Introduction
Federal courts are in the midst of a crisis of legitimacy. (1) Faith in the judiciary has plunged to historically low levels, (2) leading the Biden administration to form the Presidential commission on the Supreme court for the explicit purpose of considering various court reforms. (3) Though the Commission's recommendations proved meek, (4) the view that Justices and judges are little more than "politicians in robes" persists. (5) This is by no means a new phenomenon; sophisticated court watchers have made similar claims for years. (6) What is new is that, for the first time in decades, a majority of the public distrusts the federal judiciary. (7) Still, others insist that the particular processes of the judiciary differentiate it from traditional political institutions and create guardrails that ensure reasoned decision-making. (8) Some argue, for instance, that the doctrinal frameworks within which judges operate insulate judicial decision-making (at least to some degree) from personal biases. (9)
Which camp has the better side of that debate may not be entirely clear, but the stakes are high. In his book defending the apolitical nature of the Supreme Court, Justice Breyer warns that society existentially depends on a belief that the law is just, even when its outcomes do not go your way. (10) But if that is right, accepting the latter camp's assertions regarding the value of judicial deliberation and doctrine, society should be on guard for places where institutional constraints fall short. One might even assume judges are acting in the best possible faith, but the worry remains--cognitive biases that affect us all may invade judicial decision-making without due care. (11) This Note argues that the contemporary law of preliminary injunctions, with its many doctrinal and theoretical tests, is particularly susceptible to the biases that undermine just decision-making and faith in the judiciary. (12)
"The preliminary injunction may be the most striking remedy wielded by contemporary courts." (13) As opposed to other pretrial remedies like summary judgment or dismissal for failure to state a claim, preliminary injunctions enforce potentially harsh penalties against parties without judging the sufficiency of a plaintiff's claims or the wrongfulness of a defendant's conduct. (14) The necessity of the practice is nonetheless widely accepted because of the general recognition that adjudication takes time during which a party, through no fault of their own, may experience grievous, irreparable harm. (15) Still, since the merits of the plaintiff's claims are necessarily indeterminate when courts are tasked with deciding whether or not to grant a preliminary injunction, courts consider the relative equities of both the plaintiff and defendant and the public's interest in a potential preliminary injunction in order to decide the question. (16) Deciding a motion for preliminary injunction is immensely consequential, not only considering the threat of irreparable harm during the course of litigation, but also for the ultimate disposition of a case. (17) The remedy is not limited to narrow questions, but has the potential to "block the enforcement of legislation, place a candidate on the ballot, forbid strikes, prevent mergers, or enforce [or presumably decline to enforce at an early stage] a school desegregation plan." (18) Lengthy litigation means "[t]he relief thus granted may endure for months or years." (19)
One might hope (in vain) that such a consequential procedure would be well understood or uniformly applied. As Section I.A demonstrates, courts considering motions for preliminary injunctions apply varied, contradictory standards. (20) A movant may receive a preliminary injunction in a California federal court by asserting a claim that presents a "serious question" or a "novel question of law," while that same movant would be denied relief in Missouri or Virginia unless they could make a strong showing that they are substantially likely to succeed on the merits of their claim. (21) A Missouri movant might prevail so long as the public's interest did not militate too harshly against the equity of their claim, while a Virginia movant would need to establish as an element of their motion that the public interest likely favors a preliminary injunction. (22)
This Note argues that--at a moment when federal courts are especially vulnerable to accusations of bias--preliminary injunctions are particularly problematic. Part I proceeds by describing the varied standards federal courts apply when deciding preliminary injunction questions, how they arrived at those standards, and the fundamental principles that underlie just procedure. Part II explains some of the potential pitfalls that may plague preliminary injunction questions, most notably a lock-in bias that may unfairly prejudice the ultimate disposition of litigants' positions when the judge deciding their case has made strong claims about their likelihood for success at the preliminary injunction stage. Part III analyzes the various tests that courts apply when considering preliminary injunction questions, as well as scholarly proposals. Ultimately, the Conclusion argues that the best way to evaluate preliminary injunctions would be a modified threshold test. Under this conception, sufficient showings of a serious question going to the merits of a case alongside a threat of irreparable harm would establish a presumption in favor of the movant, but that presumption could be rebutted if the balance of the equities and the public's interest outweigh the movant's claim. Such a standard would advance the fundamental interests motivating procedural mechanisms such as preliminary injunctions, minimize unfair prejudice from lock-in bias, and formalize the preliminary injunction process to more evenly and justly apply the law.
I. Background
A. Preliminary Injunctions: Understanding the State of Affairs
Preliminary injunctions are a unique, powerful legal remedy. Generally, when a plaintiff-party has been injured by another, the legal system aims to make that plaintiff whole by ordering the other to pay money damages. (23) Where money damages cannot adequately address the plaintiff's grievance, courts may enjoin violative conduct. (24) In truly "extraordinary" cases where a party stands to suffer "irreparable harm" while litigation proceeds, a court may enter a preliminary injunction, altering the nonmovant's conduct without a showing of wrongdoing. (25) Despite theoretical reservation for extraordinary circumstances, in practice preliminary injunctions are frequent and far-reaching. (26) Built through a long tradition of equitable decision-making, courts have developed a variety of standards for preliminary injunctions. Scholars have long called for a unified standard such that, when courts set out to enjoin a party before a showing that they acted wrongfully, the remedy would be applied evenly, with minimal disruption to the broader adjudication. (27) The various standards and proposals traditionally embrace the "widely shared view that the purposes served by preliminary injunctions are maintaining the status quo between the parties, preserving the court's ability to consider the case fully, and minimizing the harm caused by erroneous preliminary decisions." (28) Critically--and particularly to preliminary injunctions (29)--preliminary injunctions operate independently from the ultimate disposition of the dispute at issue. The point is not to judge the wrongfulness of a defendant's conduct or assign rights and entitlements to settle a dispute, but rather to "minimize errors: the error of denying an injunction to one who will in fact (though no one can know this for sure) go on to win the case on the merits, and the error of granting an injunction to one who will go on to lose." (30) Any responsible standard must refuse to pick winners and losers, but instead protect the potential rights of the parties while their claims remain indeterminate. (31) The indeterminacy of the merits is the key characteristic informing the historical development of the standard and should be a nonnegotiable principle underlying the doctrine going forward.
American courts inherited preliminary injunctions, among other remedies, from the English Courts of equity. (32) Though the Judiciary Act of 1789 merged the practices of law and equity in federal court to a large extent, U.S. courts continue to apply the common law of equitable remedies inherited from state courts. (33) Formal, uniform federal rules of equity were created in 1822, and the Supreme Court issued a subsequent set of rules of equity in 1842. (34) Those pronouncements reserved for courts the power to "make further rules and regulations, not inconsistent with the rules ... in their discretion ... regulated by the present practice of the High Court of Chancery in England." (35) Acting upon that authority, nineteenth century courts began to develop the strands of the standard that persist to this day. (36) Though the standards for judging preliminary injunctions varied (a phenomenon that persists), courts found agreement regarding the spirit of the remedy sufficient for William Kerr to write in his treatise on injunctions:
The interlocutory injunction is merely provisional in its nature and does not conclude a right. The effect and object of the interlocutory injunction is merely to keep matters [in dispute] in statu quo until the hearing or further order. ... [T]he Court does not in general profess to anticipate the determination of the right. ... A man who comes to the Court for an interlocutory injunction, is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in its present actual...
