[EL] Motion for preliminary injunction and likelihood of success

[Mark Scarberry]

The Supreme Court has suggested (at least) that there must be a "likelihood
of success" before a preliminary injunction should be issued. At least on
the surface, it appears that this factor must be met no matter what showing
is made on the other three factors (just as there must be a likelihood, not
just a possibility, that irreparable harm will ensue absent issuance of the
preliminary injunction). It seems that the Massachusetts courts may follow
the same rule. (Not that any of this will be news to Kevin or most others
on the list.)

Some circuits still use their old sliding scale approach, under which only
serious issues going to the merits must be shown if the balance of
hardships tips sharply in favor of the party seeking the preliminary
injunction. I think that's wrong under Supreme Court precedent, but I'm not
a circuit judge. The issue still remains whether "likelihood of success"
means "more than 50%."

Mark

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

On Mon, Nov 7, 2016 at 5:18 PM, Greenberg, Kevin <
Kevin.Greenberg at flastergreenberg.com> wrote:

> 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@
> 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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