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A Farewell To Harms: Presuming Irreparable Injury In Constitutional Litigation, Anthony Disarro
A Farewell To Harms: Presuming Irreparable Injury In Constitutional Litigation, Anthony Disarro
Anthony DiSarro
Although it is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury can be presumed in constitutional cases. The Supreme Court has not addressed a presumption of irreparable harm in the constitutional context but it has disapproved of the practice for federal statutory claims. This article argues that the presumption is improper. The history of the injunctive remedy in this country suggests that irreparable injury is an essential element of proof that should be applied in all cases. Indeed, although constitutional rights are of paramount importance in our legal system, the fact that …
When A Jury Can’T Say No: Presumed Damages For Constitutional Torts, Anthony Disarro
When A Jury Can’T Say No: Presumed Damages For Constitutional Torts, Anthony Disarro
Anthony DiSarro
Although the Supreme Court has twice rejected presumed damages as a remedy for constitutional violations, the Court of Appeals for the Second Circuit has endorsed the remedy at least for certain constitutional torts that result in a “loss of liberty”. Presumed damages for constitutional wrongs is difficult to reconcile with much of our present remedial jurisprudence. The remedy seems contrary to Supreme Court pronouncements that compensatory damages are be the primary means to obtain a monetary remedy for injuries sustained from constitutional violations, and that nominal damages should be awarded when no such damages are proved. Presuming damages represents an …