Today's Argument in Lackey v. Stinnie: Attorneys' Fees and Preliminary Injunctions

This morning the Supreme Court will hear argument in Lackey v. Stinnie, a major case about attorneys's fees and preliminary injunctions. The case has so far escaped much attention in the press, but its implications are important. These include implications for litigation funding, for incentives to settle after a preliminary injunction, and for how the preliminary injunction operates in the federal courts.

The preliminary injunction is designed to protect the Court's ultimate remedial options (as explored at length in The Purpose of the Preliminary Injunction). It is an interim measure that does not determine the merits, and instead, to use a felicitous phrase of Professor Bert Huang, it "sets a holding pattern." But there has been a major shift in the federal courts toward merits-dominated decisionmaking. It has become a central front in many of the most important public law cases. It is not designed for that role, and the error costs at the preliminary stage are high. Those costs are exacerbated by heightened judicial polarization and forum-shopping. And these shifts in preliminary injunction practice have contributed to many of the cases that come to the Court in an emergency posture. A win for the respondents would be likely exacerbate these trends still more, moving the preliminary injunction further from its traditional function and towards being a merits determination.

Here is my discussion of the briefs from last week, here at the Volokh Conspiracy.

And here is The Purpose of the Preliminary Injunction, which explores these questions about this interim measure's function and the problems with how it is now being used in the federal courts.