The Rise of the Nationwide Injunction and What It Means for the Courts

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David Levi: Welcome to Reasonably Speaking, a podcast of The American Law Institute. I'm David Levi, president of the Institute. Today we're going to talk about a timely legal topic, the nationwide or universal injunction. By nationwide or universal injunction, we refer to an injunction that grants relief to persons who are similarly situated to the plaintiffs, but who are not actually before the court as parties, or as members of a class action. Often these injunctions are granted as against the federal government.

The topic is controversial. Presidents and their Attorneys General don't like nationwide injunctions that require them to pause the effect of executive orders and other actions that apply across the nation, and the number of nationwide injunctions has taken off under the Biden and Trump administrations. In the ALI's ongoing Restatement of the Law Third, Torts: Remedies, our esteemed Reporters say, now I'm quoting, "Whether a court has jurisdiction to grant an injunction explicitly protecting parties not before the court, and if it does, whether and under what circumstances it should exercise that power, is the most hotly debated issue in the law of remedies and federal courts."

We will not be hotly debating today, but we will try to explore this topic from different points of view, asking what the costs and benefits are of the nationwide injunction. Whether it is legal, constitutional, does it fit well or poorly within our legal traditions, and whether there are fixes and how the nationwide injunction also affects the judicial and executive branches.

And we are so fortunate today as to have an extraordinarily distinguished panel to address these questions, and some others. William Baude is the Harry Kalven Jr. Professor of Law and the Faculty Director of the Constitutional Law Institute at the University of Chicago Law School.

Samuel Bray is the John N. Matthews Professor of Law at Notre Dame, and I think it is fair to say, the leading authority on the nationwide injunction.

Gregg Costa is the Global Co-chair of Gibson Dunn's Trial Practice Group. Gregg became a U.S. District Judge for the Southern District of Texas in 2012, and then just a few years later was appointed to the U.S. Court of Appeals for the Fifth Circuit, where he served until August of 2022.

Finally, Judge Robin Rosenberg has served on the U.S. District Court, Southern District of Florida, since 2014. She is currently the chair of the Advisory Committee on Civil Rules for the federal courts, and she will soon take up the position of Director of the Federal Judicial Center, the research and education arm of the judicial branch.

Congratulations, Robin, by the way.

Robin Rosenberg: Thank you so much.

David Levi: Okay, so Sam, you are the guy when it comes to national conjunction. So you've been writing about this topic for many years now, and I would say to your great credit, your positions have not changed depending on the president or party in power. Because this is the kind of topic where, sometimes, we notice that people's points of view change depending on who the president is.

So let's get going with Universal Injunctions 101. What is this thing, and what is all the fuss?

Samuel Bray: Oh, thank you for the chance to be here. It's a real honor.

So these are injunctions, which mean, they're a remedy that a court gives to order somebody to do something or not do something. And they go by lots of different names. You mentioned nationwide injunctions, universal injunctions, also national or cosmic injunctions, is a phrase that Justice Gorsuch used. But the key thing that makes them distinct is that they are controlling how the defendant acts toward everyone, including people who are not in the case. It's not about geographic breadth. So it's not that it applies everywhere in the country, or the world. It's about going beyond the case.

And what the fuss is all about here, is that over the last 10 years since these injunctions really exploded, late in the Obama administration, they've been able to stymie most of what each of these administrations has wanted to do. So the end of the Biden administration, the first Trump administration, the Biden administration, and now the second Trump administration. And so, that's a big deal. It's changed our politics, it's changed how the courts relate to the executive, and so it's one of the largest stories about the last 10 years in the American courts.

David Levi: It's only a problem, I guess, if you think that the presidents have been stymied in doing things that presidents ought to be doing. If the presidents ought not to be doing these things, then maybe it's, what do they say? It's not a bug, it's a feature.

Samuel Bray: Right.

David Levi: Why don't you sort of unpack this a little bit. If you made a list of what the possible problems are with the nationwide injunction, what would that be?

Samuel Bray: I think the problems fall into three different buckets. The first bucket is the decision-making bucket, and this is the effect that having a universal injunction has on the judicial system, and how it operates. So it tends to undercut percolation. So instead of having different Courts of Appeals decide a question, and then the Supreme Court resolves the dispute, you tend to not get percolation. Or where there is percolation, you get less. And it accelerates everything. And the universal injunction is a huge magnet for forum shopping. So what you wind up getting is, universal injunctions, they're almost all preliminary injunctions with very rapid appeals to the Supreme Court, and that's just not how the courts do their best work. So that's the first bucket of problems, the epistemic problems, or decision-making problems.

The second bucket of problems has to do with how these are a bad fit with lots of legal doctrines, they're a kind of end run around class actions, and they're an end run around issue preclusion rules against the federal government. They're an end run around the presidential effect we usually give to opinions of district courts. District court decisions are very important, but they're not presidential for other federal courts, and even for the same district judge. So the second bucket of problems is doctrinal fit.

And then the third bucket of problems, and these to me are actually the most important, is the way that they're inconsistent with the traditional judicial role. You can think about that in Article III terms, you can think about that in history of equity terms, you can think about it in what we just expect as a common law matter from our courts. But the core locus of judicial authority and legitimacy is that courts are deciding cases. And the case concept is, to me, just critical to both the strength of the courts and the weakness of the courts. And universal injunctions have an uneasy fit with the idea of a case.

So for me, those are the three buckets of problems. Decision-making, doctrine, and traditional judicial role.

David Levi: Well, let's just stay with that for a minute, because those who are listening may not have full command of all these topics which are really central here.

When you talk about percolation, you're thinking in terms of the Supreme does its best work, and is most benefited, when there are multiple cases that come from around the country through different district judges, through different Courts of Appeals. And that way the Court, when it finally decides to take a case, it will have the benefit of these different opinions. And what is maybe equally important, it will have a sense of how these cases are coming to court, and what the different variations are. So we call that percolation, and you don't have that in a case where this comes as an emergency matter to a district judge, and then goes almost directly sometimes to the Supreme Court, again on the emergency docket or what we'll call as the shadow docket, and we'll talk a little bit more about that, but it's all very hurried up, and you may literally just have one district judge who's looked at this, before the Supreme Court gets to weigh in. Is that fair? I mean, sometimes it'll go through a Court of Appeals, but sometimes the Court will take it directly.

Samuel Bray: I think that's exactly right. The courts, if you're thinking of a cooking analogy, the courts do better as a slow cooker than as a microwave.

David Levi: Okay. And so, that's one of the problems with this nationwide injunction. So if you didn't have a nationwide injunction, and it was just the parties before the district judge, then that case would get appealed. But there'd be other cases brought in that district, and brought in other districts, and presumably in other circuits, so you would get this kind of percolation. But that might be problematic, I suppose, in a case that involves fundamental liberties and rights, because they would have to wait for resolution. And as we've been seeing, in the meantime, people might be deported and that sort of thing. Things could happen on a faster schedule maybe, than the Supreme Court might like ideally anyway.

Samuel Bray: Absolutely. There are problems with slow, and there are problems with fast.

David Levi: Yeah. The other thing that you identified is forum shopping, which is, that's a label we use and it has a somewhat derogatory meaning. But inevitably, the system is based on forum shopping, to the extent... Take out the word shopping, and just say forum selection, the plaintiff has to select a forum. They can't just say, "Hey, here's a complaint. The courts should figure out where I should file this." They have to file it, they have to make a decision, where they have venue. And course they consider whether they think the bench, on the whole, will be favorable.

But as you point out, and that's, we're going to talk to Robin at greater length. This can take kind of an ugly turn, when the plaintiff can literally choose the judge. And this happens sometimes with these single judge divisions, and that can look as if at least the plaintiff believes that the judge, the judge's decision has been predetermined. And that casts a somewhat political valence to the selection of the court. And those of us, I'm a former judge, and I'm sure Robin agrees with me. And Gregg too, and all of us, we don't want our courts to be viewed as partisan, and we don't want them to be partisan. So that's maybe problematic, there.

Am I good so far? Okay. And we're going to talk to Gregg at length, as well as Robin, about this forum shopping phenomenon. Okay. And then the second point you made was that there are other legal concepts here at play, and that this may be an end run. And I'm particularly interested in this notion of the class action, because wouldn't the 23(b)(2) class action be readily available in most injunctive relief cases? Certainly of the types that we've been reading about, in the last few months?

Samuel Bray: Yes. I think if you had a world without universal injunctions, then a number of the universal injunctions would be replaced with class actions. Not all of them, but many would. And in fact, one of the problems right now is that the universal injunction's availability cuts off the class certification analysis. So in one of the three birthright citizenship universal injunction cases that are at the Supreme Court right now, the plaintiffs actually asked for a class. They asked for class certification, and what the Court did was combine their case with a case brought by state plaintiffs, and then decided it didn't need to consider the class certification because it was going to give a universal injunction. So there is a way in which it's cutting off that analysis.

I think in terms of evaluating that world, if we had a lot more broad class actions, then we would not get percolation advantages, and the forum shopping magnet might be just as intense. So on the policy, we'd get some changes, but not in everything. But one of the big things that would be different is you would be having the fundamental symmetry of a case. If the plaintiff wins, the plaintiff class wins, everybody in the class wins. And if the plaintiff class loses, everybody in the class loses. So right now the government has to win all the cases, because it just takes one plaintiff somewhere getting a universal injunction. So that asymmetry would be gone, and we would probably also get a better plaintiff selection. So we'd actually have the proper plaintiffs representing their interests, rather than say an organization that might have a more attenuated relationship to the class, and isn't the best plaintiff to sue.

David Levi: Okay. Those are some really important points you made there, because I've been puzzling in my own mind whether, sort of as I say, "What's the fuss?" If you can get a (b)(2) class provisionally certified, as was done in the deportation cases, then how is it so different? And you've made that clear.

And then you mentioned issue preclusion, and that's... There isn't issue-free, there isn't non-mutual offensive collateral estoppel as against the U.S. government. Anyway, that's the [inaudible 00:16:08] case, although there can be, as against private defendants. But this, in effect, is issue preclusion or is similar to it, because the district judge is deciding for the entire nation.

And that's sort of the same point on presidential, the district judge decides. The district judge isn't even bound by her own opinions. Am I right, Robin? You could say, "Well, I changed my mind, I think I got that wrong."

Robin Rosenberg: Right.

David Levi: That can be embarrassing. But judges always enjoy showing how brave they are in changing their mind. Felix Frankfurter liked doing that from time to time, and then making a big fuss over how important it was. Okay, so we've covered that. And then, the traditional judicial role. So can you go into that a little bit more?

Samuel Bray: Gladly. Each of the branches, there's obviously some overlap, but if you think about the core functions of the different branches. Congress is making law that is prospective, and general, and not being supposed to decide a particular case. But part of what makes the courts different from the legislature is that they are deciding a case they're not making.

Now, the precedents that courts set will be general, and apply going forward, and apply to other cases. But that idea, that the court is deciding the case, is central to what I think is the best explanatory model for the federal courts, the dispute resolution model. But if somebody comes at this differently and thinks that the core function of the courts is law declaration, and just happens to be that they need a case in which to do it, but the thing they're really doing is deciding what the rules are for everybody, and just the first case they can grab onto is the chance to do that. Then, if you have a law declaration model instead of a dispute resolution model, then the universal injunction can make a lot of sense, because it's a way to get to where you're going a little faster.

So for me, and there's a scholarly debate about this, and there are plenty of aspects of our tradition that support both of these models, but for me the primary one is dispute resolution. And I think that's the reason we give so much authority to the courts, and it's one reason why everybody should follow judicial orders. The judges stay in their lane for deciding a case, and then everyone, no exceptions, even the president, need to follow the orders of the courts that resolve and completely decide that particular case.

David Levi: Would you go so far as to say that the universal injunction is unconstitutional, that it exceeds Article III?

Samuel Bray: I do think it exceeds Article III. If you didn't want to tie that particular conception of the judicial role to Article III, then you could say its intention with the traditional judicial role. You could also say, more softly, that it runs counter to constitutional values, concerns, or interests in Article III. But from my perspective, it is beyond Article III, because once the court has decided the case for the parties and given a remedy for the parties, then the court is done. There's nothing else for it to do. And so I think that is beyond the judicial role.

David Levi: You wrote this really wonderful article in, I think it's 2017, you've written several. But the one I'm thinking of is in the Harvard Law Review, and other academics haven't been entirely... I'm sure many are persuaded, but inevitably, some were not. What is the nature of that dispute?

Samuel Bray: Gladly. So there have been lots of excellent scholars writing on it, and there have been two different fronts of pushback on that article, and I wasn't the first person to write on it. Michael Morley, for example, had an article a year or two before that.

But there have been two kinds of pushback from supporters of universal injunctions. One is on history, and so there, the argument has been that universal injunctions go back a century before. Mila Sohoni has made that argument. And Jim Pfander has also, in articles with various co-authors, argued that there are antecedents of universal injunctions in the common law tradition, things like cancellation of patents. He's got a new paper on that topic. So that's one front on which there's been pushback. The other one, the other debate not about the history, is about the normative arguments about universal injunctions. Here the leading scholar is Amanda Frost, but there's also excellent work by others, including Payvand Ahdout and Zach Clopton.

The normative arguments in favor of universal injunctions are several. One is practicality. Sometimes it's just not practical to have a narrow injunction, it needs to be broad. I don't really know how much difference there is between the two sides on that because I'll concede that, too. It may just be a difference in how quick you are to have judges stop their search for a narrower injunction.

But the other normative points, there's more vigorous debate. One of these is an equality argument, that everybody needs to be treated the same, and that it strikes at that core equality commitment, when you're allowing a rule or statute to be enforced against some people but not others.

And then the last normative argument is the executive overreach one. We live in an age where Congress is not taking its role to make laws, and it's ceded a lot of power to the executive branch. And we've seen a pattern, increasingly, over the last few administrations of presidents trying to make policy through executive orders. The zenith of that, right now, is the current administration. And so, that's not the executive staying in the executive's lane. And so the argument is, if the executive goes beyond the Constitutional bounds, then the courts need a compensating adjustment.

So those seem to me to be the core arguments on the other side, in favor of universal injunctions.

David Levi: And at least some of those arguments, I think would be answered by the availability of the (b)(2) injunctive in class relief. Might not be available in all cases, but in many cases, and maybe in the most visible ones that we've been looking at in the past five years, let's say. It almost certainly would be available, it seems to me. Well, that was great. Thank you. Robin, let's go to you. You're still chair of the Civil Rules Committee, and-

Robin Rosenberg: For now, for now. I haven't received a notice of termination yet.

David Levi: Yeah. I was chair of that committee, at one time. And so, under the Rules Enabling Act, Congress usually says, "Hey, Rules Committee, what do you think about this area?" And there's a tendency, or at least there used to be, maybe in a different world, at a different time, a different galaxy. A tendency to defer to the courts on these kinds of procedural matters. But here, Congress, members of Congress, the Senate and the House, have introduced a number of bills to restrict the nationwide injunction. And my question for you is whether this is a topic that the Advisory Committee might consider taking up, for example, by proposing an amendment to Rule 65 on injunctions. What do you think?

Robin Rosenberg: Well thank you Judge Levi, and welcome to the other panelists, and our listeners.

As a short answer, the Advisory Committee on Civil Rules is not currently looking at proposed amendments to the Federal Rules of Civil Procedure with respect to nationwide injunctions. As you know, Rule 65 is directed towards injunctions, and sets forth the procedure for obtaining either a temporary restraining order or an injunction prior to the trial. This includes provisions relating to notice, the contents of the motion, the duration of temporary restraining orders, and what a judge must state in the contents of the preliminary injunction or restraining order. We have not received any recent suggestions or proposals to amend Rule 65, so there is nothing currently under consideration.

I do note, however, that the Advisory Committee on Civil Rules, in 2017, did receive a proposal that related to nationwide injunctions from my esteemed co-panelists today, Samuel Bray. And Professor Bray proposed adding, and I'm sure he can elaborate, a new section to Rule 65(d), to limit the scope of injunctions granted under the rule. The proposal was considered before my time on the Civil Rules Committee, but I note that the Rules Enabling Act process is transparent, and the advisory committees are sunshine committees. And for this reason, Professor Bray's proposal and the committee's reporters' analysis provided to the advisory committee on whether to consider this change to Rule 65, are contained in the agenda materials on uscourts.gov website.

In short, the Advisory Committee decided not to take up the issue, for a host of reasons relating to whether the issue raised in the proposal was one that was appropriate under the Rules Enabling Act process. Now you mentioned a number of bills in Congress, and that is true. They do relate to nationwide injunctions. They are not before our committee at this time. The committee staff made a determination, at this point at least, that the bills do not fall into the two categories that we consider. Bills that would directly or effectively amend Rule 65, or bills that would require some sort of technical or conforming amendment to a rule. For example, a recodification of a statute referenced in the rules, might require a conforming amendment to the rules.

Based on our practice as an advisory committee, the issue of nationwide injunctions could come to the committee's attention in the future depending on the specific text of a proposed bill, and input from our expert reporters, who carefully evaluate these issues. Our committee, the Advisory Committee for Civil Rules, like other advisory committees, are aided in their review and work by distinguished academics who serve as reporters and assistant reporters. They're invaluable to the committee and some of them have been involved in the rulemaking process for decades, and really understand how it's done.

So that, in a nutshell, is where the Rules Committee is, and why it is where it is on nationwide injunctions. And from our purview, a Rule 65 issue.

David Levi: I don't think any of the proposed bills actually amend Rule 65. I may be wrong about that, but I think what was said in the past is still true today. I think they mostly amend Title 28, and some of them are directed at three judge courts, and we'll talk more about that in a little bit. And I take your point, I think when Congress has actively got a matter under consideration, it may be that the committee would be inclined to defer to Congress, rather than the other way around. The Enabling Act is kind of a compact.

So we've talked a little bit about judge and forum shopping, and I know that the Judicial Conferences looked at this a bit. This kind of shopping, as Sam and I were discussing, it's facilitated in some instances by the existence of these single judge divisions. Which, they're not common, but there are a few in some of our bigger, geographically larger districts, where there might be a courthouse that's at some distance from other courthouses. And I think you've told me that you were once a single judge, in a division within a district. Can you explain this phenomenon so people understand what it is, and whether the Judicial Conference has taken any position on the single judge division?

Robin Rosenberg: Sure. So this does remain an issue for monitoring purposes, on the agenda of the Advisory Committee for Civil Rules. And in fact, it's in several agenda materials, the most recent one relating to our last Civil Rules Committee meeting. And in essence, it explains that forum shopping is of course nothing new, in a system in which multiple courts or proper venues, litigants may prefer courts that they predict will be more advantageous for their causes, and seek to litigate in those courts. Whether by filing there, seeking a transfer, or enforcing a forum selection clause.

But in some divisions or districts, plaintiffs can effectively select the judge based on where they file. That is, if by filing in a particular location such as a division with only one judge, a plaintiff knows to which judge the case will be assigned, the opportunity to so-called judge shop raises serious questions of fairness and legitimacy. As a result, the Advisory Committee has received several suggestions including a July 10th, 2023 letter from Senator Schumer, signed by 18 other senators, to consider a rule requiring random assignment of some cases among all the judges in a district. Shortly before this committee, that is the Advisory Committee on Civil Rules' April 2024 meeting, the Judicial Conference of the United States issued guidance to all districts, recommending district-wide random assignment of any civil action seeking to bar or mandate state or nationwide enforcement of a state or federal law.

After releasing this guidance, Judge Robert Conrad, the secretary of the Conference stated, "The random case assignment policy deters judge shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings, and bolsters public confidence in the federal judiciary." The guidance was not mandatory, however, and so since that time we in the Civil Rules Committee have been monitoring, to the best of our ability, which districts chose to adopt the suggested procedures. And there are a number of districts that have, and those are listed in the agenda materials that we have.

The guidance, in essence, indicates that for any newly filed case, that it would be randomly assigned to a district judge and randomly assigned to a magistrate judge, without regard to division. And those types of cases are civil actions seeking to bar or mandate statewide enforcement of a state law, including a rule regulation policy or order of the executive branch or a state agency, whether by declaratory judgment, and or any form of injunctive relief. And civil actions seeking to bar or mandate nationwide enforcement of a federal law, including a rule regulation policy or order of the executive branch or a federal agency, whether by declaratory judgment and or any form of injunctive relief.

So for example, our district, the Southern District of Florida, shortly after the guidance came out, we adopted that through an administrative order issued by our chief judge, and that was done in May of 2024. And I'll say that that was done in our district, even though we don't really have a single judge district. Now, Judge Levi, you alluded to the fact that I once was in a single judge division here in the Southern District of Florida, and that is correct. My first assignment was in Fort Pierce, only one district judge sits in Fort Pierce. However, the district had made a determination before, and I was the first judge ever to be assigned to that new division. It was a brand new courthouse, and I was the first judge, and that was 10 years ago.

But the district had made a decision prior to my coming on to the bench, that the way that division would be configured is, I would receive 50 percent of the cases that were filed in Fort Pierce, and the other 50 percent would go to all of the other judges who had opted to be on the Fort Pierce wheel. And that numbered five. Four, five, six, or so. And that same configuration is enforced today, even though I have since moved to a different division, to the West Palm Beach division. And there are a number of districts, as I mentioned, that have adopted this guidance.

David Levi: I don't think there's anything nefarious or new about these single judge divisions, they've been around for a long time. They're, maybe most notably, in Texas. But what you describe is interesting to me. So part of this, which might not be apparent, is that under the statute the district judges get to decide, they have the statutory authority to decide whether to have divisions or not. And so there can't be, I think, under the statute, or at least it's not obvious that there can be a directive from the administrative office, or from the Judicial Conference, that the district judges shall get rid of their divisions. Because they have that authority under statute.

But I think also what you're describing would, when I think of the California districts, for example. So my old district, Eastern District of California had two courthouses, one in Fresno and one in Sacramento. And it sounds as if, under the Judicial Conference policy, a case that involved a request for a nationwide injunction, or a statewide injunction, wouldn't necessarily go to the Sacramento judges, where typically it had gone in the past. Even though there were multiple, let's say, seven judges in Sacramento and five or six in Fresno, but you'd put them all together and they'd all be on one wheel, and it could as easily go to Sacramento as it could to Fresno. So it's not just the single judge divisions.

Robin Rosenberg: Right. If your old district adopted the guidance.

David Levi: Yes.

Robin Rosenberg: Again, it's only if it's opting in to the guidance, and I actually don't see that California is one of the ones that has opted in. And one might say that if there is no single judge division problem or issue, there may not be a need to. But clearly, as you can see from the Southern District of Florida, we did it even though we technically don't have a single judge district division in operation.

David Levi: So, however we get a judge assigned to hear the case, these really high profile, high pressure controversial cases, where you have the President of the United States on one side with the Department of Justice, and then you have a single district judge on the other side of the case. This has led to threats of violence against individual judges and their families, threats of impeachment, all kinds of threats. And I think all of us would agree, this is just a terrible situation, really, really wrong. And can you speak about this a little bit, because it's very troubling, and it's not the fault of the nationwide injunction, it's the fault of the people that are making these threats. But it is part of the landscape here, isn't it?

Robin Rosenberg: Yes. So it is a very challenging and difficult time, on many fronts, including as it relates to threats to judges. And they're real, and they're happening. Let me just back up and say, with respect to the Civil Rules, Civil Rules don't differentiate procedure based on whether a case is high profile or not, or what remedies are requested by the parties. Judges accept the cases that are assigned to them, unless they must recuse, and apply the rules in any case that comes before them. Judges also have a duty to decide cases without fear or favor. This is the essence of judicial independence. And one issue, as you note Judge Levi, that can really undermine and deter judicial independence, is the threat of violence against judges. And we are lucky to have the protection of the U.S. Marshal Service, but threats against judges are not new and actual violence against judges and their families is also, sadly and tragically, not new.

What I can say on this issue is that the judiciary has in the past, and currently, takes the issue of judicial security very seriously. Most recently, the judiciary in March 2025 announced the creation of a Judicial Security and Independence Task Force. One of the members, Judge Richard Sullivan on the Second Circuit, also made public remarks on this issue at the Judicial Conference's March 2025 meeting and noted that while threats against judges are not new, the nature of threats requires an evolving response from the branch and the marshals, because of the nature of the threats that we are receiving. And the nature of, also, technology and potential dark web and foreign actors, who are able to get into this process in a way that wasn't true before.

I'll give a pitch that I feel strongly about, and I don't think there's any one answer. And just as you say, you can't blame it on this, or that. It's probably a collection of problems and factors that have emerged during this time, but I have been actively involved in civics education over the years as a judge, in various different areas. And I'm turning my attention to the need for judges, professors, lawyers, even laypeople, who have a knowledge on the fundamentals of our three branches of government, the rule of law, judicial independence, to take that information out to the general public so at least they are armed with an informed mind. So when they hear issues relating to the judiciary about nationwide injunctions, and it comes in loud and bullet point ways, not always lending itself to analysis or explanation. That if we can educate the public... We take it for granted when we say, "the rule of law," or "judicial independence," that we all know what that means. How do you enforce an order? What happens when an order is not enforced?

But many people, most people are not schooled in this language, so I am a proponent of each of us doing our part to continue in the quest to educate as many people as possible. Statistics, including the recent Annenberg poll shows that, and ABA polls, that people are not well versed and educated in the judiciary. And maybe because of that, or in addition to that, there was a very low level of public confidence in the judiciary. So I think in tandem with anything and everything else that we are doing, that should be paramount on all of our minds.

David Levi: That's just so well said, and I think we might implore all of our listeners to do whatever they can to help in this respect, because it's not sustainable, and it's not fair, and it's antithetical to the rule of law, as you said.

Robin Rosenberg: I'm sorry, and I'll just say, there are a lot of resources out there. So people who are asked to speak at a Kiwanis club, or a Chamber of Commerce, they can go for example to the Bolch Judicial Institute, defending the Judiciary website. They can go to the U.S. Court website. I'm working on a version of a program with my colleague, Judge Bloom. So resources are there to give a five-minute speech, to give a 30-minute PowerPoint presentation, so it shouldn't be a difficult lift for people to do this.

David Levi: Thank you. So Will, let's turn to you. These nationwide injunctions and these executive orders. We have the situation of presidents pushing hard to get things done, and that's understandable. And they get upset when judges say, "Well, you can't do it that way," or, "You can't do what it is that you want to do." And then, they demand that the Supreme Court give immediate answers, overturn the lower court, and do this all very quickly so that there's no loss of time. And they want the Court to take these cases up on what you've called the shadow docket. It's not really so shadowy, but it's their emergency orders docket, and the Court has actually come in for a good deal of criticism for handling matters on that emergency docket. Going back to, I think, the percolation point that Sam made. And also, the fact that these cases don't get very well briefed, and the justices don't have a lot of time to consider these cases when they're handled on an emergency basis. So can you talk about this part of the puzzle of the universal injunction, and how you see it? You're the expert on this.

William Baude: Absolutely. And you're right, it's no longer in the shadows, so we need a new name for it. Unfortunately, a lot of these cases are not exactly emergencies either, except in the sense that somebody has lost and they don't want to have lost, and they want to win as fast as possible. So it's sort of a, I don't know what the right word for it is.

So as you know, and as most of the listeners will know, the normal way that Supreme Court hears cases used to be to sort of let issues bubble up, the wait and see, several courts had ruled on something, different courts had sort of thoughtfully disagreed with one another. This looked like something where there wasn't one clear answer, and the Supreme Court thought, "Okay, this is an important issue where courts have disagreed, we will now sort of weigh in and settle this issue." And that process took time.

And what happens increasingly, and especially on the shadow docket, emergency docket, we could call it the All Writs Act docket, if we really wanted to scare people away. What happens increasingly is that the court is asked to rule much more quickly, in both the particular case, and before the issues have really bubbled up. So a district court issues a nationwide universal injunction, or even sometimes a universal temporary restraining order, it hasn't even gotten to the preliminary injunction question. But it issues a temporary restraining order, and immediately a party goes to the Court of Appeals and says, "You've got to stop this," and if the Court of Appeals doesn't act, they go to the Supreme Court and say, "You've got to stop it, and you've got to stop it now. If we even let this injunction sit in place for four weeks, six weeks, a year, it'll be irreparable injury. The republic will fall. You've got to weigh in now."

And increasingly, the Court feels sometimes like it does have to weigh in now, and I think the fact that the injunctions affect the entire country adds to that. Every injunction obviously is a big deal to the parties, but an injunction that means that an entire presidential policy just can't go into effect anywhere, feels a little more like, "Well, what are we waiting for? It's been settled for the nation already by the district court." That sort of forces the Court to act much more quickly than it's used to.

David Levi: There might be, we might say there are times when the court ought to hurry it up, and times when the court ought not to hurry it up. Do you have any advice for nine people on what the standards are that should guide the court in deciding when to move quickly, and when to say, "Hey, wait a minute, we're going to take our time, here."

William Baude: Yeah, I mean, obviously there's no formula for this. And I'm not the one who's been given jurisdiction to decide it. But the way the court used to think about this, and the way the All Writs Act, the statute the court uses, is phrased. Was to think about, not so much just, is this important to the parties? Every case is important to the parties, but the Court used to think about it more in terms of, "Does the Court need to act now to preserve its own jurisdiction? If the Court doesn't act now, will the issue just be one the courts can never rule on?" Somebody won't be in the country anymore, and the case will be over. The money that we're arguing about will be eliminated, or something. And so the courts used to think about it in terms of trying to preserve the status quo, to give the case time to go through the normal process, and to avoid things that would sort of stop that from happening.

Increasingly, the Court has openly said they don't just think about it that way anymore, and one reason is nobody knows what the status quo is anymore. When there's a new presidential program announced, is the status quo the program, because it was in place for four hours before district court enjoined it? Or is the status quo the law the day before the program, because things used to be fine before the president acted? And with so many big actions, the Court has said they don't quite know how to think about that. My advice for them would be to think about that more, and to just try to come up with some principles, like there's a presumption of constitutionality for statutes, and so the status quo is the statute. Maybe presidential actions are the same, or maybe not, depending on how you think about the executive branch. But I think they need some more rules of thumb.

I will say one good piece of this, Justice Kavanaugh and Justice Barrett had an opinion a couple of years ago, in a case. The specific case was about religious exceptions from vaccine mandates during the pandemic. But one thing they said was, in an effort to try to reduce the Court's need to do this quite as much. They said, "We do have to think about, is the issue something cert worthy? Is this something that we would think was worthy of our certiorari docket, when it gets here in the end? And if not, then that's a one good reason to stay out of it. We shouldn't let parties just sort of force cases onto our docket just by filing an emergency writ."

David Levi: Some of what's going on here seems to be self-preservation by the Court, just because they're getting so many of these, and they're coming at all hours of the day and night. Justice Alito dissented the other day from a, I think 1:00 in the morning order that went out by the Court saying, [Geez, we didn't even wait for the circuit court to weigh in here.] In effect, I thought he was saying, "It's 1:00 in the morning, for Pete's sake. It's not when we typically do our best work."

And I also think the justices are looking at, they need time after the term to work on the certifications for the following term, and also to regain their strength and energy. And they may find that their summers has been taken away from them, for those important purposes. Not to say that these aren't important, but it's a question of workflow, and it's so unpredictable. Any thoughts on that?

William Baude: I totally agree with that, and I think the Court does not do its best work in the middle of the night. One additional sort of feature about this, just procedurally, is that for regular cases the Court meets and talks about these things in person. Nine justices, nobody else in the room at conference, and they sometimes have quite substantive discussions. The shadow docket, there's nothing like that, so it all happens sort of on the papers or over emails, so to speak. And I'm old-fashioned enough to think that, actually, sometimes makes a difference in how people think about things.

And I think at the risk of humanizing the Court, two things that happen are, the more quickly you consider things and the less you get a chance to really deliberate with your colleagues, the more likely you are to go with your first instincts. So to the extent that these are cases where sometimes the justices have immediate reactions or priors, that they might come to rethink, if they were given a few months to think about it and a lot to read and some time to talk, they just don't have time to do that on the shadow docket. And then that also increases the perception that the docket is especially political, that there are a lot of cases where you just hear about the issue, you have some guesses of which justices are going to rule which way, and if they don't have a lot of time to think about it, those guesses might turn out to be correct.

My other thought about the Court summer break, and again, this is at the risk of humanizing the Court. I think one really important function of that is, it just lets them all take a break from one another. So I think there's no secret that sort of tempers and rhetoric often get high at the end of June, and I think it's been very good for the Court as an institution, that they then have a couple of months to go away and not be arguing about these things. And they come back, kind of ready to return to business as usual. And I just think if we, frankly, if we take that away from them year in and year out, and just force them to be at high alert all the time. It's got to take a toll.

David Levi: Going back to your point on whether the question is cert-worthy, the court has had to decide in the last six weeks, let's say. Some actually pretty important, at least tentatively decide, some pretty important legal issues. About statutes that come from the 18th century, where there hasn't been case law, and other kinds of matters of law. I suppose it can come back to them and say, "Well, that was done on a provisional basis." But do you have any thoughts on that?

William Baude: No, absolutely. So they've had to decide the Alien Enemies Act, enacted over 200 years ago. Well, what amount of judicial review is there under that statute, and what kind of due process is required? What kind of notice, before the president removes people? That's something the court has one precedent on, that's over 50 years old, and it's complicated. The history is complicated. I've had the luxury to spend some time looking into it myself, and I don't totally understand all the answers, and I'm sure that the justices don't have as much time to look into it as I do. And so I'm sure they're doing their best.

Or even just more technical issues. What is the relationship to the Administrative Procedure Act, and the court of federal claims, when you're claiming the government's wrongly withholding grant money from you? This is a colossally important issue, the Court has had a couple cases on it over the years that go in different directions, and are kind of complicated. And the Court's already had to issue two highly divided rulings on this, on the shadow docket, without a ton of briefing or argument, or time to think. And given that when the Court speaks, that kind of makes precedent for us for a long time, I think that's not a great situation for generating good law.

David Levi: On the nationwide injunction, I know there was a case a few years ago, where you and Sam filed an amicus brief together. Does that mean that you see these issues in the same way, or is there some variation? Do you take a somewhat different view?

William Baude: I mean, we certainly agree that the issue of these injunctions that go beyond the parties are not consistent with the traditional judicial role, and create a lot of practical problems for the Court. I think I'm not as confident as Sam is, whether I'd put that under the heading of Article III, or under some other legal heading. For instance, if Congress did try to act to create something like nationwide injunctions, some people think this is what the Administrative Procedure Act does. That's a sort of separate debate. I'm not sure whether that'd be unconstitutional, but I agree that this is a big problem, and that it needs to be reined in.

David Levi: Could you explain what you just said there, because this may not be obvious to everybody. The Administrative Procedure Act, we call the APA, it has a language about setting aside an act, or a statute, or a regulation. And I think sometimes this is called vacatur, or vacatur. Can you lay that out for us, and how that's different or the same as the issue we're discussing?

William Baude: The Administrative Procedure Act says that if an agency action, whatever that is, is found to be unlawful, then the reviewing court is supposed to set it aside. And those words are the basis for the kind of modern practice where a court says, "Well, this is a rule, issued by an agency, and the rule was unlawful for some reason. It doesn't understand the law, or it didn't respond, go through notice and comment," or whatever, and therefore the rule will be set aside. And that's, we call it vacated, we sort of eliminate the rules and it back to the agency. That's functionally like a nationwide injunction, because it's saying, "The application of that rule to everybody, to everybody in the industry, to everybody in the country, is now undone," Because one person in an administrative case found some big problem with the rule. And so a lot of the same debates about nationwide injunctions have replayed there. There, at least, there is this argument that those phrases maybe authorized this kind of treatment.

It turns out to be complicated, because it all depends on what an agency action is, and what it means to set it aside. And when you start to dig into the history of the Administrative Procedure Act, and at the time that was enacted in the '40s, this practice of nationwide injunctions and universal vacatur wasn't the norm, anyway. People debate how much it existed, how much it didn't. But at least there, there's a kind of statutory interpretation dispute that my colleagues who teach administrative law have very strong feelings about. And I'm always wary about saying too much about it, for fear they're going to come knock on my door and yell at me. But it gives people something to focus on.

And one thing to add is, in some of the debates about this, several of the justices of course, were on the D.C. circuit for some time, including Justice Kavanaugh and Chief Justice Roberts. And in some of the cases about this, when people started questioning this kind of practice under the APA, and the justices openly said, "Well, we've been doing them in the D.C. circuit for decades. It can't be that what we've been doing for decades in the D.C. circuit was illegal," Which is maybe a sign of how the Court thinks about that issue.

David Levi: That is super interesting. Well, Gregg, you're a former district judge, and a former Court of Appeals judge, and you also made a proposal about how to address this question of the nationwide injunction. And we'll get to that in a second. But why don't we just start with, how do you see this issue, and the difficulties with the injunction?

Gregg Costa: Sure. Well, first, thanks for including me on this great panel. And it probably helps us start with how I became focused on this issue.

As you mentioned, for a decade, I was a federal judge in Texas. On the district court, I was actually the single judge in two divisions, Galveston and Victoria, Texas. I had a hundred percent of the civil cases. My tenure there was short, so I didn't ever get cases seeking universal injunctions, but I did just see generally the forum shopping that is incentivized when you have a single judge. And in fact, my predecessor in Galveston was indicted, convicted of a crime, impeached by the House before he resigned. I used to joke is, I had the smallest shoes to fill in the history of the judiciary. As long as I didn't get indicted or impeached, I was doing better than the last guy. But I wouldn't say a single judge division caused all those serious problems with my predecessor. But I do think it contributed to it, it enabled it, in part.

So I was already attuned to the problem of single judge divisions. Then I get on the Fifth Circuit, and I was there at the end of the Obama administration. When as Professor Bray said, universal injunctions really started to become a thing, to use a legal term. And it's interesting, I do think you can chart the rise, don't think it's a coincidence. Universal injunctions really became a phenomena after a 2007 Supreme Court decision called Massachusetts vs. EPA, which really expanded the ability of states to challenge federal policies. And so what you saw at the end of Obama's term was the state of Texas in particular, some other states as well, bringing challenges to federal policies, especially on immigration. And picking the Fifth Circuit, which was perceived to be the most hospitable forum for those claims.

Then Trump comes in, and the Fifth Circuit, the idea of seeking a universal injunction in the Fifth Circuit vanishes, and then all the action goes to the Ninth Circuit, cases filed in San Francisco, to the Fourth Circuit, to D.C., which are perceived at least by litigants, as being more liberal courts that are going to be more skeptical of a Trump administration policies. So it's really, Professor Bray, there's these bigger issues, I'll leave it to folks like him, on whether nationwide or universal injunctions are legally justified under Article III, as a matter of equitable power. I have some views on that, but I took it more from the standpoint of, "Look, this is really, the forum shopping problem is really feeding the view that the courts are increasingly politicized." Which I think is something we should all be concerned about.

And I can give you just a few numbers that I think show why I have this concern. The first number is 677, that is the number of federal district judgeships in the United States. And there's a lot more district judges than that, because people can take senior status, but 677 judgeships. Look, I've had both jobs, the Court of Appeals and the district judge position. The district judges are the ones who make our judiciary the shining light that I think it still is. I mean, they are the workhorses of the system. They have heavier dockets, fewer resources, and they manage to make things run. So I have great respect for the district courts, but I think the idea that one of 677 district judges has this power to put a halt to a policy is troubling, especially when among those 677, it's not going to be hard to file in a forum where you think you're going to get a sympathetic audience.

The second number is 13, and Professor Bray I think touched on this, the idea that one judge gets to trump multiple other judges, just is not consistent with our view of how judicial power should work. And there were 13 judges who upheld President Biden's executive order to vaccinate federal workers, which I think of all the vaccine mandates was the most legally defensible, because it was just focused on executive branch employees. And then one federal judge, in a single division, so handpicked by the challenger, overrode those 13 other district judges by saying the policy should be enjoined as to all parties. And even more remarkable, that one judge has the ability through a universal injunction, to override even a Court of Appeals panel. Even an en banc group of Court of Appeals judges, because you could have, say, the Ninth Circuit en banc says a federal policy is lawful. And then one district judge in Texas issues a universal injunction, and basically overrides that panel of appellate judges. Again, just a distortion of the usual judicial hierarchy we have.

And then the final numbers I'll cite, is the fact that under Trump's first term, 92% of the universal injunctions issued against administration policies were issued by judges appointed by Democratic presidents. Under President Biden, 100% of the universal injunctions issued against his policies were issued by judges appointed by Republican presidents. I think that's an extremely troubling number. Now, I wouldn't over-read it because part of that goes back to the forum shopping, right? Parties challenging Biden policies are trying to get in front of Republican appointed judges. But whatever the reason, just looking at those numbers, I think that it's hard to look at that and then tell people that, "Oh, the courts aren't politicized. It doesn't matter which party appointed the judges," when you're faced with those very stark realities.

David Levi: You've come up with the idea of a fix for that, this problem of the politicization of the judiciary, or at least the appearance of that, through use of the three-judge court. And I noticed that, at least one of the bills, and there may have been several, but one that is still standing anyway is Mike Lee's bill, Senator Mike Lee. And he provides for a three judge court for actions brought against the executive branch that seek injunctive relief. So that would be, whether it was a nationwide injunction or not, I mean, it might just be, "Hey, I want an injunction in my case, against the IRS," and Mike Lee's bill would then provide for a three judge court, and the court would be designated at random by the Chief Justice from a list of all the 670-odd judge, with one judge being a circuit judge, and not all the judges could come from the same circuit. So you could have two from the same circuit, but not all three. Okay. So that's his proposal, and that's pending in the Senate.

Now your proposal, if I understand it right, at least the version that I saw, is that on the motion of the United States, so that's the trigger. A district court would transfer a case or proceeding seeking injunctive relief against the United States to a three judge panel of the District of Columbia District Court, unless the relief is applicable only to the parties, in the case of proceedings. So that's one difference between what you're proposing here, is that your proposal doesn't cover, "I'm seeking an injunction for myself." And also another difference is that it's on motion of the United States, and it's maybe not a big difference, but the third is that it would go to the District of Columbia District Court. And then, you also provide that there'd be an immediate appeal to the U.S. Supreme Court. So with some of those differences in mind, defend your proposal if you would.

Gregg Costa: Sure. Well, first of all, I'm glad to see Senator Lee has made this proposal. I don't think he made it under the Biden administration, but I mean, there is this inconsistency. People are just making partisan decisions about whether they're for these or not, based on who's in the White House.

One thing on my proposal, it would not channel in to D.C., I think otherwise, you have it right. My view was to, I think a little history is helpful. 1908, the Supreme Court decides Ex parte young, which opens the door. It's a case that allows parties to come into federal court, sue a state official, to challenge the constitutionality of a state law. Opens the floodgates to federal cases saying state laws are unconstitutional. Congress says, "Whoa, it's not great to have a single judge deciding that, let's create these three judge panels." Then the New Deal comes, of course, the courts and Roosevelt are at loggerheads, single judges around the country or invalidating laws federal laws on constitutional grounds. And in one bit of Roosevelt's court packing plan that was actually adopted, of course the Supreme Court, expanding the Court was not, but requiring three judge panels for laws challenging the constitutionality of federal statutes was put into place.

From the 1930s through the mid-1970s, if you wanted to challenge either a state or federal law on constitutional grounds, it got channeled to a three-judge court. The idea being that it's more authoritative, it's more legitimate to have multiple judges ruling on a momentous issue like the constitutionality of a statute. I mean, if you think about it, we have this tradition in the United States of appellate courts having multi-member panels. There's really no reason that has to be the case, you could have one judge deciding an appeal, but the notion is, no, for these important decisions, when you're setting precedent, when there's added significance, it's better to have multiple minds coming together and sorting through these things.

Well, those largely went away in the mid 1970s, except for and concerns about the Supreme Court's docket, because there was direct appeal to the Supreme Court. There were issues about when there was actually jurisdiction with these three judge panels. So they largely went away, except for congress challenges to state and federal line drawing for legislative seats.

So, my proposal would be to bring it back, when people challenge, when people are seeking a universal injunction. You're right, unlike Senator Lee's proposal, it would give the plaintiff the option. And if you want to file wherever you choose, traditional forum shopping, which has always been a thing. I'm back in private practice, I'd be in trouble if I weren't thinking about where's the best place to file a lawsuit. If you just want to get an injunction that protects your client, file a single judge, great, the normal process. But if you want to seek a universal injunction, you would be channeled into one of these three judge courts, as you said.

The only difference, I don't think that D.C. is the sole source of wisdom judicial or otherwise, in our country. So, if you wanted to file one of those in Texas, just like if you file now a challenge to Texas' redistricting laws in the next census, you would have a three judge panel appointed within the Fifth Circuit. I actually like Senator Lee's idea of, even saying the Chief Justice would appoint, not the chief judge of the circuit in which you filed, I think that would even eliminate more of the forum shopping problems I'm concerned with. So look, I'm just happy people are having these discussions, there's different variations. I do think the nice thing with my proposal is it leaves in place the traditional route, if you don't want this extraordinary remedy of a universal injunction. But then, if a plaintiff wants that bigger remedy, they're going to have to be subject to a forum that might not be of their choosing.

David Levi: Since one of your guiding principles here is to try to drain the political out of it, or the partisan out of it, so that judges aren't viewed that way. I'm just wondering, as a really distinguished judge, you were highly, you were so well admired by everyone. Do you have any advice for the judges who get one of these blockbuster cases? Are there things that they can do so that they're going to decide it however they decide it, but is there a way of handling the case that might just demonstrate to the American people that this is a case, it's not a political moment?

Gregg Costa: Well, let me say, I do have these concerns about the increased politicization of the judiciary. On the other hand, I mean, I think there have been, after the 2020 presidential election. I thought the judiciary performed an exemplary way, a number of Republican appointed judges pointed out the frivolity of many of the election challenges that were brought. I commend people to look at Judge Bibas on the Third Circuit. He wrote an extraordinary opinion. He's a conservative Trump appointee, but who said that this case, in challenging the Pennsylvania certification, had no basis.

I do think judges are out there trying to get it right, not influenced by partisanship, but I also do think people have their priors, it's hard to look past them. I think, as a judge, you want to do what you can to try to be as objective as possible. But I think there's some dynamics. The filibuster has gone away for judicial nominations, which has allowed presidents to put in place people who what they think are more aligned with them ideologically. The blue slip has been used much more prominently, that's what allows home state senators to block nominations, so that's why you're having these situations where states like Texas have predominantly judges appointed by Republican presidents. I mean, the Northern District of Texas, I think now has one Democratic appointee, and then you look at the Northern District of California, it's almost the mirror opposite because senators are using these blue slips quite aggressively.

Look, I think judges, the independent judiciary is critical to our democracy. When other countries, especially after the fall of the Soviet Union, you had a number of countries creating new constitutions, and most of them didn't follow our legislative example, a lot of them went parliamentary systems. A lot of them didn't follow our example of the executive, but really the judiciary, I think is the most modeled or admired part of our constitutional system. And so I think it's such an important feature of our constitutional republic, and at the end of the day does depend on judges deciding cases independently, objectively, as best they can.

David Levi: That's very well said. Robin, I know you have to run off, but before you do are there any parting words that you have on these topics for us?

Robin Rosenberg: No, it's been an honor and a pleasure to join. I think it's a great public service to discuss these issues in depth, in the interest of people understanding them more than just a soundbite. I thank all of the panelists for all of the work that you do, and thank you Judge Levi for convening us.

David Levi: Well, I'd like to go back to Sam. Because I started with you, Sam, and I said you had the heavy lifting. Which you did very well; you didn't miss a beat. You laid things out for us and then others weighed in. Any further reflections, anything that you've heard here, that you'd like to amplify on?

Samuel Bray: Lots of good comments from the other panelists. I think in terms of where the future is going to go, I don't think it's going to be sustainable to keep this kind of hurry-up acceleration model for the courts. But I also have some distrust for my view of this, because I would've told you the same thing two years ago, and four years ago, and six years ago, and eight years ago. So, I am continually astounded that this is still the system. Maybe I'll be wrong about that, and maybe we will just keep muddling along like this.

But, if it does change, it could come from Congressional action, or from Supreme Court action, and both of those are teed up right now. In the Senate, there's a bill by Senator Grassley, I think it's a very good bill. There's a bill that's been approved by the House, I think it's a very bad bill, it would be worse than doing nothing. It would not deal with the APA issue. It would not deal with whether you get universal injunctions in Guam, or the Northern Mariana Islands, and it would say you can get a universal injunction as long as your state, the state AGs can get them, which will mean in effect, instead of the ending universal injunctions, it will be codifying them. So, I think that would be a bad proposal.

But we could get action from Congress. It's also very possible that the Supreme Court is going to finally give a decision on these, because it has set for oral argument, the three birthright citizenship cases that present not the merits of birthright citizenship, but the scope of the injunction. Now, the Court's not bound by that. There's no question presented, because it's not in the ordinary cert process, so we don't really know what the Court's going to do. But the question that's in the emergency applications from the Solicitor General to the Supreme Court is the scope of injunction, and the Court's asked for oral argument. So to me, that is a signal that there is appetite, among at least some of the justices, to move forward on this. But we don't know whether that's going to happen, and I continue to be surprised that this is still where we are.

David Levi: Will, any further thoughts?

William Baude: Sam's comments put me in mind of what's sometimes called Stein's Law. Which is, "If something cannot go on forever, it will stop."

David Levi: Gregg, anything else?

Gregg Costa: I would just say that this debate is focused on should, as a matter of law, do judges have the power to issue these injunctions? But even if they do, equity is a matter of discretion. And so I think it's a matter of judges acting with humility, recognizing they might not have the only correct view of an issue, and maybe allowing other judges as well to think about these issues, and see where it moves.

David Levi: I can't thank you enough, really, all of you. You're so thoughtful on these issues. What The American Law Institute wants to do through these podcasts is to explore the questions, and come up with possible solutions, and hope that by continuing to discuss these things, eventually, maybe over a long period of time, there will be opportunities for doing the best thing possible. And that's the hope, here. I've learned a lot from each one of you. To our audience, thank you for listening to Reasonably Speaking, which is a podcast of The American Law Institute, and many thanks to our panel. Goodbye.