Ohio State University, Moritz College of Law
A growing number of scholars, judges, and Justices are debating the permissibility and propriety of relief that they are calling "national injunctions" or "nationwide injunctions. "An injunction is a court order that prohibits an entity from taking certain actions or that requires an entity to take specified actions. Drawing from scholarly literature and popular discourse, some define a "nationwide injunction" as an injunction with no geographic limitation that benefits nonparties, in addition to named plaintiffs or defined plaintiff classes. Injunctive relief in a number of high-profile cases falls within the crosshairs of "nationwide injunction" opponents. On the chopping block is relief in cases involving controversial presidential executive orders, Affordable Care Act provisions, and civil rights issues. Yet it is not clear that a category of "nationwide injunctions" is meaningful or even exists.
"Nationwide injunction" skeptics indicate that the distinctiveness of the targeted injunctions is either due to the injunctions' geographic scope or, alternatively, because such injunctions provide benefits to nonparties in addition to parties. But almost no federal court injunctions are limited in geographic scope and there is no clear rule or core principle limiting injunctions to provide benefits only to plaintiffs or plaintiff classes.
I provide a comprehensive taxonomy of the challenges to "nationwide injunctions," which I divide into subcategories of jurisdictional and prudential concerns. Then, I suggest that "nationwide injunctions" skeptics' criticism, and even the concept of a "nationwide injunction," are muddled due to the incomplete and skewed framing of the discussion. I propose exploring and engaging several, until now, ignored factors to develop a more robust understanding and conversation about the targeted injunctions, their implications, and the potential implications of decreasing or eliminating the targeted injunction as a form of relief in civil litigation.
The Myth of the "Nationwide Injunction"
Ohio State Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3610