« "Portfolios of Beliefs" in Torts and Beyond | Main | Reply to Galoob's "Kolber's Teaser" »

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Biff says: "Why should one judge have more say over a national issue than the other hundreds of judges?"

I mean, ultimately 9 judges have the ultimate say over all national issues, regardless of what the other hundreds of judges say.

More to the point, though, you could also switch this logic around - why should a plaintiff who suffers under an unconstitutional law have to continue to suffer because they happened to get the one judge who doesn't think the law is unconstitutional, when hundreds of others would? The state could have been told 199 times that they can't apply a particular law to a particular person, but the poor 200th person who gets a different judge, the state can keep on applying that law.

The answer, of course, is that appeals can create uniformity among lower court judges. As it should be on the flip side too. If a government doesn't like a universal injunction issued by a lower court because they think it's wrong, then they can appeal the decision. But a system where a government can be told what they're doing is unconstitutional, but in which they can keep doing that thing to people who aren't party to the initial lawsuit is bonkers to me.

Posted by: J | May 5, 2018 2:14:48 AM

One can reach the ruling mentioned ( Santa Clara V, Trump ) here :


Posted by: El roam | May 3, 2018 6:09:08 PM

Biff ,

Well , that is the inherent power of judges , and even of one judge . Otherwise , no rule of law , but a rule of a person . That is the meaning of judicial review , that is the meaning of democracy . It is not the person/ dictator who rules , but , the rule of law . That is to say the public . This is the essence of democracy .

So , the response , would be for the executive branch , not to reach unconstitutional areas . That is why , they have bunches of attorneys and so forth . Otherwise , the court , has the last say .


Posted by: El roam | May 3, 2018 5:00:37 PM

El Roam:
One problem, as I see it, is that under the current behavior of many judges, one federal judge out of the hundreds of judges is all that is necessary to stop the federal government from doing something. That is, even if every single judge but one thinks the government is within its rights to do something, all a challenger needs is to find one judge who is willing to enter a universal "temporary" "restraining" order or preliminary injunction and the government stops what it wants to do. This state of affairs makes no sense. Why should one judge have more say over a national issue than the other hundreds of judges?

These orders last until trial is completed, which is at least a year after suit is filed, and since the court has to weigh the likelihood of success in issuing the injunction, if an injuction is issued averyone knows what the court is likely to decide in the end.

The most constitutionally correct response to this situation is for the executive branch to "man up" and tell the judge that the court has no jurisdiction over its relations to other parties and to go fly a kite.

Posted by: Biff | May 3, 2018 4:47:42 PM

So many baseless assertions with all due respect , we won't accomplish here nothing . But it is really astonishing , not to understand the difference between judges and the judiciary , and both other branches . For the former is occupied by professionals , legally so . The latter , have to do with democratic process of election by the wider public . That is to say , that you can " jump " from being real estate agent or developer or whatsoever ,and straight to the oval office . But , for becoming a judge , you must be a very experienced professional .

It seems , that the respectable author of the related article , is not aware to the fact , that typically , such injunctions , are preliminary ones . As such , not on merits prevailed , but rather preliminary assessment of chances to win finally. So , it is almost senseless to deal in such phase , with evidences , witness and so forth . It is not the final ruling .

And lower courts , follow the supreme court precedents . They are bound by it. So , what seems to be the point ?? And they don't dictate any national policy as asserted by him . They are engaged with judicial review. They observe the prima facie constitutionality of the actions of the executive branch. When they issue such injunction , it wouldn't matter no more further , where and by whom the case would be litigated further . For it is a basic unconstitutional flaw that they deal with .

Again I shall illustrate it in the case of the sanctuary cities (county of Santa Clara V. Donald Trump ) here I quote :

" The federal government argues that the Executive order does not change the law , but merely directs the Attorney General and Secretary to enforce existing law ..............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 ( place new conditions on federal funds) . How shall it matter further , the geographical scope , or the litigants . It is so flawed constitutionally , that must be blocked at once .

That's how it is , everywhere almost in the world ….


Posted by: El roam | May 3, 2018 4:00:53 PM

Post a comment