This page is intended to provide historical perspective on injunctions in district courts, as well as a head start on understanding how the law has been applied in your circuit. The chart below focuses on elements of proof / factors to weigh for obtaining TRO’s and Preliminary Injunctions. As shown on the chart, some circuits have historically required proof of all four factors, whereas others have allowed balancing or a sliding scale analysis.
Injunction law by circuit is set forth in the Wordle below:
So when arguing for an injunction, stand up, use the above as your outline, and say “status quo” several times and you will be OK, or maybe not.
Because the law of various circuits is applied differently, we provide a “chart” below to illustrate how the injunction factors, usually four, have been applied in each circuit, as well as in the Supreme Court in Winter v. NRDC, 555 U.S. 7 (2008). As the chart shows, some circuits apply a stricter test of the elements, whereas others allow a balancing of the factors. The chart below, we hope, will be useful to get you started on the test that will be applied in your circuit. As with anything involving hundreds of years of jurisprudence and case law, further explanation and analysis is needed to better understand the chart, and that is provided below. There is also no substitute for reading the leading cases, and, to that end, we suggest starting with Winter v. NRDC, and then the cases in your circuit to see how they apply Winter.
[Click on chart to view in a separate window].
It appears some circuits have not issued an opinion decision since Winter, so it remains to be seen exactly how they will approach the analysis of the four factors: (i) rigid application of all four factors / elements, or (ii) some form of sliding scale / balancing / fair question / serious question approach, with perhaps not requiring a “preponderance” showing of likelihood of success on the merits.
Much of the information provided above was assisted by the law student note, Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, Col. L. Rev. (2011).
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