Rethinking Preliminary Remedies

Abstract

It is universally assumed that courts, when picking a preliminary remedy, should consider more than the legal merits. They also should consider factors like the "equities," "public interest," and "irreparable harm." But that assumption is mostly wrong. The idea behind it is that at the preliminary stage, the merits are too uncertain to give courts the full guidance they need. Yet this is not true. For example, judges are often unsure of the merits even after a final hearing. But few think that judges may therefore filter their final decisions through an equitable balancing test. And even if uncertainty did distinguish preliminary from final hearings, it would not justify current doctrine. By factoring in the equities, current doctrine allows courts to replace the substantive law with their own freelance efficiency analysis. But whatever effect a court's uncertainty should have on its preliminary decisions, the effect cannot plausibly be to change the body of governing law. By calling for this, current doctrine is unsound. What should replace it? To answer that, this essay focuses on what truly distinguishes preliminary hearings: not uncertainty, but the fact that the court will get to reconsider its decision later. To take fullest advantage of this chance, a court should consider not only the merits of its preliminary choices, but also those choices' option value. Maximizing option value is a more constraining aim than the goals of current doctrine. This essay explains how to weigh option value against the merits to create a more accurate preliminary-remedy test.