The Ripeness Requirement In the Context of Uncertain Consequences

1. The Ripeness Requirement In the Context of Uncertain Consequences • 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?

2. Enjoining Lawful Conduct due to Potential Unlawful Consequences • Court doesn’t per se preclude the notion of issuing this injunction. But ripeness will always be a problem and evidentiary support an issue. • 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)?

3. 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”

4. 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 ripe? Why? • What specific order does Pepsico seek though – do they just seek to prevent the feared harm? Why does the order go beyond the feared harm?

5. Prophylactic Injunctions & the “Rightful Position” Rule • Pepsicotakes 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 broad/unwarranted?

6. 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 situation. • 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 upheld order. • 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 fire him? • 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?

7. 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 relief: • “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

8. Writs – Coercive Relief At Law • Mandamus –order to a public or corporate official to perform a ministerial duty • 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.