Some Observations on Provisional Relief in American Law

Abstract

Professor Baur's interesting description of applications for temporary relief under German law is concerned with two major developments. First, from a system legislatively conceived as providing only a method for the preservation of a controversy pending disposition by ordinary trial and judgment, German practice appears to have moved in the direction of using the provisional order as a complete adjudication. Second, the importance of provisional relief has increased through the extension of its use to a variety of new fields. The present commentary was undertaken for the purpose of determining, if possible, whether any similar development has occurred in American law. The general conclusion to be drawn from the investigation is a negative one; if any comparable change has taken place in the United States I have been unable to verify it. However, since little seems to be available in the way of statistical analyses of this type of problem, it has been necessary to resort to the reported cases for verification. The very nature of the problem indicates that these cases may not give an accurate picture, since state trial court cases are not normally reported in this country and since many types of cases where provisional relief is requested are not subject to effective appellate review. An example will illustrate this difficulty of verification. As this comment is being written, political campaigns for election to the City Council of Los Angeles, California, are drawing to a close. In at least one instance a temporary restraining order has been obtained by one candidate against another, prohibiting distribution by defendant of certain campaign literature containing allegedly libelous assertions about plaintiff. Although plaintiff may allow the restraining order to expire a few days before the election, he will have achieved his purpose by effectively preventing widespread dissemination of the literature before the election. Because the question of the propriety of the order becomes moot as soon as the election is held, review by an appellate court is only a remote possibility.' Although I