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Beyond the parties to a case in which an injunction is ordered, few outsiders may be aware they exist. And even when an order for injunctive relief makes the news, its exact terms may not be widely known. But like legislative enactments and publicly reported appellate decisions, injunctions can carry significant legal implications.
Indeed, depending on the nature of the relief declared, such equitable orders can last in perpetuity. And as a practical matter, third parties outside of the litigation may be directly or indirectly impacted by their terms, which prohibit or mandate certain actions. It is this last feature that has drawn tremendous recent concern, including calls to end what are referred to as nationwide or universal injunctions.
But instead of making injunctive practices even more obscure, this article advocates further noticing injunctions. That is, given the possible power and importance of these judgments, permanent injunction determinations should include opportunity for comment by interested stakeholders and other members of the public before final. Once issued, permanent injunction orders should be officially and publicly posted. In this way their edicts would be clear, widely available, and easily accessible by all for years to come. As such, a national injunction-only database or other electronic repository would be one way to provide notice relating to requested input and issuance, to ensure that these extraordinary orders are known, respected, and shared broadly over time.
Mae C. Quinn *
* Professor of Law, Penn State University. Many thanks to Jennifer Hendricks and Margo Schlanger for their careful reads and insightful comments, Ben Barros and Tracy Thomas for helpful conversations, Carmen Johnson and Jhody Polk for their ongoing leadership and openness to collaboration, and Portia Pedro for speaking truth to procedure in her inspiring scholarship. All errors are mine alone.