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National Injunctions and Preclusion Zachary D Michigan Law Review Volume 118 | Issue 1 2019 National Injunctions and Preclusion Zachary D. Clopton Northwestern Pritzker School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Courts Commons, Litigation Commons, and the Supreme Court of the United States Commons Recommended Citation Zachary D. Clopton, National Injunctions and Preclusion, 118 Mich. L. Rev. 1 (2019). Available at: https://repository.law.umich.edu/mlr/vol118/iss1/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NATIONAL INJUNCTIONS AND PRECLUSION Zachary D. Clopton* Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable .” Justice Clar- ence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions .” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal govern- ment, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit from a prior finding against a party from an earlier case. Critics are right to identify the connection between national injunctions and nonmutual preclusion. Both of these doctrines describe when judgments can benefit nonparties. But critics are wrong to see Mendoza as an argument against national injunctions. For one thing, the rise of nonmutual preclusion that prompted Mendoza undercuts crucial arguments against national in- junctions by offering an alternative explanation for the absence of analogous injunctions in the history of equity. For another, Mendoza was not preor- dained; instead, it was a highly policy-driven decision. And Mendoza’s policy arguments were dubious when it was decided and even more dubious today. Scrutinizing these arguments should make us less comfortable in extending Mendoza to a new context—as the Supreme Court may be poised to do. Indeed, this Article goes one step further. The Supreme Court or Congress should take advantage of the attention on nonparty relief to reconsider, and overrule, Mendoza. Federal-government litigants do not deserve special treatment with respect to preclusion in every case, and the existing rules of preclusion adequately protect the interests purportedly at stake in Mendoza. Moreover, rejecting Mendoza has feedback effects for the national- injunctions debate. Overruling Mendoza would not only reduce the need for national injunctions (because preclusion could do some of the work) but also provide a framework for limiting national injunctions without eliminating * Professor of Law, Northwestern Pritzker School of Law. Thank you to William Bau- de, Samuel Bray, Maureen Carroll, Ned Cavanagh, Kevin Clermont, Michael Dorf, Amanda Frost, John Golden, Tara Leigh Grove, Christine Jolls, Jill Lens, Marin Levy, Suzette Malveaux, David Marcus, Michael Morley, Colleen Murphy, James Pfander, Doug Rendleman, Judith Resnik, Henry Smith, Norman Spaulding, A. Benjamin Spencer, Jed Stiglitz, Maggie Wittlin, and Adam Zimmerman, as well as to the Notre Dame Remedies Roundtable, the Junior Feder- al Courts Workshop, the Civil Procedure Workshop, the Ira C. Rothgerber Jr. Conference on Constitutional Law, and the Yale-Stanford-Harvard Junior Faculty Forum. 1 2 Michigan Law Review [Vol. 118:1 them completely. This is especially important given recent decisions that make relying on class actions a tenuous response. More generally, overruling Mendoza would create a system that is fairer to governmental and nongov- ernmental litigants alike while reaffirming each branch’s role in the making of national policy. TABLE OF CONTENTS INTRODUCTION.................................................................................................. 2 I. BACKGROUND...................................................................................... 7 A. National Injunctions.................................................................... 8 B. Nonmutual Preclusion...............................................................10 II. RETELLING THE NATIONAL INJUNCTIONS HISTORY......................15 A. Early History...............................................................................15 B. Modern History ..........................................................................18 III. OVERRULING MENDOZA ...................................................................20 A. Mendoza Was Wrong................................................................21 B. Government Preclusion..............................................................29 C. Recent Developments .................................................................33 IV. CONSEQUENCES FOR NATIONAL INJUNCTIONS..............................37 A. Preclusion and National Injunctions .......................................39 B. The Future of National Injunctions .........................................42 CONCLUSION ....................................................................................................44 INTRODUCTION The national injunction is a cause célèbre. Sometimes referred to as ab- sent-party, nationwide, universal, global, or cosmic, this remedial tool has attracted attention because it applies to defendants (usually federal- government defendants) in their interactions with parties and nonparties alike.1 Federal district courts have issued national injunctions addressing 1. See, e.g., Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 HARV. L. REV. F. 49 (2017); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417 (2017); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065 (2018); Kate Huddleston, Nationwide Injunc- tions: Venue Considerations, 127 YALE L.J.F. 242 (2017); Suzette M. Malveaux, Response, Class Actions, Civil Rights, and the National Injunction, 131 HARV. L. REV. F. 56 (2017); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. REV. 615 (2017); Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095 (2017); Howard M. Wasserman, “Nationwide” Injunctions Are Really “Universal” Injunctions and They Are Never Appropriate, 22 LEWIS & CLARK L. REV. 335 (2018). The term “cosmic in- junction” was used by Justice Gorsuch in the oral argument in Trump v. Hawaii. Transcript of Oral Argument at 73, Trump v. Hawaii, 138 S. Ct. 2392 (2018) (No. 17-965) (“We have this October 2019] National Injunctions and Preclusion 3 high-profile issues including the Travel Ban, sanctuary cities, and more.2 Commentators have homed in on the national injunction as a target of criti- cism. Leading the way, Samuel Bray argued in the Harvard Law Review that the national injunction is inconsistent with the history of equity, and he called for a strict party-based limit on injunctive relief.3 Concurring in the Travel Ban case, Justice Thomas adopted Bray’s position and called for an end to national injunctions.4 Other scholars have criticized national injunc- tions, while a few have stepped up in their defense.5 Both critics and defenders of national injunctions have acknowledged the connection between these injunctions and the law of preclusion.6 In par- ticular, critics of national injunctions have argued that granting an injunc- tion against the federal government that protects nonparties would be contrary to the Supreme Court’s decision in United States v. Mendoza.7 That 1984 decision held that the federal government is exempt from the doctrine of offensive nonmutual issue preclusion8—a doctrine that permits plaintiffs to invoke a prior adjudication in a subsequent action even though they were not parties to the original suit.9 Because Mendoza says that a nonparty can- not get the preclusive benefit of a prior adjudication against the federal gov- ernment, critics argue that the same nonparty should not get the remedial benefit of a national injunction against the federal government either.10 Pro- ponents of national injunctions, meanwhile, take pains to distinguish the na- tional injunction from Mendoza’s requirement of mutuality.11 While scholars of national injunctions are right to see the connection to nonmutual preclusion, they have failed to appreciate the consequences of that interaction. A fuller evaluation of the relationship between national in- troubling rise of this nationwide injunction, cosmic injunction . .”). The solicitor general earlier characterized these orders as “absent-party injunctions.” Reply Brief for Petitioners at 30, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). 2. See supra note 1 (collecting sources that have done considerable work collecting cas- es). 3. See Bray, supra note 1, at 420. 4. Trump v. Hawaii, 138 S. Ct. at 2424–29 (Thomas, J., concurring). 5. See supra note 1 (collecting sources). 6. Scholars writing about “agency nonacquiescence” have also observed the potential connection between preclusion and federal agency behavior.
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