Law Outlines Modern American Remedies 4th Ed. Laycock Outlines
This is an outline for Remedies and the book "Modern American Remedies" 4th Edition by Douglas Laycock. I am at UVA Law and Laycock was my professor, this outline encompasses both his lectures and his book....
The following is a more accessible plain text extract of the PDF sample above, taken from our Modern American Remedies 4th Ed. Laycock Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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)
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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The Status Quo Test (sometimes influences decisions): “the underlying purpose of the preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held” (i.e. don’t change the respective relations between the parties)
Test was reaffirmed in the Tenth Circuit in 2003 by a court that said “preliminary injunctions changing the status quo are DISFAVORED”. Plaintiff must make “a strong sowing both with regard to the likelihood of success on the merits and with regard to the balance of harms”
Two Types of Error:
Erroneous Denial: Plaintiff will just have his usual remedy. It is likely defendant is currently already harming P in some way, so when the full trial is adjudicated, if he wins on merits he will be able to seek all damages up to the date of decision.
Erroneous Grant: there is not a tort or a breach of contract action here, defendant otherwise has NO cause of action. If there is an erroneous grant of preliminary injunction that ends up getting reversed, plaintiff is strictly liable for up to the amount of the bond in damages to the defendant (see bonding requirement below)
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Buy the full version of these notes or essay plans and more in our Modern American Remedies 4th Ed. Laycock Outlines.
This is an outline for Remedies and the book "Modern American Remedies" 4th Edition by Douglas Laycock. I am at UVA Law and Laycock was my professor, this outline encompasses both his lectures and his book....
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