Search for: "Samuel Bray"
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8 Dec 2022, 5:31 pm
A commonplace book entry: George J. Stigler, Memoirs of an Unregulated Economist, 89: "The public has good reasons for what it does, and it is the task of the social scientist to discover them, even though many find it irresistibly attractive to instead ridicule the public's behavior." The post The Public Has Good Reasons appeared first on Reason.com. [read post]
24 Jan 2025, 6:56 am
Three notes on national injunctions. First, today the Court issued a stay of another universal injunction, this time in McHenry v. Texas Top Cop Shop, Inc. The Solicitor General had suggested that the Court could construe the stay request as a petition for certiorari before judgment, allowing the Court to directly address the universal injunction question. One reason that matters is that it would be good for the Court to tackle the universal-relief question directly, without the additional… [read post]
9 Oct 2024, 9:32 am
Yesterday's argument in Garland v. VanDerStok was about a statutory interpretation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. At issue is whether the statute allows the ATF to regulate "ghost guns," which are made from do-it-yourself kits and which allow users to evade serial number and background check requirements. Given the tenor of oral argument, the Court seems likely to side with the ATF. Solicitor General Prelogar made a reference to an… [read post]
20 Jun 2024, 1:47 pm
An aphorism attributed to Edward Jacob QC: The importance of questions was in this ratio: first, costs; second, pleading; and third, very far behind, the merits of the case. That's quoted in Ben Kremer, The Origin of the Usual Undertaking as to Damages When Obtaining Interlocutory Injunctive Relief, 17 J. Equity 211, 225 (2024). Kremer's paper is outstanding and shows the history and normative basis for injunction bonds. And if you aren't reading the Journal of Equity, you should… [read post]
3 Jun 2024, 4:46 am
It's often instructive to compare entries in older and newer versions of Black's Law Dictionary—and on subjects I work on, the older ones are usually better. An example is the entry for equity. Compare the fourth (1968) and eleventh (2014) editions. In particular, note that the older entry for equity (1) emphasizes more that equity is constrained internally, but also (2) emphasizes that equity is distinctive. The newer definition does not emphasize equitable constraints to the… [read post]
16 Apr 2024, 6:49 am
Yesterday the Court stayed most of the district court's injunction in Labrador v. Poe, narrowing the injunction so that it protected only the plaintiffs from the enforcement of Idaho's statute restricting surgeries and other kinds of medical interventions for minors related to gender identity. Accompanying the Court's stay were three opinions about universal injunctions. Labrador v. Poe is an important development and it starts to clarify the Court's direction. Note that in this… [read post]
10 Apr 2024, 9:38 am
Sometimes it seems like nothing ever changes with the national injunction. Federal district courts still give them, with all of the predictable consequences related to forumshopping, percolation, end runs around class actions, and rushed decisionmaking with slender factual records. But there are changes. Some federal courts of appeals have been growing noticeably more skeptical about national injunctions (e.g., the Eleventh). There has been a shift from injunctions to the so-called remedy of… [read post]
13 Feb 2024, 6:43 pm
Alexander Hamilton, The Federalist No. 70: Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their… [read post]
11 Jan 2024, 2:03 pm
City of Columbus v. Mercantile Trust & Deposit Co. of Baltimore, 218 U.S. 645, 663 (1910): "In the case of Atty. Gen. v. Birmingham, the vice chancellor said: 'I am not sitting here as a committee of public safety, armed with arbitrary power to prevent what it is said will be a great injury not to Birmingham only, but to the whole of England; that is not my function.'"The post The Chancellor's Function appeared first on Reason.com. [read post]
13 Nov 2023, 5:48 am
Today the Harvard Law Review has published its issue on the Supreme Court's October 2022 Term, and Will Baude and I have a case comment on Biden v. Nebraska and more generally on standing doctrine in the term. The piece is called Proper Parties, Proper Relief. HLR case comments are about the case, but they're also about the big ideas behind the case, and one exemplar of that is Michael McConnell's famous case comment from 1997: Institutions and Interpretation: A Critique of City… [read post]
10 Jan 2023, 4:31 pm
Debs and the Federal Equity Jurisdiction, a new article with Professor Aditya Bamzai, has just been published in the Notre Dame Law Review. You can read it here, and this is the abstract: The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties,… [read post]
6 Jun 2022, 7:19 pm
Have you ever heard a legal scholar criticize a doctrine because it does several different things, but it isn't really good at any one of those things? That kind of criticism of a doctrine is much less common from a judge. Why is that? If you want the answer to these questions, there's a Green Bag article I wrote a few years ago called On Doctrines That Do Many Things. It starts this way: Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef's… [read post]
24 May 2022, 5:02 pm
Eugene has a post on today's decision by the Fourth Circuit (per Judge Heytens) on Rep. Madison Cawthorn's challenge to the disqualification litigation. I wanted to highlight one point. After giving a close textual read to the 1872 Amnesty Act, and concluding that it does not provide a blanket future amnesty to all insurrectionists, Judge Heytens turns to historical context. And the context to which he appeals, though he doesn't use the word, is manifestly the mischief. The relevant… [read post]
18 Feb 2022, 7:48 am
The Seventh Amendment civil jury trial right is complicated. Originalists and non-originalists alike tend to see the text as requiring a historical inquiry, because the right is "preserved" in "suits at common law." But how should that inquiry be done? My article Equity, Law, and the Seventh Amendment has just been published by the Texas Law Review, and you can read it here. Here's the abstract: The Seventh Amendment requires that the civil jury trial right be… [read post]
2 Jun 2023, 9:03 am
In reading for my festschrift essay for John Witte ("The Influence of the Catholic Intellectual Tradition on the Common Law"), I ran across this fascinating paragraph by Anthony Grafton on how Johannes Kepler didn't publish a monograph on chronology (i.e., the study of historical dates) but instead developed his scholarship through letters, with Grafton including a great quote from Blake. Enjoy. At first I regretted the absence of a Chronologia nova or a Great Chronology of… [read post]
2 Aug 2018, 11:38 am
If you've found yourself wanting a four-minute explanation of national injunctions, complete with animation, then I have good news for you. The video has arrived. [read post]
9 Nov 2018, 6:01 am
National, preliminary, mandatoryYesterday the Ninth Circuit upheld a preliminary injunction requiring the Department of Homeland Security to maintain the DACA program. (The opinion is here; coverage by Chris Geidner is here.) The preliminary injunction issued by the district court was a "national injunction," requiring that the DACA program be maintained for everyone, not just parties to the case. The opinion by Judge Wardlaw doesn't plow any new ground on the national injunction. It… [read post]
11 Aug 2018, 4:35 am
concludes: A tannin is not a whale, but readers will certainly have a whale of a time with this volume by Bray [read post]
26 Jun 2018, 5:58 pm
The national injunction is moving from a simmer to a boil. Here are the major developments: Today, in Trump v. Hawaii, the majority did not reach the scope of the injunction. In a concurring opinion, however, Justice Thomas launched a ten-page critique of the "universal injunctions" being given by federal courts. He emphasized not the policy weakness of these injunctions, but their lack of legitimacy--their relative novelty, their inconsistency with a claimant-focused view of the judicial… [read post]
6 May 2018, 6:19 pm
Last week seven states filed a suit in the Southern District of Texas seeking a national injunction (complaint, motion for preliminary injunction). The requested national injunction would prohibit the federal government from granting or renewing DACA status on the ground that the original DACA executive order in 2012 was unlawful. What makes this such a major development on the national injunction front is that the requested injunction would be directly contrary to two national injunctions that… [read post]
