63 Pages Posted: 5 Nov 2016 Last revised: 24 Mar 2017
Date Written: February 9, 2017
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. It considers the consequences of the national injunction: more forum-shopping, worse judicial decision-making, a risk of conflicting injunctions, and tension with other doctrines of federal courts. This Article makes two further contributions.
First, it shows that the national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. There was structural shift at the Founding from a single-chancellor model to a multiple-chancellor model, though the vulnerabilities in the latter did not became visible until the mid-to-late twentieth century, with changes in how judges thought about legal challenges and invalid laws. Only with those changes did the national injunction emerge.
Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This principle is based on Article III’s grant of “the judicial Power,” which is a power to decide cases for parties; and on the practice of traditional equity.
Keywords: injunction, equity, remedies, federal courts
Suggested Citation: Suggested Citation
Bray, Samuel L., Multiple Chancellors: Reforming the National Injunction (February 9, 2017). Harvard Law Review, Forthcoming; UCLA School of Law, Public Law Research Paper No. 16-54; U of Texas Law, Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2864175 or http://dx.doi.org/10.2139/ssrn.2864175