Repairing (the Doctrine of) Irreparable Harm

23 Pages Posted: 10 Feb 2008

See all articles by Ofer Grosskopf

Ofer Grosskopf

Tel-Aviv University Faculty of Law

Barak Medina

Hebrew University of Jerusalem - Faculty of Law

Date Written: February 8, 2008

Abstract

In deciding whether to grant a preliminary injunction courts compare the expected irreparable harm if the injunction is not issued to the irreparable harm that would result if the injunction is issued. An injury is considered irreparable only as far as it "cannot be cured by a remedy after trial." We argue that efficiency entails that this definition is incorrect.

Harm to one party which does not correlate to a corresponding benefit to the other party is a deadweight-loss. The court must take such harm into account in deciding whether to issue a preliminary injunction, irrespective of the availability of an ex-post remedy. Consequently, the implementation of the current doctrine, which allows courts to disregard certain social harms (losses that can be compensated for), leads courts to grant, in some cases, inefficient preliminary injunctions, and to reject, in other cases, applications for efficient ones.

Keywords: Preliminary injunction, irreparable harm, remedies, social harm

JEL Classification: K40, K41

Suggested Citation

Grosskopf, Ofer and Medina, Barak, Repairing (the Doctrine of) Irreparable Harm (February 8, 2008). Available at SSRN: https://ssrn.com/abstract=1091730 or http://dx.doi.org/10.2139/ssrn.1091730

Ofer Grosskopf

Tel-Aviv University Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Barak Medina (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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