The Scope of Preventive Injunctions – Possible Options in 预防性的禁令–可能的选择范围.pptVIP

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 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? 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? 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. 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? 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 injunct