Injunctions in Sovereign Debt Litigation

Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone to dramatic spillover effects precisely because they cannot reach their primary target, the sovereign government. Recent decisions in NML v. Argentina illustrate the way in which a court’s inability to compel compliance by the sovereign may lead it to impose dramatic and potentially unwarranted costs on third parties, turning traditional equitable analysis on its head

Injunction Junction: Remembering the Proper Function and Form of Equitable Relief in Trademark Law

Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders

Open Source Innovation, Patent Injunctions, and the Public Interest

This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with some recommendations for reform

The availability of declaratory relief

In spite of the unequivocal decision of the ECJ in The Front Comor [2009] 1 Lloyd’s Rep 413 that anti-suit injunctions are incompatible with the Regulation and fundamentally, the principle of mutual trust, the Court of Appeal in National Navigation Co v Endesa [2009] EWCA Civ has controversially opined that declarations of validity may be used as grounds for non-recognition of a foreign judgment where the declaration is given prior to the foreign court’s decision. This reading however is unlikely to be favourable in Europe, as declarations may now be seen as having the same adverse effect as anti-suit injunctions

What is the proper scope of the power of an arbitral tribunal to issue an order restraining a party from pursuit of parallel proceedings in a national court?

The proper scope of tribunal-ordered anti-suit injunctions to combat parallel proceedings has been subject to much debate. Some have argued that arbitrators’ use of the injunctions requires restriction, while others argue that existing conditions and limitations are sufficient. This paper provides an outline of the sources from which arbitrators are empowered to order anti-suit injunctions, the development of the injunctions through cases, and the recent European Court of Justice decision in Gazprom. It briefly touches on court-ordered anti-suit injunctions, and the implications of the Brussels I Regulation for tribunal-ordered anti-suit injunctions. It concludes that the scope of anti-suit injunctions does not require further restriction. Reasons for this conclusion include the 2006 amendments to the UNCITRAL Model Law; commercial reasons; the need to prevent conflicting decisions; and the nature of arbitration as arising from private commercial arrangements between parties

The Unconstitutionality, Ineffectiveness, and Alternatives of Gang Injunctions

Gang violence across America puts in jeopardy the peace and tranquility of neighborhoods. Cities are challenged to keep their communities safe from gang violence. One common way in which cities attempt to combat violent gang activity is by using gang injunctions. Gang injunctions are court orders that prohibit gang members from conducting already-illegal activities such as vandalism, loitering, and use or possession of illegal drugs or weapons within a defined area. These injunctions, however, also prohibit otherwise legal activity such as associating with others within the restricted area of the injunction, using words or hand gestures, and wearing certain clothing. The increased use of gang injunctions to combat violent gang activity is a controversial tactic. The use of gang injunctions raises many constitutional concerns, including violations of the 1st, 4th, 5th, 9th, and 14th amendments. Even if interpreted as constitutional, gang injunctions have been proven ineffective in preventing and deterring gang members from engaging in violent gang activity. Critics believe that gang injunctions create gang cohesiveness, animosity towards the police, and relocate the violent crime created by gang members by pushing gang members into adjacent neighborhoods just outside the injunction\u27s target area. Finally, there are several proven-effective alternatives to gang injunctions. This Note explores the unconstitutionality of gang injunctions, reveals the ineffectiveness of gang injunctions, and investigates more effective and efficient alternatives

Disaggregating Nationwide Injunctions

Nationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns. This Article presents a taxonomy of the five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based on the entities whose rights they seek to enforce and whether the case is a class action. Based on these considerations, the proposed taxonomy distinguishes among “nationwide plaintiff-oriented injunctions,” “nationwide plaintiff-class injunctions,” “nationwide associational injunctions,” “nationwide defendant-oriented injunctions,” and “nationwide private enforcement injunctions.” After presenting this new framework for determining the validity of nationwide injunctions, this Article goes on to demonstrate that stare decisis, rather than nationwide defendant-oriented injunctions or even class certification under Federal Rule of Civil Procedure Rule 23(b)(2), is the most appropriate means of protecting the rights of third parties who are not personally involved in litigation. Affording district- or circuit-wide stare decisis effect to district court rulings allows members of the public to benefit from them and reduces the need for wasteful relitigation. At the same time, this approach recognizes the limited authority of lower court judges in our decentralized, hierarchical judiciary; mitigates the effects of extreme forum shopping; and ensures some degree of percolation of important constitutional issues

What\u27s Wrong with This Picture?: Rule Interpleader, the Anti-Injunction Act, In Personam Jurisdiction, and M.C. Escher

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the Supreme Court\u27s narrow interpretation the Act\u27s provisions and discussing the federalism values that the Act and the Court seek to serve. Finally, Part II reviews interpleader\u27s status as an in personam action. Even in setting out the problem, one can conceive of at least three potential solutions. One might simply acknowledge that injunctions are not available in rule interpleader actions. Alternatively, one might reverse the Supreme Court\u27s view of interpleader as an in personam action, recharacterizing it as in rem to get around the strictures of the Anti-Injunction Act. Finally, one might leave interpleader itself untouched but reinterpret the jurisdiction exception to the Anti-Injunction Act. Unfortunately, each of these solutions comes with an unpalatable price. Part III discusses the price of each solution. Part IV considers whether, despite the costs of each solution, Congress or the Court should adopt any of them or whether there is some other alternative. In fact, there are two alternatives. Recharacterizing interpleader as an in rem proceeding to fit it within the Anti-Injunction Act is possible, though not the best answer because it would require extended judicial effort to refine the courts\u27 jurisdictional treatment of in rem proceedings generally. This approach is anything but simple and easy to implement. The more elegant option is for Congress explicitly to authorize injunctions against state proceedings in rule interpleader actions, and Part IV offers language that does so

Aging Injunctions and the Legacy of Institutional Reform Litigation

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court\u27s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal shifts have made it more difficult for plaintiffs to win new injunctions in institutional reform cases. Scholars have been tracing the decline of institutional reform litigation for years, but little attention has been paid to the fate of the countless injunctions that remain in place. This Article sheds light on this essential but overlooked aspect of institutional reform litigation. First, it identifies three ways that institutional reform injunctions are dying off-by dissolution, by design, and by disuse-and the implications of each form of injunction death. Then, it argues that scholars, judges, and litigants must rethink their approach to the end stages of institutional reform injunctions offering strategies to ensure that current and future injunctions are not terminated prematurely. This Article thus adds an important new perspective to the debate over the legacy of institutional reform litigatio