Response or Comment
Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp.
From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) how universality applies to the related constitutional remedy of declaratory judgments; and 3) the distinction between court judgments and judicial opinions, where supporters of universal injunctions err in giving a judgment the prospective legal effects and consequences of an opinion. The paper suggests that the debate over the scope of injunctions is an unfortunate and unnecessary distraction, because no one takes universality literally or seriously.
Howard M. Wasserman, Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions and Precedent, 91 U. Colo. L. Rev. 999 (2020).