Earlier this year, I wrote about how potential reform over the “universal” or
“nationwide” injunction might affect a set of election law cases. The Supreme Court’s recent oral argument in Trump v. CASA has brought the debate about nationwide injunctions (and related concerns about forum shopping) in the federal courts to the fore.

Sam Issacharoff and I have co-authored a piece in Just Security, “Relocating Nationwide Injunctions.” Here’s how it opens:

Last month’s argument in Trump v. CASA provided the Supreme Court with its latest confrontation with nationwide injunctions. The underlying case challenges an executive order aimed at eliminating birthright citizenship. But the issue before the Court concerns whether a single federal district court may stop the enforcement of an executive order on a nationwide basis while litigation is pending. Nationwide injunctions raise many difficult questions, including the potential mismatch between the litigants before a court and the scope of relief sought. But they also heighten concerns about forum shopping to find a single sympathetic judge. We believe that the concern about plaintiffs seeking an outlier court can be addressed relatively simply.

What if there were some national judicial body with the authority to look at any case seeking a nationwide injunction and decide where a suitable forum might lie? We argue that such a body already exists, although it is thought of more as a home for mass torts and other forms of complex litigation, rather than as reconciling competing claims to a proper forum for nationwide injunctive cases against the executive—the Judicial Panel on Multidistrict Litigation.