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Can and Should Universal Injunctions Be Saved?

Posted by on Friday, October 11, 2019 in Notes, Volume 72, Volume 72, Number 5.

Szymon S. Barnas | 72 Vand. L. Rev. 1675 (2019) |

The practice of a federal district court judge halting the government’s enforcement of an executive action against not only the parties before the court but against anyone, anywhere, may be coming to an end. Multiple Supreme Court Justices have expressed their skepticism in the propriety of universal injunctions. The growing scholarly consensus is that there should be a brightline rule against them. If the universal injunction’s demise is impending and the class action’s demise continues unabated, obtaining systemwide relief may be difficult when such relief may be most needed.

This Note considers whether universal injunctions can and should be saved. It first compares the macro-level trends and current tradeoffs between the two procedural choices for seeking systemwide relief. Then, this Note considers whether universal injunctions can be theoretically justified based on the development of issue preclusion doctrine and the drafting of the modern class action rules. Finally, this Note proposes a specialized forum to adjudicate universal injunction suits that would solve the two most pressing problems caused by such injunctions—judge shopping and preclusion asymmetry—and realign the tradeoffs that plaintiffs consider when choosing how to seek systemwide relief.

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Szymon S. Barnas