The Lock-In Effect of Preliminary Injunctions
Kevin J. Lynch
University of Denver Sturm College of Law
April 4, 2013
66 Fla. L. Rev. 779
U Denver Legal Studies Research Paper No. 13-19
Judges suffer from the same cognitive biases that afflict the rest of us. Judges use shortcuts to help them deal with the uncertainty and time pressure inherent in the judicial process. Judges should be aware of the conditions when those shortcuts lead to systemic biases in decision-making, and adjust legal standards in order to reduce or avoid such bias altogether.
One important bias that has been identified by economists and psychologists is the lock-in effect. The lock-in effect causes a decision-maker who must revisit an earlier decision to be locked-in to the earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources which cannot be recovered. Although lock-in does not prevent the decision-maker from altering course, it does introduce a systemic bias that should be taken into account.
Preliminary injunctions create the conditions for lock-in in judges. Judges must assess the merits of a case at a preliminary stage and then revisit the merits later. Early in the case the facts or legal arguments may not be fully developed or the decision may be rushed, leading to a significant risk that the preliminary assessment of the merits will be incorrect. Where irreparable harm occurs as a result of the denial of a preliminary injunction, the judge will face strong motivation to validate the earlier assessment of the merits, even in the face of new evidence or upon further reflection.
The appropriate standard for deciding preliminary injunctions was recently called into question by the Supreme Court in Winter v. NRDC. In that case, the Court announced a broad statement of the standard without considering the variety of tests that lower courts have developed. As those courts reexamine their test in light of the Winter decision, they should ensure that the preliminary injunction standard avoids the potential for lock-in. A flexible standard employing a balancing test and requiring only “serious questions” on the merits will achieve the purposes of a preliminary injunction while avoiding the risk of lock-in.
Number of Pages in PDF File: 44
Date posted: April 6, 2013 ; Last revised: September 18, 2014