Professor Samuel Bray, in Multiple Chancellors: Reforming the National Injunction, tackles one of the most salient issues of our modern legal system: the propriety of the national injunction. Over the last few decades, federal district court judges have increasingly issued injunctions that halt important policies and executive orders promulgated under both Republican and Democrat administrations. Bray’s article concludes that, under Article III of the Constitution and traditional principles of equity, federal district court judges may apply their rulings to the parties before them but not to nonparties.
Consequently, Bray proposes a course correction, a rule that prohibits federal judges from issuing injunctions that enjoin defendant’s conduct with respect to nonparties. He concludes “[n]o matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction.” Period.
Bray’s article makes the important contribution of identifying the national injunction as a recent phenomenon in equity history and proposes a rule that will provoke an important conversation about the power of the courts vis-à-vis the executive branch. However, as attractive as a bright-line rule against national injunctions might be, I can’t agree with this solution. It is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society, and our democracy. Moreover, Article III and traditional equitable principles give judges considerable discretion that enables them to craft remedies that touch nonparties. Although national injunctions are imperfect and crude forms of justice, they are better than no justice at all — which for some actions, may be the alternative.
Suzette M. Malvaux, Class Actions, Civil Rights, and the National Injunction, 131 HARV. L. REV. F. 56 (2017).