ABSTRACT
Prior studies of the preliminary injunction have worked within the constraints of existing doctrine, including the traditional four-factor test. This Article relaxes the doctrinal constraints and offers a normative analysis of the preliminary injunction. It identifies three functions that the preliminary injunction can serve: protecting the court’s ultimate remedial options, previewing the court’s ultimate decision, and accelerating the court’s ultimate decision. These functions demand different kinds of competence from the court, and they differ in how much they are affected by error costs in the court’s prediction of the merits. The option-preserving function is useful when one party can exploit the time lag of litigation to narrow the court’s ultimate remedial options. The decision-previewing function is more narrowly useful—only when error costs and transactions costs are low. And the decision-accelerating function is unnecessary because it can be fully served by other procedural tools. This analysis has far-reaching implications for the exercise of judicial discretion, the design of injunction tests, and the forms that interim injunctive relief should take.
Bray, Samuel L, Preliminary Injunctions on a Blank Slate (March 4, 2025).
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