Preliminary Injunctions and the Status Quo
58 Pages Posted: 6 Sep 2008
Date Written: September 4, 2008
The federal courts of appeals are in substantial disarray on an issue of threshold importance to the issuance of preliminary injunctive relief. One set of circuits says that the traditional role of such relief is the preservation of the "status quo," and thus accords disfavored status to preliminary orders that are mandatory in form or that otherwise upset the status quo. In these circuits (second, ninth and tenth), a party seeking a preliminary injunction must satisfy a heightened standard of proof requiring a clear and compelling showing of the propriety of such relief. Another set of circuits rejects this view. These circuits (third, fifth and sixth) apply a uniform standard to all requests for preliminary relief.
Despite the clear split of authority, the competing circuit opinions have made little effort to engage in any substantive dialogue on this issue. For the most part, each set of circuits has cited its own decisions in support of its own particular approach to the matter without any attempt at critical analysis of the competing position. This Article seeks to engage the debate that is currently lacking. It does so first by tracing the historical pedigree of the heightened standard and then by evaluating the role of the status quo under the predominant theoretical economic model offered to explain the role of preliminary relief. Ultimately, the Article concludes that the heightened standard is historically and theoretically unsound, and that the circuits that adopt a uniform standard have the better approach.
Keywords: Preliminary injunctive relief, motion for preliminary injunction, circuit split, heightened standard of proof, uniform standard, status quo, irreparable harm, economic model
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