Preliminary Injunctions: In Defense of the Merits

A recent article by Richard Brooks and Warren Schwartz contends that the goal of preliminary injunctions should be to promote efficient conduct during a lawsuit. It would do this 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 this author and in an opinion of Judge Richard Posner. Under that approach, courts should continue to 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.