In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.
This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor model to a multiple-chancellor model, but the vulnerabilities in the latter did not become visible until the mid- to late twentieth century, when there were changes in how judges thought about legal challenges and invalid laws. Only with those changes — only in the second half of the twentieth century — did the national injunction emerge.
This Article proposes a single clear rule for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This rule is based on equitable principles and on the scope of the “judicial Power” granted by the Constitution of the United States.
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* Professor, UCLA School of Law. The writing of this Article was supported by a Harrington Faculty Fellowship at the University of Texas at Austin. For comments and criticisms on earlier drafts, I am grateful to William Baude, Josh Blackman, Bob Bone, Maureen Carroll, Nathan Chapman, Kevin Clermont, Kristen Eichensehr, Richard Fallon, Ranjit Hakim, Andy Hessick, Andrew Kull, Douglas Laycock, Marty Lederman, Michael Morley, Nicholas Parillo, Richard Re, Doug Rendleman, Bertrall Ross, Stephen E. Sachs, Eugene Volokh, Kevin Walsh, Patrick Wooley, Stephen Yeazell, and the participants in law faculty workshops at Notre Dame and the University of Texas at Austin. For helpful conversations and correspondence, I am grateful to Ronen Avraham, Aaron-Andrew Bruhl, Jud Campbell, Perry Dane, John Duffy, Ward Farnsworth, John Golden, Michael McConnell, Susan Morse, John Nagle, Andrew Pincus, Jeffrey Pojanowski, Zachary Price, Larry Sager, David Waddilove, Christopher Walker, and Howard Wasserman. I also thank Lei Zhang for his excellent research support and archival sleuthing.