Nationwide Injunctions: Venue Considerations

Abstract

A criticism of nationwide injunctions is that they engender forum shopping, with litigants seeking out a court more likely to be favorable to them in order to obtain sweeping relief. This picture, though, oversimplifies the relationship between venue and the scope of injunctive relief, particularly for lawsuits against federal actors. Cabining nationwide injunctions would shift the incentives for litigant venue choice. Limitations on nationwide injunctions would place increased weight on early lawsuits in forums in which venue is proper based on the characteristics of the defendant, because any similarly situated litigant can bring suit there. Section 1391(e) of Title 28, the statutory provision for venue against federal actors, provides for broad scope for venue, including permitting venue based on the plaintiff ’s place of residence. Such limitations would lead to distortions in incentives for venue choice contrary to the purposes underlying the enactment of § 1391(e) as well as systematically disadvantage less well-resourced litigants. The debate over nationwide injunctions must take into account the effects of changes to the scope of injunctive relief on the venue choice architecture, and consider both venue and the scope of injunctive relief concomitantly in the institutional design of federal litigation.

Keywords: injunction, nationwide injunction, universal injunction, venue, choice of forum, 1391