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Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


How is it okay to test out your theory in individual actions around the country (or state) until you find one who buys it, and then bring your class action before him? I agree that it's alright to bring a class action to obtain compliance, but not if it's the last move in a foolproof mode of forum-shopping.

I haven't looked at 23(b)(2) in a while, but wouldn't the argument for facial unconstitutionality more or less triggering 23(b)(2) certification be this? First, you'll always have a common question. Second, you'll rarely have an unconstitutional statute that doesn't affect a sufficiently numerous class (maybe a regulation of a highly concentrated industry wouldn't?). Third, any one class representative is unlikely to have conflicts of interest with the class, unless, I don't know, some of the people the statute adversely affects don't want it to be struck down, so with competent representation you should have adequacy. Fourth, typicality's really hard to mess up if you're making a facial attack on the statute, although I suppose the government might argue that a class representative's claims are atypical where other class members have strong as-applied challenges that could be made (and, if those would be precluded by the class action, I guess there's a potential adequacy problem - but after Whole Woman's Health, I'm not sure that facial will ever preclude as-applied or vice versa). Fifth, I think (b)(2) should usually be satisfied if I recall Dukes' gloss correctly, because the whole class is seeking indivisible, up-or-down relief; either they all get their injunction because the statute's facially unconstitutional or they all don't because it's not. Now, maybe some circuits will require ascertainability, or say you can't get a class certified unless you can prove that every class member has standing. But I doubt that's a problem in most jurisdictions.

Posted by: Asher Steinberg | Jan 18, 2018 7:52:15 PM

But I think that process--individual action, then class action--is an ok approach. One thing that plaintiffs (and their lawyers) hope from that first injunction is voluntary compliance by the government--so long as the injunction remains in place (as to the named plaintiffs), government will not enforce as to anyone. When that fails, a class action makes sense as the next step. This is what happened in Alabama with respect to marriage--when probate judges refused voluntary compliance, the court certified both a plaintiff and defendant class.

The obstacles to class certification depend on the specifics of the case. I do not see any connection between facial unconstitutionality and the elements of 23(a) or (b)(2). A case may warrant class treatment when the law is facially unconstitutional. But necessarily. They don't necessarily run together.

Posted by: Howard Wasserman | Jan 18, 2018 6:39:12 PM

Yeah, I think you're both right about related case assignment. Then I think RQA is right; instead of people just bringing class actions at the outset, they could bring test individual cases in one forum after another until they found a court that would strike a statute down, at which point they would bring a 23(b)(2) class. I'd be interested to hear what serious obstacles you think there are to class certification once you've got facial unconstitutionality, but whatever they are they can't be so serious that this strategy wouldn't work at least a great deal of the time.

Posted by: Asher Steinberg | Jan 18, 2018 3:58:39 PM

I understand that the paper doesn't suggest that plaintiffs' attorneys should proceed individual-then-class injunction: but isn't it foreseeable that that's how they would respond were your approach adopted by the courts? I take the point that facial invalidity doesn't always entail that class certification requirements are satisfied, but surely there are many cases in which that would necessarily follow.

Posted by: RQA | Jan 18, 2018 2:50:35 PM

Asher: Why wouldn't they? The putative-class status would not change the fact that the issues and defendants in the case are the same. That was why, for example, all of the marriage cases in the S.D. Alabama went to Judge Grenade.

Posted by: Howard Wasserman | Jan 18, 2018 2:49:27 PM

I think it's a pretty fair assumption that that's how those rules work. But if the argument in the paper depends on the contrary assumption, I think that should be made explicit and supported.

Posted by: RQA | Jan 18, 2018 2:24:25 PM

Rather than empty formalism, I would call it limiting the court to its powers of deciding a discrete case involving discrete parties. My suggestion was not to get an individual injunction than follow with a class injunction, but to either get a class injunction in the first instance or to get a series of individual or expanded individual injunction. And going individual-then-class still requires the class be properly certified (I do not believe facial unconstitutionality, at least properly understood, necessarily means class certification is satisfied).

Posted by: Howard Wasserman | Jan 18, 2018 2:21:03 PM

Does the comment above assume that the same judge hears both the individual and class actions? One district judge's decision doesn't bind his colleagues, and I don't know that related-case-assignment local rules would necessarily get the class action before the same judge who decided the individual case.

Posted by: Asher Steinberg | Jan 18, 2018 2:16:13 PM

It's not clear to me how effectively your approach would address "shop 'til the statute drops" as long as 23(b)(2) is available. Take your example (p. 14): Court I declares the law constitutionally valid, while another plaintiff brings and wins a separate challenge in Court II. You seem to suggest (pp. 16-17) that a 23(b)(2) class action could then be brought in Court II, which at that point could legitimately certify a class and issue a universal injunction. You say that "[c]ertifying the class would leave all class members subject to preclusion." But if the class action complaint is brought in the same court that has already ruled the law constitutionally invalid in an individual plaintiff's case, there's almost zero risk for the class. And if it's clear when the individual case is decided that 23(b)(2) would apply (because the court has found the challenged law facially unconstitutional), it seems like empty formalism to require the plaintiffs' attorneys to come back with a complaint in all respects identical, except with another plaintiff and class allegations.

Posted by: RQA | Jan 18, 2018 2:05:25 PM

Universal but in personam, rather than in rem?

Posted by: Jake Linford | Jan 17, 2018 10:02:38 PM

Thanks for that clarification. Substituting universal for nationwide doesn't do the work you seem to think it does. Normally we think of a universe as something larger in scope than a nation and as a definition of a physical space and you don't mean universal in this extra-territorial sense. What you mean is that the injunction should be nationwide only in respect to the parties to the case. Perhaps the better word would be to call them "particularized injunctions" or something else. But "universal" sows more confusion than it solves, at least to me.

Posted by: James | Jan 17, 2018 7:19:02 PM

My argument is that the injunction should protect the people it protects wherever they live and wherever they--in other words, injunctions should be nationwide. What it should not do is protect people beyond the plaintiffs in the action.

Posted by: Howard Wasserman | Jan 17, 2018 6:56:56 PM

"The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all people who might be subject to the challenged law."

Oh come on...you lose me right out of the starting gate. I don't see how you can separate the "who" from the "where" because everybody lives somewhere. I can see the line of reasoning that goes venue and personal jurisdiction are two equally valid ways for criticizing these nationwide injunctions. However, to dismiss concerns about venue as mislabeling makes an enemy of a friend. It is a nationwide injection because, as a matter of fact, it affects people wherever they live in the nation. Period.

Posted by: James | Jan 17, 2018 6:53:55 PM

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