It proposes guidelines for determining in what circumstances "a preliminary injunction is in the public interest." (8) Part I explores the history of the preliminary injunction, with an emphasis on the flexibility employed by courts of equity
. Part II examines the state of the preliminary injunction post-Winter, which reveals that the disagreement between circuit courts applying Winter largely comes from how the courts weigh the public interest factor.
As the Supreme Court long ago recognized, there is inherent in the courts of equity
a jurisdiction to give effect to the policy of the legislature.
In short, because courts of equity
lack competence to impose civil penalties: "Remedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were issued by courts of law, not courts of equity
." (28) In other words, penalties are legal rather than equitable sanctions.
(186) gave courts of equity
the power to award damages in addition to or
Courts of equity
, by contrast, were designed to offer flexibility and to "provide comprehensive determinations which could not be obtained through the common law courts." (50) But the dichotomy was both porous and incomplete.
(13) According to Justice Scalia, the only equitable remedies available to federal courts are those "traditionally accorded by courts of equity
"--traditionally, that is, as of 1789, when the Constitution and the Judiciary Act of 1789 adopted what then existed in equity.
Rather than using the established four-factor test for determining whether to issue an injunction, applied by courts of equity
in other areas of the law, the Federal Circuit held that absent sound reasons for denying it a permanent injunction would issue when infringement has been found and validity upheld.
(1) While the practical distinction between Equity and Common Law vanished with the fusion of Courts of Equity
and of Law; intellectual distinction still remained between these two systems in the nature of claims and remedies available therein (Hudson 2015, p.17-19).
courts of common law could impanel juries; courts of equity
was merely declaratory of the prior rule that courts of equity
will not restrain the collection of a tax upon the sole ground of its illegality.
(2) At one time, based on the very remedies they had jurisdiction to provide litigants, American courts were split in two, with courts of equity
and courts of law.
Due to the historical division between courts of law and courts of equity
, common law judges originally lacked the authority to grant any equitable relief.