What is an injunction?

1. What is an injunction? • Injunction = Court order requiring that a party do or refrain from doing something. • 3 basic kinds of injunctions in terms of timing & scope: • Preventive • Reparative • Structural • We will see another important distinction later re permanent v. preliminary – that distinction goes to substantive/procedural requirements re those types of injunctions

2. Preventive Injunctions • Preventive Injunction = An injunction seeking to prevent future violations of the law. • Critical Question: What are the circumstances in which future conduct can be enjoined?

3. Al Murbati v. Bush • What did the plaintiffs fear the government was going to do? • Why wouldn’t the court grant an order barring the gov’t from doing that? • What evidence did the P’s have of the government’s threat to harm them?

4. Preventive Injunctions and Ripeness • P must show a “substantial and realistic” threat of harm personal to P before a court will enjoin future conduct • Another way of saying this: P must show D’s “propensity” to commit the harmful act. • The “ripeness” showing is heavily evidentiary in nature. • P needs to offer proof - must be something more than raw fear or simple theories • Ripeness requirement applies to all injunctions seeking to regulate future conduct – whether permanent or preliminary.

5. Preventive Injunctions, Ripeness, & Evidentiary Support • Would the harm more likely be ripe in Al Murbati if: • Ps had evidence that in some countries (including home countries) to which detainees were being shipped “diplomatic assurances” of no torture were illusory and ineffective? • What if there was strong evidence that U.S. officials lied about many aspects of its treatment of detainees BUT there was no evidence that it lied about this particular treatment of detainees?

6. Preventive Injunctions, Ripeness & Tailoring • Even if the feared harm (being shipped to a country where they would be tortured) had been ripe in Al-Murbati, would the court likely have granted P’s requested injunction? • Requested injunction: Bars the government from transferring any P out of Guantanamo without 30 days notice to the court or P’s counsel. • What does Marshall(and what we’ve learned about the ripeness rule) suggest about whether the scope of this injunction is appropriate?

7. The scope of preventive injunctions with multiple actors – possible options in Marshall v. Goodyear • Marshall v. Goodyear - nationwide injunction for single act of age discrimination at Auburndale branch is inappropriate – Why? • Possible options for injunction – which is most appropriate? • Order barring Auburndale branch from violating employment discrimination laws. • Order barring Auburndale branch from violating ADEA. • Order barring Auburndale manager from violating ADEA. • Order barring Auburndale manager from discharging in violation of ADEA. • When is a company-wide injunction appropriate? At what point do actions of employees show the “company’s” propensity to act?”

8. Mootness as an Aspect of Ripeness • What happens when a ripe threat becomes “unripe” because of D’s actions? • Or put another way – when can a D make an otherwise ripe threat of harm moot/unripe? • Can D make a preventive injunction non-viable by changing the course of their behavior and claiming “it won’t happen again”

9. Jurisdictional v. Equitable Mootness – as distinguished in WT Grant Jurisdictional: Court must dismiss as required by Article III of U.S.Constitution Moot: No reasonable expectation that the wrong will be repeated Equitable: Court can dismiss as a matter of judicial discretion Moot: No cognizable danger or no more than a mere possibility that the harm will re-occur.

10. Equitable mootness in W.T. Grant – 3 factors to determine whether injunction should issue • Bona Fides of D’s Expressed Intent to Comply • Effectiveness of D’s Discontinuance of Bad Acts • Effort devoted to ending violation • Difficulty in starting up again • Character of D’s Past Violations • Intentional v. Negligent • Pattern v. Isolated Incident • Temptation Inherent in the Job