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Monday, April 08, 2019

Thoughts on the Rothgerber Constitutional Law Conference-National Injunctions

I mentioned that last Friday I had the privilege of attending the 27th Rothgerber Constitutional Law Conference at Colorado Law, on the subject of national injunctions.

I did not take comprehensive notes on all the papers, but here are a few highlights, ideas, and questions that I took away:

• Two of the eleven presenters--Michael Morley (FSU) and I--oppose universal injunctions. And Michael thinks my reliance on judicial departmentalism is monstrous (my word, not his). Ahmed White (Colorado) talked about the use of labor injunctions and the jailing of Eugene V. Debs to warn against reliance on injunctions to achieve progressive policy goals. Everyone else argued that universality is fine, although courts should exercise discretion in issuing them. (Part of my objection is that I have not seen grounds for discretion that are not satisfied in every case).

• Alan Trammell (Arkansas) made a cute rhetorical move, trying to shift the focus from Trump and Obama (which naturally provoke partisan reaction) to the case of Kim Davis and whether, once she disregarded Obergefell, the district court should have been able to order Davis to issue licenses to all couples. I say no (and suggested that Alan could use the pre-Obergefell mess in Alabama as another example). Alan also made a nice historical move, tying these injunctions as another example of procedural innovation, the predecessor to 1960s developments such as Monroe v. Pape, structural-reform injunctions, and 23(b)(2) classes.

• Charlton Copeland (Miami) offered a separation-of-powers perspective, arguing that universal injunctions may be uniquely appropriate against executive overreach to restore a balance among the branches, even if universality would not be appropriate against the same policy enacted by the legislature. In other words, the separation of powers arguments against executive policies (in addition to any substantive constitutional arguments) changes the nature of the remedy.

• Zach Clopton (Cornell) talked about how preclusion (if applicable against the government, as it should be) can provide an additional policy consideration for the court in deciding the scope of the injunction. This triggered a question I have to address in my contribution for the symposium and in another article--Would allowing non-mutual offensive preclusion against the government undermine judicial departmentalism? If the executive has the power to disagree with judicial precedent but not injunctions in a given case, does giving that judgment preclusive effect undermine that executive power.

• Mila Sohoni (San Diego) talked about the history of universal injunctions against state laws, including in some famous First Amendment cases such as Barnette and Hague v. CIO. She showed the language of several of these injunctions, some of which expressly prohibited application to the plaintiff and others, while others were silent as to who was protected. As to the latter group, that presents an interesting question of default rules--if the injunction is silent, should we presume that the injunction is particularized to the plaintiff or presume that it is universal? Sohoni's history shows that these injunctions are not new. The  response is whether it matters--perhaps we have been doing it wrong all along. Mila joins me in using universality as the proper term, which captures the expansive who of the injunction.

• Portia Pedro (BU) started from her experience working for an LGBT organization during the marriage-equality litigation. She argued that prohibiting universality treats government defendants more favorably than other defendants. Or functionally prohibits injunctions, turning everything into nothing more than a declaratory judgment.

It was a great program. And it gave me a lot to think about and a lot to add to some current projects.

Posted by Howard Wasserman on April 8, 2019 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink


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