The Purpose of the Preliminary Injunction

Abstract

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a "hold in place" order, blocking actions by the parties that would undermine the court's ultimate remedial authority. But the preliminary injunction is increasingly a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court's ultimate remedial authority.

Keywords: preliminary injunction, remedies, equity, injunction, irreparable injury, injunction bond, constitutional law, federal courts, administrative law

JEL Classification: K15, K41, K49