The Ripeness Requirement In the Context of Uncertain
What do P’s in Nicholson seek to enjoin?
Does D not show a propensity to do this?
Then why is the injunction “unripe”?
How is this situation different from Al Murbati?
Enjoining Lawful Conduct due to Potential Unlawful
Court doesn’t per se preclude the notion of issuing this injunction.
But ripeness will always be a problem and evidentiary support an
What kind of evidence would P need to strengthen the argument
that the feared harms are ripe?
Can you make a comparison to Brainard (p. 281)?
Enjoining Lawful Conduct Due to Possible Unlawful
Consequences – Nuisance Cases
Comes up most often in “anticipatory nuisance” cases
Anticipatory nuisance = use of property is not per se unlawful
but under these circumstances and at this location the use of
the property is unreasonable and a nuisance.
What are the standards for injunctions like that in Nicholson?
Many different formulations:
“Nuisance is to a reasonable degree certain”
“Nuisance will necessarily occur”
“There is a strong probability of a nuisance”
Another Twist on Enjoining Lawful Conduct – Pepsico, Inc.
v. Redmond (p. 284)
What is the threatened harm if Redmond moves to Quaker?
Is there any doubt in the court’s mind as to whether this harm is
What specific order does Pepsico seek though – do they just seek
to prevent the feared harm? Why does the order go beyond the
Prophylactic Injunctions & the “Rightful Position” Rule
Pepsico takes us into the realm of the “prophylactic” injunction.
Defined: Injunctions that aim to restore P to her rightful
position but the terms of which impose conditions requiring
actions of D that seem to go beyond P’s rightful position.
Sometimes – the tailoring of an injunction is broader than the actual
harm feared. If one can classify the injunction as a legitimate
prophylactic injunction, then a broader injunction may be ok
What is the line between a necessary prophylactic
injunction and one that is too intrusive or overly
Prophylactic Injunctions - Wilson Metal Casket (n.5 p. 288)
Wilson (owner of company) followed several women to isolated areas of
the company and sexually fondled & propositioned them, causing at least
two of them to quit due to the advances and another’s husband to think
that his wife was having an affair with Wilson until she told him the true
Lower court found a hostile environment under Title VII and issued order barring
him from “asking any female employee to accompany him off the premises of
the Company unless accompanied by at least one other employee, and kissing or
placing his hands on any female employee in the work place.” Appellate court
Is the injunction reasonable despite barring legal behavior? Why?
What could court do if this injunction doesn’t work? Prohibit Wilson from
entering premises? Force corporation (of which he is primary shareholder) to
Why isn’t the original nationwide injunction in Goodyear v. Marshall simply
a prophylactic injunction? At what point could you enter a nationwide
injunction on such a justification?
Coercive Relief at Law
Injunctions are a form of equitable relief – i.e., they were
originally issued by equity courts with limited powers who
were to act only when remedies at law were not available
This meant that such coercive relief was not readily available
to persons seeking to stop what was often egregious
behavior but which, for whatever reason, was not actionable
in legal courts
Other hurdles also existed to obtaining equitable coercive
“irreparable injury” requirement,
courts’ hostility to “mandatory” injunctions,
courts’ hostility to injunctions that change the status quo
Not surprisingly, courts of law developed their own forms of
coercive orders - writs
Writs – Coercive Relief At Law
Mandamus –order to a public or corporate official to perform a
Must be an official duty & cannot be vague/discretionary function
Prohibition – order to an inferior court or quasi-judicial body
prohibiting it from exceeding its authority
Directed to the actual tribunal not the parties to the action
Supersedeas – order to an officer of the court or authority
commanding them to stay proceedings at law
Often associated with attempts to stay writs of execution or
enforcements of judgments
Habeas Corpus – order to official holding another in custody
requiring that they bring them to court to justify further detention
Primary function is to release from unlawful imprisonment
Both state and federal constitutions guarantee
Certiorari – order to a lower court to deliver the record in a lawsuit
for discretionary review by a superior court.