Universal Injunctions: Why Not Follow the Rule?

15 Pages Posted: 20 Apr 2021

Date Written: April 20, 2021

Abstract

Over the last several years, a debate has flared up over universal injunctions—court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issued. Critics on both the left and the right have criticized these injunctions as they to shut down the programs of administrations which they support. All the while, a solution to these controversies remains hiding in plain sight in Federal Rule of Civil Procedure 23. Subdivision (b)(2) of the rule allows class actions when “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Why don’t these provisions solve the problem of universal injunctions? The Essay argues that it largely does. If a class can be certified, then the injunction can reach beyond the named parties. If it cannot, then the injunction must be limited to the named parties. The scholarly commentary has recognized the relevance of Rule 23(b)(2), but then inexplicably pushed it to the side. Yet the rule frames the constitutional and remedial questions in the appropriate terms, yielding this simple conclusion: universal injunctions must be preceded by certification of similarly broad class. There is no need to address the power of courts to issue this remedy under the Constitution or as a matter of equitable remedies if this prerequisite is not met.

Keywords: injunctions, equity, case or controversy, class actions, remedies, procedure

Suggested Citation

Rutherglen, George A., Universal Injunctions: Why Not Follow the Rule? (April 20, 2021). Virginia Public Law and Legal Theory Research Paper No. 2021-24, Available at SSRN: https://ssrn.com/abstract=3830664

George A. Rutherglen (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-7015 (Phone)
434-924-7536 (Fax)

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