UC Irvine Law Review Volume 10 Issue 4 Article 9 6-2020 Meta-Evidence and Preliminary Injunctions Maggie Wittlin Follow this and additional works at: https://scholarship.law.uci.edu/ucilr Part of the Evidence Commons Recommended Citation Maggie Wittlin, Meta-Evidence and Preliminary Injunctions, 10 U.C. IRVINE L. REV. 1331 (2020). Available at: https://scholarship.law.uci.edu/ucilr/vol10/iss4/9 This Article is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for inclusion in UC Irvine Law Review by an authorized editor of UCI Law Scholarly Commons. First to Printer_Wittlin.docx (Do Not Delete) 6/5/20 9:09 PM Meta-Evidence and Preliminary Injunctions Maggie Wittlin The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice. In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed. I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. Courts should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial. Assistant Professor, University of Nebraska College of Law. For helpful comments and conversations, I thank Eric Berger, Robert Bone, Darren Bush, Daniel Capra, Zachary Clopton, Hon. Robert Chatigny, James Duane, Allan Erbsen, Russell Gold, Amalia Kessler, John Leubsdorf, Michael Morley, David Noll, Luke Norris, Michael Pardo, Alex Reinert, Jessica Roth, Jessica Shoemaker, Mark Spottswood, Adam Thimmesch, Alan Trammell, Howard Wasserman, Steve Willborn, Hon. Diane Wood, and participants at the Fourth Annual Civil Procedure Workshop, SEALS Workshop, Nebraska Faculty Workshop, Cardozo Faculty Development Workshop, St. John’s Faculty Workshop, Drexel Kline Faculty Workshop, and the Fordham Faculty Workshop. Thanks also to Rich Leiter, Matt Novak, Stefanie Pearlman, and Sandy Placzek of the Schmid Law Library. I am grateful to the judges who spoke with me for this Article. And thanks to the excellent editors at the UC Irvine Law Review. A McCollum Grant helped support the writing of this Article. 1331 First to Printer_Wittlin.docx (Do Not Delete) 6/5/20 9:09 PM 1332 UC IRVINE LAW REVIEW [Vol. 10:1331 Introduction .................................................................................................................. 1332 I. The Law as It Stands ....................................................................................... 1336 A. Preliminary Injunctions: A Brief Introduction ............................... 1336 B. Evidence and Preliminary Injunctions ............................................. 1340 1. Evaluation of Hearsay Admissibility ......................................... 1341 2. Non-Hearsay Rules ........................................................................ 1344 3. Unreported Court Practice ........................................................... 1347 II. Critique of the Current Practice .................................................................... 1349 A. The Text of the Rules .......................................................................... 1350 B. Historical Context ................................................................................. 1354 C. Policy Justifications ............................................................................... 1358 1. Provisional Nature and Limited Purpose of Remedy ............ 1358 2. Equity Under Pressure .................................................................. 1363 a. Affidavits Admissible ............................................................ 1364 b. Meta-Evidence ........................................................................ 1365 i. Meta-Evidence and Likelihood of Success .................. 1365 ii. Meta-Evidence Generally ............................................. 1371 c. Other Elements of the Preliminary Injunction Standard .. 1375 III. Benefits and Drawbacks of Applying the Rules ......................................... 1377 A. Reasons for Preferring Rules, Generally .......................................... 1377 B. Problems with Applying the Rules .................................................... 1381 IV. What Is to Be Done? ...................................................................................... 1383 A. Proposal One: Apply the Rules, Add an Exception ..................... 1384 B. Proposal Two: Weigh Meta-Evidence Appropriately ................... 1389 Conclusion ..................................................................................................................... 1393 INTRODUCTION On January 28, 2017—before he was President Trump’s lawyer—former New York City Mayor and presidential adviser Rudy Giuliani appeared on Fox News.1 Host Jeanine Pirro had invited him on to discuss President Trump’s “travel ban,” which temporarily suspended immigration from seven countries.2 When Pirro asked Giuliani how Trump chose the specific countries for the ban, Giuliani replied, “I’ll tell you the whole history of it. So, when [the President] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”3 1. Justice with Judge Jeanine: Giuliani: Immigration Ban Is Based on Danger, not Religion (Fox News television broadcast Jan. 29, 2017), http://video.foxnews.com/v/5301869519001/ [https:// perma.cc/T8BK-KXWG#sp=show-clips]. 2. See Exec. Order No. 13,769 § 3(c), 82 Fed. Reg. 8977 (Feb. 1, 2017) (suspending entry of persons “from countries referred to in section 217(a)(12) of the [Immigration and Nationality Act]”). 3. Justice with Judge Jeanine: Giuliani: Immigration Ban Is Based on Danger, not Religion, supra note 1. First to Printer_Wittlin.docx (Do Not Delete) 6/5/20 9:09 PM 2020] META-EVIDENCE AND PRELIMINARY INJUNCTIONS 1333 States and human rights organizations began filing lawsuits seeking to enjoin the travel ban as soon as it was announced. Not two months after the Giuliani interview, a federal judge in Maryland granted a preliminary injunction,4 temporarily halting a similar second travel ban.5 The judge found the plaintiffs could demonstrate that the primary purpose of the ban was likely to exclude Muslims, not to advance national security interests.6 In its analysis, the court cited Giuliani’s statements from the Fox News interview, noting, “Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been . to approximate a Muslim ban without calling it one . .”7 When the Supreme Court reversed a preliminary injunction of the ban, it, too, cited the interview as evidence.8 But aren’t Giuliani’s remarks hearsay?9 They are statements made out of court offered to show the truth of what’s asserted in the statements—namely, that President Trump in fact told Giuliani that he wanted a Muslim ban.10 This is not even particularly reliable hearsay.11 Giuliani spoke spontaneously during a performative television interview, not solemnly under oath. The meaning of his comments was not entirely clear, and he might have misunderstood the President. These are precisely the sorts of ambiguities that cross-examination is designed to resolve. In other words, isn’t Giuliani’s comment exactly the kind of out-of-court statement that factfinders should be prohibited from relying on?12 Yet the district court and, later, the Court of Appeals for the Fourth Circuit13 relied on the statement with little fanfare. This is hardly surprising. Just one year earlier, the Fourth Circuit, like many circuits before it, held that courts may rely on hearsay or other inadmissible evidence 4. See FED. R. CIV. P. 65. 5. Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017) (enjoining Exec. Order No. 13,780 § 2(c), 82 Fed. Reg. 13209 (Mar. 9, 2017)). 6. Id. at 563 (“Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban.”). 7. Id. at 559. Other district courts also cited the interview in preliminary injunction rulings. See id. 8. See Trump v. Hawaii, 138 S. Ct. 2392, 2417 (2018); see also id. at 2436 (Sotomayor, J., dissenting). 9. See FED. R. EVID. 801(c). 10. Trump’s statements