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More Notes on the Historians' Brief


In my previous post I highlighted three weaknesses in the new historians' brief about national injunctions. Here I want to interact with some of the more specific claims and evidence. If the previous post was more in the nature of a forest, be warned that this one is all trees.

1. The historians' brief rightly focuses on the bill of peace as the single best historical analogy for the national injunction. That is a point I conceded in Multiple Chancellors, while also arguing that the analogy was not close. In particular, the historians' brief (a) downplays the evidence in work by Steve Yeazell and Bob Bone that the parties and non-parties who could jointly benefit from a bill of peace were a preexisting cohesive social unit like a group of parishioners (neither Yeazell nor Bone is cited); (b) ignores the conceptual development of the bill of peace for municipal taxpayers out of that theory of a preexisting cohesive social unit; (c) relies on late nineteenth-century extensions of the theory to state taxpayers in some states, extensions that were long after the Founding and were controversial; and (d) fails to recognize the import of their quotation from Smith v. Swormstedt on p. 10 that emphasizes that a suit for a bill of peace might be symmetrical its effect, with the whole group winning or the whole group losing—just as with a class action, but unlike a suit for a national injunction. They give no evidence that the bill of peace at the time of the Founding bore any marked resemblance to the national injunction.

In this same section on the bill of peace, the older English precedents adduced in the historians' brief are easily distinguishable. For example, the Guernsey suit seems close to the representative suit on behalf of the entire Cherokee Nation, it was in Privy Council not Chancery, and an Order in Council was not an in personam decree (p. 317 here). The remedy in the City of London suit seems squarely focused on the parties themselves and no one else: "it was ORDERED and ADJUDGED . . . that the respondents should severally account with and pay to the appellants the said duty of eight-pence per ton for all such cheese as has been imported by the respondents respectively into the port of London" (p. 1527).

In short, as I said in Multiple Chancellors, "A bill of peace with multiple plaintiffs who represented the whole set of possible plaintiffs — some tenants representing all of the tenants, or some parishioners representing all of the parishioners — is probably the closest analogy in traditional equity to the national injunction. The analogy is not close."

2. The historians' brief points to injunctions to abate nuisances. I will concede that I have not researched the subject. But the evidence offered is not compelling. In Corning, Justice Kent emphasized the "special grievance to the plaintiffs," and that "[t]he obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs" (6 Johns. Ch. 439, 439). The U.S. Supreme Court expressly followed this principle in Alexandria Canal Co., requiring a plaintiff who sought the intervention of equity to "aver[] and prove[] some special injury" (37 U.S. at 99). This is a far cry from a national injunction in which the claimed injury is like everyone else's injury.

Moreover, I have never argued that a proper injunction cannot have an effect on non-parties. If an individual plaintiff sues a municipal water utility for failure to provide safe drinking water, and the court issues a mandatory injunction requiring the utility to make the water flowing through the pipe into the plaintiff's home safe for drinking, the utility is almost certain to have to give safe drinking water to many other homeowners. If a plaintiff were to prevail in a suit alleging that state electoral districts were a partisan gerrymander in violation of her rights as a member of a certain political party, an injunction might require the state to remedy the partisan gerrymander to protect her rights—with the side benefit of removing the gerrymander for all of her co-partisans. (This claim was rejected in Gill, however.) Similarly, in public nuisance cases, a plaintiff-protective injunction will in effect extend to others. But that is a by-product of an injunction that protects the plaintiff. And that is a crucial difference.

3. The historians' brief tries to make an a fortiori argument that if equity would enjoin non-parties, it can also protect non-parties. But this a non sequitur. Equity will enjoin non-parties to avoid circumvention of its injunction against parties—the familiar "in concert" branch of injunctions. But when equity went beyond this, as with the anti-labor injunctions the historians' brief adduces in support, its excesses have been rightly repudiated by Congress, by the courts, and by legal scholars. (The lengthy discussion of the excesses of anti-labor injunctions brings to mind Jonathan Swift's satirization of precedent.)

4. The historians' brief offers a case that it describes as a New Deal example of "the functional equivalent of nationwide injunctions in officer suits" (22), namely Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935). I was skeptical, given two things. One is the intense interest in New Deal injunctions in the Attorney General's report in the late 1930s and in Justice Jackson's book (as discussed in Multiple Chancellors)—it would be surprising for there to be unremarked-upon national injunctions. But the other point is that nothing quoted by the historians' brief actually indicates a national injunction. When plaintiffs ask for an injunction against an act's enforcement (22), that could mean enforcement against them or against anyone. (This ambiguity is discussed in Multiple Chancellors at 433-434 and n.87.) And though I have not consulted the record yet for this case, a record citation in the petitioners' brief in the Supreme Court strongly suggests the injunction was plaintiff-protective: "The final decree entered in the court below declared the Railroad Retirement Act unconstitutional and permanently enjoined petitioners from making any order or taking any other action designed to compel respondents to comply with the Act (R. 279)." Brief for Petitioners, R.R. Retirement Bd. v. The Alton R. Co., 1934 WL 32082 (U.S.).

5. The historians argue that there were other reasons, not equitable principles, that "no modern-style nationwide injunctions issued" in the early Republic (6). I discussed several of those reasons in my prior post. Another reason they give is that "very few federal laws were held unconstitutional in the 18th and 19th centuries" (6-7). That is true for the antebellum United States. There were two before the Civil War. But there were another quite a few more federal laws held unconstitutional by the U.S. Supreme Court before the end of the nineteenth century. So we're not dealing with a null set.

6. After the historians conclude their historical argument, they turn to normative conclusions that depend on one's view of equity and its continuing scope in federal law. At this point I have some sympathy with the historians' brief, and its rejection of a completely frozen, static equity. In a forthcoming piece, Equity: Notes on the American Reception, I discuss the importance of preserving equity's nimbleness and capacity for "nice adjustment." Nevertheless, the historians' brief recognizes very little if anything that is constraining about the traditional principles of equity. The position of the historians' brief, which emphasizes equity's supplying what is lacking with respect to justice in the law, and doing so in a way that can "adapt to the needs of a changing society" (23), does sound an important theme about equity. But it is incomplete without a strong sense of equity's limiting principles. The limiting principles of equity are what give legitimacy to its empowering principles. (This is discussed, for example, in my recent amicus brief about the unclean hands defense in Merck v. Gilead Sciences.) Moreover—and this point is decisive as a doctrinal matter—the position of the historians' brief about the meaning of equity under Article III is essentially identical to the position of Justice Ginsburg in Grupo Mexicano, a position that a majority of the Court emphatically rejected.

7. The brief also makes a wholly unpersuasive argument that Congress has acquiesced in the establishment of national injunctions: "Congress's decision not to limit courts' ability to issue nationwide injunctions is persuasive evidence that Congress approves of their use" (26). This genre of argument is troubled, but setting aside abstract difficulties of reading congressional silence, only in the last four years has the national injunction become nationally significant, last year the House Judiciary Committee held hearings on this very question, earlier this year concern about this point was raised in a hearing of the Senate Judiciary Committee, and just weeks ago the House Judiciary Committee reported out a bill that would eliminate national injunctions—the Injunctive Clarification Act of 2018. What an unusual way to acquiesce!

8. The brief argues that a conclusion against national injunctions on the basis of Article III would be "awesome," in the sense of so marvelous as to inspire awe, because it "would forever constrain Congress' power" (26). But that is exactly the basis the Court invoked in Frothingham and Grupo Mexicano. One might agree with those decisions, or one might oppose them. But if one agrees with them, there is nothing spectacular about following the argument to its logical conclusion: if a particular equitable remedy lies outside the judicial power, then it cannot be constitutionally given by the federal courts. This is as true of the national injunction (Frothingham) as of the Mareva injunction (Grupo Mexicano).

9. Contra the historians' brief, there is no "longstanding practice" (26) and "practice . . . long established" (28) of national injunctions. They are a relative newcomer on the federal scene. Whenever exactly the first one was given, as discussed in Multiple Chancellors, national injunctions seem to have been an accidental development. They remained controversial (this can be seen in the Fourth and Ninth Circuit cases in the 1980s through the 2000s). And only when partisan passions have run high, and Republican and Democratic state attorneys general have started deploying this weapon, have they become a widely sought and granted remedy. That development has occurred within the last four years. As recently as the first term of President Obama, when the states sued to challenge the individual mandate under the Affordable Care Act, there was no request for a national injunction. Now, by contrast, it would be shocking if a set of state attorneys general suing to invalidate a federal law did not ask for a national injunction. The entire debate about non-acquiescence in the 1980s would never have happened if there had been a longstanding practice of national injunctions.

There are reasonable arguments for national injunctions, especially an argument about compensating adjustments for executive power. That argument deserves a hearing. I think it is wrong. An excess of executive power should not be matched by an excess of judicial power. Other tools, like the major questions doctrine, would be better adjustments than the national injunction. But whatever one thinks about arguments like that one, it is not a remotely plausible argument for the national injunction that it is a "longstanding practice" that courts should hesitate to disrupt.

10. The historians' brief recognizes that "all good accounts of history are interpretive" (27). I agree. It says "[t]he problem is especially acute for the history of American equity which is understudied and underwritten" (27). Again I agree. Equity is a vast and important subject, a missing piece for analysis of many fields in public and private law, and there are enormous possibilities for scholars who work in this field.