Meta-Evidence and Preliminary Injunctions

10 UC Irvine Law Review, Forthcoming

69 Pages Posted: 11 Apr 2019

See all articles by Maggie Wittlin

Maggie Wittlin

University of Nebraska at Lincoln - College of Law

Date Written: March 20, 2019

Abstract

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truthseeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article is the first to critically examine this widespread evidentiary practice.

In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, the Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules, then, would not exclude nearly as much evidence as courts may have assumed.

I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules, with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. They should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial.

Keywords: preliminary injunctions, injunctions, evidence, civil procedure, remedies, proof, litigation

JEL Classification: K41

Suggested Citation

Wittlin, Maggie, Meta-Evidence and Preliminary Injunctions (March 20, 2019). 10 UC Irvine Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3356215

Maggie Wittlin (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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