In a previous post, I highlighted the House Judiciary Committee’s proposal to eliminate contempt enforcement for any injunctions given without an injunction bond.
How much is "an amount proper to pay the costs and damages sustained by the Federal Government?" You note the issue with the current wording having no provision for indigency, but that still seems to me to vastly understate impact this would have in denying access to judgment to those without financial resources.
Any bond that is pegged to the government's costs will make it functionally impossible for most Americans to sue the federal government in any situation where those costs are more than a few thousand dollars and the government is willing to put in the effort to prove it. It doesn't matter if the money is not ultimately paid out because it will be locked up for the years that litigation takes to wind through the court, which is functionally equivalent.
In The Purpose of the Preliminary Injunction, you wrote "But we should not be naïve about public law litigation. When a new legal norm is challenged in federal court, the challenger (whether on the right or the left) is often a coalition of states, corporations, political parties, or advocacy organizations, all with sophisticated legal operations and resources." No footnote or citation.
I don't read this as a claim that MOST plaintiffs are sophisticated resource-laden, but it's kinda suggestive. Are states/big organizations the typical preliminary injunction plaintiff? Is there any data on what the typical preliminary injunction plaintiff looks like? Or even roughly predicting based on current filings what types of cases are going to require what amounts of bond, to figure out the impact on indigent plaintiffs? Seems like most of the people this rule will apply to could well be individual citizen or groups of individuals without much in the way of resources.
Take Institute for Justice, who(se clients) get to the Supreme Court frequently. They post their annual audited budget and it's ~$45M to support all of their cases, with individual plaintiffs all over the country (they post a full list of pending and past matters). And it's not even clear they could use donor funds to help clients post bonds, or advance bond funds at all (I'm not 100% but I vaguely remember rules on champerty and maintenance from the bar exam). The rule requires the party itself to post a bond, and doesn't say anything about who can or can't fund it. (Ignore this if I'm wrong, I haven't done the research on Rule 65 bond funding sources).
I guess I'm asking if the impact analysis of the bill is just impressions and speculation or if there's any hard data? Because if it's going to cut a lot of indigent plaintiffs facing ongoing law violations by the government off from any relief while their cases trudge along for a few years, maybe we oughta know about it.
Looking forward as well to some Petition Clause as-applied challenges to this for indigent plaintiffs if it passes.
OK, I just read Preliminary Injunction Realism - looks like you've got a data set, but didn't see coding for individual vs organizational plaintiffs (just pro se). Wonder if that's possible? Also maybe would be useful to see whether negative injunction (non-revenue-generating) or affirmative positive injunctions, on the premise that telling the goverment to stop doing something (other than collecting or transferring money) isn't generally going to cost them anything that can be easily calculated. (Well maybe Takings Clause cases, those will be a wash for bond amount because "just compensation" even if Kelo is overruled, right?).
How much is "an amount proper to pay the costs and damages sustained by the Federal Government?" You note the issue with the current wording having no provision for indigency, but that still seems to me to vastly understate impact this would have in denying access to judgment to those without financial resources.
Any bond that is pegged to the government's costs will make it functionally impossible for most Americans to sue the federal government in any situation where those costs are more than a few thousand dollars and the government is willing to put in the effort to prove it. It doesn't matter if the money is not ultimately paid out because it will be locked up for the years that litigation takes to wind through the court, which is functionally equivalent.
Shouldn’t the government be required to post a bond if it appeals (similar to the requirement to post bond to stay enforcement of a money judgment)?
In The Purpose of the Preliminary Injunction, you wrote "But we should not be naïve about public law litigation. When a new legal norm is challenged in federal court, the challenger (whether on the right or the left) is often a coalition of states, corporations, political parties, or advocacy organizations, all with sophisticated legal operations and resources." No footnote or citation.
I don't read this as a claim that MOST plaintiffs are sophisticated resource-laden, but it's kinda suggestive. Are states/big organizations the typical preliminary injunction plaintiff? Is there any data on what the typical preliminary injunction plaintiff looks like? Or even roughly predicting based on current filings what types of cases are going to require what amounts of bond, to figure out the impact on indigent plaintiffs? Seems like most of the people this rule will apply to could well be individual citizen or groups of individuals without much in the way of resources.
Take Institute for Justice, who(se clients) get to the Supreme Court frequently. They post their annual audited budget and it's ~$45M to support all of their cases, with individual plaintiffs all over the country (they post a full list of pending and past matters). And it's not even clear they could use donor funds to help clients post bonds, or advance bond funds at all (I'm not 100% but I vaguely remember rules on champerty and maintenance from the bar exam). The rule requires the party itself to post a bond, and doesn't say anything about who can or can't fund it. (Ignore this if I'm wrong, I haven't done the research on Rule 65 bond funding sources).
They say the focus on novel high profile federal-government-defendant cases is the "tail that wags the dog." https://ij.org/cje-post/universal-injunctions-are-a-bigger-deal-for-states-and-cities-than-for-the-feds/ Curious what you think?
I guess I'm asking if the impact analysis of the bill is just impressions and speculation or if there's any hard data? Because if it's going to cut a lot of indigent plaintiffs facing ongoing law violations by the government off from any relief while their cases trudge along for a few years, maybe we oughta know about it.
Looking forward as well to some Petition Clause as-applied challenges to this for indigent plaintiffs if it passes.
OK, I just read Preliminary Injunction Realism - looks like you've got a data set, but didn't see coding for individual vs organizational plaintiffs (just pro se). Wonder if that's possible? Also maybe would be useful to see whether negative injunction (non-revenue-generating) or affirmative positive injunctions, on the premise that telling the goverment to stop doing something (other than collecting or transferring money) isn't generally going to cost them anything that can be easily calculated. (Well maybe Takings Clause cases, those will be a wash for bond amount because "just compensation" even if Kelo is overruled, right?).
Thank you for this article.
Extremely helpful analysis, thank you.