[EL] Motion for preliminary injunction and likelihood of success

[Greenberg, Kevin]

It's one of four factors for preliminary relief.

Now that he's been dead for 18 years I can say that the judge I clerked for said that sometimes in these situations he would think there was 130% chance of success on the merits since he was guessing what eventually he would decide to be the facts.

For that reason he frequently had his opinions on the other prongs don most of the heavy lifting.

Kevin Greenberg
215-279-9912
kevin.greenberg at flastergreenberg.com<mailto:kevin.greenberg at flastergreenberg.com>

On Nov 7, 2016, at 7:28 PM, Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:

I am not completely sure that "likelihood of success" (as used by this Massachusetts court and as used by the US S. Ct.) actually means greater than a 50% chance of success.

If I put a bullet in one chamber of a revolver, give it spin, and prepare to pull the trigger, you may well say, "Don't do that! You are likely to die!" I doubt you would say, "Don't do that! You aren't likely to die but you do have a 16.7% chance of dying!"

I have looked for clear confirmation of the meaning of "likelihood of success" in this context and have not found it.

So it may be possible that both parties did, in a sense, have a substantial likelihood of success.

This would soften the Supreme Court's stated requirements for preliminary relief.

I suppose another way to put it is that if a party has a 40% chance of succeeding, then its likelihood of success is substantial.

Thoughts?

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Mon, Nov 7, 2016 at 4:08 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
MA Court, Relying on State Constitution, Allows Three Voters to Vote Who Missed Registration Deadline<http://electionlawblog.org/?p=88951>
Posted on November 7, 2016 3:55 pm<http://electionlawblog.org/?p=88951> by Rick Hasen<http://electionlawblog.org/?author=3>
The opinion is here<http://electionlawblog.org/wp-content/uploads/ma-reg.pdf>. (Case brought by ACLU.)
Doesn’t really seem to decide anything of significance except for these three voters. And the opinion contains this non-sequitur: “Both sides have a substantial likelihood of success on the merits.” That’s not how it works. If both sides have equally strong arguments, then the party bearing the burden of proof loses.
<image001.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D88951&title=MA%20Court%2C%20Relying%20on%20State%20Constitution%2C%20Allows%20Three%20Voters%20to%20Vote%20Who%20Missed%20Registration%20Deadline>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

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