Distinction between Preventative/Reparative Injunctions (generally, not doctrinal): All injunctions are preventative in the sense of seeking to prevent wrongful HARMS

Preventative Injunction: Injunctions that prevent the wrongful ACT (or lawful act that might have unlawful consequences) from happening, or to prevent continuation of a course of conduct
Reparative Injunction: Injunctions that prevent some or all of the harmful CONSEQUENCES of the act. The wrongful act is in the past and Plaintiff seeks an injunction to undo its consequences or prevent its future consequences

One-Satisfaction Rule [Forester] Applies: Court can prevent the harm or compensate it, but they cannot do both

“Obey the Law” Injunctions: generally thought to be prohibited by FRCP 56(d)(1) which requires that every order granting an injunction must (a) state the reasons why it issued; (b) state its terms specifically; and (c) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required

Consent (as opposed to “Litigated”) Decree: an injunction entered by agreement of the parties (usually via settlement), subject to the approval of the court. Once entered, it is a final judgment and a permanent injunction as much as if it had been fully litigated.

Private Settlement Agreements v. Consent Decrees: With a consent decree court retains authority to enforce – violation is contempt of court; violations of private settlement agreement is only breach of contract
There are political complaints about outgoing administrations agreeing to consent decrees that bind their successors (potentially part of the rhetoric for easier modifications)

RULE: We prefer damages (legal remedies), you do not get an injunction or equitable remedies unless you show an irreparable injury.

Irreparable Injury: no adequate remedy at law
- Pardee Principle: If you cannot use the money to substantially replace what you lost, the legal remedy (damages) is inadequate. (Applies to a lot of areas, but may be limited by other function considerations [maybe too costly, maybe right to jury trial is at stake etc.]

Why do we have rules for damages v. injunction?

Arose by historical accident – Chancery (equity) courts were made to do only what the law courts could not to.
Burdens on the court: sometimes said that injunctions impose a greater burden on the court, because they have to be enforced over time. Probably not as true as it might sound – suing and collecting damages in structural injunction cases may be more difficult. Must compare similar cases when determining this though.
Defendant’s Liberty: It is sometimes said that injunction is a greater intrusion on defendant’s liberty – injunction orders him to do or refrain from specified conduct, as opposed to a damage remedy that leaves him free to proceed is he is willing to pay the cost.
Jury Trial: in most jurisdictions there is a right to jury trial at law but not in equity. Thus, it is often said that the irreparable injury rule protects the right to a jury trial
Potentially timing issues – need to rush to hold a hearing on the injunction before the harm happens.

Classical Economic Analysis of Choice of Remedy:

Economists want damages when the transaction costs of bargaining are high (ex. bilateral monopoly or numerous parties), injunctions when the transaction costs to bargaining are low

The injunction would then leave the parties free to keep bargaining – i.e. if parties have misallocated resources, parties (in theory) can bargain their way to a better result.

Law and Economics mostly do not believe in efficient theft, efficient destruction of property, etc. because all of those transactions bypass potential mutually beneficial agreements.

Economists believe the way you force parties to deal with each other I enjoin a behavior that would bypass these negotiations

Right to a Jury Trial: The Court in Willing v. Mozzocone says the damage remedy preserves Willing’s right to a jury trial. This is often offered in defense of the irreparable injury rule generally. In most places, injunctions are issued without juries (watch out if it looks like a plaintiff is seeking an injunction just so D does not get a jury trial, not a very broad scope, does not happen often)
1. D may want a jury trial because she is a more sympathetic figure than the plaintiffs. However, juries are majoritarian – they rarely protect unpopular speech in a democratic polity.
2. Jury trial is generally thought to be a bigger advantage to plaintiffs than defendants, because they are more likely to act out of sympathy if liability is unclear, and because a jury’s assessment of damages is likely to be bigger than a judge’s.
Multiplicity of Suits: Superior Court in Willing mentions another traditional ground for holding legal remedies inadequate: that the legal remedy would require a “multiplicity of suits” because plaintiff would have to sue repeatedly as defendant repeated the libel.
1. Probably not a factor when a damage award is itself enough to deter the action, but if Defendant’s conduct is profitable even after paying damages this problem arises.
  1. This is the tension with economic analysis on profitable violations. But economics does not encourage profitable violations where the victim’s identity is known in advance, so that bargaining is possible.
2. A continuing small injury is irreparable because it is small (judges occasionally suggest that “irreparable” means especially severe or serious, so that little injuries are not worth preventing by injunction) [thus, irreparable does not mean serious. Compare Continental Airlines, where there may have been no damages at all]
Crimes: Equity will not enjoin a crime except when criminal prosecution would not be an adequate remedy. With the qualification that this is just a general application of the irreparable injury rule.
1. Low level criminal conduct gets enjoined quite often because waiting for ever to enjoin it is not practical.

REAL RULE: KEY IN ARGUING FOR AN INJUNCTION IS JUST COMPARING THE COSTS AND BENEFITS IN EACH CASE. YOU THEN HAVE TO RELATE THAT BACK TO THE FOUR-PRONG TEST

All of the forgoing things concern arguing for/against an injunction in functional terms – what remedy makes sense here? What are the advantages/disadvantages? It seems clear that courts grant injunctions freely unless there is some reason not to (but the Black Letter Law is more visible, which is why we have rules like the four prong. But the function discussion is most important, frame it in the four prong test) [TWO LEVELS: DOCTRINAL LEVEL AND FUNCTIONAL, have to argue both to be successful]

Must now frame the injunction v. damages argument with the “Traditional Four Prong Test” in mind: [eBay v. Merexchange]: Plaintiff must prove:

(1) That it has suffered an irreparable injury
- The biggest defense of the “irreparable injury” requirement is to preserve the right to a jury trial [Willing]. Usually not a big factor, just argue whether P looks like he is trying to get an advantage by taking away D’s right to a jury
- A continuing small injury is irreparable because it is small, and maybe even non-existent [see, Continental Airlines]. Therefore irreparable harm DOES NOT mean serious
(2) That remedies available at law, such as monetary damages, are inadequate to compensate for that injury (this is the prong that the court kind of throws in here because it had to replace the one for prelim injunction “high likelihood of success on the merits”)
- Possibilities:
  - Defendant is insolvent. [rejected in Willing, but that was the minority case]. Argue whether D will persist because any monetary damage award against her would be uncollectable
  - In case of constitutional right, remember Prior Restraint Rule and the factthat we actually prefer damages in constitutional cases (free speech) BECAUSE they are less adequate (don’t restrict constitutional right as much) [Willing]
  - Also potentially if damages would require a “multiplicity of suits” because plaintiff would have to sue repeatedly as D repeated the libel. Mentioned by Superior court in Willing. [argue whether damages are not adequate to deter whether D profits by just paying mall damage awards]
  - Equity will not enjoin a crime except when criminal prosecution would not be an adequate remedy (low level criminal conduct gets enjoined often because waiting forever to punish it is just not practical)
(3) That, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
- Remember: culpability of defendant matters for this – don’t want to reward willful infringers [eBay]
(4) That the public interest would not be disserved by a permanent injunction
- FORK: does NOT say that public interest must weigh IN FAVOR of an injunction. Does this mean that benefits to the public interest cannot count in favor of issuing the injunction, but that harm to the public interest is an absolute reason not to issue it?

Injunctions against future violations of the law attempt to keep plaintiff at his rightful position by preventing the wrong from happening.

Rule: Requirements for an injunction to issue:

Threat of injury must be Ripe (def): must demonstrate that there is a real danger (likely a ...

#11397 - Injunctions And Choosing Remedies - Modern American Remedies 4th Ed. Laycock

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