Document Type

Article

Publication Date

1-2007

Abstract

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a valuable “flipping” exercise? Does it shed a new light and provide useful insight into the law of injunctions? In this Response I want to suggest that the case for irreparable benefits is valid, but perhaps overstated. I have no quibble with the claim that if there are irreparable benefits, and if they are indeed overlooked, the legal doctrine ought to be corrected. But I am less sure that the existence of irreparable benefits is prevalent, and I am even less sure that they are systematically overlooked. Let me explain.

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