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The Author undertakes a survey in this Article which shows that the Supreme Court and the courts of appeals have not articulated or applied consistent criteria for preliminary injunctive relief. Their decisions have described a sinuous path through primary standards, alternative tests, and sliding scale variations. Part of the difficulty may be because the Supreme Court has not taken a firm hand in resolving conflicts between and among the circuits on critical issues involving interlocutory injunctions. In addition while the courts of appeals make reference to each others' opinions, they have not demonstrated a desire to achieve uniformity in their approaches to interim relief. In some cases, the non-uniformity is intra-circuit as well as inter-circuit. Because there are so many currently applicable tests and variations, a moving party asserting the same facts and legal principles in different circuits could easily secure different results on motions for preliminary relief. While non-uniformity of decisions may serve a creative purpose in the short run, over time it tends to breed disrespect for and discontent of the law and advance the perception that judicial decisionmaking is largely arbitrary. Furthermore from a practical perspective, non-uniformity, especially of the intra-circuit variety, tends to undermine the goal of predictability which is vital for lawyer and client in ordering their affairs to conform with established legal norms. If the principles are uncertain, both counseling and compliance become chancy at best.

Recommended Citation

7 W. New. Eng. L. Rev. 173 (1984)