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REVIEW OF PRELIMINARY INJUNCTION ORDERS IN U.S. COURTS

REVIEW OF PRELIMINARY INJUNCTION ORDERS

IN U.S. COURTS

S.L. BUDYLIN,

Candidate of Physical and Mathematical Sciences, Advisor to JSB “Bartolius”,

Visiting Lecturer, Faculty of Law, National Research University

Higher School of Economics

DOI: 10.24031/2226-0781-2020-10-6-177-192

Under American rules, a very important factor for a court to consider when granting

a preliminary injunction is the likelihood of success on the merits. To estimate this likelihood,

the court must of course decide which legal provisions are applicable the parties’ dispute. And

if the court errs in interpretation or application of those provisions, a party may successfully

appeal to a higher court! As a result, the legal questions that must be answered to resolve the

dispute on the merits are sometimes hotly and at great length discussed on the preliminary

injunction stage, with appeals up to the highest-instance court. The ratios stated by higherinstance

court in decisions on preliminary injunctions often become decisive when the

dispute is resolved on the merits. Moreover, after the highest court ruled on a disputable

issue of law in the preliminary injunction discussion, continuing the dispute may become

redundant. Knowing the facts of the case (even if they are not yet formally established

by a court) the parties often can easily understand who loses and who wins. After that

it normally makes sense to settle out of court instead of wasting time and money for the

process, the outcome of which is practically predetermined. Because of that many court

orders granting or denying preliminary injunctions are far from being just “run-of-the-mill”

ones. They may be very important for the ultimate outcome of the case and often contain

detailed arguments on disputable issues of law, sometimes taking dozens of pages.

Keywords: U.S.; preliminary injunction; appeal; review; likelihood of success on the merits.

Information about the author

S.L. Budylin (Moscow, Russia) – Candidate of Physical and Mathematical Sciences,

Advisor to JSB “Bartolius”, Visiting Lecturer, Faculty of Law, National Research University

Higher School of Economics (38 Stremiannyi Lane, Moscow, 115054, Russia;

Recommended citation

Budylin S.L. Peresmotr reshenii o vvedenii obespechitel’nykh mer v federal’nykh sudakh

SShA [Review of Preliminary Injunction Orders in U.S. Courts]. Vestnik grazhdanskogo

protsessa – Herald of Civil Procedure, 2020, vol. 10, no. 6, pp. 177–192. (In Russ.) https://

doi.org/10.24031/2226-0781-2020-10-6-177-192

S.L. BUDYLIN