A
remedy aimed at direct a party to do or not do something as opposed to exacting
money damages from the party is called “equitable”. There is more on equitable relief later. Here, the authors talk about pre-trial
court orders.
There
are two types:
1. Temporary
restraining orders (TROs)
2. Temporary
injunctions
TROs
can be issued without any notice to the defendant and without the opportunity
for a hearing. The need of the plaintiff
must be very compelling. Usually TROs
last not more than ten days.
If
the plaintiff still needs protection, they’ll go for a preliminary injunction
(AKA temporarily injunction, interlocutory injunction, or injunction pendente
lite). The idea of this is to keep
things as close to the way they are as possible in order to assure that the plaintiff’s
harm can be corrected where it might not be possible otherwise.
The
court has to balance the costs and benefits to the plaintiff and defendant to
figure out whether these equity orders are appropriate.
These
types of orders don’t fit well with due process. Therefore, there are a few safeguards. The plaintiff sometimes has to put down money
for an “injunction bond” which basically guarantees that the defendant won’t be
hurt if the injunction is struck down.
Also, in some jurisdictions you can actually appeal an injunction even
though it isn’t a “final” decision.
These
types of orders give more power and flexibility to trial judges. But sometimes they can heavily burden defendants. It is hard to review trial judge’s decisions
about equity relief in advance of trial, but the appeals court might yell at
them if they don’t do the right thing.
The
main reason to issue orders like this is to preserve the status quo.
The
way to enforce such orders is through fines for contempt of court. These have two limitations:
1. A court can
only issue contempt fines to those within its jurisdiction.
2. Only the court
of which someone has “been contemptuous” can punish.