Yearly Archives: 2018

Practice Makes Perfect

Dec 20, 2018 Sergio J. CamposAdd a Comment

Approximately four years ago, the Federal Advisory Committee on Civil Rules established a subcommittee to reform Federal Rule of Civil Procedure 23, the class action rule. The subcommittee engaged in a meticulous review of various class action practices, focusing on such controversial issues as cy pres awards, bad faith objectors, and class action settlements. The subcommittee’s work resulted in the Advisory Committee adopting a package of amendments to Rule 23, which went into effect on December 1, 2018. A good overview of the amendments can be found here.

Anticipating passage of these amendments, the Bolch Judicial Institute at Duke Law School assembled an all-star team of class action practitioners and experts to draft a compilation of “guidelines and best practices.” Because the amendments “codify emerging or best practices of courts,” the goal of the publication is to “add detail to the general guidance provided in the amended rule.” The publication has all the attributes of a great resource—it is concise while remaining crystal clear.

But what I find remarkable about the publication is how its focus on the on-the-ground experience of administering class actions sheds light the thorniest issues in class action law. Take standing, an issue the Supreme Court focused this Term in Frank v. Gaos. In 2016, the Court decided Spokeo v. Robins, concluding that to establish standing, a class representative must allege a harm that is both concrete and particularized. There is some question whether standing must be established for all class members, not just the class representative. Tyson Foods, Inc. v. Bouaphakeo addressed but did not decide whether standing can exist when there is the prospect that “uninjured” class members may recover.

This publication does not address this issue directly, nor does it intend to, but it does discuss some aspects of the actual administration of class actions that bear on the issue. For example, it states that, with respect to information concerning the distribution of proceeds from a settlement, “a court should not assume that automatically distributing benefits to all class members is superior to distributing benefits based on submitted claims.” (Best Practice 3C). It makes the reasonable point that in some class actions, such as those involving consumer claims, a submitted-claims process can be invaluable in identifying individuals who have suffered actual harm by requiring, for example, proof of purchase to recover. This suggests that in many cases issues of class member standing can be obviated on the back end by processes ensuring that uninjured class members cannot recover. In Tyson, the Court hinted that such a back-end process can satisfy these standing issues. The Court admonished the Tyson defendants for opposing a “bifurcation” process that would have permitted the district court to determine liability in one phase and individual class members to submit claims for damages in a second phase.

Another thorny issue concerns class attorney compensation, where there is a concern that class attorneys profit at the expense of class members who receive little to nothing from the lawsuit. The publication speaks to this issue (again, not intentionally or directly) through the debate over whether the attorney’s fee in a class action settlement should be based on the percentage of the total monetary awards made available to the class or the money “actually delivered” to class members. The notes to the 2018 amendments emphasize the latter, stating that “the relief actually delivered to the class can be a significant factor in determining the appropriate fee award.” At first glance this make sense—why should an attorney be paid if the class members are not also actually paid?

But the publication makes an important point about the actual operation of class actions that informs the “actual value” the class members receive. In a sense, class actions arise because class members do not want to be paid, or at least do not want to go to the trouble of filing a lawsuit to recover. A class action goes to that trouble. In investigating and settling the case, class attorneys make proceeds available that otherwise would not be available through efforts of class members who otherwise would not have sued. The publication cites cases to argue that “the opportunity to recover meaningful relief by availing themselves of a claims process that is procedurally fair, even though many fail to do so, is ‘actual value’ to the class members.”

The publication also tackles appointment of “interim class counsel” in multidistrict litigation (MDL). Although this concept was introduced in 2003 amendments to Rule 23, the publication discusses the importance of this designation and its effect on current practice. Interim class counsel corrects a “Catch 22” situation that has arisen from heightening class certification requirements, itself a response to courts’ unease with the near-unilateral control of the class attorney. Class certification is now “often preceded by substantial fact and expert discovery,” which requires “time and resources to develop a record in the case sufficient to enable the court to make an informed class certification decision.” The availability of interim class counsel allows for the appointment of counsel with the power and incentive to perform this work for the benefit of the class.

The publication also addresses this practice in MDLs. In theory, MDLs avoid the unease that arises from counsel control by consolidating claims, because each plaintiff retains her own counsel. But class actions can arise within MDLs. And there remains great benefit in having “lead counsel” coordinate the efforts of the individual plaintiffs, even if each retains separate counsel. “Class actions and MDL have converged in recent years,” with “MDL transferee judges, who must appoint plaintiff leadership at the outset of the proceedings, . . . often adopt[ing] the Rule 23(g) factors as qualifications in such leadership roles.” The publication discusses guidelines and best practices for interim class counsel within MDLs. And it  (again unintentionally) makes an important point about not only the persistence of the class action, but its utility. The very power of class counsel that makes courts uneasy is the same power that allows for the investment and coordination necessary to litigate the plaintiffs’ claims in the first place.

There are many more gems in the publication, too many to discuss here. This is a perfect example of the kind of work I like “lots”—it looks at on-the-ground practice with a sensitivity to finding solutions. That it also speaks to important class action issues shows the importance of paying attention to the great work being done by courts and practitioners.

Preclusion Law as a Model for National Injunctions

Dec 5, 2018 Suzette M. MalveauxAdd a Comment

One of the hottest topics on the current legal landscape is the propriety of national injunctions. Federal district court judges are increasingly enjoining the federal government from enforcing statutes, regulations or policies nationwide—fashioning remedies far beyond the parties and the court’s geographic purview.  While this practice initially took hold in the 1960s, it escalated during the Obama Administration and has intensified under the Trump Administration.

For example, a district judge in Texas barred enforcement of Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—applying the bar not only to the twenty-six states who complained, but to the entire nation.  Similarly, a district judge in Hawaii barred enforcement of Trump’s travel ban, which excluded travelers from seven countries—most predominantly Muslim—on alleged religious discrimination grounds; the court forbid the Administration from applying the ban not only to the parties in the case, but to non-parties across the country.

This has led many people to ask themselves, “Hey, wait a minute!  Can they do that?”  They are not alone.  The recent uptick in judgments rebuking executive action and issuing sweeping reforms at the hand of singular judges has invigorated a robust debate over the propriety of this practice in particular and the power of federal judges in general.  Just recently, former Attorney General Jeff Sessions expressed skepticism over the legitimacy of national injunctions, joining Justice Clarence Thomas’s assessment of them, in Trump v. Hawaii, as “legally and historically dubious.” A number of scholars have expressed similar doubt and concerns.

But a burgeoning view among academics is challenging this narrative.  The latest entry is Alan Trammell’s Demystifying Nationwide Injunctions, which takes on the challenge of addressing the constitutional and structural arguments made by national injunction opponents, persuasively explaining how national injunctions do not violate Due Process, contravene judicial hierarchy, or eclipse the “judicial power” of Article III courts.

First, Trammell contends that core Due Process concerns are not threatened by national injunctions.  For example, one such concern is that a non-party should not be bound by an adverse judgment because that person has not had his or her proverbial “day in court.”  However, this concern is inapt in the case of national injunctions against the enforcement of an unconstitutional law, where a non-party benefits from the universal ruling. Similarly, preclusion law used to require “mutuality”— only parties to a prior lawsuit could get the preclusive effect of a beneficial ruling in a subsequent lawsuit.  Courts, however, have relaxed this requirement, allowing non-parties to benefit as well because the defendant had its “full and fair” opportunity to defend itself in the initial action.

Trammell takes the same position even where non-parties do not actually want the national injunction, but are bound nonetheless.  This is not a Due Process violation either, given the circumscribed right an individual has to challenge public rights.  Like the Rule 23(b)(2) context, which provides no individual notice and “opt-out” rights for a class seeking primarily equitable relief (including injunctions), the national injunction fairly binds non-parties in cases involving public rights and indivisible relief.

Second, Trammell argues that national injunctions are not foreclosed on the grounds that the remedy crosses vertical and horizontal boundaries that usually cabin the effect of district court decisions.  On the vertical axis, a district judge who issues a national injunction may bind a higher court, in contravention of judicial hierarchy.  On the horizontal axis, that same judge may bind its sister district courts and even those outside the judicial circuit, in contravention of normal geographical limits.

But preclusion law allows such exceptions. And a court’s remedial power in one case is distinct from supervisory authority and geographic jurisdiction. Trammell correctly recognizes the risk of inconsistent rulings that could result from national injunctions issued by different district courts, but concludes that is a prudential problem for comity to solve.  To the extent that one believes the courts are likely to respect comity and self-regulate accordingly, Trammell’s position is satisfying, even as others bristle at the indeterminacy of such a laissez-faire approach.

Third, Trammell pushes back on the notion that national injunctions are beyond the scope of Article III.  National injunctions meet the case-or-controversy requirement because they are brought by plaintiffs with proper standing–a concrete and particularized injury caused by the defendant that is legally redressable.  Lest you think Trammell’s arguments are motivated by the current political climate, he uses the Texas district court’s national injunction against Obama’s DAPA to illustrate how the state of Texas had standing.  While one may disagree with the ultimate ruling on the merits of the case, the issue of Article III standing seems clear.

Finally, Trammell makes a broader point about the push back against national injunctions.  The criticism of district judges’ expansive remedial reach reflects a larger and familiar debate about the proper role of judges.  Are they really just umpires calling balls and strikes?  Trammell situates the propriety of the national injunctions issue in the debate over two models of adjudication: dispute resolution and law declaration.  While this tension may ring true for Supreme Court jurisprudence, the same cannot be said for district courts, whose mandate as trial courts is far different.

After this brush-clearing (establishing the court’s power to issue national injunctions), Trammell offers a compelling context in which to rest his position—the parallel development of preclusion law.  Trammell analogizes the evolution of the national injunction to the evolution of preclusion, illustrating how the underlying premises of the latter support the former.  This insight, made concurrently by Zachary D. Clopton in National Injunctions and Preclusion, __ Mich. L. Rev. __ (forthcoming 2019), situates national injunctions in a wider frame that helps the reader understand why a singular judge issuing relief far beyond its participants or geography isn’t so fantastical after all.

Trammell relies on the principles underlying preclusion for determining normatively when a national injunction is appropriate.  As a starting point, Trammel analogizes nonmutual offensive issue preclusion to a national injunction, noting that in both instances an individual gets the benefit of an adverse judgment against a government defendant in a lawsuit in which he was not a party.  Because the defendant had a full and fair opportunity to be heard, due process has been met.

He identifies a number of problems with offensive nonmutual collateral estoppel: it encourages a “wait and see” approach by individual plaintiffs bringing litigation seriatim; exacerbates inconsistent rulings; and promotes preclusive asymmetry.  But these pitfalls have not justified a complete bar to such preclusion, so neither should they bar national injunctions—which can pose similar concerns. To the contrary, preclusion law models the circumstances under which a court should refrain from issuing a national injunction.  Drawing on the majority rule permitting offensive non-mutual issue preclusion so long as there is not evidence of inherent unfairness, Trammell endorses the existence of national injunctions.

This endorsement, however, is tempered by the Supreme Court’s holding in United States v. Mendoza, where the Court held that a private party could not use non-mutual issue preclusion against the government.   But Trammell rejects Mendoza as a categorical ban on such preclusion, arguing that the Court’s conclusion is cabined to the particular case and is merely a guidepost that identifies circumstances that should militate against preclusion.

Trammell then pivots to a different doctrinal and theoretical hook for discerning when national injunctions affirmatively are appropriate: non-acquiescence.  This practice involves the government (usually an administrative agency) prospectively refusing to follow a judicial interpretation of the law.  This practice is generally accepted when limited to a particular circuit among many but frowned upon when done within a circuit in flagrant disregard of its precedent.  Non-acquiescence, he argues, is justifiable when the law is unsettled and the government genuinely seeks to promote its position.  But national injunctions are justifiable when the government flagrantly rebukes settled law, thereby demonstrating bad faith.

Trammell ends his article by concluding that although courts have the power to issue national injunctions and can justify them prudentially for many of the same reasons that justify preclusion, courts should only issue them under certain limited circumstances.  Borrowing from preclusion law, Trammell proposes a standard for when national injunctions are appropriate, with a set of limiting principles as a power check. There is a presumption against national injunctions as the go-to response, giving the government an opportunity to make a course correction and courts a chance to develop law.  But a national injunction is proper when plaintiffs can demonstrate the government is acting in bad faith, as evidenced by rebuking settled law or failing to sincerely vindicate its position in the courts; this exception vindicates equality and promotes rule-of-law norms.

Trammell’s proposal offers much food for thought.  The default rule puts Trammell squarely in the camp of those who reject an outright ban on national injunctions but are nonetheless concerned about prudential problems they pose and the frequency with which courts are ordering them.  He uses the policy considerations raised by preclusion law and Mendoza as a proxy for determining when law is settled. This is inexact, but addresses some of the most common complaints about national injunctions—inconsistent rulings, “one-and-done” rulings by a singular judge, forum shopping, lack of law percolation, and asymmetric preclusion.  His proposal covers much ground.

With “settled law” being so central, much rides on how it is defined.  Trammell emphasizes flexibility, arguing that the law need only be “settled enough,” with the burden on the government to defend its decision to depart.  The national injunction against the first travel ban offers a perfect example–with every court to consider the matter, and eventually the White House, all agreeing on the illegality of certain provisions, the law was sufficiently settled to warrant a national injunction.

Similarly, nothing says “settled” more than a definitive ruling by the Supreme Court.  A perfect example of this was Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry in all states.  When Kim Davis, a local Kentucky clerk, refused to issue marriage licenses to same-sex couples post-Obergefell, this provides “the quintessential scenario of when a broad injunction is most appropriate.” The alternative is to require every same-sex couple seeking to marry in the United States to sue to enforce their Constitutional rights under Obergefell whenever they face a clerk who defies the rule of law.  This not only encourages lawlessness by government officials, but “essentially leads to government by litigation”—an untenable, impractical and immoral outcome “antithetical to the entire governance structure.”

Although Trammell’s proposal offers a way to promote national injunctions while erecting guardrails that cabin their proliferation, it raises some questions and concerns.  For example Trammell suggests a “rule of three” for when law is settled—conditioning a national injunction on three consistent adverse lower court rulings.  While not new, this is arbitrary and malleable.  Moreover, there is no reason that the plaintiff should bear the burden of proving settled law or for making bad faith the primary justification for national injunctions. Other policies may justify such expansive relief, including the need to address national crises, promote efficiency, prevent irreparable harm, check executive abuse of power, provide complete relief, and account for access to justice problems.

There are no easy answers. But Trammell has made an important contribution to the debate with an analogy to preclusion law thqt is groundbreaking and insightful.

A Decade of Procedural Despair: Denying Access to Justice and Closing the Courthouse Doors

Nov 23, 2018 Linda S. MullenixAdd a Comment

For civil procedure teachers seeking to accompany their casebook with an insightful account of procedural justice, Michael Vitiello’s Animating Civil Procedure provides an excellent complement to case-centric courses. Among its many virtues, Vitiello’s book weaves a compelling procedural-justice argument around the leading procedure cases all first-year students encounter in their introduction to the American legal system.

Vitiello’s main thesis details how the Supreme Court’s procedural jurisprudence – especially in the last decade—effectively denies plaintiffs’ access to justice and represents a closing of the courthouse doors. While these themes are manifestly familiar to the professoriate and comprise the dominant narrative among commentators, the impact of procedural law may not be so apparent to new law students. By focusing on the compelling importance of procedure in shaping substantive justice, Vitiello’s book provides a useful resource to bridge a novice’s gap in knowledge and understanding.

At the outset, Vitiello rightly frames his book with the observation dear to the heart of all civil procedure teachers: that procedure is as important, if not more so, than the substantive law that occupies so much of the first-year curriculum. He observes how—in contrast to headline-grabbing substantive issues such as gun control, same-sex marriage, and campaign financing—the Court’s procedural decisions go largely unnoticed and unheralded. Vitiello illustrates the point with the famous story of how The New York Times and other newspapers failed to report the Court’s 1938 decision in Erie R.R. v. Tompkins, completely missing the significance of that decision.

Having established the central case for the importance of procedure, Vitiello’s book segues into separate chapters advancing his argument that the Court’s recent procedure jurisprudence has largely been anti-plaintiff and pro-corporate defendant. He focuses on seven areas of procedural law to illustrate this thesis: personal jurisdiction, pleading, discovery, summary judgment, transfer of venue, class actions, and arbitration. In reviewing the Court’s leading decisions, he analyzes the holdings in the context of the Court’s liberal-conservative ideological divide.

Each chapter presents a veritable hit-parade of the Court’s most controversial procedure decisions during the past decade. In discussing the Court’s increasingly constrictive views on personal jurisdiction, he focuses on the infamous trilogy of courthouse-closing cases: Goodyear Dunlap Tires Operations, S.A. v. Brown, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. As all procedure teachers appreciate, nothing engages students more than the saga of Mr. Nicastro of the severed four fingers, with the Court telling him he has nowhere to sue. Vitiello employs these cases to point out the increasing inability of injured plaintiffs to enter the courthouse to hold bad-actor corporate defendants accountable for wrongdoing.

Vitiello’s chronicle of the Court’s personal jurisdiction jurisprudence sets the tone for ensuing chapters, perhaps none so scathing as that on pleading under the Federal Rules. He first sets out the historical basis for nineteenth-century pleading reforms as the precursor of modern federal notice pleading, providing a succinct summary of the context for understanding the philosophy of modern pleading that students may not otherwise receive. The pleading backstory is a procedural tease, coming undone in Bell Atlantic Co. v. Twombly and Ashcroft v. Iqbal. In truth, attacking the Court’s Twombly/Iqbal decisions is picking-off low-hanging fruit, although they are the archetypes of the Court’s anti-plaintiff, pro-corporate bias.

The twin themes of denying access to justice and closing the courthouse doors frame the discussion in Vitiello’s remaining chapters on summary judgment, transfer and venue, and class action litigation. Similar to his jurisdiction and pleading chapters, Vitiello’s book ranges over a collection of prominent, challenging, and dubious Court decisions, including Scott v. Harris(on summary judgment) and Atlantic Marine Construction Company v. U.S. District Court(on transfer of venue). Vitello’s discussion provides students with a thoughtful analysis of the impact of these somewhat arcane procedural mechanisms.

The Court’s recent class action jurisprudence comes in for especial notoriety, focusing predictably on the Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which narrowed the interpretation of the Rule 23(a) commonality requirement. And, not to be outdone by the anti-class action animus embedded in Dukes, Vitiello singles out the Court’s class action waiver decisions in AT & T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant as further evidence of the Court’s pro-corporate bias in upholding arbitration clauses with class action waivers. Vitiello acknowledges that the Court’s class action jurisprudence has been a mixed bag, leaving open the ultimate conclusion to be drawn from this universe of cases.

Finally, Vitiello notes that procedural justice derives not only from the Court’s decisions, but from rulemaking initiatives by the Advisory Committee on Civil Rules. He focuses on the Committee’s recent excursions into amending the discovery rules, which he argues deny access to justice for plaintiffs with fewer resources. This chapter provides students with useful insight into other sources of procedural justice and offers a good springboard to discuss the philosophy of transsubstantive and neutral rulemaking.

Vitiello’s Animating Civil Procedureis an excellent companion to a first-year casebook. It is easy to read, well-written, and not overly long. Not only does it discuss the most recent leading procedure cases, but it challenges students to think about the broader implications of those cases. Although the book leaves scant room for disagreement with his conclusions, Vitiello should be commended for demonstrating the overarching importance of procedure to a system of substantive justice.

Construing Precedent

Nov 5, 2018 Marin K. LevyAdd a Comment

What is the nature of precedent? How is it made and how can it eventually be unmade? If anyone knows, it is Richard Re at UCLA School of Law. Re has been doing the academy and the judiciary a service in recent years by writing several articles and a scholarly amicus brief on the foundational question of how certain opinions come to bind others. Beyond the Marks Rule is his latest offering in this rich area, and it does not disappoint.

Beyond Marks begins with what one might call the “less-than-five problem.” Generally, the Supreme Court creates binding precedent when a majority of the Justices supports a single rule of decision. Under the “majority rule,” if five Justices sign on to Rule A and four Justices sign on to Rule B, Rule A becomes the holding of the Court and binds the lower courts thereafter. But occasionally the Supreme Court does not merely split but fractures, leaving us in a world of, say, 4-1-4 (in which five Justices agree on an outcome, but only four agree on a rule explaining the outcome and one relies on alternative reasoning). What to do in such a situation? One could imagine concluding that an opinion without a majority is an opinion without precedential effect. But at the moment we are bound to conclude otherwise, thanks to Marks v. United States.

Marks tells us that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices,” then “‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .’” (or, as I tell my students, if four Justices want to order vegetarian fare for dinner, and a lone Justice will only have cheese pizza, then cheese pizza it is for everyone). Though the rule may have some initial intuitive appeal, Re convincingly argues that its adoption was not well thought out then and is beyond problematic today.

The costs of the Marks rule are several. First, the rule can lead to troubling results. Consider Freeman v. United States, a recent federal sentencing case, in which the Court divided 4-1-4. The majority of lower courts to subsequently apply Marks to Freeman decided that Justice Sotomayor’s concurrence—the lone 1—should control. And yet the other Justices had squarely rejected Sotomayor’s position, calling it “erroneous” and “arbitrary.” As Re points out, “the Court’s least popular view became law.” Even where the Justices do not directly criticize what will become the controlling opinion, the fact remains that a majority of the Court chose notto endorse that opinion. In this way, Marks makes precedent out of minority views.

Second, there can be a significant lack of clarity—and therefore lack of efficiency—in applying the Marks rule. At the level of the rule itself, it is not pellucidly clear how lower courts should understand “that positon taken by those Members who concurred in the judgments on the narrowest grounds.” It could mean the “logical subset” approach, which considers an opinion from a fractured Court binding only if it “necessarily approves all the results reached under another concurrence in the judgment” (as in the culinary example above). It could mean that lower courts should look to the “median opinion”—the concurring opinion that represents the views of the median Justice. Or it could mean the “all opinions” approach, which considers how a given case would be resolved under the Court’s various opinions (including dissents) and follows whatever route would have gained the support of a majority. Re reveals the flaws in each of these methods and underscores how challenging it is to apply what might at first blush seem to be a straightforward rule.

Given the varied possibilities for understanding Marks, it is not surprising that there is confusion over what precisely counts as precedent in many individual cases. Returning to Freeman, most lower courts to apply Marks to the case concluded that the Sotomayor concurrence controlled. But the D.C. and Ninth Circuits concluded that Freeman failed to create any precedent at all (aside from the result). In short, these fractured decisions impose significant interpretive costs.

Re then demonstrates those costs with a comprehensive empirical study of how the Supreme Court, the federal courts of appeals, and even state courts have applied Marks. The findings show that the rule is dysfunctional in application.  With respect to the federal courts of appeals, for example, Re finds that they “only sometimes reach convergent results,” and that, often, “repeated Marks analysis generates lasting disagreement.”

Re does not stop there—he concludes with an elegant solution to the problem.  Rather than try to forge precedent when the Court has fractured, Re argues that only the majority rule should rule—a decision provides a binding rule of decision only if at least five Justices support it. The Justices should continue to feel free to form compromise majorities, following the logic of Screws v. United States (which maintains that a Justice may decide to vote for a particular rule precisely so as to create a majority precedent). But they must create that majority.

And Re does not even stop there. Tying Marks to his earlier work on precedent, he considers how a “Screws rule” could come about. It could come from the Court, either by overruling Marks in favor of a majority-rule rule or by reducing the number of fractured opinions over time. Alternatively, it could come from lower courts narrowly construing Marks, thereby incentivizing a would-be lone Justice, no longer able to create a binding rule herself, to find an opinion to join.  Whatever the case, with Beyond the Marks Rule, Re has made a substantial contribution to the growing field of Judicial Administration/Judicial Process. And there can be no fractured opinion here—judges and academics alike should pay close attention to Re’s invaluable scholarship.

Go Big or Go Home: The Debate Over National Injunctions

Oct 23, 2018 Alexandra D. LahavAdd a Comment

Can a single federal district court judge issue an injunction binding in every state? And if so, when should they do so? That question has been on the minds of many watching the whiplash-inducing orders from judges these last few years. In 2015, a district judge in Texas issued an injunction barring the federal government from enforcing an executive order granting temporary reprieve and work authority to immigrant parents of persons lawfully in the United States (either citizens or permanent residents). The plaintiff was the State of Texas – the only state found to have standing – but the injunction encompassed the entirety of the United States. In 2016, a district judge in Texas issued an injunction barring the federal government from enforcing a Department of Education policy requiring that public schools provide facilities (such as restrooms) that match their students’ gender identity. The plaintiffs were sixteen states that did not wish to comply with the policy, but the injunction encompassed the entirety of the United States. In case you think that everything is bigger in Texas, in 2017, a federal district judge in Illinois issued an injunction barring the federal government from withholding federal funding to “sanctuary jurisdictions,” states or local governments that refused to cooperate with immigration enforcement. And in 2017 several district court judges enjoined the federal government from enforcing various versions of an executive order barring nationals from several predominantly Muslim countries from entering the United States.

One of the coolest things about procedure is how procedural questions destabilize our political preferences. As a matter of principle, if you agree that judges have the power to issue one kind of national injunction, then you must agree that they have the power to issue the other. As a political matter, you might like the injunctions against the Obama administration and not those against the Trump administration, or vice versa. The controversy over this exercise of judicial power was, until recently, mostly academic (in the sense that mostly academics cared about it), but a bill recently was introduced in Congress barring federal judges from issuing “an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority” except where the case has been certified as a national class action. The impetus for the bill is probably political (its sponsor is Republican Representative Goodlatte), but that does not answer the question: Is this a good bill? Should we limit the reach of a federal district court to the parties before it or in some other way that would bar these types of injunctions?

High-profile and well-reasoned articles published last year by Samuel Bray, Michael Morley, and a more recent piece by Howard Wasserman argue that such injunctions overstep the bounds of what a federal court can and should do. Amanda Frost has now written an excellent defense of nationwide injunctions in response. Importantly, Frost situates the issue in larger debates over the role of the federal courts. Her claim is that your priors about what courts are for will determine to a significant extent your reaction to a national injunction. If the purpose of the courts is primarily dispute resolution, an injunction should be limited to the parties. If a substantial purpose of the courts is law declaration, a national injunction could be an important tool in the court’s toolbox, especially in the face of a recalcitrant governmental defendant. The possibility of a recalcitrant government defendant is especially important because, as Frost points out, national injunctions have surfaced in the years when the executive has exercised more unilateral power than any time in recent memory. Indeed, it is impossible to understand the phenomenon of national injunctions without understanding the recent relationship among the courts, Congress, and the executive branch. This is the powerful and important contribution of Frost’s article: it forces us to confront assumptions about both the structure of government and the court’s place within that structure.

Frost’s diagnosis of why we are here is the most valuable contribution of her piece, but her constitutional arguments are important, as well. First, Frost responds to the argument that the judicial equity power historically was limited to the parties before the court and that this limit should remain today. To the extent you think the judicial power today should be defined by its parameters during the Founding Era, Frost points to the “bill of peace,” which applied to non-parties. Other historical work supports her. Although non-party preclusion was rare, it was not unknown in the early common law. (If you are a proceduralist reading this and have not read Robert Bone’s article, Rethinking the “Day in Court” Ideal and Nonparty Preclusion, stop and read that instead.) Indeed, the very nature of property rights is that they are in rem – “they serve not only to bind successors in interest but the whole world.” Contrary evidence is always the problem with common law arguments steeped in history, especially procedural history; such arguments are rarely (if ever) definitive. The famous Talmudic saying applies to instrumental legal history: turn it and turn it again, for all is in it.

Second, Frost responds to the view that standing doctrine requires that the scope of the federal court’s power to order injunctions be limited to the parties, because the parties frame the “case or controversy” under Article III. Frost’s most powerful argument is that just as courts can strike down statutes as to all, they can strike down executive orders. Frost also points out that the equitable relief necessary to provide complete relief to the plaintiff must include other parties in many cases, such as a desegregation order requiring the defendant to allow all nonwhite students to attend a school. It may be that the problem raised by the plaintiff is so intertwined with others similarly situated that relief in the plaintiff’s case requires relief to others. The argument against allowing such intertwined interests to be heard reminds me of Lon Fuller’s objection to courts deciding “polycentric” disputes and brings us back to the basic point that one’s assumptions about what courts are for is at the heart of this question. That debate has been going on since the founding of the republic. To put it in terms of twentieth century scholarship, are you more inclined to agree with Fuller or Chayes?

Frost also responds to the argument that national injunctions should be available only by certifying, when appropriate, a nationwide class under Rule 23(b)(2). I imagine that the underlying appeal of this argument is that if the injunction is subject to Rule 23’s requirements (especially that the named plaintiff adequately represent the entire class), then we can rely on the rule to cabin the exercise of judicial power and this feels less overreaching. I use the word “feels” for a reason. As a practical matter the court would end up in the same place. Frost points out that if an injunction is permitted pursuant to 23(b)(2) then it must be constitutional as well; if a court can do something through a rule (which the courts themselves promulgate), why would it be unconstitutional to do this same thing in the absence of the rule? It cannot be that the rule dictates what Article III allows. The best argument for insisting on certification of a Rule 23(b)(2) class action is that the rule makes absent class members into parties, but I am not convinced for three reasons. First, the “representative litigation” concept that provides the constitutional foundation for class actions is a legal fiction in which the adequacy of the representative is deemed to be sufficient, as a constitutional matter, to bind all others in the class. Legal fictions should be avoided whenever possible, and courts should be direct about what they are doing. The legal fiction of binding by representation ought not be sufficient if the exercise of judicial power is illegitimate. (The ink spilled on the principal-agent problem in class actions is evidence of the discomfort with this fiction.) Second, we have a history of non-party preclusion that supports a broader conception of who can be bound by a lawsuit. Third, absent class members aren’t parties for many purposes, so one needs a policy reason to say they are parties for this purpose.

This brings us to the real issue: policy. Should one judge, potentially an outlier judge with radical ideas, make policy for the nation? If so, why not make them go through the process of certifying a national class action and ascertaining that there are no conflicts that require rethinking the idea? Frost doesn’t seem to be against requiring judges to certify injunctive classes in the run of cases, but argues that injunctive class actions are sometimes very difficult to certify, often requiring hearings that are tantamount to trials. Indeed, an assault on injunctive classes may be coming, and those who want to be able to bind the elected branches should be worried about allowing the class action device to tie judicial hands in the face of extreme government wrongdoing. That said, it is not always hard to certify injunctive classes. Classes can be certified provisionally (in fact, all classes are to some extent certified provisionally until a final judgment is entered), and more courts might use the power to certify a provisional class in order to issue a national injunction in a timely manner if that hurdle were required. For example, in Mrs. L v. Immigration and Customs Enforcement, the court certified a 23(b)(2) class in three-and-a-half months — plaintiffs filed their class certification motion on March 9, 2018, and the judge certified the class on June 26 — very fast for a class certification motion. But we cannot expect every class to proceed with such haste. This was a special case, involving very young children being separated from their parents and suffering likely permanent, debilitating psychological and potentially physical injuries. . . . Upon reflection, three-and-a-half months was much too slow.

The issue, then, is whena national injunction might be appropriate. Frost is closer to her critics than I anticipated because she does not seem to think national injunctions should be often used. She explains the risks of forum shopping and conflicting injunctions, concerns about infringing on the rights of non-parties, and the need to let the law percolate. And she urges courts to be sensitive to these risks as well as the costs and benefits in the specific fact situation in which the need for an injunction arises. In the end, she seems more inclined to believe in the integrity and capacity of judges than her critics. Reasonable minds can differ on the question of judicial competence to make these difficult decisions in a high-stakes environment and on the question of whether the costs outweigh the benefits. Before making up your mind, I highly recommend reading Frost’s article both for its summary of the debate and for its compelling arguments.