Preliminary Injunctions on a Blank Slate

Samuel L. Bray*

Prior studies of the preliminary injunction have worked within the constraints of existing doctrine, including the traditional four-factor test. This Article relaxes the doctrinal constraints and offers a normative analysis of the preliminary injunction. It identifies three functions the preliminary injunction can serve: protecting the court’s ultimate remedial options, previewing the court’s ultimate decision, and accelerating the court’s ultimate decision. These functions demand different kinds of competence from the court, and they differ in how much they are affected by error costs in the court’s prediction of the merits. The option-preserving function is useful when one party can exploit the time lag of litigation to narrow the court’s ultimate remedial options. The decision-previewing function is more narrowly useful—only when error costs and transactions costs are low. The decision-accelerating function is unnecessary; it can be fully served by other procedural tools. This analysis has far-reaching implications for the exercise of judicial discretion, the design of injunction tests, and the forms that interim injunctive relief should take.

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© 2026 Samuel L. Bray. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Chicago Law School. I am grateful for comments from Rick Hasen, Bert Huang, Doug Laycock, and Paul Miller, as well as comments by Lee Fennell and Jonathan Wiener on another article that were formative for this one. And I thank Bert Huang and Lior Strahilevitz for the conversations that spurred the writing of this Article.