I appreciate the concerns about forum/judge shopping and incompatible holdings -- but these are issues that could be addressed with procedural safeguards.
But absent universal injunctions the American rule and the post-colonial turn away from monetary rewards for constitutional violations [1] essentially denies large swaths of the public any mechanism to vindicate their constitutional rights. Lawyers need to be paid more than similarly educated careers (it's grueling) and that means any constitutional violation that doesn't steal a house, maim/kill a family member or put you in prison isn't feasible for the average person to contest even when the precedent is clear.
I'm deeply afraid that limits on universal injunctions are going to become the new qualified immunity. Sure, maybe it's totally clear that it's unconstitutional for the cops to ticket anyone engaged in 'hate speech' for vagrancy but without that universal injunction everyone would need to challenge it seperately so they'll just pay the fine. Just like with qualified immunity judges will be able to play with the rules to avoid cracking down on groups they like.
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1: I'd love to resurrect the colonial practices of rewarding substantial damages for a constitutional violation -- no excuses accepted no matter how reasonable your behavior was, e.g., acting on presidential orders. But I fear many critics of universal injunctions would hate this practice.
Thank you David -- very interesting. I am a bit confused about how a ban on universal injunctions would work. Consider the mifeprestone case: Who would have standing to bring such a suit? And, where would it be heard? What sort of relief could be offered to the plaintiffs? Or, consider various suits challenging state anti-abortion laws: Who would be the defendant? If the injunction forbids the state Attorney General from enforcing such a law, then, when a new person assumes that position, are they NOT enjoined, because the injunction applies only to the specific defendant?
I believe that universal injunctions are a pox on our legal system. However, I would like some clarity about how the law would work after they are forbidden.
The McConnell bill would allow district court judges to issue injunctions only over parties to the case or “similarly situated individuals in the judicial district in which the court has jurisdiction.” So you could have district-wide but not nationwide injunctions. Circuits would be allowed to reach different conclusions on the constitutionality of a law or regulation, allowing for the “percolation” that’s currently preempted by universal injunctions. We’d see the practical consequences of allowing a law or regulation to go into effect (which we currently don’t see because the law or reg gets universally enjoined before it takes effect).
Thanks! I owe much of my interest in (and knowledge of) this topic to Advisory Opinions, where Sarah Isgur and David French were talking about universal injunctions much earlier than other commentators! I heard about it on one episode and then went down a rabbit hole of reading.
David thank you once again for a very informative article. I don’t have an opinion regarding the universal injunctions. I believe that in light of the Cass report which points out that there are no robust or longitudinal studies that demonstrate any benefits of gender medicine in children and adolescence coupled with the issue of minors not being able to realistically provide informed consent these treatments should not be allowed for minors.
On another topic how will the NY courts opinion regarding Harvey Weinstein impact the Trump trial. It is my understanding that the prosecution was allowed to read the transcripts of the grab their p##### tape to the jury. It seem to me that was done to dirty up the defendant and seems to have no relevance to the charges such as they are.
Also, I think the strong political/government reliance interests shouldn't be underestimated here. Effectively, the court has occupied the role in American life of guarding the people against fundamentally unfair or rights violating action.
Maybe that was inappropriate, but absent the courts filling this role we likely would have developed some other institution to do the same. This, after all, is how we got courts of equity in the first place (originally petitions to the king and their ministers). To change course at this point seems deeply dangerous.
I appreciate the concerns about forum/judge shopping and incompatible holdings -- but these are issues that could be addressed with procedural safeguards.
But absent universal injunctions the American rule and the post-colonial turn away from monetary rewards for constitutional violations [1] essentially denies large swaths of the public any mechanism to vindicate their constitutional rights. Lawyers need to be paid more than similarly educated careers (it's grueling) and that means any constitutional violation that doesn't steal a house, maim/kill a family member or put you in prison isn't feasible for the average person to contest even when the precedent is clear.
I'm deeply afraid that limits on universal injunctions are going to become the new qualified immunity. Sure, maybe it's totally clear that it's unconstitutional for the cops to ticket anyone engaged in 'hate speech' for vagrancy but without that universal injunction everyone would need to challenge it seperately so they'll just pay the fine. Just like with qualified immunity judges will be able to play with the rules to avoid cracking down on groups they like.
--
1: I'd love to resurrect the colonial practices of rewarding substantial damages for a constitutional violation -- no excuses accepted no matter how reasonable your behavior was, e.g., acting on presidential orders. But I fear many critics of universal injunctions would hate this practice.
Thank you David -- very interesting. I am a bit confused about how a ban on universal injunctions would work. Consider the mifeprestone case: Who would have standing to bring such a suit? And, where would it be heard? What sort of relief could be offered to the plaintiffs? Or, consider various suits challenging state anti-abortion laws: Who would be the defendant? If the injunction forbids the state Attorney General from enforcing such a law, then, when a new person assumes that position, are they NOT enjoined, because the injunction applies only to the specific defendant?
I believe that universal injunctions are a pox on our legal system. However, I would like some clarity about how the law would work after they are forbidden.
The McConnell bill would allow district court judges to issue injunctions only over parties to the case or “similarly situated individuals in the judicial district in which the court has jurisdiction.” So you could have district-wide but not nationwide injunctions. Circuits would be allowed to reach different conclusions on the constitutionality of a law or regulation, allowing for the “percolation” that’s currently preempted by universal injunctions. We’d see the practical consequences of allowing a law or regulation to go into effect (which we currently don’t see because the law or reg gets universally enjoined before it takes effect).
Solid explainer, Mr. Lat. I know you started with a deep background, but this shows lots of work and polish. Good work.
Thanks! I owe much of my interest in (and knowledge of) this topic to Advisory Opinions, where Sarah Isgur and David French were talking about universal injunctions much earlier than other commentators! I heard about it on one episode and then went down a rabbit hole of reading.
David thank you once again for a very informative article. I don’t have an opinion regarding the universal injunctions. I believe that in light of the Cass report which points out that there are no robust or longitudinal studies that demonstrate any benefits of gender medicine in children and adolescence coupled with the issue of minors not being able to realistically provide informed consent these treatments should not be allowed for minors.
On another topic how will the NY courts opinion regarding Harvey Weinstein impact the Trump trial. It is my understanding that the prosecution was allowed to read the transcripts of the grab their p##### tape to the jury. It seem to me that was done to dirty up the defendant and seems to have no relevance to the charges such as they are.
Also, I think the strong political/government reliance interests shouldn't be underestimated here. Effectively, the court has occupied the role in American life of guarding the people against fundamentally unfair or rights violating action.
Maybe that was inappropriate, but absent the courts filling this role we likely would have developed some other institution to do the same. This, after all, is how we got courts of equity in the first place (originally petitions to the king and their ministers). To change course at this point seems deeply dangerous.