My UCLA colleague Sam Bray has posted Multiple Chancellors: Reforming the National Injunction (November 6, 2016). UCLA School of Law, Public Law Research Paper No. 16-54. Available at SSRN: https://ssrn.com/abstract=2864175
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.
First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.
Second, this Article proposes a single clear principle 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. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.
This is fantastic paper by Sam Bray which I just assigned to my Remedies students--views on propriety on nat'l injunctions shift w/ new prez https://t.co/aQuF5aBgdX— Rick Hasen (@rickhasen) February 8, 2017