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Remedies Fall 2012 Injunction Drafting Exercise

This memo contains information pertaining to the injunction drafting exercise referenced in the syllabus for the Remedies course. Read it carefully as it has both procedural and substantive information pertaining to the exercise.

I.

Procedural Issues/Rules (A) The assignment is due by 4 pm on Monday, November 5, 2012. You can turn it in via email or you can turn in a hard copy to Room 203 and they will put it in my mailbox. (B) You may work in teams of two when drafting the assignment or you may do the assignment alone. The assignment is not anonymously graded (so put your names on it) nor will it receive an actual grade at all. As noted in the syllabus:
I expect all of you to make a good faith effort on this exercise although I will not be assigning a specific grade to your drafts. Failure to take the exercise seriously or to turn the exercise in on the due date will result in deductions of up to two to three (2-3) points on your final grade. Failure to turn this assignment in at all during the semester will result in students receiving an Incomplete for the class until the assignment is received and substantial deductions on your final grade for failure to meet the deadline. Completing the assignment is a prerequisite for receiving a final grade for the class along with taking the final exam.

I define good faith effort as simply my expectation that you will follow the rules herein and that you will try your best to write a timely and quality order. It doesnt have to be perfect. (C) You may talk to others in the class about the assignment; discussion is a good way to jump start your thought processes. But you should independently draft your own injunctions. (D) You may consult anything or anyone for advice while writing the injunction. But again you have to write the injunctions yourselves. You can learn plenty from talking to other people, especially practicing attorneys, but not if you dont actually do the hard work of drafting the injunction yourselves. If I discover that anyone has drafted all or any part of the orders other than a person currently enrolled in the class it will be considered an Honor Code violation. (E) Formatting, etc. An injunction is an actual order coming from a federal district court. It is an official legal document. Try to make yours look as official as possible, with a caption, etc. You will be able to get case name, number, etc. from the case cited in the problem. Fill in technical information you dont have using common sense. I am not hiding the ball on any of this you wont be viewed as unserious for using the wrong caption, etc. But its not hard to

find what an order looks like with the Internet and Westlaw and the various form books in the library and it is good to get in the habit of trying to use such formats. II. The Assignment The injunction drafting exercise involves the problem in the Casebook at pp. 827-28 i.e., drafting an injunction in Meyer v. Brown & Root Construction Company. The total facts available to you are those set forth in the problem as Laycock frames it. Also use the assumptions he gives you in the problem. You may consult the actual decision if you want but I doubt it will help much. I want you to draft what you think the best injunction would be. In the course of doing this you should read pp. 820-27 as well. These pages contain useful information regarding rules and hints on drafting injunctions. You may also want to consult the materials we discussed in Chapter 4.A.1 but especially the materials on pp. 274-75 n.8. As these materials suggest, you walk a fine line when drafting injunctions between drafting clear, specific injunctions that may not sweep broadly enough and drafting broad but potentially vague injunctions that prevent repetition of defendants bad actions.1 How you craft an injunction has significant ramifications for (1) whether it will be enforced and (2) whether defendant can be held in contempt of it. In fact this drafting exercise is in the contempt portion of the book because so many challenges to injunctions are raised by defendants who argue that the injunction is too vague to be followed, much less find actors in contempt of it. For examples of injunctions that you might want to look at as possible templates, consider looking at the following cases: Pro-Choice Network of Western New York v. Project Rescue Western New York, 700 F. Supp. 1417 (W.D.N.Y. 1992) injunction is listed as an appendix at the end of the opinion People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997) injunction listed in Judge Mosks dissenting opinion at pp. 624-25 A&M Records, Inc. v. Napster, 114 F. Supp. 2d 896 (N.D. Cal. 2000) actual order is on the last page of the opinion at p. 927 under the Conclusion heading.

Note that these injunctions reflect different approaches re drafting and were responses to specific facts. They were all upheld for the most part though that does not mean that they were altogether uncontroversial.

Note that [t]he mere fact that ... interpretation [of terms] is necessary does not render the injunction so vague and ambiguous that a party cannot know what is expected of him. United States v. Greyhound Corp., 508 F.2d 529, 536 (7th Cir.1974). Obviously, determining whether an injunction is vague can sometimes be quite difficult as the reading points out.