At Jotwell, James Pfander (Northwestern): Due Process and National Injunctions (reviewing Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. __ (forthcoming 2020)). From the introduction:
National and universal injunctions have been in the news. In the wake of an outpouring of scholarly interest in decrees that offer non-party protections, especially in litigation with the federal government, the Supreme Court has taken notice. Invoking Sam Bray’s view of the national injunction as “unthinkable” by standards of “traditional equity,” Justice Clarence Thomas argued in a concurring opinion in Trump v. Hawaii that such injunctions “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.” The Trump Department of Justice has issued guidance to its civil litigators, encouraging them to contest the proposed issuance of universal decrees. And members of Congress have considered legislative fixes that would narrow federal equity power.
Many fixes have been proposed and some will no doubt be adopted, particularly as federal courts grow more cautious about issuing such decrees. But as Mila Sohoni argues in The Lost History of the “Universal” Injunction, it may not make sense to frame any restrictions as constitutional limits on the remedial authority of federal courts. Adjusting the exercise of equitable discretion is one thing; curtailing equitable authority on constitutional grounds is quite another.
And in conclusion:
But Sohoni argues that it does not make sense to frame operational concerns with the administration of relief in terms of Article III judicial power. As she observes, “[t]here is only one ‘judicial power,’ and that power includes the power to issue injunctions that protect those who are not plaintiffs.” Sohoni would invite the participants in the debate to reframe the issue in policy and prudential terms and take the threat of Article III invalidation off the table. Such an approach would leave a series of constitutional protections in place, protections attending to the due process interests of those whose claims have been jointly presented in the form of a class action. Defendants may have a due process right to bind class claimants who join together, just as plaintiff class members have a due process interest in adequate representation and in avoiding litigation that lumps them unfairly together with folks who do not share their interests. Class action law has evolved to account for these due process concerns, growing more punctilious over time.
Sohoni’s lost history suggests that those who propose to articulate constitutional limits on the scope of injunctive relief might better frame their concerns in due process rather than in Article III terms. Such an approach would have the added advantage of binding the state courts in their administration of non-party relief and would thereby encourage the Supreme Court to consider, from a somewhat broader perspective, the consequences of any constitutional adjustments.
(Via Howard Bashman at How Appealing, who doesn't add that Professor Sohoni teaches at the University of San Diego Law School).
ASIDE: Professor Sohoni's article is one of five articles placed in top five law reviews this year by my San Diego colleagues: Harvard (Mila Sohoni and Ariel Jurow Kleiman), Columbia (Orly Lobel) and Chicago (Miranda Perry Fleischer and Ted Sichelman). No originalism connection — just a nonoriginalist note of congratulations.
Posted at 6:27 AM