Emory Law Journal


When a federal court concludes that a statute or regulation is unconstitutional or otherwise invalid, it will often enter an injunction prohibiting the government from enforcing that measure against the plaintiff in that case. But a court will dissolve a preliminary injunction after trial when it concludes that the plaintiff is not entitled to relief on the merits. It may likewise vacate a permanent injunction when subsequent developments in precedent reveal that it misconstrued the relevant legal provisions. And any type of injunction may be overturned on appeal.

Once an erroneously issued injunction has been reversed, vacated, or dissolved, the government may enforce the challenged legal provision against the plaintiff if it violates that provision in the future. It is less clear, however, whether the government may similarly prosecute that plaintiff or impose other punitive measures against it for violating the challenged provision while the injunction was in effect. Despite the centrality of injunctive relief in constitutional litigation, the Supreme Court expressly left this issue unresolved in Edgar v. MITE Corp., with various opinions defending different sides of the issue. Recent scholarship has vigorously advocated such retroactive prosecutions. The Supreme Court has exacerbated the confusion by construing many of the most seemingly applicable defenses—due process “fair notice” restrictions, prohibitions against ex post facto laws, and the mistake of law defense—too narrowly to completely bar retroactive punitive enforcement of previously enjoined legal provisions.

This Article offers a new approach. Drawing on traditional equitable practices, including the principles governing injunction bonds as well as criminal contempt proceedings under injunctions that have been overturned, this Article demonstrates that even injunctions that were issued erroneously and no longer remain in force can continue to affect litigants’ rights. It further explains that federal courts have authority—as a component of both the Article III judicial power as well as their equitable powers—to prevent the federal government and states from taking punitive measures against people for actions performed under the protection of a federal injunction. This Article goes on to examine various ways in which courts may implement this restriction. Injunctions are critical tools for protecting constitutional rights. Courts may shield litigants from the possibility of civil penalties, statutory damages, and criminal prosecution for acts taken under injunctions that were issued erroneously.

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