A FAREWELL TO HARMS: PRESUMING IRREPARABLE INJURY IN CONSTITUTIONAL LITIGATION

Anthony DiSarro

Abstract

Although it is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury can be presumed in constitutional cases. The Supreme Court has not addressed a presumption of irreparable harm in the constitutional context but it has disapproved of the practice for federal statutory claims. This article argues that the presumption is improper.

The history of the injunctive remedy in this country suggests that irreparable injury is an essential element of proof that should be applied in all cases. Indeed, although constitutional rights are of paramount importance in our legal system, the fact that those rights are implicated has never been justification for courts to presume an entitlement to a damages remedy. Courts have come to accept harmless constitutional wrongs in criminal proceedings and in civil damages suits, as the numerous nominal damages recoveries in Section 1983 cases can attest. They should not be reluctant when injunctive relief is sought to acknowledge the reality that some constitutional infractions produce no serious or non-compensable harm. A plaintiff who cannot show irreparable harm or prove damages can always obtain a declaratory judgment. Courts, however, must endeavor to make that remedy a satisfactory alternative to the injunction by abandoning their reluctance to award attorneys’ fees to plaintiffs who obtain only declaratory relief.

Presuming irreparable harm encourages plaintiffs to seek preliminary injunctions and it is far less preferable for constitutional questions to be resolved on preliminary injunction motions than at trial or on summary judgment. Preliminary injunction determinations are provisional and tentative, often the product of an incomplete evidentiary record generated at abbreviated and rushed hearings. They are subject to the least rigorous appellate standard. Final judgments on constitutional questions, by contrast, produce definitive holdings and are subject to non-deferential appellate review. Eliminating the presumption will produce far better decision-making in constitutional cases.