The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

The Honorable David W. Lannetti *

Preliminary injunctive relief, where a movant[1] is awarded a court order prior to final judgment on the merits of a dispute, serves a necessary role in equity jurisprudence. Courts typically state that preliminary relief is an extraordinary remedy designed to preserve the status quo, with some courts opining that this purpose simply describes the abstract goal of preliminary relief [2] and others holding that movants must satisfy a higher burden when seeking injunctions that alter the status quo.[3] After significant evolution, federal courts developed a four-part test for preliminary injunctions,[4] which the circuit courts of appeals have universally accepted but inconsistently applied.[5] The Supreme Court of the United States subsequently resolved this circuit split in part,[6] yet the circuit courts still adhere to different approaches when applying the test.[7]

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* Judge, Fourth Judicial Circuit of Virginia. Adjunct Professor, Marshall-Wythe School of Law at the College of William & Mary and Regent University Law School. The views advanced in this article represent commentary “concerning the law, the legal system, [and] the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B) (permitting judges to “speak, write, lecture, teach” and otherwise participate in extrajudicial efforts to improve the legal system). These views therefore should not be mistaken for the official views of the Norfolk Circuit Court or the author’s opinion as a circuit court judge in the context of any specific case. The author thanks 2014–15 Norfolk Circuit Court Law Clerks Jennifer Eaton and Gregory Chakmakas for their assistance in the research for and editing of this article.

        [1].    In this article, “movant” refers to the party requesting preliminary injunctive relief. It is meant to have the same meaning as “movant,” “petitioner,” or “plaintiff” as used in other articles pertaining to federal preliminary injunctions and Virginia temporary injunctions.

        [2].    See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 110, 113, 115 (2001).

        [3].    See id. at 115.

        [4].    Id. at 111.

        [5].    See Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, 111 Colum. L. Rev. 1522, 1529–30 (2011).

        [6].    See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20–24 (2008).

        [7].    See Bates, supra note 6, at 1523, 1535–37.


The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

Developments in Animal Law: An Evolving Area in Virginia Law

Ryan Murphy *

On December 15, 2013, my wife and I welcomed a puppy into our family. We love dogs, grew up with them, but we had never raised one (or any living creature for that matter). As I drove to our Richmond Fan apartment from the foster home in Goochland, I felt helpless while he scratched at the carrier, frantic and screeching. During his first weeks with us, he smelled, relieved himself frequently and anywhere, and exhibited signs of abdominal distress that sent us on a trip to the companion animal equivalent of an emergency room.

Two years later he chases cats, retrieves sticks, splashes in mud, and chews and consumes things too obscene to mention. He learns tricks and the names of his toys.[1] He ignores commands. He has also begun grunting (no other word could describe the peculiar emanation) at 6:00 PM until I let him outside.[2] And I think he loves us.[3]

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*   J.D., 2014, University of Richmond School of Law; B.A., 2007, University of Virginia. I am grateful to Assistant Attorney General Michelle Welch for discussing the newly created Animal Law Unit and her comments on Part I of this article. Thank you also to Sarah Murphy, who provided comments and suggestions, and the University of Richmond Law Review staff. The views and opinions expressed herein are those of the author and do not necessarily reflect the position of his employer.

        [1].    See generally Monique A.R. Udell & C.D.L. Wynne, A Review of Domestic Dogs’ (Canis Familiaris) Human-Like Behaviors: Or Why Behavior Analysts Should Stop Worrying and Love Their Dogs, 89 J. Experimental Analysis of Behav. 247, 249, 253 (2008) (citing examples of dogs building “vocabularies”).

        [2].    See id. at 251–52 (citing a study indicating that dogs “cue” humans).

        [3].    See Gregory S. Berns, Andrew M. Brooks & Mark Spivak, Scent of the Familiar: An fMRI Study of Canine Brain Responses to Familiar and Unfamiliar Human and Dog Odors, 110 Behav. Processes 37, 44 (2015); Luke E. Stoeckel, Lori S. Palley, Randy L. Gollub, Steven M. Niemi & Anne Eden Evins, Patterns of Brain Activation when Mothers View Their Own Child and Dog: An fMRI Study, 9 PLOS ONE 1, 6, 9 (2014); cf. Marc Bekoff, Animal Emotions: Exploring Passionate Natures, 50 BioScience 861, 861, 864, 868 (2000) (positing that animals feel a variety of emotions, while recognizing arguments that humans indulge in a certain amount of projection).


The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

Virginia’s Water Resource Law: A System of Exemptions and Preferences Challenging the Future of Public Health, the Environment, and Economic Development

Jefferson D. Reynolds *

There is plenty of water in Virginia. The problem is there are plenty of people, too. As population growth in the Commonwealth continues to place higher demands on water resources, competition among users naturally rises. Water for energy production, agriculture, domestic, industry, and other uses becomes more difficult to allocate, resulting in winners and losers based on availability of supply. Although Virginia has adopted a permitting framework[1] to improve water resource management, exemptions and preferential treatment provided to riparian landowners and historic users in the Virginia Code are increasingly problematic.[2] These classes benefit from preferred legal status for water without regard to water availability, effects on other users, or whether it is being put to the most beneficial use.

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* Director, Division of Enforcement for the Virginia Department of Environmental Quality. LL.M. (Environment), 1995, George Washington University; J.D., 1990, Hamline University School of Law. Member, State Bars of Virginia and New Mexico. The views expressed in this article are those of the author and do not reflect any policy or legal position of the Virginia Department of Environmental Quality or any other agency of the Commonwealth of Virginia.

Special thanks to Lara Dresser, J.D., M.L.S, for the thoughtful insights and supporting research that made this article possible.

        [1].    Va. Code Ann. § 62.1-44.2 to -44.34:28 (Repl. Vol. 2014).

        [2].    See id. § 62.1-82 (Repl. Vol. 2014) (Water Power Development); id. § 62.1-243 (Surface Water Management Areas); id. § 62.1-44.15:22 (Surface Water Withdrawals); id. § 62.1-259 to -270 (Groundwater Management Areas and Withdrawals).


The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

Socioeconomic Integration and the Greater Richmond School District: The Feasibility of Interdistrict Consolidation

Barry Gabay *

Stark disparities in public education within the Greater Richmond area are commonplace and have been for over a century. Richmond Public Schools primarily consist of an impoverished student body attending dilapidated schools. Meanwhile Richmond’s bordering suburban counties, Chesterfield and Henrico, generally enjoy state-of-the-art learning facilities attended by far more economically diverse student bodies. Today’s inequities can only be understood with recognition of a history of institutionalized segregation in the Richmond area—a history that is ingrained within the municipal offices, along the public transportation system, and, especially, inside the schools. The problem is that in the Richmond area, a child’s place of residence, rather than his academic aptitude, greatly determines his educational ceiling, and the setup of local governments within Virginia inflames the problem.

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* J.D., 2015, University of Richmond School of Law; B.A., 2009, University of South Carolina. The author is intimately familiar with Richmond Public Schools, having received the majority of his pre-collegiate education from schools in the system and graduating from the Maggie L. Walker Governor’s School in Richmond, Virginia. This comment was inspired by the lifelong dedication of the author’s parents, Barry B. Gabay and Downy Roberts-Gabay, to the students of Richmond Public Schools, and it benefitted from the guidance of the Rev. Benjamin Campbell, Professor Kimberly Robinson at the University of Richmond School of Law, and Genevieve Siegel-Hawley, Assistant Professor of Educational Leadership at Virginia Commonwealth University.

The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

Police Body Cameras: Implementation with Caution, Forethought, and Policy

Dru S. Letourneau *

On August 9, 2014, Officer Darren Wilson shot and killed Michael Brown, an unarmed teenager, on a Ferguson, Missouri street.[1] The incident immediately ignited protests in the Ferguson area.[2] Several of these demonstrations included rioting, looting, and violence.[3] In response, officials used force, military-style tactics, and military-grade weapons.[4] In November 2014, Missouri Governor Jay Nixon called the National Guard to attempt to restore order and keep the peace.[5]

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* J.D. Candidate 2016, University of Richmond School of Law. B.A., 2013, University of Virginia. I am grateful to have this opportunity to publish and would like to thank the entire University of Richmond Law Review staff and editors for their work to make it possible. A special thank you to my grandfather, the Honorable Maurice L. Ealy, Magistrate and Clerk of Court for the City of Virginia Beach, and my father, Steven P. Letourneau, Esq., for establishing and cultivating my interest in the legal world. Finally, I would like to thank my grandmother, Elizabeth J. Ealy, and my mother, Cynthia E. Letourneau, for their unconditional and unwavering support, guidance, and inspiration.

[1].    Ralph Ellis, Jason Hanna & Shimon Prokupecz, Missouri Governor Imposes Curfew in Ferguson, Declares Emergency, CNN (Aug. 16, 2014, 7:09 PM), 2014/08/16/us/missouri-teen-shooting/.

[2].    See id.

[3].   See id.

[4].    See id.

[5].    Jack Healy et al., Ferguson, Still Tense, Grows Calmer, N.Y. Times (Nov. 26, 2014), ests.html?_r=0.

Dedication to Dean Timothy L. Coggins

W. Clark Williams, Jr.

At the close of the 2014–15 academic year, the law school will say goodbye to one of our most valued faculty colleagues and administrative leaders, as Associate Dean for Library and Information Services Timothy Coggins retires. Dean Coggins has made some of the most significant contributions in recent memory to the enhanced stature of the law school. His impact has been deep and profound, not only within the law library and the delivery of information services, but more broadly throughout the law school community.

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