Disaggregating Nationwide Injunctions

Abstract

Nationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may 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 five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, in-junctions 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,” “nation-wide associational injunctions,” “nationwide defendant-oriented injunctions,” and “nationwide private enforcement 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 Federal Rule of Civil Procedure Rule 23(b)(2), is the most appropriate means of protecting the rights of third parties who are not 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