that alleged to be unlawful, it is often difficult to draft precise language that enjoins only the challenged conduct.  The defendant can thus be precluded from engaging in conduct that is entirely lawful.

A preliminary injunction is a platform for future threats of contempt against the defendant. Now that the plaintiff has much of what she wants, she has no desire to proceed expeditiously to trial and instead strives to exert pressure on the defendant to persuade her to settle the case. She will seek to portray the defendant as disrespectful of the court’s authority. A restrained defendant will typically forego what is arguably lawful conduct to avoid the unpleasant situation of having to defend against a contempt motion.

Courts spend significant resources adjudicating preliminary injunction motions, which frequently require prolonged evidentiary hearings that approximate full trials.  Although a ruling on a preliminary injunction motion can impact the public in significant ways, the decision provides little legal guidance since it expresses only a tentative ruling on the merits. The uncertainty of that ruling is compounded on appeal since the order qualifies for only the narrowest form of abuse-of-discretion review.

In a series of decisions over the past five years, the United States Supreme Court has restored the preliminary injunction device to its rightful place as a drastic provisional remedy that should be sparingly granted.  The Court has confirmed that temporary injunctions should not be issued unless the moving party demonstrates, at a minimum, that she will likely prevail at trial and suffer irreparable harm.  In so ruling, the Court rejected several approaches by federal circuit courts permitting preliminary injunctions in the absence of proof of a likelihood of success or irreparable injury (or both).  Many lower federal courts had eliminated any irreparable injury requirement by conclusively presuming it in large swaths of cases; others had watered down the likelihood of success on the merits element by deeming it satisfied upon a showing that the plaintiff has some chance of prevailing.

The Supreme Court’s mandate that “likelihood of success” and “irreparable injury” are indispensible elements of a substantive preliminary injunction standard is a reaffirmation of the earliest federal rulings from the Marshall Court era.  This approach is the judicial equivalent of a freeze frame technique: the Court encapsulates and applies the principles of equity that prevailed in English chancery courts at the time of separation of the United States from England.  Thus, a static, historical conception of equity drives the substantive standards for deciding whether to grant injunctive relief.

The Supreme Court’s freeze frame approach is consistent with its Seventh Amendment jurisprudence, which freezes the distinction between law and equity as it existed when the Constitution was adopted and uses it as a baseline for determining civil jury trial rights. The Court also uses a freeze frame approach to the scope of  federal courts’ equitable jurisdiction. Modern equitable remedies are therefore the same as those typically awarded by pre-revolutionary English chancellors.

This article analyzes the Supreme Court’s approach to the substantive law of preliminary injunctions and argues that it is well supported by the Court’s earliest decisions on the subject and consonant with the Court’s approaches in closely-related areas. Part I traces the history of equity in pre-revolutionary England, explaining how the substantive law of equity both developed and influenced the early federal courts’ Seventh Amendment jurisprudence. These early federal courts applied a historically-based static inquiry into the practices of eighteenth century English chancery courts to determine civil jury trial rights. Part II explores federal court decisions since the eighteenth century to determine how preliminary injunction law developed into the firm concepts of likelihood of success on the merits and irreparable injury. Part III addresses academic scholarship produced over the past few decades that advocated changes to the substantive law of injunctive relief. It also summarizes trends among federal circuit courts of misapplying or failing to apply the likelihood of success or irreparable injury standards.

Part IV summarizes recent Supreme Court jurisprudence that categorically rejects the modified approaches of federal circuit courts and reaffirms the indispensability of showing both likelihood of success and irreparable injury. Part V analyzes how the Supreme Court’s reinvigorated approach is consistent with its modern Seventh Amendment jurisprudence, its approach to the scope of equity jurisdiction conferred to federal courts under the Judiciary Act of 1789,  and the availability of equitable injunctive relief.

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