The Death of the Irreparable Injury Rule

The Death of the Irreparable Injury Rule

The Death of the Irreparable Injury Rule

The Death of the Irreparable Injury Rule


The irreparable injury rule says that courts will not grant an equitable remedy to prevent harm if it would be adequate to let the harm happen and grant the legal remedy of money damages. After surveying more than 1400 cases, Laycock concludes that this ancient rule is dead--that it almost never affects the results of cases. When a court denies equitable relief, its real reasons are derived from the interests of defendants or the legal system, and not from the adequacy of the plaintiff's legal remedy. Laycock seeks to complete the assimilation of equity, showing that the law-equity distinction survives only as a proxy for other, more functional distinctions. Analyzing the real rules for choosing remedies in terms of these functional distinctions, he clarifies the entire law of remedies, from grand theory down to the practical details of specific cases. He shows that there is no positive law support for the most important applications of the legal-economic theory of efficient breach of contract. Included are extensive notes and a detailed table of cases arranged by jurisdiction.


The irreparable injury rule has been a fixture of Anglo-American law for half a millenium. in its most obvious application, it says that courts will not prevent harm if money damages could adequately compensate for the harm. It says that I am free to destroy your property as long as I can pay for it.

I suspect that this rule sounds absurd to people who are neither lawyers nor economists. When it comes time to actually apply the rule, it seems absurd to courts as well. Courts do prevent harm when they can. Judicial opinions recite the rule constantly, but they do not apply it. After surveying more than 1400 cases, I conclude that the irreparable injury rule is dead--dead in the practical sense that it almost never affects the results of cases.

Plaintiffs usually get the remedies they seek, because courts usually find that other remedies are inadequate. When courts reject plaintiff's choice of remedy, there is always some other reason, and that reason has nothing to do with the irreparable injury rule. We can identify the real reasons for decision, and use those reasons to explain old cases and decide new cases. This book concludes with a tentative restatement of those reasons, and with a proposal for formal legislative repeal of the irreparable injury rule.

This book has a unified negative thesis--the irreparable injury rule is dead. It also has an affirmative thesis--nearly all the operative law of remedies can be stated without reference to the irreparable injury rule. This affirmative thesis is an umbrella for a host of small and middle-sized insights. For me at least, explaining remedies law without the irreparable injury rule has clarified all sorts of things. I hope some of my readers have similar reactions.

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