Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

12 Pages Posted: 4 Dec 2017

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: November 30, 2017

Abstract

This is the written statement I submitted in conjunction with my testimony before the U.S. House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet concerning nationwide injunctions. The statement begins by distinguishing among various types of nationwide injunctions. It goes on to emphasize the need to distinguish between class actions and non-class cases.

In Rule 23(b)(2) class actions, the main issue is the proper geographic scope of the plaintiff class; courts generally should refuse to certify nationwide classes. Nationwide classes are largely inconsistent with the decentralized structure of the federal judiciary and limited geographic responsibility of each district court.

In non-class cases, in contrast, the primary issue is the scope of the injunction itself. I argue that courts should generally issue "Plaintiff-Oriented Injunctions" which prohibit the Government defendant from enforcing the challenged statute, regulation, executive order, or other federal policy solely to the particular plaintiffs in the case. They should typically decline to issue nationwide "Defendant-Oriented Injunctions" that completely prohibit the Government defendants from enforcing the challenged legal provision against anyone, anywhere in the nation. Defendant-Oriented Injunctions raise troubling concerns relating to Article III standing, Due Process, asymmetric claim preclusion, Rule 23, and the limited geographic jurisdiction of individual district courts.

The statement concludes by offering brief legislative proposals to address these issues.

Keywords: Injunction, Nationwide Injunction, Equity, Federal Courts, Class Action, Rule 23, Article III, Judiciary, Court, Justiciability, Standing, Due Process, Claim Preclusion, Res Judicata

Suggested Citation

Morley, Michael, Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet (November 30, 2017). Available at SSRN: https://ssrn.com/abstract=3079730 or http://dx.doi.org/10.2139/ssrn.3079730

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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