Who, What, and Where: A Case for a Multifactor Balancing Test as a Solution to Abuse of Nationwide Injunctions

Matthew Erickson | October 1, 2018

There has been a significant increase in the use of a controversial, dramatic remedy known as the nationwide injunction. This development is worrisome because it risks substantial harm to the judiciary by encouraging forum shopping, freezing the “percolation” of legal issues among the circuits, and undermining the comity between the federal courts. But a complete ban on nationwide injunctions is both impractical and undesirable. This Note proposes a solution to limit the abuse of nationwide injunctions without banning them outright. When fashioning remedies, courts should simplify the sheer number of relevant factors by focusing on three main meta-factors, or categories, that should be used as a balancing test: the identity of the parties before the court, the nature of the claim being litigated, and the effect the remedy would have on the courts where the claim is being litigated—“who,” “what,” and “where,” respectively. The balancing of these three meta-factors will enable district courts to weigh more clearly whether nationwide injunctions are proper and will also give appellate courts a framework for reviewing whether district courts have abused their discretion by issuing this type of relief.