In this Article the Author addresses the issues surrounding consolidation, the situation that arises when a court decides the merits of a dispute based solely on the record produced at a hearing on motion for a preliminary injunction. The Author identifies some of the more flagrant abuses that trial and appellate courts have committed in reaching the merits after only a hearing on a motion for preliminary relief. The proposed amendments discussed in the Article would serve both courts and parties. They would prevent the kind of abuses discussed in this article by requiring that the parties be informed of the procedural setting in which the court intends to operate. They would also afford the parties the opportunity to object to a consolidation order in much the same way as parties do when faced with a summary judgment motion. The provisions would insure that due process is provided and that parties have the chance to present all the evidence they plan to introduce. The proposed amendments are also designed to avoid tying the hands of the courts. While the judges may still play an active role in litigation, the proposed changes clarify what that role should be by adding specific procedures to govern a disposition on the merits after only a hearing on a motion for a preliminary injunction.
11 W. New. Eng. L. Rev. 209 (1989)