A Farewell to Harms: Against Presuming Irreparable Injury in Constitutional Litigation

Article excerpt

     A. Pre-Revolutionary English Practice
     B. Post-Separation Federal Practice
     C. Twentieth-Century Federal Practice
     D. Injunctive Relief for
        Constitutional Claims
     A. Saving Time or Avoiding Difficult
     B. Shaky Legal Basis for
        the Presumption
     C. Theoretical Justifications
        for Presumptive Remedies
        1. Closing the Remedial Gap
        2. The Constitutional Damages
        3. Prophylaxis
     A. eBay: The Supreme Court Takes Aim at
        Irreparable Harm Presumptions
     B. Circuit Courts Rethink the Wisdom
        of the Presumption
     C. The Fate of Presumed Damages in
        Constitutional Litigation
        1. The Court's Presumed
           Damages Cases
        2. Seventh Amendment Concerns
        3. The Reinvigorated Compensatory
           Damages Remedy
     A. The Declaration as an
        Alternative Remedy
     B. Interlocutory Injunctions and
        Constitutional Determinations
     C. Attorneys' Fees Shifting
        Jurisprudence and its
        Impact on Remedies
        1. The Declaratory
        2. Nominal Damages and
        Fees Shifting

Although irreparable injury is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury should be presumed in constitutional cases. (1) Thus, the ability of a plaintiff to secure an injunction against a claimed violation of the Constitution frequently turns on whether she has made a sufficient showing of the probability of success on the merits of her constitutional claim. (2) The Supreme Court disapproved of the practice of presuming irreparable harm for federal statutory claims but has not addressed the issue with respect to constitutional claims. (3) A few circuit courts, sensing that the Court will not endorse a blanket presumption, opted to limit the presumption to certain constitutional claims. (4)

This Article argues that the presumption should be eliminated altogether. The history of the injunctive remedy in this country and in England, from which we inherited our equity law, reflects a consistent and unyielding view that irreparable injury is an essential element of proof. The Supreme Court has never suggested that courts should approach the question of injunctive relief differently in constitutional cases and has repeatedly emphasized the irreparable injury element in that context. The Court has further stated that, although constitutional rights are important, they do not warrant any relaxation of the traditional requirements for obtaining remedies. Courts should not presume damages for constitutional wrongs; why then should they presume irreparable harm?

Conclusive presumptions can be justified on the ground that they save judicial time and resources by eliminating needless litigation over matters that are incontrovertible or self-evident, but the existence and extent of harm from constitutional infractions is not guaranteed, even for purposes of standing to sue. (5) It also is difficult to see how a presumption of irreparable harm will save a significant amount of time or resources. In cases where irreparable injury is both substantial and apparent, a presumption would appear to be unnecessary since proof of the injury can quickly and easily be demonstrated.

The more plausible explanation for the presumption might be that courts fear that close scrutiny of irreparable injury will reveal numerous instances where constitutional violations are virtually harmless. Courts are willing to acknowledge constitutional wrongs as harmless in criminal cases and even when it comes to civil damages claims, as the numerous nominal damages recoveries in Section 1983 cases attest, but they seem resistant to the concept of harmlessness when injunctive relief is sought. …


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