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 – 1 st 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? In whose favor do the equities balance? Other reasons to deny the injunction? 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 When thinking about harm, don’t forget about “ripeness” too Is harm to D from granting the injunction disproportionate to P’s harm from not granting? What are the relative culpabilities of P & D and how do they relate to balancing? 1)Supervisory burden on the courts 2)Interference with free speech 3)Reluctance to enjoin personal services contracts 4)Equity won’t enjoin a crime 5)General public policy considerations (e.g., bankruptcy)

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 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 H p > (1-P)H d ? 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 at the preliminary injunction stage: 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?