J Gregory Sidak, ‘Is Harm Ever Irreparable?’

Economic analysis yields three insights on the meanings of irreparable harm. First, the interpretation of ‘irreparable’ harm as immeasurable harm has diminishing plausibility. Quantitative and empirical methods are generally sufficient to estimate injury in business disputes with reasonable confidence. Second, harm can be irreparable because the infringer cannot afford to pay damages, but other vehicles exist to address that problem of undercapitalization – namely, bankruptcy law and the market for corporate control. Third, legitimate grounds remain for finding irreparable harm and issuing an injunction when the court’s failure to do so would reduce consumer or producer surplus by reducing static or dynamic efficiency. In this third category, the reliable quantification of the destruction of value may be challenging when assessing dynamic inefficiency …

Sidak, J Gregory, Is Harm Ever Irreparable? (2017). 2 The Criterion Journal on Innovation 7 (2017).

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