Toward Establishing a Pre-Extinction Definition of 'Nationwide Injunctions'

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There has been comparatively little focus on the potential costs of curtailing “nationwide injunctions” for those injured by Article II actors—marginalized communities in particular. There could be significant consequences of cutting off, or severely limiting access to, meaningful relief. I highlight what may be at stake if proceduralists and remedies scholars continue to make recommendations about “nationwide injunctions” without even knowing the costs to marginalized communities, let alone including those concerns as part of this discussion and our analyses.