Lea B. Vaughn, A Need for Clarity: Toward a New Standard for Preliminary Injunctions, 68 Or. L. Rev. 839 (1990), https://digitalcommons.law.uw.edu/faculty-articles/427
Oregon Law Review
This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.
Under a modernized standard, a court should redress immediate pretrial harm and preserve the litigation in a way that renders subsequent decisions meaningful. Further, a court's ability to act will not be limitless; instead, by clarifying the terms' meanings, a court's discretion will be bounded by the attributes of the standard itself as well as by preexisting external constraints. The analysis ends with a normative description of the relationship between the factors and concludes that a balancing test is the best form for such a relationship.