Meritless injunctive claims clog courts

In the wake of Nken v. Holder, scholars renewed criticisms of the various preliminary injunction standards. At least one scholar has argued that courts should avoid any consideration of the merits of a claim in deciding a motion for equitable relief. They argue that consideration of the merits is ahistorical and—a point with which this Note agrees—leads to unacceptable lock-in bias. It is unclear whether the history of equitable remedies supports consideration of the merits on its own terms—the English Courts which served as models for the American equity tradition had mixed records of considering the merits in their decision-making, and by the mid-nineteenth century a version of the modern likelihood of success on the merits prong had already been integrated into the widely used tests. More to the point, an entirely merits-less test would be out of touch with modern U.S. procedural practice. Preliminary injunctions granted to claimants with no likelihood of success on the merits would bestow a windfall and unjustly punish an innocent nonmovant. Spurious claims would clog courts’ dockets, slowing down the adjudication for those who may not even be parties to the litigation at issue. Threat of irreparable harm, the balance of the equities, and the public’s interest in the litigation, standing alone, are insufficient to manage these efficiency concerns. While overzealous merits predominance may bias the ultimate disposition of a claim, the direct costs imposed by a merits-less test would be just as erroneous. In a litigious society, the lack of a meaningful constraint on motions for preliminary injunctions would surely, unacceptably incentivize vexatious litigation.