— Also termed adequacy test. [Cases: Injunction 14, 138.
6. C.J.S. Injunctions §§ 24, 27–28.]
“The irreparable injury rule has received considerable scholarly attention. In 1978, Owen Fiss examined the possible reasons for the rule and found them wanting. A vigorous debate over the economic wisdom of applying the rule to specific performance of contracts began about the same time, and soon came to center on the transaction costs of administering the two remedies. Both Fiss and Dan Dobbs have noted that the rule does not seem to be taken very seriously, and in a review of Fiss’s book, I argued that the definition of adequacy pulls most of the rule’s teeth. The Restatement (Second) of Torts dropped the rule from the blackletter and condemned it as misleading, but replaced it only with a long and unstructured list of factors to be considered…. [M]any sophisticated lawyers believe that the rule continues to reflect a serious preference for legal over equitable remedies.” Douglas Laycock, The Death of the Irreparable Injury Rule 9 (1991).
