As I understand it, one element that’s necessary for an injunction is that the one requesting the injunction have a substantial likelihood of prevailing on the merits of the case. Now suppose you have a multi-justice appeals court hearing the case. Most of the justices think there’s little likelihood of the plaintiff prevailing on the merits. But a minority think there’s a substantial likelihood.
Suppose we know the case is going to be decided by this same panel (e.g. if it’s the Supreme Court, or otherwise). It would seem theoretically that the minority would have to reject the injunction despite their own personal beliefs, since as a practical matter as long as the court has the same makeup the majority is likely to rule against the plaintiff. But that doesn’t seem to be how it works, since you have minorities dissenting in such cases. Unless the majority is rejecting the injunction on other grounds, I suppose.
Your question, as I understand it, is whether a judge is obligated to consider her colleagues’ opinions in assessing the question of likelihood of success on the merits.
I’m not aware of any precedent, but IME appellate judges do not consider other panelists’ views on the topic for two reasons:
(1) For the appellate court, that assessment is about the likelihood of success at trial. So even if consideration of a different judge’s views on the law were appropriate, it would be the trial judge’s views; and
(2) The aspect of the question that is a question of law is asking for the individual judge’s view of the law. While framed as “likelihood of success,” it isn’t literally about that likelihood. You don’t assess how skilled trial counsel is, for example. Instead, it is asking about how likely that the allegations will be proven by admissible evidence, and whether those allegations prove a legal claim as the judge understands the law. IMO, the views of other panel members aren’t relevant to that assessment.
But wouldn’t that same appeals court just overrule whatever the trial court judge’s views are?
I had thought the rationale for including “likelihood of success” was that if the plaintiff is not going to prevail anyway, then there’s no reason to give him a delay now. Is this incorrect?
Unless the appeals court is ruling en banc, then the panel that hears the subsequent appeal of the trial-court ruling on the underlying issue won’t be the same panel of appellate judges.
But further, amazingly enough, appellate justices do not have legal viewpoints written in stone. So the fact that they might view the issue one way when looking at its bare bones while wrestling with the injunction request doesn’t mean they will see it the same way when all relevant evidence has been adduced at trial.
But that doesn’t change the fact that the appellate judges/justices are NOT in the business of making predictions about what will happen when the claims meet the reality of those humans working in the system. Crystal ball clarity isn’t required. After all, the defense attorneys might drop the ball, evidence currently unknown might show up, there might be a death on the appellate court, etc., etc., etc.
That’s why I stipulated in the OP that I was referring to when “we know the case is going to be decided by this same panel (e.g. if it’s the Supreme Court, or otherwise)”.
That doesn’t make sense to me. All requests for injunctions are pre-trial. But they get ruled on based on likelihood of success nonetheless. What distinction are you drawing between the initial trial judge and the appellate court at the exact same point?
Unless you’re saying a judge might reason “there’s no way I’m going to change my mind, but the other guys might …”
This has already been answered. You appear not to like the answer.
I find it silly to ask for a factual answer to something, get that factual answer, and then argue the answer. That’s not a General Question; that’s an attempt at debating or disputing what happened, masquerading as a question.
I don’t get your attitude. (Or maybe I do, actually.)
I appreciate that you’re a lawyer and all, but you need to appreciate that it’s possible for you to be wrong about a legal matter. The fact that you’ve declared something to be the answer doesn’t conclusively settle the matter, necessarily. If your answer doesn’t seem to make sense, then that suggests that in this case you might be wrong.
Or perhaps not. Perhaps your response does make sense after all and there’s some aspect that I’m missing, and it does make sense after all. In which case you could perhaps clear that up.
But there’s nothing to suggest that the question itself was not being asked in good faith. I just didn’t know that you would respond with something that didn’t seem to make sense, sorry.
Can you point to something which amounts to “insist[ing] the law is wrong”?
I suggested that either there’s another rationale for the law not provided, or that the rationale offered makes sense for some reason not provided. Do you think that’s similar to a SovCit? Can’t help you, if that’s the case.
Well, the OP as framed contains incorrect assumptions which sort of makes the hypothetical somewhat unrealistic. For example, the legal standard for preliminary injunction in federal courts is a showing of likelihood of success — there’s no requirement that the likelihood be “substantial,” as posed in the OP. That makes the first part of the OP’s hypo nonsensical.
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But the more important flaw in the OP’s assumption is that, as already pointed out, it fails to account for the fact that judges making a likelihood of success determination during a preliminary injunction request are not necessarily going to reach the same conclusion when reviewing the matter later, when the record has been more fully developed.
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Wiki uses the term “substantial likelihood” as do any number of court decisions, e.g. here, to pick one at random.
Even if you were right, I don’t see why that distinction would make the question “nonsensical” anyway.
I addressed this. You’re just ignoring what I wrote. One more time: the same is true of any preliminary injunction. I’m asking what the distinction in the case of an appeals court.
Wikipedia and a district court can use whatever language they like, but the Supreme Court has clearly https://supreme.justia.com/cases/federal/us/553/674/ that the standard is “a likelihood of success on the merits.”
Well, let’s go back to one of your flawed assumptions:
The purpose of a preliminary injunction is not to prevent delay of what the court sees as a likely outcome. You’re missing the second legal element, which is that the party seeking the injunction is likely to suffer irreparable harm.
As I observed earlier, there are any number of other court decisions which use the term “substantial”. The likelihood that all these courts are ignorant of the law and the Supreme Court standard and the only guy who knows the truth is a poster named dofe is highly unlikely, if you ask me.
It would appear that the distinction between the two terms is not important, contrary to your claim here.
You’re missing the boat here. Try to read more carefully.
I did not say that “purpose of a preliminary injunction is […] to prevent delay of what the court sees as a likely outcome”. I was talking about the rationale for the “likelihood of success” element. That’s why I wrote those words. “likelihood of success” is an independent element of the injunction requirement. IOW. even if there’s likely to be irreparable harm, the preliminary injunction is not to be granted if there’s not also a likelihood of success.
I’m not a lawyer, I just follow a law blog or two (go popehat) and have read the full text of a few rulings. However, it seems a judge would have to explain their reasoning for a decision as significant as denying or allowing an injunction. In the rulings I’ve read, they usually cite precedent a LOT when explaining their reasoning, and even when they don’t, they point to established law, legal principles, logic, and/or basic definitions. An explanation of “I know judge so-an-so and s/he isn’t likely to rule in the applicants favor” would be overturned by a superior court as improper reasoning. They COULD say something like 'that court has consistently ruled against similar issues.
I read your post just fine. My point in raising that issue is that your basic understanding of the law is flawed, and, when pointed out, you insist on being argumentative. Posters upthread have explained to you why your initial thoughts were wrong, but you continue to argue that their understanding, rather than Your’s, is incorrect.
And yes, I’m a lawyer who practices in federal district and appellate (the Ninth Circuit) courts.
Another factor for an injunction is the irreparable harm that would follow if the injuncted(?) action is not paused. I assume that there is a trade-off here, that the more serious the harm from not granting an injunction, the less emphasis on a need to show the case will prevail?
After all, the purpose of the hearing for the injunction is to ensure that any preventable harm is prevented if there is a chance that it should not have happened based on the case which will being argued… later. It is not to argue the full case at the injunction hearing.
Can we assume it is analogous in a way to a preliminary hearing to determine if charges should proceed to trial?
Injunctions
These are for US Federal Courts Governed by Rule 65 of the Federal Rules of Civil Procedure.. These lay down the requirements for seeking and the reasons that have to be given if granted. Moreoever note the use of the word “May”. This means is a discretionary remedy, meaning its only to be given if the Court decides that its proper in the circumstances, even if the technical requirements are met. Compare and contrast with remedies available as of right, where merely fulfilling the technical requirements is sufficient.
The technical requirements generally in most jurisidctions require
Good case on merits; meaning that the applicant has a chance of success.
Balance of convinience and inconvineinece; meaning that the Applicant will suffer more if injunction is not granted as opposed to the Responent’s suffering if it is granted.
Irreparable Loss or harm. That the harm suffered by the Applicant if Injunctive relief is not granted will be such that later success at trial or monetary compansation will not repair his/her loss.
Precedents adds other requirements Appeals
An Appeal is when a person aggrieved by a judgement or an order of an inferior Court asks a Superior Court to set aside, reverse, remand or vary said order or judgemen, due to some error of law/fact or irregularity of procedure. What an Appeal is not is a rehearing of the issue of the matter as if it was the lower Court all over again. (note to Doper lawyers no doubt chomping at the bit right about now, I am not going into standards of or grounds for review, people are confused enough as it is).
So this means what?
Which in laymans terms means that an Appellate Court will not reverse a lower Courts decision simply on the basis that if they had been seized of the matter, they would have ruled differently. Whats needed is for the Appellant to show some major reversible error AND/OR for a case like this where the remedy was discretionary; that the exersize of or failure to exersize discretion was improper.
In other words, in considering an Appeal of an order granting or refusing injunction, an Appellate Court has very different considerations from the Court considering an injunction for the first time.
Stays By Appellate Court
The above is different from an Appellate Court granting a stay pending disposition of Appeal. The earlier bit was about granting of Injunctive relief by trial Courts and the review of the same by Appellate Courts. Over here the Appellant is asking the Appellate Court to prevent execution of the decree below pending final disposal of the appeal or to preserve suit property/status quo as applicable.
Generally the same rules apply here as did to Injuctive relief. So a “minority” ruling one way or the other is a non-starter, they are and remain a minority and the minority does not carry the field. In Conclusion
Injunctions are governed by different requirements than the case on final disposal on merits. Its perfectly possible to fail to get an injunction and win at final arguments, even when facing the same sets of judges.
My bill is in the mail. OP is advised we take cheque, MasterCard and Visa.
If you would have anything substantive to say you would presumably say it. So far, it’s only been what turned out to an error on your part about the “substantive likelihood” vs “likelihood”.
OK.
I assume in your law practice you appreciate that you need to add some value in order to bill the client. WADR - and FTR I think you’re an intelligent guy and a good poster - ISTM that you’ve begun with the assumption that “this is a layman arguing with some lawyers, so he must be ignorant of basic facts about the law”, with the result that you’ve focused on explaining things which were already known and discussed, and failed to address the question. It may be that this type of dynamic doesn’t lend itself to constructive discussion here, but I’m going to try to address this one more time.
Your conclusion here is that “Injunctions are governed by different requirements than the case on final disposal on merits. Its perfectly possible to fail to get an injunction and win at final arguments, even when facing the same sets of judges.” That’s been a given from the start, and even if weren’t, it’s already been raised and discussed in this thread.
The premise of my question was not that injunctions are governed by the same requirements as final disposition, or that it’s impossible to lose an injunction and win at trial. Rather, that your “conclusion” is something which is true of all preliminary injunction rulings, and despite this fact, “likelihood of success” is still one of the crucial elements that a judge uses in deciding whether to award a preliminary injunction. So any judge hearing a request for a preliminary injunction - trial or appeals - knows that they might change their minds after hearing the case, but they still use “likelihood of success” as an element in deciding whether to issue the injunction or not. At that point, obviously, likelihood of success means “likelihood of success based on my current understanding of the law and the facts”.
And the same is true of both judges and appeals court judges, and the latter as well as the former base their ruling, in part, on whether based on their current understanding of the law and the facts the plaintiff is likely to prevail. Let me know if you disagree with the above. If you don’t, then the difference in nature between rulings by the trial judge and rulings by the appeals court is not significant, since both use the same “likelihood of success” standard.
The distinction is rather between “likelihood of success” in winning my vote, which is what appeals judges do consider, and “likelihood of success” in winning over the entire panel, which judges apparently do not. And the question is what’s the rationale for that distinction.
Again, it’s possible that this dynamic doesn’t lend itself to profitable discussion. So be it.
FWIW, my best guess is that the correct answer is something close to what dstarfire seems to be saying. Which is that yes, there’s no real rationale for this distinction, but since the conventional process for issuing rulings produces this result, and there’s no particular reason to make an exception for this (since whether an opinion is unanimous or not doesn’t make much difference, and there may sometimes be an advantage in having written minority opinions) no one bothered to carve out an exception for this situation.
WADR - and FTR I think you’re an intelligent guy and a good poster - ISTM that you’ve begun with the assumption that “this is a layman arguing with some lawyers, so he must be ignorant of basic facts about the law”, with the result that you’ve focused on explaining things which were already known and discussed, and failed to address the question. It may be that this type of dynamic doesn’t lend itself to constructive discussion here, but I’m going to try to address this one more time.