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Preliminary Injunctions Outline

Law Outlines > Modern American Remedies 4th Ed. Laycock Outlines

This is an extract of our Preliminary Injunctions document, which we sell as part of our Modern American Remedies 4th Ed. Laycock Outlines collection written by the top tier of University Of Virginia School Of Law students.

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PRELIMINARY INJUNCTIONS Courts formulate the tests and ask the questions they do because they are worried about the risk of ERROR (since this is before an adjudication on the merits) Preliminary Injunction: Enjoining Defendant before a full case on the merits is held. Focus of the preliminary injunction hearing is on the irreversible harm that will happen BEFORE trial.Allowing preliminary injunctions (1) increase the risk of error (i.e. a COURT potentially inflicting permanent irreparable injury on a plaintiff by erroneously denying a preliminary injunction, allowing defendant to harm plaintiff during the inevitable delays of litigation; and (2) creates a risk that a COURT may inflict permanent irreparable injury on a DEFENDANT by issuing a preliminary injunction that should never have issued (After a final decision is rendered, we can obviously know whether an injunction show issue or not, but at the preliminary state we do not know fully) o Posner-Leubsdorf insight is at the preliminary injunction state, courts should minimize the sum of these two risks. The sliding scale approach of the Winter test in lower courts substantially implements that insight.
? Note that Posner has the right idea, but his formula, taken on its face, assumes an equal probability of success and probability of harm (which was not the same in Lakeshore) nor does he consider that there are many possible harms all with different probabilities.

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