Private Law Theory

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 court’s ultimate remedial authority. But the preliminary injunction is increasingly a device for accelerating the merits decision, especially in major public law cases. 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 ultimate remedial authority.

Bray, Samuel L, The Purpose of the Preliminary Injunction (August 9, 2024), 78 Vanderbilt Law Review (forthcoming 2025).