The Death of the Irreparable Injury Rule (Hardcover)

by Douglas Laycock (Author) "[E]ven though a plaintiff may often prefer a judicial order enjoining a harmful act or omission before it occurs, damages after the fact are considered..." (more)
Key Phrases: irreparable injury rule, preliminary relief cases, breach theorists, Equity Jurisprudence, Ist Cir, United States (more...)

Editorial Reviews

Review

"Every lawyer who studies or participates in our curious enterprise of constitutional government through courts should scrutinize Douglas Laycock's outstanding book.
"Professor Laycock has written a book that every litigator should know. He explodes a powerful myth and shows us through analysis of cases from every state and the federal system that "irreparable injury" is a formula invoked to bless results based on other reasons....Laycock patiently and ably catalogs the circumstances in which specific relief is granted and for each one shows us that irreparable injury is not the court's concern."--Litigation
"A great service to the law--first rate Grand Style stuff,"--Ian Macneil, Northwestern University
"I was reminded of Cardozo, of Chafee, and even of Maitland in the power Laycock seemed to have over the ideas and in the sweep of materials he was able to bring to bear. Writers, judges, and lawyers will all rely on his final effort to restate the real forces behind the irreparable injury rule as specific rules or principles."--Dan B. Dobbs, University of Arizona
"[A] perceptive work, and a....very useful source...of recent American cases taking unorthodox views of specific remedies....[T]his is an interesting, well-argued and thoughtful book."--Civil Justice Quarterly


Product Description
The irreparable injury rule says that courts will not grant an equitable remedy to prevent harm if it would be adequate to let the harm happen and grant the legal remedy of money damages. After surveying more than 1400 cases, Laycock concludes that this ancient rule is dead--that it almost never affects the results of cases. When a court denies equitable relief, its real reasons are derived from the interests of defendants or the legal system, and not from the adequacy of the plaintiff's legal remedy. Laycock seeks to complete the assimilation of equity, showing that the law-equity distinction survives only as a proxy for other, more functional distinctions. Analyzing the real rules for choosing remedies in terms of these functional distinctions, he clarifies the entire law of remedies, from grand theory down to the practical details of specific cases. He shows that there is no positive law support for the most important applications of the legal-economic theory of efficient breach of contract. Included are extensive notes and a detailed table of cases arranged by jurisdiction.

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Product Details

• Hardcover: 382 pages
• Publisher: Oxford University Press, USA (January 17, 1991)
• Language: English
• ISBN-10: 0195063562
• ISBN-13: 978-0195063561
• Product Dimensions: 8.6 x 5.8 x 1.2 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 3.0 out of 5 stars See all reviews (2 customer reviews)
• Amazon.com Sales Rank: #1,823,495 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

3 of 4 people found the following review helpful:

5.0 out of 5 stars An Unbelievably Great Book for Lawyers, September 22, 2003

By	Joseph P. Leon "leonesq" (New York, NY United States) - See all my reviews

Professor Laycock was a professor of mine, and he is one of the most brilliant academics I ever studied under (and one of the most objective). That the prior reviewer found a political agenda to this book is mindblowing. This book discusses and catalogues some 2000 cases on the irreparable injury rule andm in truth, is a pretty dry read. But it is fascinating from an academic perspective. Professor Laycock is simply explaining that the irreparable injury rule, which arose centuries ago due to the different jurisdictions of law courts and equity courts in England, no longer has any necessary applicability since the merger of law and equity in this country in (I think) approx. 1928. The book demonstrates that the rule is applied when there are separate policy justifications for its application, and it is not applied (and some exception is always found) when there is no separate policy justification for its application. It has been ages since I read this book whole, but I still use it in day to day practice to find cases whenever I have a case involving the irreperable injury rule. It never fails me.

3 of 9 people found the following review helpful:

1.0 out of 5 stars Innaccurate and Misleading by a legal deconstructionist, December 22, 2002

By	Shuterbug "shuterbug" (MARS) - See all my reviews

Laycock quotes 1% of case law showing the lack of application of the irreparable injury rule, but ignores 99% that applies it.

Laycock quotes cases out of context. For example, on page 30, note 38, he quotes (with tacit ridicule) an Ohio case (Ohio is a conservative court system)that says an injunction is legal. It is true most in personam orders are equitable, not legal. However, contrary to the impression Mr. Laycock leaves the reader, Ohio understood quite accuragely that courts of law issued injunctions by way of extraordinary writ and this was made clear had Laycock quoted the rest of the passage. A text without a context is a pretext.

Laycock quotes cases on page 29 notes 30-33, showing that courts are in disagreement about whether declaratory judgments are legal or equitable. This only shows that judges today are politically correct agents rather than stewards of the law. Declaratory judgments are neither legal nor equitable, they are statutory (creatures of the legislature, not of the judge made law of the judiciary).

On page 10, he quotes Tony Flew's falsifiability principle to shed doubt on the value of the irreparable injury rule as an effective decision procedure at law. However, Goedel (the logician) showed that if we limit our analysis to a restricted amout of axioms, then of course something cannot be proved or disproved or, i.e., cannot operate as an effective decision procedure. Therefore, Laycock's fundamental argument, using Flew's method, is a rigged argument.

An explanation for these errors is Laycock's hostility to extant Christian tradition in the law, especially in equity and restitution. His use of the atheist Flew shows his reading source of preference.

True to his and Flew's use of the falsification principle, the book would be convincing (just as the falsification argument is convincing) if one restricted one's reading only to the parameters of the book's covers.