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Thursday, February 01, 2018

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Thanks of course to the author of the related article ( for being so well organized ) and to Wasserman , for drawing our attention to it .

Posted by: El roam | Feb 1, 2018 2:40:51 PM

Thanks for that well organized post , the argument that :

" such injunctions encourage forum shopping and politicize the judiciary, allowing plaintiffs to hand pick a single district-court judge who can then set policy for the nation …. "

Is really baseless with all due respect , for such problem , if does exist , should be handled , not by avoiding Universal injunction , but , by creating and encouraging and enhancing uniformity in the judiciary ( among others , through the right legislation , and binding supreme court decisions ) . Moreover , by issuing Universal injunction , one is reducing the politicizing , for it is naturally , enhancing uniformity , since we deal with federal constitution , binding all state courts , and federal courts anyway issuing it finally .

However , one thing can't be challenged in no way :

When the level of illegality and unconstitutionality , is so grave , so flawed , there is no other way but to issue Universal one . This is because , if the act is a federal one , and so grave is the flaw , it would never matter , who are the litigants , and what is any way the case . The federal agency , couldn't reach such decisions and policy whatsoever , so how would it matter who are the litigants ?? In the case of Santa Clara V. Trump ( sanctuary cities ) for example , the judge Orrick has made it clear :

" But in reality , the defunding provision instructs the Attorney General and the Secretary to do something that only the Congress has the authority to do - place new conditions on federal funds.... "

End of quotation :

So , only the congress can do it !! No one else !! How would it matter , who are the litigants and where ?? By nature , legally , has to do , all over the US , there is no way , a twin federal court , can reach another conclusion , reversing fundamental constitutional principles . Can be challenged indeed , correct ! but only Vertically , not Horizontally . That's the way it is , all over the world . This is a basic fundamental doctrine in law .


Posted by: El roam | Feb 1, 2018 12:32:17 PM

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