National Injunctions and Preclusion
Zachary D. Clopton*
Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit from a prior finding against a party from an earlier case.
Critics are right to identify the connection between national injunctions and nonmutual preclusion. Both of these doctrines describe when judgments can benefit nonparties. But critics are wrong to see Mendoza as an argument against national injunctions. For one thing, the rise of nonmutual preclusion that prompted Mendoza undercuts crucial arguments against national injunctions by offering an alternative explanation for the absence of analogous injunctions in the history of equity. For another, Mendoza was not preordained; instead, it was a highly policy-driven decision. And Mendoza’s policy arguments were dubious when it was decided and even more dubious today. Scrutinizing these arguments should make us less comfortable in extending Mendoza to a new context—as the Supreme Court may be poised to do.
Indeed, this Article goes one step further. The Supreme Court or Congress should take advantage of the attention on nonparty relief to reconsider, and overrule, Mendoza. Federal-government litigants do not deserve special treatment with respect to preclusion in every case, and the existing rules of preclusion adequately protect the interests purportedly at stake in Mendoza. Moreover, rejecting Mendoza has feedback effects for the national-injunctions debate. Overruling Mendoza would not only reduce the need for national injunctions (because preclusion could do some of the work) but also provide a framework for limiting national injunctions without eliminating them completely. This is especially important given recent decisions that make relying on class actions a tenuous response. More generally, overruling Mendoza would create a system that is fairer to governmental and nongovernmental litigants alike while reaffirming each branch’s role in the making of national policy.
*Professor of Law, Northwestern Pritzker School of Law. Thank you to William Baude, Samuel Bray, Maureen Carroll, Ned Cavanagh, Kevin Clermont, Michael Dorf, Amanda Frost, John Golden, Tara Leigh Grove, Christine Jolls, Jill Lens, Marin Levy, Suzette Malveaux, David Marcus, Michael Morley, Colleen Murphy, James Pfander, Doug Rendleman, Judith Resnik, Henry Smith, Norman Spaulding, A. Benjamin Spencer, Jed Stiglitz, Maggie Wittlin, and Adam Zimmerman, as well as to the Notre Dame Remedies Roundtable, the Junior Federal Courts Workshop, the Civil Procedure Workshop, the Ira C. Rothgerber Jr. Conference on Constitutional Law, and the Yale-Stanford-Harvard Junior Faculty Forum.