Monday, September 26, 2005
The concept of irreparable harm is likely familiar to most legal readers. An irreparable harm is a harm that cannot be meaningfully compensated by some ex post exchange of cash, goods, or services. I want to begin my visit here at PrawfsBlawg by asking whether the law should be thinking in parallel about the inverse concept – irreparable benefits – which I will for now define to include benefits that, once enjoyed, cannot be meaningfully dislodged. (Yes, yes, this is the subject of a current paper I’m playing with, so I’m very excited for feedback and criticisms and supportive examples and such.)
Consider, for instance, the standard for preliminary relief. In every circuit, a motion for preliminary relief is today evaluated in light of three main factors: (1) the likelihood that the requesting party will ultimately prevail on the merits; (2) the irreparable harm the requesting party will suffer if the injunction is wrongly denied; and (3) the irreparable harm the opposing party will suffer if the injunction wrongly issues. The idea is to account for and minimize irreversible court error. In a case where denial of the injunction would be irreversibly harmful and there is a real chance of wrongful denial, courts are more reluctant to deny. Conversely, if issuance poses the greater irreversible threat, courts are more reluctant to issue. The analysis is often cast in terms of a sliding scale: “the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side.”
This standard approach accounts for irreparable harms but neglects entirely irreparable benefits. That is hard to understand. If the goal is to minimize deviations from what will be the ultimate ruling on the merits, errant irreversible gains can be just as troubling as errant irreversible losses. Both can have lasting distributional implications, and both distort important incentives like the incentive to sue or settle. When an injunction wrongly issues, then, aren’t there actually two errors to count: the irreparable harm wrongfully imposed on the nonmoving party and the irreparable benefit mistakenly conferred on the moving party? Similarly, when an injunction is wrongly denied, aren’t there again two errors to fret: the irreparable harm wrongfully suffered by the moving party and the irreparable benefit inadvertently accorded the nonmoving party?
In my post tomorrow I’ll come back and talk through a specific example – a patent example, and the example that first got me puzzling about this – and hopefully through that be able to respond to some obvious criticisms like the worry that “irreparable benefits” is mere semantics or that this approach double-counts the same underlying wrong. But, for now, let me just thank Dan for inviting me, and all of you for letting me run some ideas by you over the next week or two. Again, comments welcome, both here and via email at dgl at uchicago dot edu.
Posted by Doug Lichtman on September 26, 2005 at 04:57 PM | Permalink
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» Doug Lichtman from The Volokh Conspiracy
is guestblogging over at PrawfsBlawg about why standards governing lawsuits are concerned with irreparable harm, but not irreparable benefits. Interesting stuff. [Read More]
Tracked on Sep 27, 2005 12:27:12 AM
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On first blush, it would seem that an irreparable benefit that wasn't balanced by an irreparable harm to the non-benefited party would be analytically irrelevant. Assuming the courts ought to function as mass utility-maximizers (an assumption which I don't agree with, mind, but it's the only way to make the harm/benefit discussion coherent at all), a harmless irreparable benefit would accrue to the net social utilitarian gain.
Your examples, to the limited extent they're stated, seem to be susceptible to reduction to an irreparable harm which isn't taken into account. For example, if an irreparable benefit does harm to society because it screws up socially useful incentives to sue or settle (an assertion that would require proof), that harm is analytically relevant, qua harm, rather than as a "bad benefit." (There is no such thing as a "bad benefit.")
Similarly, your "distributional implications" imply a harm. If an injunction in the suit between A and B causes A to gain something but does not cause B (or society's C) to lose anything, there is no distributional implication, because the pot of overall utility will have increased.
It's very hard to concieve of a "benefit" that someone could get from litigation that would be troubling in the absence of a harm to someone else. Hence it would seem from my hurried armchair analysis that benefits in the absence of harms should not be considered in injunction decisions.
Similarly, if your argument is that in cases where there is both a harm and a benefit, the courts are systematically underweighting the negative effect of injunctions because both the harm and the benefit should be considered rather than just the harm, I'm skeptical. Again, considered from a utility-maximization perspective (aaah, my soul! my soul!), wouldn't that reach perverse results? Consider two very simple cases:
Case 1: an injunction would cause A zero benefit, but would cause B harm of 10, and would otherwise have a benefit to the rest of society of 15.
Case 2: an injunction would cause A 20 benefit, but would cause B harm of 10, and would otherwise have a benefit to the rest of society of 15.
Assume here that A and B are the parties, and that benefits to the rest of society count as positive things in the injunction balance. (As they'd have to do: otherwise there would be NO injunctions permitted ever.)
In a considering-harms-alone world, cases 1 and 2 would be acceptable: in case 1, there would be a net utility gain of 5 with the injunction, and in case 2, there would be a net utility gain of 25.
However, in the world where we count benefits to the movant as bad, case 2 would be unacceptable, because we'd count the 20 utils as a strike against it! There'd be a real-world utility gain of 25, but there would be a court-decisional utility loss of 15. Isn't that perverse?
Posted by: Paul Gowder | Sep 26, 2005 5:43:53 PM
I look forward to hearing the example. However, my initial reaction is that this takes an overly doctrinal/formal view of the world at the expense of a dash of realism.
While you accurately describe the test for prelimiary relief, I think that many (most?) judges look at it as an equitable matter: Does the situation require stopping everything in its tracks while the lawsuit plays out in order to prevent bad stuff from happening? That's the practical question, I think, and I think that this intuitive approach is where the formal doctrine emerges from. Whenever we discuss preliminary relief, therefore, it is necessary to discuss the underlying intuition and application, not simply the formal rules.
Does that make any sense?
In any event, welcome aboard, and I look forward to reading more.
Posted by: Hillel Levin | Sep 26, 2005 5:51:26 PM
One other thing: can any benefit really be "irreparable?" It seems like most benefits, unlike harms, could be remedied with money. For example, if A gets an injunction to get the Mona Lisa back from B pending trial, B's irreparable harm (not getting to display the Mona Lisa at the party with the Queen) is non-compensable, so is rightly considered. On the other hand, A's benefit (getting to display the Mona Lisa at the party with Paris Hilton) is compensable: if A pays the rental value of the Mona Lisa over to B for that time period (assuming A isn't judgment proof), (s)he's been reasonably well disgorged, at least to the extent of "distributive consequences."
In other words, it seems intuitively more likely that some harms can never be fixed with ex post money (how do you value loss of time spent with your child?), but all benefits can be disgorged with ex post money. You just have to get enough money that it's a big enough sock in the gut to make A just as sad at the end of the trial as he would have been had he not gotten the injunction. Money loss is/may be/seems to be a very effective sock-in-the-gut, while money gain isn't so much of an effective joy-bringer as compared to children or the Mona Lisa...
Posted by: Paul Gowder | Sep 26, 2005 6:08:27 PM
We usually think of a benefit to A that belongs to B as a harm to B. And so wouldn't irreparable benefit go into an irreparable harm analysis. A would say, "Your honor, B will get all of these benefits that a) I could have reaped and b) which I won't be able to obtain after he's reaped them. Worse still, I won't even be able to obtain these benefits as a remedy if I later win my lawsuit. By allowing him to have these benefits that rightfully belong to me, I'm harmed."
But, as others have noted, I'm eager for your example.
Posted by: Mike | Sep 26, 2005 6:57:09 PM
That's a neat word trick. I wonder what you make of Douglas Laycock's "Death of the Irreparable Injury Rule"?
Posted by: Anon | Sep 26, 2005 7:59:24 PM
More naively, what's an example of an irreperable harm? At least from an economic standpoint, you would claim that there was no such thing. Every good is comparable, hence no benefit or harm could be irreperable.
Posted by: Isaac | Sep 26, 2005 8:01:23 PM
That's a neat word trick. I wonder what you make of Doug Laycock's "Death of the Irreparable Injury Rule"?
Posted by: Anon | Sep 26, 2005 8:02:48 PM
Wow. Those are some great comments. I'm going to try to answer some of them in my post tomorrow. For now, I just wanted to say that I'm reading and so grateful for all this. I can't wait to talk more as the week progresses.
Posted by: Doug Lichtman | Sep 26, 2005 8:39:42 PM
This idea reminds me of Gideon Parchomovsky and Avi Bell's piece, Givings, from Yale a few years back. It turned takings doctrine on its head, wondering if we should be concerned about givings.
Posted by: Kaimi | Sep 26, 2005 10:56:51 PM
Also, Hohfeld comes to mind, looking at benefits and rights as they accrue to different actors, and the corresponding duties and no-rights attaching to others. If we're worried about irreparable harm, Hohfeldian analysis would seem to suggest (at least at the back-of-the-napkin level) that irreparable benefits might be of interest as well.
Posted by: Kaimi | Sep 26, 2005 10:58:37 PM
Can I make a comment on terminology? It seems to me that "irrevocable benefit" is a more accurate phrasing than "irreparable benefit".
Posted by: anon | Sep 27, 2005 12:40:55 AM
A question. How can there be irreparable harms but not irreparable benefits? I can turn your very example of the irreparable harms on its head. You said: "How do you value loss of time spent with your child?" The converse is equally true: "How do you value time spent with your child?" Is this not an irreparable gain? If you can punish someone enough (cost them enough money) to make them wish they didn't spend time with their child, then you can reward them enough to make up for the loss of the exact same amount of time.
Other than things of this sort, however, there are few losses and gains that would truly appear to be irreparable. Perhaps another example of an irrevocable/irreparable gain would be where someone, for personal reasons, intentionally and permanently damages the reputation of another. No amount of money will take away the personal gain experienced by that person, although it may make them regret the decision.
Also, I must admit that I agree with the irrevocable benefit terminology seems to fit better.
Posted by: David | Sep 27, 2005 3:15:15 AM
I apologize for the profoundly garbled statement at the end of my last post.
Posted by: David | Sep 27, 2005 3:18:14 AM
The doctrine of irreparable harm just goes to show you that legal doctrine has not completely bought in to the notion that all benefits and harms can be monetized. And, in fact, that's certainly not what most people believe, either.
But here's an irreparable harm that perhaps even the most committed economist could agree upon: death. Suppose you are about to remove the tube, and someone has filed a motion for an injunction. Death would be a pretty strong irreparable harm, I think; and any judge would need only find a little bit of merit to issue the injunction.
Posted by: Hillel Levin | Sep 27, 2005 9:29:52 AM
David: your defamation example is interesting, and I think highlights one reason why we might rightly care more about harms than benefits. Having one's reputation destroyed is definitely having an irreparable harm, but is having one's reputation destroyed an irreparable benefit? No, for two reasons. (1) We simply don't feel that baseline stuff like a good reputation constitute windfalls, but more importantly (2) it can always be taken away. If I injure your reputation today, I can't give it back tomorrow. On the other hand, if I preserve your reputation today, I can always injure it tomorrow if it turns out to be just.
The same can kind of be applied to the child thing. Benefits generally are just more transient than harms. Think about it in kind of a ... lets call it a folk-psychotherapy sense. :-) If you lose a loved one, what can anyone do to make that sadness go away before its natural course? If your child, or your parent, or your spouse is killed, no amount of money will make you stop mourning them.
On the other hand, if you still have the child/parent/spouse, and someone impoverishes you, you become unhappy notwithstanding the fact that the child/parent/spouse is there. The child/parent/spouse doesn't guard you against unhappiness.
Perhaps put more directly, some things (loved ones, etc.) are necessary, but not sufficient, for happiness. Thus taking them away can inflict an irreparable harm, but providing them doesn't necessarily confer an irreperable benefit.
Posted by: Paul Gowder | Sep 27, 2005 10:44:03 AM
One other thing: can any benefit really be "irreparable?" It seems like most benefits, unlike harms, could be remedied with money.
I'd argue that, if this argument is correct, then there's no such thing as an irreparable harm, either.
One example of this sort of thing is playing out right now with the Microsoft v. Google battle over employees. MSFT contends that Google is causing them irreparable harm by learning their super-secret processes of recruiting in China (and conferring an irreparable benefit to GOOG); GOOG (while not using this language) contends that the cost of not being allowed to use their new employee to recruit in China is conferring an irreparable harm on them in the race for market share.
One might argue that one could put a dollar value on the lost opportunity for either side, and one would be correct in a theoretic sense. I'd argue, though, that for practical purposes this meets the irreparable standard, because if we could accurately calculate the costs and values involved here, we'd also be capable of running a fully centrally planned economy.
Posted by: James | Sep 27, 2005 10:47:05 AM
Suppose there were an election tomorrow where the results were binding for the duration of the term of office, and I received "irreparable" benefits from winning it?
Posted by: Marco Parillo | Sep 27, 2005 12:04:21 PM
Regarding the Defamation example; The benefit to the person who is committing the defamation for personal reasons is irrevocable (or irreparable if you so prefer). Regardless of the amount of money paid, that person always has the benefit of having ruined the reputation of someone they hate. Accordingly, that benefit cannot be removed. I'm not sure how your comments address this.
Further, regarding the "children" benefits. How can you say that not being able to see your children is irreparable, but being able to see your children IS reparable/revocable? Your argument that seeing your children is necessary but not sufficient for happiness does not appear to prove your point. If we were to suppose that seeing children + X (variable containing everything else required for happiness) is required, then unless "X" exists, not seeing children inflicts no harm, and seeing children provides no benefit. However, if "X" does exist, then taking children away automatically results in a loss of happiness (harm), and providing them automatically provides happiness (benefit).
To the extent that you argue that benefits are transitory; Although there is probably some truth to this, I do not believe it is an answer by itself.
Posted by: David | Sep 27, 2005 12:52:55 PM
David: I think the necessary but not sufficient point answers both the children example and the defamation example. Let me try and state it more clearly and formally and see if that answers your objections:
a) The "benefit" from a state of affairs is defined as a contribution to happiness. Similarly, the "harm" from a state of affairs is a contribution to unhappiness.
b) No benefit creates a happiness-state by itself. (This is "necessary but not sufficient.") For example, if one is surrounded by loved ones but destitute, one will probably be unhappy. Similarly, if one is rich but alone, one will probably be unhappy.
c) A harm, by contrast, can create an unhappiness-state by itself. (A harm is sufficient for unhappiness. Possibly not necessary though, I'm not sure that matters.) If one's legs are chopped off, one will experience a certain level of unhappiness for a certain psychologically determined period of time regardless of the other good things that happen to one.
If you accept a, b, and c as true, I think it follows that:
d) The giving to a person of a thing ("benefit") is less irrevocable than the taking from them of that same thing ("harm"), because the happiness-state that accrues from a benefit can always be destroyed in some other dimension, while the unhappiness-state that accrues from a harm is much harder to destroy.
In other words, while we might not be able to revoke the specific beneficial thing-given (the opportunity to defame someone, the 6 months spent with your kid, etc.), we can revoke the happiness-value of that thing in some other dimension. By contrast, an irrevocable harmful thing creates a permanent (or at least bound to a relatively fixed time, i.e. until the unhappiness is gotten over) unhappiness-effect.
Bringing it back to your concrete defamation example. Lets say that Richard Posner is happy right now, and I'm unhappy because I hate Posner and want to see him suffer. So I successfully defame him, and it brings me joy because I hate him. That contributes a certain amount to my happiness, and possibly tips me over the scale from unhappiness to happiness. It also contributes to Posner's unhappiness in a similar fashion.
But then the next day, Posner's friends in the Law and Economics Mafia show up at my house and break both my legs. My happiness is gone now, because my legs are broken. While the "benefit" to me of Posner's-getting-defamed may be "irreversible," that "benefit" is now meaningless because its contribution to my happiness has been eliminated. It has been repaired, as it were. However, the harm I did to Posner is still present: Posner can be expected to stay unhappy, notwithstanding the cathartic value of my legs being broken, because his reputation is still destroyed.
At the end of the day, both I and Posner are harmed, because the happiness-values to him from leg-breaking and to me from defaming are defeated by the unhappiness-values to him from being defamed and me from having broken legs. In that sense, the harms were irreparable, while the benefits were not.
Posted by: Paul Gowder | Sep 27, 2005 1:39:58 PM
The humorous analysis by Paul Gowder is equivalent to a claim that gaining *money* doesn't mean anything because it can be spent or lost.
I have the irrevocable benefit of, say, a golden afternoon with my son. The next day an accident kills my cat, and I am sad. That does not revoke my afternoon with my son.
I charge people a dollar each to spit on the Mona Lisa while I have it in my custody. The next day I get a flat tire and have to spend all $7 getting it fixed. That does not change the fact that I am $7 to the better than if I had never had the Mona Lisa.
As far as the argument that painful experiences will always outweigh happy ones, that *subjective* assessment will be true for some folks and false for others, but it doesn't address the legal issue of whether I ever had a legal right, on the merits, to that golden afternoon with my boy and the Mona Lisa, or whether my unfair gain should be disgorged somehow.
Posted by: Dal Jeanis | Sep 29, 2005 11:51:12 PM
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