A farewell to harms: against presuming irreparable injury in constitutional litigation.

• Author: DiSarro, Anthony

1. THE DEVELOPMENT OF THE IRREPARABILITY ELEMENT A. Pre-Revolutionary English Practice B. Post-Separation Federal Practice C. Twentieth-Century Federal Practice D. Injunctive Relief for Constitutional Claims II. THE PRESUMPTION OF IRREPARABLE HARM A. Saving Time or Avoiding Difficult Questions? B. Shaky Legal Basis for the Presumption C. Theoretical Justifications for Presumptive Remedies 1. Closing the Remedial Gap 2. The Constitutional Damages Deficiency 3. Prophylaxis III. ELIMINATING THE PRESUMPTION 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 IV. IMPLICATIONS OF ELIMINATING THE PRESUMPTION 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 Judgment/Injunction Distinction 2. Nominal Damages and Fees Shifting CONCLUSION 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. The presumption obscures the perhaps discomforting reality that many constitutional infractions produce either no injury or one that damages can adequately redress.

   The courts' fear in this regard seems irrational. A plaintiff who cannot show irreparable harm can always obtain a declaratory judgment of unconstitutionality. The declaratory remedy was specifically created by Congress to provide a remedy for plaintiffs asserting constitutional claims who cannot satisfy the requirements for injunctive relief. (6) The remedy would seem superfluous if irreparable harm can simply be presumed in every case.

   Although the presumption of irreparable harm has been applied to applications for permanent injunctions as well as preliminary ones, this Article will focus on the appropriateness of the presumption in connection with preliminary injunctions. As with most civil litigation, substantially all constitutional tort cases settle before a final determination of the merits. (7) Thus, the preliminary injunction has become, much like class certification, a "momentous" pretrial ruling that "[w]ith vanishingly rare exception ... sets the litigation on a path toward resolution by way of settlement, not full-fledged testing of the plaintiffs' case by trial." (8) The recognition that a preliminary injunction decision is "no mere ... procedural ruling" is reflected in the fact that Congress has expressly authorized interlocutory appeals from these pretrial determinations. (9)

   Presuming irreparable harm invites applications for preliminary injunctions in constitutional cases by eliminating what is usually the most difficult element for a plaintiff to satisfy. It is far preferable that constitutional questions be resolved on summary judgment or at trial than on a preliminary injunction ruling. In preliminary injunction proceedings, important constitutional questions will be decided tentatively and usually upon an incomplete evidentiary record produced at abbreviated and rushed hearings. They will lead to appeals that apply the least rigorous appellate standard. Final judgments on constitutional questions, by contrast, will produce definitive holdings and be subject to nondeferential appellate review.

   Eliminating the presumption of irreparable harm will force courts to do what they do best: Think. They should deliberate in each instance about whether the harm that is claimed is truly one that cannot adequately be remedied after trial and is substantial enough to warrant the issuance of an injunction. If such harm cannot be shown, the plaintiff should be relegated to a declaratory judgment. The declaratory remedy, however, needs to become a truly adequate alternative to the injunction and thus courts must end the practice of awarding attorneys' fees to plaintiffs who secure injunctions but not to those who obtain only declaratory relief.

   Part I of this Article explores the origins of the irreparable injury requirement in federal practice and the central role it has come to play in federal litigation. Part II addresses the jurisprudential basis for the presumption of irreparable harm in constitutional cases, and the Supreme Court's 2006 eBay decision and its progeny, which reject the presumption in statutory cases. Those decisions should prompt courts to eschew presumptive injunctions in Section 1983 litigation.

   Part III analyzes the implications of eliminating the presumption and discusses the significant adjudicative benefits that such a change would produce. It also addresses the need for a revised approach to attorneys' fees-shifting so that the declaratory judgment will be equal in status to the injunction in the remedial hierarchy. Finally, Part IV considers theoretical justifications for making injunctions more accessible in constitutional cases and concludes that those justifications do not justify the presumption.

1. THE DEVELOPMENT OF THE IRREPARABILITY ELEMENT

   Throughout its history as a remedial device, the concept of irreparable harm has always played a role of central importance.

   1. Pre-Revolutionary English Practice

      The injunction, and equity practice in general arose because English law courts rigidly adhered to a writ system, whereby a plaintiff could assert a claim only for specific, pre-existing writs, such as trespass or nuisance. (10) When a plaintiff could not fit his claim within the narrow requirements of a writ, he would petition the King's chancellor for relief. (11)

      As these petitions grew in number, the chancery came to function much like a court. (12) Over time, common law courts sought to protect their jurisdictional terrain from encroachments by chancery courts, by forcing equity courts to decline jurisdiction where the claimant had an adequate remedy in the law courts. (13) The injunction evolved as a tool for equity courts to restrain conduct that was adjudged to be unlawful, provided a plaintiff could show irreparable injury--an injury which the common law could not adequately address. (14)

   2. Post-Separation Federal Practice

      The irreparability requirement was included in the Judiciary Act of 1789, enacted by the First Congress, which authorized the creation of federal courts, the jurisdiction of which included both law and equity. (15) Section 16 of the Act, providing that actions in equity could not proceed if there was a "plain, adequate and complete" remedy at law, was specifically intended to incorporate the pre-revolutionary English standard. (16)

      The adequate remedy rule was applied in one of the Supreme Court's most noteworthy decisions of the Marshall Court era: Osborn v. Bank of the United States. (17) The Supreme Court upheld an injunction that restrained a state official from taxing, in a repeated and confiscatory manner, a federal bank with the "avowed purpose of expelling the Bank from the State...." (18) Chief Justice Marshall rejected the argument that the federal bank had an adequate remedy at law in the form of a trespass action for damages, reasoning that the bank sought protection, "not from the casual trespass of an individual ... but from the total destruction of its franchise, [and] of its chartered privileges...." (19)

      Although early...