Disaggregating Nationwide Injunctions
61 Pages Posted: 16 Jul 2019
Date Written: April 17, 2019
“Nationwide injunctions” have become a focus of heated judicial, academic, and even public debate. Much of this early analysis is misguided, however, because it treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term has been used to apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns.
This Article presents a taxonomy of the types of nationwide injunctions and the proper judicial approach to each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based on the entities whose rights they seek to enforce, and whether the case is a class action. Based on these considerations, the proposed taxonomy distinguishes among “nationwide plaintiff-oriented injunctions,” “nationwide plaintiff-class injunctions,” “nationwide associational injunctions,” “nationwide defendant-oriented injunctions,” and “nationwide defendant-class injunctions.”
After presenting this new framework for determining the validity of nationwide injunctions, this Article goes on to demonstrate that stare decisis, rather than nationwide defendant-oriented injunctions or even class certification under Rule 23(b)(2), is the most appropriate means of protecting the rights of third parties who aren’t personally involved in litigation. Affording district- or circuit-wide stare decisis effect to district court rulings allows members of the public to benefit from them and reduces the need for wasteful relitigation. At the same time, this approach recognizes the limited authority of lower-court judges in our decentralized, hierarchical judiciary; mitigates the effects of extreme forum shopping; and ensures some degree of percolation of important constitutional issues.
Keywords: nationwide injunction, injunction, equity, class action, constitution, remedy, standing, plaintiff, justiciability, due process, rights, litigation, public law, claim preclusion, res judicata, collateral estoppel
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