The Sixth Edition of Laycock & Hasen, Modern American Remedies, will be published next month by Aspen publishers.
In advance of the Supreme Court’s oral argument on May 15 about the propriety of universal injunctions (in the context of the birthright citizenship EO), I am posting here, with Aspen’s permission, the relevant pages of the Laycock & Hasen casebook on the debate over universal injunctions.
The conversation about “nationwide injunctions” has been about, well, nationwide injunctions in the federal courts, often targeting presidential action. But back in 2024, Professor Sam Bray rightly notes that the same concerns have arisen with respect to statewide injunctions in his post, “Is the Bell Tolling for Universal Injunctions?“
Enter a concern about election law.
Very few (if any?) challenges to a state’s election laws arise under a class action. They are not Rule 23(b)(2) class actions on behalf of all voters (or all adversely-affected voters) in a state. Instead, they are typically brought by an organization or an association alleging organizational or associational standing. And they routinely seek to enjoin new (or longstanding) laws (or executive interpretations of law).
While “universal injunctions” have been a hot topic with respect to presidential power–think a single federal judge in California enjoining the first Trump administration on a nationwide basis; a judge in Texas enjoining the Biden administration; a judge in DC enjoining the second Trump administration; and so on–its effects on statewide disputes has been more muted.
There have been various reform proposals in Congress, but by far the most serious and substantial one comes from Senator Chuck Grassley, who recently wrote an op-ed in the Wall Street Journal previewing his new bill, which is now released. It would prevent courts from issuing injunctions that purport to “restrain the enforcement against a non-party.”
This would have a major effect on a lot of election law litigation. Many injunction cases are brought by a handful of plaintiffs against state election officials, seeking an injunction from enforcing a law they view as unconstitutional or in violation of federal law–think a voter registration law, a voter identification law, an absentee ballot rule, and so on. Injunctive relief would not be available to prevent the total enforcement of the law. Instead, it could only be an injunction for the parties in that case, not the public at large of a state.
There are alternative mechanisms around this, of course. One is a broader use of 23(b)(2) class actions. This, however, does require a bit more from plaintiffs. Plaintiffs must be “adequate” representatives of class. Class counsel, likewise, must be approved by the court and deemed adequate, a potential limitation for some attorneys. (It would probably have the incidental benefit of reducing litigation where, say, seven different groups file seven similar but different lawsuits against a single law in federal court, forcing dozens of attorneys to coordinate in essentially identical parallel matters and slowing down progress.) Mandamus might also be available, to the extent an election official is violating a ministerial obligation and can be ordered to obey.
It would work a significant shift in legal strategy in the federal courts in election law cases. It’s not clear this law will clear 60 votes in the Senate (although, of course, there will be a change in presidential administration soon enough, and perhaps the partisan valence would change…), but it’s something to watch. It’s possible even ahead of such legislation that (1) lower federal courts are more sensitive to the role of “universal” injunctions in state-wide remedies, and (2) litigants will try to experiment with these alternative forms of relief before they are forced to do so (potentially) in the future. But, as we witness a potential major reform in how “universal” injunctions work, I’ll be keeping an eye on this aspect of it.
UPDATE: It’s worth adding, as I’ve been asked, that this only affects federal courts, not state courts. State court procedures may well continue to permit these injunctions, and perhaps certain cases migrate to state court.
If you’ve wondering why you’ve been hearing less from me lately, check out this announcement to Remedies instructors from Aspen Publishing:
Aspen Publishing is pleased to announce that Modern American Remedies: Cases and Materials, Sixth Edition by esteemed authors Douglas Laycock and Rick Hasen will be available in print and digital this June for use in Fall 2025 classes….. Please request a review copy from your Aspen Sales Representative at any time and requests will be fulfilled once the book is published in June.
Modern American Remedies: Cases and Materials, Sixth Edition by Douglas Laycock and Rick Hasen, distinguished authors and the nation’s preeminent experts in the field of Remedies, provides a pragmatic approach to the subject of judicial relief by cutting across substantive fields as it explores the general principles of the law of remedies.
New to the Sixth Edition:
Professors and students will benefit from:
In April, you will receive additional information about availability from the Aspen marketing team. The Concise Edition of Modern American Remedies: Cases and Materials, Sixth Edition by Douglas Laycock and Rick Hasen will also publish this year. Please stay tuned for updates on availability.
A federal judge early Saturday temporarily restricted access by Elon Musk’s government efficiency program to the Treasury Department’s payment and data systems, saying there was a risk of “irreparable harm.”
The Trump administration’s new policy of allowing political appointees and “special government employees” access to these systems, which contain highly sensitive information such as bank details, heightens the risk of leaks and of the systems becoming more vulnerable than before to hacking, U.S. District Judge Paul A. Engelmayer said in an emergency order.
Judge Engelmayer ordered any such official who had been granted access to the systems since Jan. 20 to “destroy any and all copies of material downloaded from the Treasury Department’s records and systems.” He also restricted the Trump administration from granting access to those categories of officials.
The defendants — President Trump, Treasury Secretary Scott Bessent and the Treasury Department — should show cause on Feb. 14 before Judge Jeannette A. Vargas, who is handling the case on a permanent basis, Judge Engelmayer said.
The judge’s order is here.
A short post on binding these SGEs:
From an order related to collecting on the defamation judgment from Rudy Giuliani:
Defendant testified under oath at the Section 341 meeting of creditors in his bankruptcy case that he is owed “about two million dollars” by either or both the Trump 2020 Presidential Campaign and the Republican National Committee for his work following the 2020 presidential
election. Dkt. No. 10-9 at 61:15–16; see id. 63:1–2 (confirming that the Trump 2020 Campaign and the Republican National Committee “were supposed to split it”). According to Defendant’s sworn testimony, he submitted an invoice for payment of these fees, but was never paid. Id.
Defendant requested that the Court postpone the turnover of the Trump Campaign claims for unpaid legal fees until November 6, 2024, the day after Election Day, expressing concern that Plaintiffs might use this assignment for improper purposes, “creating [a] confusing, and inaccurate, appearance . . . thereby generating an accompanying, and unnecessary, media frenzy.” Dkt. No. 44. The profound irony manifest in Defendant’s alleged concern is not lost on the Court. By his own admission, Defendant defamed Plaintiffs by perpetuating lies about them. See D.C. Action, Dkt. No. 84. Defendant’s lies cast unwarranted doubt on the integrity of the ballot-counting in Fulton County, Georgia in the immediate wake of the 2020 Presidential Election. Plaintiffs are entitled as a matter of law to pursue any outstanding interest of the Defendant’s in satisfaction of their judgment, including contingent, future, and intangible interests, so long as they are assignable. Motorola Credit Corp. v. Uzan, 739 F. Supp. 2d 636, 641 (S.D.N.Y. 2010) (citing ABKCO Indus. v. Apple Films, Inc., 350 N.E.2d 899, 901–02 (1976)). Under New York statute, those interests expressly include a cause of action owned by the Defendant against a third party. See N.Y. C.P.L.R. 5201(a).
I have written this draft article, forthcoming in the Review of Litigation festschrift for Doug Laycock. Here is the abstract:
This article is written for a festschrift honoring the scholarship of Professor Douglas Laycock. In his most important work in the field of Remedies, The Death of the Irreparable Injury Rule, Laycock made and supported a strong positive claim about the “irreparable injury” rule. He argued that the rule purportedly governing a court’s choice between granting an injunction at the time of final judgment and awarding damages to a wronged plaintiff did no actual work. Laycock also made a compelling normative case for jettisoning the rule.
More than three decades later, the irreparable injury rule is stubbornly undead. Like a cinematic zombie that is not alive but can still do harm, the rule continues to do no work but courts go through the motions of asking about irreparable injury when deciding whether or not to grant a permanent injunction at the end of a case. Such reasoning creates confusion in the law and perpetuates a fuzziness of reasoning that Laycock rightly finds intolerable. Yet no court has formally abandoned the rule. Indeed, the United States Supreme Court in the 2006 eBay case not only endorsed the irreparable injury rule’s application to permanent injunctions; it did so in a confusing and oddly duplicative way, having bad repercussions throughout the federal judiciary.
Part I briefly describes Laycock’s argument about the irreparable injury rule and its reception in the courts. Part II considers and critiques the key arguments for retaining the irreparable injury rule, describing the dangers of unbridled judicial discretion and fuzzy thinking. Part III explains the approach of the Restatement (Third) of Torts: Remedies and its potential to make the irreparable injury rule less relevant.
You can find the 2024 Teachers’ Update to Laycock & Hasen, Modern American Remedies (5th edition) at this link.
You can find the Teachers’ Update to the Concise 5th Edition at this link.
Highlights:
There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:
Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.
This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.
I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.
Remedies scholars Doug Laycock, Doug Rendleman, Caprice Roberts and I have filed this amicus brief in the Fifth Circuit, which is considering en banc Louisiana’s challenge to the consent decree in the Chisom case. It was written by a great team at O’Melveny featuring Kevin Kraft, Daniel Mateer, Stuart Sarnoff, and David Kelley.
From the Introduction:
The district court did not abuse its discretion in refusing to terminate—but offering to consider modification of—the Consent Decree requiring the State of Louisiana (the “State”) to continue to comply with Section 2 of the Voting Rights Act (“Section 2”) in an Orleans Parish-based district elections for the Louisiana Supreme Court. By its plain language, the Consent Decree is intended to apply prospectively to “ensure” the State’s continued compliance with Section 2 in the Orleans Parish-based district, ROA.98–99, until the State has made a sufficient evidentiary showing that relief from the terms of the Decree is warranted under Rule 60(b)(5).
As the State has failed to offer any evidence of future compliance with Section 2, and given recent judicial findings that it continues to violate Section 2 as to other elections, it has not met its burden, rendering its present motion to terminate the Consent Decree inadequate as a matter of law.
The Supreme Court has required that courts take federalism concerns seriously when a state asks to modify or terminate a consent decree imposed by a federal court. But invoking the term “federalism” does not allow the state to evade having to make its required evidentiary showing. In this case, the district court properly indicated it would consider modifying the Consent Decree in a flexible way in light of federalism principles if and when the State comes forward with actual evidence justifying modification. That day, however, has not yet arrived.
A jury just found Donald Trump liable for over $83 million in the E. Jean Carroll defamation case. Of that, about $65 million are punitive damages.
Are the punitive damages likely to be sustained if challenged (as they will be) judicially?
To begin with, there’s the question whether the compensatory damages will stand. If they are found to be excessive, then the punitive damages would likely be gone as well, and a new trial on both damages held. I don’t have an opinion on the excessiveness of the compensatory damages because I did not pay close enough attention to the evidence at this latest trial.
But the punitive damages question presents different issues. Apart from any state court review, the U.S. Supreme Court has held that punitive damages sometimes are unconstitutional under the due process clause and require independent review (one of the leading cases here is State Farm v. Campbell).
The purpose of punitive damages is to punish and deter, and wealthier defendants would likely need a higher punitive damage award to be deterred. Also, Trump appears to be a recidivist, continuing to defame Carroll, which would justify a higher award.
That said, the Supreme Court has said that the wealth of the defendant cannot justify an otherwise unconstitutional award, and that when substantial compensatory damages are awarded (as they were in this case), then a punitive award should be in a relatively low ratio to compensatory damages (like a 1:1 ratio, meaning damages in the $18 million range).
It’s fairly common for a jury to award very high punitive damages to a rich defendant who has engaged in egregious conduct, only to see the punitive award lowered either by the trial court or on appeal.
We’ll see what happens, but the full $65 million in punitive damages is uncertain to stand.
On the heels of the unusual court order for a new Democratic primary in the Bridgeport mayoral race, the Connecticut Mirror has this fascinating in-depth look at how the abstentee ballot war, at the heart of the corruption scandal, played out on the ground. Methodology behind the extremely detailed investigation is here.
Hot off the presses with a 2024 cover date:
Examples & Explanations for Remedies, Fifth Edition
The Fifth Edition of Examples& Explanations: Remedies provides a bridge between law school and the real world.
A favorite classroom prep tool of successful students that is often recommended by professors, the Examples& Explanations (E&E) series provides an alternative perspective to help you understand your casebook and in-class lectures. Each E&E offers hypothetical questions complemented by detailed explanations that allow you to test your knowledge of the topics in your courses and compare your own analysis.
New to the Fifth Edition:
Professors and students will benefit from:
You and find the 2023 Teachers’ Update to Laycock & Hasen, Modern American Remedies (5th edition) at this link.
You can find the Teachers’ Update to the Concise 5th Edition at this link.
Both are up to date through the end of the Supreme Court’s term on June 30, 2023.
I participated in this panel and you can listen here. The sound quality is not good. Here’s the description from the catalogue (Doug Laycock could not make it but was honored with a lifetime achievement award–you can hear that at the end of the recording):
SECTION ON REMEDIES, CO-SPONSORED BY INTELLECTUAL PROPERTY AND TORTS
AND COMPENSATION SYSTEMS
Solana, First Floor, South Tower, Marriott Marquis San Diego Marina
Remedies in the Restatements
Moderator: Zahr Said, University of Washington School of Law
Speakers: Shyamkrishna Balganesh, Columbia Law School
Richard L. Hasen, University of California, Los Angeles School of Law
Douglas Laycock, University of Virginia School of Law
Jean C. Love, Santa Clara University School of Law
Pamela Samuelson, University of California, Berkeley School of Law
This session will discuss questions relating to the remedies portion of current Restatement projects on torts
and copyright, as well as more general questions about opportunities and challenges generated by intersections between the field of remedies and the specific subject areas of such Restatements.
Business meeting at program conclusion.