Preliminary Injunctions: In Defense of the Merits

Abstract

A recent Stanford Law Review article by Richard Brooks and Warren Schwartz contends that the goal of preliminary injunctions should be to promote efficient conduct during a lawsuit, and that this can be done by granting injunctions to all plaintiffs who post a bond covering the defendant's damages provided that the plaintiff has some claim on the merits. This reply defends the more traditional approach theorized in a past article by its author and in opinions of Judge Posner under which courts should consider the merits of the plaintiff's claim and the irreparable injury to the parties' rights that an erroneous grant or denial of preliminary relief would inflict.