Previous posts have addressed the origin of universal injunctions and the arguments pro and con. (In listing scholarly articles on the question, I should have included George Rutherglen’s essay arguing that Rule 23 is where universal injunctions should be relocated.)
Could you help clarify something that’s confusing to me? In the first article, you said universal injunctions were rare before 2010. What’s the legal distinction between universal injunctions and cases where courts struck down laws as unconstitutional (e.g., Griswold, Loving, Roe, Heller, etc.)? If there is a difference, could a district court issue a ruling against Trump’s EO in the same style as those landmark decisions, rather than using a universal injunction to achieve the same outcome?
Is the difference that in those old cases courts didn’t issue injunctions at all, even the Supreme Court didn’t, and instead relied on the government following Supreme Court precedent?
Assume that universal injunctions should not be the norm, but they should be permitted in specific cases-which I understand to be Joyce's position (and with which I and most people would agree). The problem, of course, is what is to be the limiting principle defining the exceptional cases in which a universal injunction may permissibly be granted. Joyce, like most good lawyers, prescribes a multitude of (for now limited to 6) factors which should taken into account when resolving a specific case involving the propriety of a universal injunction.
Instead, how about applying the KISS principle? The normal threshold for a preliminary injunction requires that the plaintiff(s) in the case in question establish that he/she/it/they has/have a "probability of success" on the merits of the claim. How about just increasing the plaintiff(s)' burden of persuasion in cases where a universal injunction is sought to something like the plaintiff(s) making a showing and the Court finds as a " virtual certainty " (or some-such equivalent phraseologythat the plaintiff(s) will be successful on the merits of their claim?
Could you help clarify something that’s confusing to me? In the first article, you said universal injunctions were rare before 2010. What’s the legal distinction between universal injunctions and cases where courts struck down laws as unconstitutional (e.g., Griswold, Loving, Roe, Heller, etc.)? If there is a difference, could a district court issue a ruling against Trump’s EO in the same style as those landmark decisions, rather than using a universal injunction to achieve the same outcome?
Is the difference that in those old cases courts didn’t issue injunctions at all, even the Supreme Court didn’t, and instead relied on the government following Supreme Court precedent?
Assume that universal injunctions should not be the norm, but they should be permitted in specific cases-which I understand to be Joyce's position (and with which I and most people would agree). The problem, of course, is what is to be the limiting principle defining the exceptional cases in which a universal injunction may permissibly be granted. Joyce, like most good lawyers, prescribes a multitude of (for now limited to 6) factors which should taken into account when resolving a specific case involving the propriety of a universal injunction.
Instead, how about applying the KISS principle? The normal threshold for a preliminary injunction requires that the plaintiff(s) in the case in question establish that he/she/it/they has/have a "probability of success" on the merits of the claim. How about just increasing the plaintiff(s)' burden of persuasion in cases where a universal injunction is sought to something like the plaintiff(s) making a showing and the Court finds as a " virtual certainty " (or some-such equivalent phraseologythat the plaintiff(s) will be successful on the merits of their claim?