Taking Uncertainty Seriously: Revising Injunction Doctrine
100 Pages Posted: 21 Nov 2007 Last revised: 15 Oct 2008
Currently, courts are supposed to resolve cases in two separate stages. First, they are to assess the merits. Second, they are to provide a remedy. In the first stage, they may be uncertain about the right result. They may even acknowledge their uncertainty. Indeed, the burden of persuasion is necessary precisely because courts must find facts in the face of persistent doubt. Once a court arrives at its view of the merits, however, current doctrine generally requires that it fashion relief as if it were sure it had decided the merits properly. This article challenges this way of proceeding, at least in the context of injunctive relief. It argues that the values that animate civil adjudication will be served best if courts take into account their uncertainty about the merits in deciding whether to grant an injunction. In particular, by considering their doubts about the merits and the relative stakes to the parties, courts can minimize expected error costs more effectively than current doctrine allows. To do so, they should tend to avoid erring to the detriment of the party that will be most affected by an injunction. The clearest implication of this argument is that courts should use a sliding scale approach to the burden of persuasion, placing a lighter or heavier evidentiary burden on the plaintiff, depending on whether the plaintiff or defendant values more highly a favorable decision on injunctive relief.
Keywords: injunctive relief, injunction
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