The Purpose of the Preliminary Injunction
Bray, Samuel L.
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Abstract
This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a “hold in place” order, blocking actions by the parties that would undermine the efficacy of the court’s remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits.
This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court’s remedial options.