ABSTRACT
This Article was prepared as part of a festschrift for the leading scholar of remedies in the United States, Professor Doug Laycock. It makes two contributions to the literature on the preliminary injunction. First, it offers a dataset of 2023 preliminary injunction cases from district courts in four circuits. It shows a correlation between (a) the likelihood of success on the merits factor and (b) the grant or denial of the preliminary injunction of more than 96% – and in suits against government defendants, the correlation was 100%. Various explanations are considered. Second, this Article offers guidance for federal courts in using the preliminary-injunction test, including questions about which factor to consider first, what role the merits should have, why a preliminary injunction should be tailored, and whether there is justification for the ‘serious questions’ or ‘sliding scale’ test.
Bray, Samuel L, Preliminary Injunction Realism (April 28, 2025) ,44 Review of Litigation (forthcoming 2025).
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