One of the elements required for a judge to issue an injunction is a substantial likelihood on prevailing on the merits of the legal case. But these are issued before the legal arguments have been fully fleshed out and argued in court. In theory, a judge could issue a preliminary injunction based on his belief before the case was argued that the one side was likely to prevail legally, and then change his mind and rule the other way at the trial. On the other hand, people don’t like to change their minds about things that they’ve taken forceful actions about, which would make their prior actions turn out to be based on an incorrect premise and them look foolish. Plus, it’s likely that judges have a pretty good sense of things before all the legal arguments, such that a lot of the verdicts are predetermined and the trial arguments largely moot.
So the factual question here is: how often do judges who issue preliminary injunctions ultimately rule against the argument that they originally believed to be likely to prevail? I would be very surprised if that’s as high as 10% and would assume it’s probably lower than 5% (if not entirely unheard of other than in special circumstances that allow the judge to save face, e.g. new facts emerging). But perhaps the facts are out there.
I’m not seeing the requirement for “substantial likelihood on prevailing on the merits of the legal case” … just the requirement to establish “immediate and irreparable injury, loss, or damage” … I understand the case where the judge makes their decision on the matter just hearing one side … but the TRO is based on the harm inflicted … and that merits of the filing aren’t, you know, totally crazy … “My dog hates the new grass in City Park, make them tear it all out” …
If that’s really what you thought then your post was an irrelevant nitpick at best.
But it also happens that you’re wrong about the facts. The Wiki article says “substantial” as do any number of other reputable sources. E.g. to pick one from a random google search, this court decision, page 2, and any number of similar sources.
Why yes indeed, I am. I was referring to the Wiki article on preliminary injunctions linked in Northern Piper’s post. You read and praised that post, which makes all the more striking your later ignoring of that article in favor of finding a different article which left out the word “substantial”.
Which is of course even leaving aside my cite to an actual court decision which used the term.
Is this the part you mean … Winter vs. Natural Resources Defense Council doesn’t address the likelihood of success … mainly it addresses the public benefit of lifting the injunction … this ruling narrowly focused on the public interest vs. the “possibility” of irreputable harm … there’s nothing I can find discussing the standards of “likelihood to prevail” …
So we have two different WikiArticles saying two different things using the exact same reference … what a surprise …
Probably because most people don’t regard the difference as being significant. As I myself observed earlier. The one making a big deal about the distinction is you, so the contradiction undermines you.
I’ve never seen any stats, but my own experience has been consistent with your hypothesis.
Also any comparison between PIs granted and final judgments would not necessarily shed a lot of light on your question There are huge selection effects on which cases make it all the way to final judgment–one of which is how much merit the case has. Obvious wins for plaintiffs rarely make it to trial.
I guess the only measure would be if judges ruling against their initial assumption is common enough that you routinely encounter it, or if it’s extremely unlikely or unheard of.
I would suppose lawyers would have to have an informed opinion on this, since it would inform their own assessment of their likely success - and by extension future legal tactics or negotiation stance - based on the initial preliminary injunction.