Law Commons^™

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

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

Faculty Publications

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 …

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Faculty Publications

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …

Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells

Faculty Publications

Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's …

The Inadequate Remedy At Law Prerequisite For An Injunction, Doug R. Rendleman

Faculty Publications

No abstract provided.

Compensatory Contempt: Plaintiff's Remedy When A Defendant Violates An Injunction, Doug R. Rendleman

Faculty Publications

No abstract provided.

Free Press-Fair Trial: Restrictive Orders After Nebraska Press, Doug R. Rendleman

Faculty Publications

No abstract provided.

Chapters Of The Civil Jury, Doug R. Rendleman

Faculty Publications

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Prospective Remedies In Constitutional Adjudication, Doug R. Rendleman

Faculty Publications

No abstract provided.

Beyond Contempt: Obligors To Injunctions, Doug R. Rendleman

Faculty Publications

No abstract provided.

Toward Due Process In Injunction Procedure, Doug R. Rendleman

Faculty Publications

No abstract provided.