NATIONAL INJUNCTIONS AND PRECLUSION.

• Author: Clopton, Zachary D.

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.

Table of Contents Introduction I. Background A. National Injunctions B. Nonmutual Preclusion II. Retelling the National Injunctions History A. Early History B. Modern History III. Overruling Mendoza A. Mendoza Was Wrong B. Government Preclusion C. Recent Developments IV. Consequences for National Injunctions A. Preclusion and National Injunctions B. The Future of National Injunctions Conclusion Introduction

The national injunction is a cause celebre. Sometimes referred to as absent-party, nationwide, universal, global, or cosmic, this remedial tool has attracted attention because it applies to defendants (usually federal-government defendants) in their interactions with parties and nonparties alike. (1) Federal district courts have issued national injunctions addressing high-profile issues including the Travel Ban, sanctuary cities, and more. (2) Commentators have homed in on the national injunction as a target of criticism. Leading the way, Samuel Bray argued in the Harvard Law Review that the national injunction is inconsistent with the history of equity, and he called for a strict party-based limit on injunctive relief. (3) Concurring in the Travel Ban case, Justice Thomas adopted Bray's position and called for an end to national injunctions. (4) Other scholars have criticized national injunctions, while a few have stepped up in their defense. (5)

Both critics and defenders of national injunctions have acknowledged the connection between these injunctions and the law of preclusion. (6) In particular, critics of national injunctions have argued that granting an injunction against the federal government that protects nonparties would be contrary to the Supreme Court's decision in United States v. Mendoza. (7) That 1984 decision held that the federal government is exempt from the doctrine of offensive nonmutual issue preclusion (8)--a doctrine that permits plaintiffs to invoke a prior adjudication in a subsequent action even though they were not parties to the original suit. (9) Because Mendoza says that a nonparty cannot get the preclusive benefit of a prior adjudication against the federal government, critics argue that the same nonparty should not get the remedial benefit of a national injunction against the federal government either. (10) Proponents of national injunctions, meanwhile, take pains to distinguish the national injunction from Mendoza' s requirement of mutuality. (11)

While scholars of national injunctions are right to see the connection to nonmutual preclusion, they have failed to appreciate the consequences of that interaction. A fuller evaluation of the relationship between national in junctions and nonmutual preclusion gives a clearer picture of the history and suggests a new--and perhaps better--way forward. (12)

First, reckoning with nonmutual preclusion problematizes the received history of national injunctions. Critics of national injunctions make much of the fact that such injunctions did not exist throughout the history of equity, only appearing in U.S. courts in the second half of the twentieth century. (13) Before that time, injunctions typically applied to parties (and their privies). Critics of national injunctions, including Justice Thomas, have suggested that this history compels a categorical rule barring national injunctions. (14)

Preclusion also applied to parties and their privies. Under the doctrine of "mutuality," nonparties were not bound by judgments, and they could not benefit from them either. But the twentieth century saw the rise of "nonmutual" preclusion, whereby nonparties could benefit from prior judgments (against former parties), even though those nonparties could not be bound by the same judgment. This shift was a policy choice ultimately endorsed by the Supreme Court. (15)

The shift to allowing nonmutual preclusion, which reached a crescendo with Parklane Hosiery Co. v. Shore in 1979, (16) means that any earlier history must be interpreted in light of the different legal environment. (17) To wit, the fact that courts were reluctant to grant injunctions benefiting nonparties prior to the rise of nonmutuality might mean only that nonparties should not be entitled to more benefits from injunctions than they receive from preclusion. (18) Appeals to this history, therefore, are not such strong reasons to oppose national injunctions today. This corrective is especially important as the Supreme Court--and its fair-weather historicism--may soon take up the issue of national injunctions. (19)

Second, recognition of the relationship between national injunctions and nonmutual preclusion suggests a different way to think about the "problem" of national injunctions. Recall that opponents of national injunctions have found support for their position in Mendoza s holding that the federal government is not subject to offensive nonmutual issue preclusion. At a minimum, a reexamination of the Mendoza opinion reminds us that it was a highly policy-driven decision, suggesting that it is policy--not some historical or structural inevitability--that should dictate how the law treats nonparties. (20)

I would go further: any inconsistency between Mendoza and national-injunction practice should be taken as an opportunity to reevaluate Mendoza, not the other way around. The policy arguments marshaled in Mendoza were weak when it was decided. There is no justifiable reason to reflexively treat federal defendants differently from other defendants for preclusion purposes, and there are other preclusion doctrines that protect the interests purportedly at stake. (21) Mendoza's policy arguments are even weaker today, when tightening rules on court access might prevent judges from granting relief sufficiently broad to constrain the federal government. (22) For these reasons, the Supreme Court or Congress should overrule Mendoza.

Even without this change, the preclusion-injunction connection suggests a way that courts might respond to concerns with national injunctions. (23) One of the often overlooked strengths of the Parklane regime--from which Mendoza excepts the federal government--is that it does not declare that nonmutual preclusion attaches in every case. Instead, it holds that courts may decline to apply that doctrine if circumstances call for it. (24) Among the relevant factors are whether the party invoking preclusion declined to participate in the first suit and whether there were prior decisions reaching inconsistent results. (25)

If courts elected to retain the authority to issue national injunctions but wanted to adopt a new limiting principle, the Parklane regime offers a suggestion: grant injunctions broad enough to protect those nonparties who would be likely candidates for nonmutual preclusion, but follow Parklane in questioning any wait-and-see plaintiffs and exercising caution when there are inconsistent prior judgments. (26) In order to ensure universal relief, plaintiffs would still have the incentive to include all affected persons in the first suit, most obviously through a class action. (27) If they don't--or can't (28)--then courts would have the flexibility to protect deserving nonparties by thinking through the well-known framework for nonmutual preclusion. This preclusion-based approach would avoid the parade of horribles offered by critics of national injunctions, and instead it would harness plaintiff and...