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“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman May 2018

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Howard M Wasserman

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all ...


Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman Feb 2016

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Howard M Wasserman

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to ...


The Irrepressible Myth Of Klein, Howard M. Wasserman Feb 2016

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings ...


Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman Feb 2016

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Prescriptive Jurisdiction, Adjudicative Jurisdiction, And The Ministerial Exemption, Howard M. Wasserman Feb 2016

Prescriptive Jurisdiction, Adjudicative Jurisdiction, And The Ministerial Exemption, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman Feb 2016

A Jurisdictional Perspective On New York Times V. Sullivan, Howard M. Wasserman

Howard M Wasserman

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil rights leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's ...


Holmes And Brennan, Howard M. Wasserman Dec 2015

Holmes And Brennan, Howard M. Wasserman

Howard M Wasserman

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas ...


Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman Feb 2015

Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


What’S Good For General Motors: Corporate Speech And The Theory Of Free Expression, Howard M. Wasserman Feb 2015

What’S Good For General Motors: Corporate Speech And The Theory Of Free Expression, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman Feb 2015

Iqbal, Procedural Mismatches, And Civil Rights Litigation, Howard M. Wasserman

Howard M Wasserman

Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a "mismatch " between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S. C. §S 1983 and Bivens, a ...


Cheers, Profanity, And Free Speech, Howard M. Wasserman Feb 2015

Cheers, Profanity, And Free Speech, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman Feb 2015

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Howard M Wasserman

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection ...


Bartnicki As Lochner: Some Thoughts On First Amendment Lochnerism, Howard M. Wasserman Feb 2015

Bartnicki As Lochner: Some Thoughts On First Amendment Lochnerism, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman Feb 2015

Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman

Howard M Wasserman

In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort ...


Second-Best Solution: The First Amendment, Broadcast Indecency, And The V-Chip [Comments], Howard M. Wasserman Feb 2015

Second-Best Solution: The First Amendment, Broadcast Indecency, And The V-Chip [Comments], Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Reappropriating Judicial Activism, Howard M. Wasserman Feb 2015

Reappropriating Judicial Activism, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Structural Principles And Presidential Succession, Howard M. Wasserman Feb 2015

Structural Principles And Presidential Succession, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Symbolic Counter-Speech, Howard M. Wasserman Feb 2015

Symbolic Counter-Speech, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


The Irrepressible Myth Of Klein, Howard M. Wasserman Feb 2010

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings ...