Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 2 of 2
Full-Text Articles in Law
Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman
Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman
Faculty Publications
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) …
Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman
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” …