George Rutherglen

Universal Injunctions: Why Not Follow the Rule?

PUBLISHER
Virginia Law Review Online
DATE
2021-11-30
 

Abstract

Over the last several years, a debate has flared up over universal injunctions—court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issued. Critics on both the left and the right have criticized these injunctions as they to shut down the programs of administrations which they support. All the while, a solution to these controversies remains hiding in plain sight in Federal Rule of Civil Procedure 23. Subdivision (b)(2) of the rule allows class actions when “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Why don’t these provisions solve the problem of universal injunctions? The Essay argues that it largely does. If a class can be certified, then the injunction can reach beyond the named parties. If it cannot, then the injunction must be limited to the named parties. The scholarly commentary has recognized the relevance of Rule 23(b)(2), but then inexplicably pushed it to the side. Yet the rule frames the constitutional and remedial questions in the appropriate terms, yielding this simple conclusion: universal injunctions must be preceded by certification of similarly broad class. There is no need to address the power of courts to issue this remedy under the Constitution or as a matter of equitable remedies if this prerequisite is not met.

Citation

George Rutherglen, Universal Injunctions: Why Not Follow the Rule?, 107 Virginia Law Review Online 300-316 (2021).
 

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