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Tuesday, June 26, 2018

(SCOTUS Term) More on universal injunctions (Updated)

I agree with Stephen's post about Gill's foreshadowing of the demise of the universal injunction. Several additional points.

First, the standing analysis in Gill was tied to the nature of the right and the theory of the violation. We see that not only in the Chief's majority opinion, but in Kagan's concurring opinion guiding these and future plaintiffs on how to frame this as a First Amendment claim for which an all-state injunction may be appropriate. But this emphasizes the unavoidable and inherent connection between standing and merits, because the nature of the injury (and thus the permissible scope of the remedy) depends on the substantive right asserted. It is about time we follow Willie Fletcher on this.

Second, an all-state injunction ordering redistricting in a case such as Gill would not be universal, at least not as a formal matter. The injunction would have an unavoidable spillover effect to the benefit of non-parties--the government cannot redristrict to protect only the plaintiff. But the injunction still would protect only the plaintiffs in the case and only the plaintiffs would be able to enforce the injunction.

Third, if Stephen is correct that the next chance to consider universal injunctions is the stay request in Chicago v. Sessions, the result on the issue will be obvious because the universal injunction cannot be justified in Chicago. There are arguments that a universal injunction could be appropriate for the travel ban, given the large number of affected persons, their geographic dispersal, how easily they can move, and the use of third-party standing that made it impossible to identify specific injured persons (for example, Hawaii could not identify which people from the affected countries might want to travel to Hawaii to study or teach). But no such remedy is necessary in Chicago, because each city suffers its own injury by the denial of funding to it and each can bring its own lawsuit.

Update: A good post from Michael Dorf arguing that Thomas' critique of universal injunction is "ridiculous" because it focuses on antiquarian ideas of historic equity. It does not grapple with genuine arguments in favor of universality (conservation of resources) or the obvious solutions, such as Rule 23(b)(2) class actions.

Posted by Howard Wasserman on June 26, 2018 at 02:26 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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