Hessick and Morley, ‘Interpreting Injunctions’

ABSTRACT
Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt.

Despite the importance of injunctions, courts have applied an astonishingly wide range of contradictory approaches to interpreting them. They have likewise disagreed whether appellate courts should defer to trial courts’ interpretations or instead review those interpretations de novo. Virtually no scholarship has been written on these topics.

This Article proposes that courts apply a modified textualist approach to injunctions. Under this scheme, courts would generally interpret injunctions according to the ordinary meaning of their language. When provisions in an injunction quote or incorporate an extrinsic legal authority, such as a statute or contractual provision, however, courts would interpret them according to the methodology they would ordinarily apply to that extrinsic authority. This proposed approach ensures that injunctions provide regulated parties with adequate notice of the conduct proscribed, curtails judicial abuses of power, and tightly aligns with the procedural rules that govern injunctions in both federal and state courts.

The Article further proposes that appellate courts review trial courts’ interpretation of injunctions de novo. Independent appellate review naturally aligns with the textualist goal of implementing the best reading of an injunction, promotes principles of notice, and prevents government overreach.

Hessick, F Andrew and Morley, Michael, Interpreting Injunctions (August 24, 2020). Virginia Law Review, forthcoming.

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