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Repairing (The Doctrine Of) Irreparable Harm: Economic Analysis Of Preliminary Injunctions, Barak Medina, Ofer Grosskopf
Repairing (The Doctrine Of) Irreparable Harm: Economic Analysis Of Preliminary Injunctions, Barak Medina, Ofer Grosskopf
Barak Medina
In deciding whether to grant a preliminary injunction courts compare the expected irreparable harm if the injunction is not issued to the irreparable harm that would result if the injunction is issued. An injury is considered irreparable only as far as it “cannot be cured by a remedy after trial.” This Article demonstrates that to maximize social welfare (“efficiency”) the definition of irreparable harm must be modified. From a social-welfare perspective, harms to one party which do not correlate to corresponding benefits to the other party are deadweight-losses, regardless of the availability of a remedy that may merely reallocate them …
Remedies For Wrong Preliminary Injunctions: The Case For Disgorgement Of Profits And Only Partial Liability For Harms, Barak Medina, Ofer Grosskopf
Remedies For Wrong Preliminary Injunctions: The Case For Disgorgement Of Profits And Only Partial Liability For Harms, Barak Medina, Ofer Grosskopf
Barak Medina
A party who applies for a preliminary injunction is required to post a bond that would cover the harms inflicted on any party who is found to have been wrongfully enjoined or restrained. Yet, the moving-party’s liability frequently covers only a fraction of the actual costs and harms inflicted by the injunction. In addition, courts reject most claims for restitution of benefits gained by the plaintiff on the basis of the wrong preliminary injunction. This Article demonstrates that these practices are only partially justified. It supports the practice of requiring the moving-party to compensate the defendant for only part of …