F. Andrew Hessick and Michael T. Morley

Interpreting Injunctions

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 over 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 a provision in an injunction quotes or incorporates by reference an extrinsic legal authority, such as a statute or contract, however, courts would interpret that provision 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 aligns tightly with the procedural rules that govern injunctions in both federal and state courts.

This Article further proposes that appellate courts review trial courts’ interpretations 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.

Introduction

Injunctions are one of the most powerful remedies in the law.1 1.F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929).Show More They dictate behavior; parties who disobey injunctions face the prospect of contempt.2 2.Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see alsoJoseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”).Show More Over the past century, injunctions have grown only more powerful, evolving into new forms such as structural injunctions3 3.SeeOwen M. Fiss, The Civil Rights Injunction 4–5 (1978).Show More and nationwide injunctions.4 4.SeeMichael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see alsoSamuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s).Show More For these reasons, ascertaining the precise meaning of an injunction is critically important. Parties need to know what conduct an injunction requires or prohibits, and courts must be able to determine whether an injunction has been violated.

There is significant inconsistency, however, in how courts interpret injunctions. Courts at every level have employed a wide range of methods, including textualism, purposivism, intentionalism, and pragmatism. These different theories can easily lead to inconsistent interpretations of identical injunctions. The lack of a uniform approach to interpreting injunctions has also contributed to disagreement among appellate courts as to whether to defer to trial courts’ interpretations of such orders. Some appellate courts review trial courts’ interpretations of injunctions de novo, while others apply more deferential standards of review.5 5.Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered).Show More Deference makes more sense under some interpretive regimes than others.

One reason for this disarray is that theories of interpretation for injunctions are surprisingly underdeveloped. In contrast to the extensive bodies of work that discuss various approaches to interpreting the Constitution,6 6.See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).Show More statutes,7 7.See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014).Show More regulations,8 8.See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).Show More contracts,9 9.See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005).Show More and wills,10 10.See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936).Show More virtually nothing has been written about the proper method for interpreting injunctions.11 11.No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. SeeTimothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010).Show More Injunctions present several considerations that do not arise with regard to other legal instruments. For example, unlike statutes that typically apply to groups of people or entities, or even the general public, injunctions operate as targeted laws, imposing coercive legal obligations on particular named parties and their associates. Moreover, in contrast to virtually every other type of legal document, an injunction is typically interpreted by the same person—the trial judge—who entered the injunction in the first place.12 12.See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”).Show More

At first glance, these considerations do not uniformly point toward a single theory of interpretation. For example, on the one hand, one might support a purposivist approach to interpretation because injunctions are typically both drafted and interpreted by the same court. An injunction’s author is in the best position to know the goals she was trying to accomplish and the most effective ways to promote them. On the other hand, because injunctions are targeted at particular individuals, a textualist approach would limit abusive enforcement by constraining the court’s ability to impose sanctions.

This Article recommends two main principles to guide the interpretation of injunctions. First, it proposes that courts adopt a modified textualist approach to interpreting injunctions. Under this proposal, a court would construe most provisions within an injunction according to the ordinary meaning of their language.13 13.For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism].Show More A textualist approach ensures adequate notice to individuals subject to the injunction; reduces opportunities for judicial abuse of the contempt power; and is most consistent with both Federal Rule of Civil Procedure 65(d), which requires an injunction to “state its terms specifically,”14 14.Fed. R. Civ. P. 65(d)(1)(B).Show More as well as its state analogues. Although a textualist approach presents the risk that individuals might try to circumvent injunctions by skirting the bounds of the prohibited conduct, courts can address this problem by modifying injunctions when necessary to prohibit such actions. This proposal reduces the risk of arbitrary or vindictive enforcement while still providing courts with flexibility to tailor injunctions over time to address unforeseen problems.15 15.In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language).Show More

We call the proposal “modified” textualism because we recognize an exception under which courts should depart from a pure textualist approach. Injunctions often draw on other legal authorities, such as statutes or contracts, that courts may interpret using approaches other than textualism. This Article proposes that a court should construe provisions within an injunction that quote or incorporate by reference an extrinsic legal authority according to the interpretive theory it would ordinarily apply to that type of authority. In contrast, when a provision restates or paraphrases an extrinsic legal authority in the issuing court’s own language—and especially when the provision imposes prophylactic protections that go beyond the requirements imposed by that extrinsic authority—the court should apply a textualist interpretation. Although this approach loses some of the benefits of notice and constraint provided by textualism, it maintains consistency and coherence in the interpretation of those other legal authorities.16 16.In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. SeeGonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes).Show More

Furthermore, although courts should apply a modified textualist approach in determining what an injunction means, non-textualist considerations should still play an important role in determining the proper remedy for violations. Not all violations of injunctions require contempt. A court has broad discretion to decline to hold a violator in contempt, for example, where that person’s conduct was only a technical violation of the injunction or did not undermine the injunction’s purpose. A court may likewise refuse to impose contempt sanctions when they would be against the public interest. Permitting courts to consider purposivist factors at the remedy phase would preserve a textualist approach to interpreting the terms of the injunction itself while capturing some of the benefits of non-textualist methods of interpretation.

Second, this Article argues that appellate courts should not defer to trial courts’ interpretations of injunctions. Plenary review naturally aligns with the textualist premise that an injunction’s text has a single, best legal meaning. De novo review also tends to ensure notice to the regulated parties by limiting the ability of an injunction’s author to enforce her unexpressed intentions or underlying purposes. And it prevents judicial abuses more effectively than deferential review by creating a greater degree of oversight.

Moreover, the standard justifications for appellate deference do not warrant a more limited standard of review for trial judges’ interpretations of injunctions.17 17.See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority).Show More Legislatures have not passed sweeping laws that either grant trial courts unique judicial authority over the interpretation of injunctions or require appellate courts to defer to them. Furthermore, trial courts do not have special expertise in determining the ordinary meaning of language; an appellate court is just as capable as a trial court of resolving such issues. Indeed, the characteristics that would make a trial judge an expert on an injunction’s meaning—being the judge who presided over the proceedings that led to the injunction and originally entered it—are precisely the same factors that create the greatest risk of abuse and accordingly counsel against deference.

Part I of this Article begins by explaining the fundamentals of injunctions, describing how they are entered and enforced. It then examines the wide range of interpretive methods courts have used to interpret them.

Part II begins building the case for a modified textualist approach to interpreting injunctions. It explains that textualism better promotes the values of providing notice and constraining government action than other methods of interpretation. It goes on to show that textualism also aligns well with the Federal Rules of Civil Procedure and analogous state provisions that require courts to clearly specify the terms of injunctions. This Part then addresses three major objections to a textualist approach. One is the practical argument that textualism makes it easier for parties to circumvent injunctions. Another is the prudential objection that a textualist approach may lead judges to enter unnecessarily broad injunctions to avoid such circumvention. Finally, this Part considers the philosophical argument that textualism is inapt because the “law” created by the injunction is really the intent of the drafter, and the terms of the injunction are merely evidence of that intent.

Part III more fully explores the contours of our proposal. It begins by suggesting that, although courts generally should interpret injunctions based on textualist principles, they should construe provisions in an injunction that quote or incorporate extrinsic legal authorities according to the interpretive methodologies the court would apply to those authorities in other contexts. This Part goes on to show why this modified textualist approach is appropriate not only for permanent injunctions, but for all other types of injunctions—including temporary restraining orders, preliminary injunctions, and consent decrees—as well. Finally, this Part recognizes that, although courts should adopt modified textualism to interpret injunctions, they still may consider non-textual factors in exercising their discretion as to whether to hold violators in contempt. This approach provides clarity about the meaning of an injunction, while mitigating some of the potential harshness of textualism by permitting courts to opt against punishing all violations of the text.

Part IV turns from the question of how to interpret injunctions to the issue of who should have power to ultimately determine their meaning. Building on the arguments developed in earlier Parts, it argues that appellate courts should determine the meaning of injunctions de novo, rather than mechanically adopting or deferentially reviewing trial courts’ interpretations.

  1. * Judge John J. Parker Distinguished Professor of Law and Associate Dean, University of North Carolina School of Law. ↑
  2. ** Associate Professor, Florida State University (FSU) College of Law. The authors are grateful for helpful feedback and suggestions from Sam Bray, Richard Fallon, Carissa Hessick, Doug Laycock, Leigh Osofksy, and Caprice Roberts, as well as the participants at the Notre Dame Law School Remedies Roundtable and 2018 Southeastern Association of Law Schools Remedies Discussion Group. ↑
  3. F.W. Maitland, Equity 254 (A.H. Chaytor & W.J. Whittaker eds., 1929). ↑
  4. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826–27 (1994) (discussing the distinction between criminal and civil contempt); see also Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum. L. Rev. 780, 780–81 (1943) (explaining that the “distinction” between civil and criminal contempt “is made decisive in such vital matters as parties, procedure, evidence, judgments, and review”). ↑
  5. See Owen M. Fiss, The Civil Rights Injunction 4–5 (1978). ↑
  6. See Michael T. Morley, Disaggregating the History of Nationwide Injunctions: A Response to Professor Sohoni, 72 Ala. L. Rev. 239 (2020) (explaining how nationwide defendant-oriented injunctions are a relatively recent phenomenon); see also Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 440 (2017) (tracing the rise of nationwide injunctions in the 1960s). ↑
  7. Compare Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”), with In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that a court should give “great deference” to a judge’s interpretation of an injunction that he entered). ↑
  8. See, e.g., Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning (1999); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990). ↑
  9. See, e.g., Antonin Scalia, A Matter of Interpretation (2d ed. 2018); William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016); Robert A. Katzmann, Judging Statutes (2014). ↑
  10. See, e.g., Cass R. Sunstein, Chevron as Law, 107 Geo. L.J. 1613 (2019); Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012). ↑
  11. See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753 (2017); Richard A. Posner, The Law and Economics of Contract Interpretation, 83 Tex. L. Rev. 1581 (2005). ↑
  12. See, e.g., Kent Greenawalt, A Pluralist Approach to Interpretation: Wills and Contracts, 42 San Diego L. Rev. 533, 534 (2005); Joseph Warren, Interpretation of Wills—Recent Developments, 49 Harv. L. Rev. 689 (1936). ↑
  13. No article specifically focuses on the unique interpretive concerns that injunctions raise. Professor Timothy Jost analyzed some of those issues in his work on modifying injunctions. See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex. L. Rev. 1101, 1104–05 (1986). Other pieces have briefly touched on the topic as it arises in particular contexts, such as abstention, see Matthew D. Staver, The Abstention Doctrines: Balancing Comity with Federal Court Intervention, 28 Seton Hall L. Rev. 1102, 1137–38 (1998), and anti-gang injunctions, see Beth Caldwell, Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions, 37 Am. J. Crim. L. 241, 280–81 (2010). ↑
  14. See, e.g., Steven Seidenberg, Fast-Forward: Federal Circuit Makes It Easier to Enforce Injunctions in Patent Cases, 17 ABA J. 16, 16 (Aug. 2011) (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
  15. For seminal discussions of textualism in statutory interpretation, see John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) [hereinafter Manning, Equity], and John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005) [hereinafter Manning, Textualism]. ↑
  16. Fed. R. Civ. P. 65(d)(1)(B). ↑
  17. In making this textualist proposal, we do not seek to engage with objections to the entire endeavor of textualism, such as whether the ordinary meaning of language can be derived without considering purpose driving that language. See, e.g., Richard A. Posner, The Problems of Jurisprudence 22–69 (1990); Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 279 (2019); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 340–45 (1990). Instead, we rely on the work of the many others who have established that it is generally possible to determine the “ordinary meaning” of language independent of the lawmaker’s intent or purpose. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79 (2006) (arguing that ordinary meaning can be derived by reading text through the lens of a “community’s shared conventions”); Jeremy Waldron, Legislators’ Intentions and Unintentional Legislation, in Law and Interpretation 329, 339 (Andrei Marmor ed., 1995) (arguing that shared conventions inform the meaning of language). ↑
  18. In other contexts, courts will sometimes apply special treatment to a legal provision that quotes an extrinsic legal authority. For example, courts generally apply Auer deference to agencies’ interpretations of their own regulations, except for regulations that merely reiterate statutory provisions. See Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006) (stating that deference under Auer v. Robbins, 519 U.S. 452 (1997), does not extend to agency rules that merely quote statutes). ↑
  19. See Paul Horwitz, Three Faces of Deference, 83 Notre Dame L. Rev. 1061, 1078 (2008) (identifying the two broad categories of justifications for deference: legal authority and epistemic authority). ↑
  20. Injunction, Black’s Law Dictionary 520 (10th ed. 2014); 43A C.J.S. Injunctions § 1 (2004) (“An injunction is a judicial order requiring a person to do or refrain from doing certain acts.”). ↑
  21. The heart of the ongoing debate over nationwide injunctions—more properly called “defendant-oriented injunctions”—concerns whether a court must tailor an injunction to protect only the rights of the plaintiffs before it, or instead may expand the order to protect the rights of third-party non-litigants as well. See Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 28–29 (2019). ↑
  22. See, e.g., Nw. Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586, 606 (N.D. Cal. 1983) (after a trial, permanently enjoining road construction in portions of a national forest), aff’d in part, vacated in part 764 F.2d 581 (9th Cir. 1985), rev’d sub nom. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). ↑
  23. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”). ↑
  24. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”); accord Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam); see Kevin J. Lynch, The Lock-In Effect of Preliminary Injunctions, 66 Fla. L. Rev. 779, 817 (2014) (“When a preliminary injunction is granted, it merely preserves the status quo long enough for a decision to be reached on the merits . . . .”); Morton Denlow, The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard, 22 Rev. Litig. 495, 507 (2003) (“Generally there are three purposes for granting a preliminary injunction: (1) maintaining the status quo, (2) preserving the court’s ability to render a meaningful decision, and (3) minimizing the risk of error.”). ↑
  25. Fed. R. Civ. P. 65(a)(1). ↑
  26. See, e.g., Fed. R. Civ. P. 65(b)(1) (authorizing TROs “without . . . notice to the adverse party” if the movant establishes that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard”). ↑
  27. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986) (explaining that a consent decree draws its force from “the agreement of the parties, rather than the force of the law upon which the complaint was originally based”). ↑
  28. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). These standards are only presumptive; Congress may change or eliminate them for a particular federal cause of action through clear statutory language. See Michael T. Morley, Enforcing Equality: Statutory Injunctions, Equitable Balancing Under eBay, and the Civil Rights Act of 1964, 2014 U. Chi. Legal F. 177, 190–94 [hereinafter Morley, Enforcing Equality]. Many states have similar standards for granting injunctions, see 43A C.J.S. Injunctions, supra note 18, § 42 (listing various states imposing similar requirements), although state courts may interpret and apply them differently than federal courts, see Michael T. Morley, Beyond the Elements: Erie and the Standards for Preliminary and Permanent Injunctions, 52 Akron L. Rev. 457, 465–68 (2018) [hereinafter Morley, Beyond the Elements]. ↑
  29. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (noting the close relationship between the standards for preliminary and permanent injunctive relief); see also 42 Am. Jur. 2d Injunctions § 8, Westlaw (database updated 2021). To obtain a preliminary injunction, a party must show that he is “likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The only differences between this standard and the requirements for permanent relief are that the plaintiff must show only a likelihood of success on the merits rather than actual success, and the court need not separately consider whether an adequate remedy at law exists. Id. The requirements for obtaining a TRO and a preliminary injunction are the same, except the plaintiff seeking a TRO must also demonstrate that circumstances made it impracticable or impossible to notify opposing counsel. See Fed. R. Civ. P. 65(b)(1); S. Cagle Juhan & Greg Rustico, Jurisdiction and Judicial Self-Defense, 165 U. Pa. L. Rev. Online 123, 126 (2017) (“[W]hen considering motions seeking TROs, courts use the same factors as for PIs . . . .”). ↑
  30. See Winter, 555 U.S. at 32 (“An injunction is a matter of equitable discretion.”); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (“[I]njunctive and declaratory judgment remedies are discretionary . . . .”). Because trial courts have such broad discretion concerning injunctions, appellate courts typically review both the decision to enter such orders, as well as their scope, only for abuse of discretion. United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 323 (1961). Nevertheless, on some occasions, appellate courts have engaged in detailed line-by-line parsing of lengthy injunctions, adjusting them as required to ensure their validity, see, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 410–35 (1945). ↑
  31. In Local No. 93, 478 U.S. at 525–26, the U.S. Supreme Court held that a federal court may enter a consent decree if it has jurisdiction over the case, the decree “come[s] within the general scope of the case made by the pleadings,” it “further[s] the objectives of the law upon which the complaint was based,” and it does not affirmatively require “unlawful” action. ↑
  32. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461 (1940); accord FTC v. Nat’l Lead Co., 352 U.S. 419, 430 (1957) (“[T]he Court is obliged not only to suppress the unlawful practice but to take such reasonable action as is calculated to preclude the revival of the illegal practices.”); see also Tracy A. Thomas, The Prophylactic Remedy: Normative Principles and Definitional Parameters of Broad Injunctive Relief, 52 Buff. L. Rev. 301, 314 (2004) (“[T]here are two definitive attributes of the prophylactic remedy: it is (1) injunctive relief with a preventive goal, (2) that imposes specific measures reaching affiliated legal conduct that contributes to the primary harm.”). ↑
  33. Such broader relief is especially appropriate when the defendant has engaged in knowing and intentional wrongdoing. United States v. U.S. Gypsum Co., 340 U.S. 76, 89–90 (1950) (holding that people who willfully violate the law “call for repression by sterner measures than where the steps could reasonably have been thought permissible”). ↑
  34. Courts may also use injunctions to “cure the ill effects of the illegal conduct” by prohibiting the defendants from profiting from, or enjoying other benefits of, their past illegal activities. Id. at 88–89. For example, an injunction may cancel a contract executed as the result of a price-fixing conspiracy, even though the parties might have entered into the same contract without violating antitrust laws. See United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944). ↑
  35. Swift & Co. v. United States, 196 U.S. 375, 396 (1905); see NLRB v. Express Publ’g Co., 312 U.S. 426, 435–36 (1941) (“[T]he mere fact that a court has found that a defendant has committed an act in violation of a statute does not justify an injunction broadly to obey the statute,” when that statute prohibits conduct “unlike and unrelated to that with which he was originally charged.”). That said, some precedent suggests that when the Government wins an injunction against violations of federal statutes, it should get the benefit of the doubt about the proper scope of the order to ensure the law is adequately enforced. Local 167, Int’l Brotherhood of Teamsters v. United States, 291 U.S. 293, 299 (1934) (“In framing [the injunction’s] provisions doubts should be resolved in favor of the Government and against the conspirators.”); accord Hartford-Empire, 323 U.S. at 409 (suggesting that a court may “resolve all doubts in favor of the Government” in framing injunctions). ↑
  36. Fed. R. Civ. P. 65(d)(1)(A). Forty-four states have promulgated provisions comparable to Federal Rule 65. See Ala. R. Civ. P. 65; Alaska R. Civ. P. 65; Ariz. R. Civ. P. 65; Ark. R. Civ. P. 65; Cal. Code Civ. Proc. § 65; Colo. R. Civ. P. 65; Conn. Gen. Stat. Ann. § 53a-206; Del. Ch. Ct. R. 65; Fla. R. Civ. P. 1.610; Ga. Code Ann. § 9-11-65; Haw. R. Civ. P. 65; Idaho R. Civ. P. 65; 735 Ill. Comp. Stat. Ann. 5/11-101; Ind. R. Trial P. 65; Kan. Stat. Ann. § 60-906; Ky. R. Civ. P. 65.02; La. Code Civ. Proc. Ann. art. 3605; Me. R. Civ. P. 65; Md. R. 15-502; Mass. R. Civ. P. 65; Minn. R. Civ. P. 65.04; Miss. R. Civ. P. 65; Mo. Sup. Ct. R. 92.02; Mont. Code Ann. § 27-19-105; Neb. Rev. Stat. Ann. § 25-1064.01; Nev. R. Civ. P. 65; N.H. Sup. Ct. R. 48; N.J. Ct. R. 4:52-4; N.C. R. Civ. P. 65; N.D. R. Civ. P. 65; Ohio R. Civ. P. 65; Okla. Stat. tit. xii, § 12-1386; Or. R. Civ. P. 79; R.I. Super. Ct. R. Civ. P. 65; S.C. R. Civ. P. 65; S.D. Codified Laws § 15-6-65(d); Tenn. R. Civ. P. 65.02; Tex. R. Civ. P. 683; Utah R. Civ. P. 65A; Vt. R. Civ. P. 65; Wash. Super. Ct. Civ. R. 65; W. Va. R. Civ. P. 65; Wyo. R. Civ. P. 65. Of the other six states, five—Iowa, New York, Pennsylvania, Virginia, and Wisconsin—have adopted similar requirements by common law. 205 Corp. v. Brandow, 517 N.W.2d 548, 552 (Iowa 1994); Jacquin v. Pennick, 49 A.2d 769, 772 (Pa. Commw. Ct. 1982); Rollins v. Commonwealth, 177 S.E.2d 639, 642 (Va. 1970); Dalton v. Meister, 267 N.W.2d 326, 330 (Wis. 1978); see also 67A N.Y. Jur. 2d Injunctions § 167 (2021) (gathering cases describing New York’s specificity requirement for injunctions). Only New Mexico appears not to have adopted specificity requirements. ↑
  37. Fed. R. Civ. P. 65(d)(1)(B)–(C). Wright, Miller, and Kane’s treatise contends that the “requirement of ‘reasonable detail’ appears to be repetitious of the specificity requirement.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure – Civil § 2955 (3d ed. 2013). Whether an injunction is sufficiently clear depends on a holistic reading of the order. An otherwise vague provision in an injunction may provide adequate notice when read in conjunction with the order’s other provisions. Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 126 (1948) (noting that potentially vague provisions in an injunction must be “read . . . in light of the other paragraphs of the decree”). ↑
  38. Wright et al., supra note 35, § 2955; see also 13 William Moore, Federal Practice – Civil § 65.60[3] (“A court must frame its injunctions or restraining orders so that those who must obey them will know precisely what the court intends to forbid or require.”). Rule 65 further provides that an injunction binds only the parties to a case, their officers and agents, as well as third parties acting in concert with them, if they have notice of it. Fed. R. Civ. P. 65(d)(2). One of the authors has argued that Rule 65(d)(2) is a substantive rule that exceeds the judiciary’s rulemaking authority under the Rules Enabling Act, but the principles it codifies are consistent with both traditional equitable principles as well as the law of nearly all states. Morley, supra note 19, at 49 n.277. ↑
  39. Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also Wright et al., supra note 35, § 2955 (explaining that this specificity requirement is “designed to protect those who are enjoined by informing them of what they are called upon to do or refrain from doing in order to comply with the injunction or restraining order”). ↑
  40. Schmidt, 414 U.S. at 477. ↑
  41. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 296 (1941). Interestingly, the Court has also suggested, “[A] judge himself should draw the specific terms of such restraint and not rely on drafts submitted by the parties.” Id. ↑
  42. Regal Knitwear Co. v. NLRB, 324 U.S. 9, 10, 15 (1945) (upholding validity of an injunction which specified that it applied not only to the named respondent but its “successors and assigns” as well, because “[i]f defendants enter upon transactions which raise doubts as to the applicability of the injunction, they may petition the court granting it for a modification or construction of the order”); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (upholding broad injunction in part based on respondents’ ability to “petition[] the District Court for a modification, clarification or construction of the order”); United States v. Crescent Amusement Co., 323 U.S. 173, 188 (1944) (suggesting that the “burden” of an injunction drafted in “general” terms can be “lightened by application to the court”). ↑
  43. See N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983) (Friendly, J.) (“The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.”). ↑
  44. Fed. R. Civ. P. 60(b)(5) (allowing a court to grant relief from an order when “applying it prospectively is no longer equitable”); see Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992) (“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. . . . [and] the proposed modification is suitably tailored to the changed circumstance.”); cf. United States v. Swift & Co., 286 U.S. 106, 119 (1932) (holding that a district court may modify an antitrust consent decree upon a “clear showing of grievous wrong evoked by new and unforeseen conditions”); see generally 42 Am. Jur. 2d Injunctions § 288, Westlaw (database updated 2021) (summarizing the circumstances under which courts may modify or dissolve injunctions). ↑
  45. Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970) (“An injunctive order is an extraordinary writ, enforceable by the power of contempt.”). ↑
  46. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986). ↑
  47. Hicks v. Feiock, 485 U.S. 624, 631 (1988). ↑
  48. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (explaining that contempt sanctions may “punish a prior offense”). ↑
  49. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). ↑
  50. Hicks, 485 U.S. at 632. Accordingly, defendants in criminal contempt proceedings are entitled to the same constitutional protections that apply in other criminal prosecutions. Id. (holding, in a contempt case, that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings”). For example, defendants in criminal contempt proceedings have the rights to a jury trial (unless the punishment will be six months or less), Bloom v. Illinois, 391 U.S. 194, 210 (1968); to an attorney, Cooke v. United States, 267 U.S. 517, 537 (1925); and to have the prosecution prove its case beyond a reasonable doubt, Hicks, 485 U.S. at 632; Gompers, 221 U.S. at 444; see also U.S. Dep’t of Justice, Criminal Resource Manual § 754 (2012). ↑
  51. United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947). ↑
  52. Id. at 332 (Black, J., concurring in part and dissenting in part); Gompers, 221 U.S. at 441–42. ↑
  53. See Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986) (citing United Mine Workers, 330 U.S. at 303–04). ↑
  54. Id.; Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” (internal quotation marks omitted)). ↑
  55. Bagwell, 512 U.S. at 838 (stating that courts may use the compensatory contempt power to “enter broad compensatory awards . . . through civil proceedings”); Doug Rendleman, Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court’s Establishment Clause Legacy?, 59 Wash. & Lee L. Rev. 1343, 1379, 1390 (2002). ↑
  56. United Mine Workers, 330 U.S. at 304. ↑
  57. Gompers, 221 U.S. at 441–42. Although civil contempt may result in these harsh sanctions, fewer protections apply because it is not a criminal remedy. See Turner v. Rogers, 564 U.S. 431, 442 (2011) (“[W]here civil contempt is at issue, the Fourteenth Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.”); Bagwell, 512 U.S. at 827 (holding that “[n]either a jury trial nor proof beyond a reasonable doubt” is necessary for imposing “civil contempt sanctions”). ↑
  58. United Mine Workers, 330 U.S. at 304. ↑
  59. Turner, 564 U.S. at 442 (“[O]nce a civil contemnor complies with the underlying order, he is purged of the contempt and free.”); see also Gompers, 221 U.S. at 442 (explaining that the respondent “can end the sentence and discharge himself at any moment by doing what he had previously refused to do”). ↑
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 53 (2012) (“Every application of a text to particular circumstances entails interpretation.”). ↑
  61. 1 Charles Fisk Beach, Jr., Commentaries on the Law of Injunctions § 261, at 272 (1895) (“[W]hether or not there has been a breach of an injunction must often turn upon the scope of its terms.”). ↑
  62. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
  63. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  64. Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting). ↑
  65. (1801) 31 Eng. Rep. 962. ↑
  66. Id. at 962. The injunction prohibited the defendant “from cutting down or felling any trees or timber standing or growing for ornament . . . of the mansion-house and buildings at Ombersley Court” and other nearby locations. Id. ↑
  67. Id. at 964. ↑
  68. Id. at 963–64. Woodward v. Earl Lincoln (1674) 36 Eng. Rep. 1000, provides another example of textualism. There, an injunction quieted possession of property. The enjoined individual later assisted a magistrate who lawfully seized the property for restitution. The court held that this assistance violated the injunction. Id. ↑
  69. 402 U.S. 673 (1971). ↑
  70. Id. at 676. ↑
  71. Id. ↑
  72. Id. at 674, 676. ↑
  73. Id. at 677. ↑
  74. Id. at 683. ↑
  75. Id. at 677. ↑
  76. Id. ↑
  77. Id. at 677–78. ↑
  78. Id. at 679. ↑
  79. Id. at 681; see also United States v. Atl. Ref. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). Justice Douglas’ dissent in Armour employed a purposivist approach, instead. He declared that the “evil at which the decree is aimed is combining meatpackers with companies in other food product areas.” Armour, 402 U.S. at 686 (Douglas, J., dissenting). That harm would occur, Justice Douglas said, regardless of whether Armour itself sold prohibited food products, or a company that dealt in such products acquired Armour instead. Id. at 687. Accordingly, he argued, despite the consent decree’s narrow language, it should be given a broader construction to promote its underlying goals more effectively. ↑
  80. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”); Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 407 (1942); see also Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.) (“[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”). ↑
  81. Manning, supra note 15, at 91 (“Purposivists give precedence to policy context.” (emphasis omitted)). ↑
  82. See, e.g., Int’l Longshoreman’s & Warehouseman’s Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) (applying a “looser, more liberal meaning” to the statutory term “district court of the United States” in order to include Alaska’s territorial courts). ↑
  83. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers . . . .”). ↑
  84. See 1 Edward M. Dangel, Contempt § 242 (1939) (“[I]t is the spirit and not the letter of the command to which obedience is required, and it must be obeyed in good faith according to its spirit.”). ↑
  85. Bolt v. Stanway (1795) 145 Eng. Rep. 965, 965; 2 Anst. 556, 556–57. ↑
  86. Id. ↑
  87. Id. at 965; 2 Anst. at 557; accord Chaplin v. Cooper (1812) 35 Eng. Rep. 7, 8; 1 V. & B. 16, 19; see also Axe v. Clarke (1779) 21 Eng. Rep. 383, 383–84; Dickens 549, 549–50 (concluding that requiring the sheriff to tender seized assets to satisfy a judgment violated an injunction prohibiting the plaintiff from recovering on that judgment); Robert Henley Eden, A Treatise on the Law of Injunctions 72–73 (1821) (agreeing that, when a court enjoins a person from suing to obtain someone else’s property, and the sheriff has attached that other person’s property, the enjoined party may not sue the sheriff to obtain the attached property). For another early example of purposivism, see St. John’s College, Oxford v. Carter (1839) 41 Eng. Rep. 191, 192; 4 My. & Cr. 497, 497–98 (holding that a defendant violated an injunction prohibiting him from chopping wood in Bagley Wood by encouraging others to chop the wood). ↑
  88. 24 Eng. Rep. 1006; 3 P. Wms. 146. ↑
  89. Id. at 1006; 3 P. Wms. at 146–47. ↑
  90. Id. at 1006; 3 P. Wms. at 148. Although relatively rare today, injunctions prohibiting individuals from launching new legal proceedings were historically common. See Eden, supra note 85, at 68. Courts regularly applied purposivism in interpreting those types of injunctions to ensure that they did not unduly interfere with already pending actions. Id. at 69. ↑
  91. 336 U.S. 187 (1949). ↑
  92. Id. at 189. ↑
  93. Id. at 190. ↑
  94. Id. ↑
  95. Id. ↑
  96. Id. ↑
  97. Id. at 195. ↑
  98. Id. at 192. ↑
  99. Id. ↑
  100. Id. at 193. ↑
  101. Id. ↑
  102. Id. at 192. Justice Frankfurter—usually an avowed purposivist, see, e.g., Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538–39 (1947)—joined with Justice Jackson to issue a strong textualist dissent. He declared that injunctions must be “explicit and precise.” McComb, 336 U.S. at 195 (Frankfurter, J., dissenting). He believed that the injunction at issue lacked the “clearness of command” required for a court to conclude that the defendants had disobeyed it. Id. at 196. “Behind the vague inclusiveness of an injunction like the one before us,” Frankfurter cautioned, “is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings.” Id. at 197. He further warned that holding respondents in contempt for violating vague or general injunction provisions would encourage courts to draft orders with “indefinite terms.” Id. “To be both strict and indefinite” was “a kind of judicial tyranny.” Id. at 195. ↑
  103. 312 U.S. 287 (1941). ↑
  104. Id. at 291–92. ↑
  105. Id. at 308 (Black, J., dissenting). ↑
  106. Id. ↑
  107. Id. ↑
  108. Id. at 298 (majority opinion). ↑
  109. Id. Justice Black, applying a primarily textualist approach, dissented, refusing to read such implicit limitations into the injunction. Rejecting Frankfurter’s interpretation, Black stated, “I find not even slight justification for an interpretation of this injunction so as to confine its prohibitions to conduct near stores dealing in respondent’s milk. Neither the language of the injunction nor that of the complaint which sought the injunction indicates such a limitation.” Id. at 310 (Black, J., dissenting). Black’s proposed methodology departed from textualism, however, because he argued that to interpret the injunction, the Court must consider not only the injunction itself, but also “the complaint, the answer, the evidence, the findings, and the decision and judgment of the Illinois courts.” Id. at 307. ↑
  110. See, e.g., United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Hand, J.) (“[W]hat we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.”), aff’d by an equally divided Court, 345 U.S. 979 (1953) (per curiam). ↑
  111. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) (“The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.”). ↑
  112. 280 U.S. 168 (1929). ↑
  113. 28 U.S.C. § 380 (1925) (current version at 28 U.S.C. § 2284 (2018)); Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 Geo. L.J. 699, 727–33 (2020). ↑
  114. Hobbs, 280 U.S. at 170. ↑
  115. Id. at 171. ↑
  116. Id. ↑
  117. Id. at 172. ↑
  118. Id. ↑
  119. See Ronald Dworkin, Law’s Empire 95 (1986) (explaining that pragmatism counsels courts to “make whatever decisions seem to them best for the community’s future, not counting any form of consistency with the past as valuable for its own sake”); Richard A. Posner, Law, Pragmatism, and Democracy 59–60 (2003) (arguing for legal interpretations that produce the best outcomes); Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 992 (2016) (explaining that pragmatism “posits only that judges should construe statutes by focusing on the practical consequences that will result from an interpretation and seeking the best result”). ↑
  120. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should take into account both social context and more tangible consequences). ↑
  121. Id. (noting that pragmatists argue that “the goal of statutory interpretation should be to produce the best results for society”) (citing Richard A. Posner, The Problematics of Moral & Legal Theory 227 (1999); Richard A. Posner, The Problems of Jurisprudence 73–74 (1990)). ↑
  122. 62 F.3d 903, 906 (7th Cir. 1995) (Posner, C.J.). ↑
  123. Id. at 905. ↑
  124. Id. ↑
  125. Id. at 907. ↑
  126. Id. ↑
  127. Id. at 906. ↑
  128. Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  129. Although a court should generally employ textualism to determine the meaning of injunctions, we also propose that a court consider an injunction’s purpose when determining whether to impose sanctions on a violator. See infra Section III.C. ↑
  130. See infra Section III.A. ↑
  131. Manning, Equity, supra note 13, at 7 (arguing that textualism more faithfully implements legislative will than purposivism). ↑
  132. See Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57, 87 (2014) (explaining how political minorities may use vetogates to block legislation). ↑
  133. Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983) (“Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice.”). ↑
  134. See id. at 546. ↑
  135. U.S. Const. art. I, § 7. All states have a presentment requirement, see Jordan E. Pratt, Disregard of Unconstitutional Laws in the Plural State Executive, 86 Miss. L.J. 881, 910 (2017) (“Like the federal Constitution, all state constitutions require that, to become law, bills must either be passed by the legislature and approved by the governor, or enacted by the legislature over the governor’s veto.”), and forty-nine have bicameralism requirements, see Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, 2020 U. Ill. L. Rev. 233, 252 (discussing the “forty-nine states with bicameral legislatures”). ↑
  136. Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612 (2012) (“Nothing but the text has received the approval of the majority of the legislature and of the President, assuming that he signed it rather than vetoed it and had it passed over his veto. Nothing but the text reflects the full legislature’s purpose.”). ↑
  137. Baker v. Gen. Motors Corp., 522 U.S. 222, 236 (1998) (“Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction.”). ↑
  138. See Seidenberg, supra note 12, at 16 (“[A] contempt proceeding is usually heard by the same judge who issued the injunction . . . .”). ↑
  139. Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 557 (2009) [hereinafter Fair Notice] (“[T]extualism by its very definition seeks to satisfy this dictate of fair notice . . . .”). ↑
  140. See Smith v. Goguen, 415 U.S. 566, 572 & n.8 (1974) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). ↑
  141. Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 Notre Dame L. Rev. 187, 210 (2014). ↑
  142. See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (“Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them.” (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926))). ↑
  143. U.S. Const. art. I, § 9, cl. 3 (prohibiting Congress from enacting ex post facto laws); id. art. I, § 10, cl. 1 (prohibiting states from enacting ex post facto laws); see Bouie v. City of Columbia, 378 U.S. 347, 353–54 (1964). ↑
  144. Charles Stewart Drewry, A Treatise on the Law and Practice of Injunctions 398 (1842) (“To be guilty of a breach of injunction, the party must have notice of it . . . .”). ↑
  145. See, e.g., Marquis of Downshire v. Lady Sandys (1801) 31 Eng. Rep. 962, 963; 6 Ves. Jun. 108, 109 (observing the duty of the courts to define an injunction’s terms “with precision and accuracy” so that it “might be clearly understood by the parties”); Skip v. Harwood (1747) 26 Eng. Rep. 1125, 1125; 3 Atk. 564, 565 (discussing the importance of notice in an injunction). ↑
  146. Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885). ↑
  147. Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019) (“‘[B]asic fairness requir[es] that those enjoined receive explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt . . . .” (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam))). ↑
  148. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820); see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). ↑
  149. United States v. Davis, 139 S. Ct. 2319, 2333 (2019). ↑
  150. See id. (observing that the rule of lenity “is founded on ‘the tenderness of the law for the rights of individuals’ to fair notice of the law” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)); United States v. Bass, 404 U.S. 336, 348 (1971) (explaining that the rule of lenity arises in part from “the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should” (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967))); see also United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion) (stating that the rule of lenity “vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed”). ↑
  151. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517–18 (1992) (plurality opinion) (applying the rule of lenity to a “tax statute . . . in a civil setting” because the statute “has criminal applications”). ↑
  152. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (holding that, if a court must construe a statute’s language a particular way in one setting, that interpretation carries over to other settings, and declaring that “[t]he lowest common denominator, as it were, must govern”). ↑
  153. Although the rule of lenity is a doctrine of statutory interpretation, a handful of courts have applied it when interpreting injunctions to decide whether to impose criminal contempt. See, e.g., Gates v. Pfeiffer, No. G039450, 2009 WL 693468, at *9 (Cal. Ct. App. Mar. 17, 2009) (citing Lopez v. Superior Court, 72 Cal. Rptr. 3d 929, 935 (Ct. App. 2008)) (“As a penal law, the restraining order was subject to the so-called ‘rule of lenity,’ which requires that ambiguities in penal laws be construed in favor of defendants.”). ↑
  154. See supra notes 44–45 and accompanying text. ↑
  155. See supra notes 46–49 and accompanying text. ↑
  156. Cf. Leocal, 543 U.S. at 11 n.8 (explaining that “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies”). ↑
  157. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801–02 (2019) (justifying the rule of strict construction in a compensatory contempt case on the ground that coercive contempt can be a severe remedy); see also Shillitani v. United States, 384 U.S. 364, 369 (1966) (stating that civil contempt constitutes “punishment,” but that it has a different “character and purpose” than criminal contempt (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911))). ↑
  158. See Fair Notice, supra note 137, at 557 (“Textualism as fair notice emphasizes the importance of interpreting laws as their subjects would fairly have expected them to apply.”). ↑
  159. See Manning, supra note 15, at 76 (explaining that textualism counsels a court to interpret legal writings based on how “a reasonable person would use language under the circumstances”). ↑
  160. See Hart & Sacks, supra note 78, at 1374 (concluding that courts should “[i]nterpret the words of the statute immediately in question so as to carry out the purpose as best it can”). ↑
  161. See Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 63 (1988) (“[L]aw is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified.”). ↑
  162. See Posner, supra note 109, at 817 (explaining that, under an intentionalist approach, “the task for the judge . . . [is] to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar”). ↑
  163. Krishnakumar, supra note 117, at 993 (noting that pragmatists argue that interpretation should consider social context and practical consequences). ↑
  164. Id. at 915 (noting that pragmatism “does not claim to promote predictability”). ↑
  165. See Manning, Textualism, supra note 13, at 434 (stating that “modern textualists” look to the “ordinary meaning” of words and phrases, as well as “the relevant linguistic community’s (or sub-community’s) shared understandings and practices”). ↑
  166. Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“[T]o speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, ‘one can use a firearm in a number of ways,’ . . . including as an article of exchange, . . . but that is not the ordinary meaning of ‘using’ [it].” (footnote omitted)). ↑
  167. The rule of lenity would point toward the narrower definition of use, of course. ↑
  168. Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (noting that protection from “arbitrary, wrongful government actions” is a core feature of due process). ↑
  169. The Federalist No. 47, at 316 (James Madison) (Harvard Univ. Press ed. 2009) (praising separation of powers on the ground that “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny”); see INS v. Chadha, 462 U.S. 919, 959 (1983) (“[W]e have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”). ↑
  170. See The Federalist No. 47 (James Madison); Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1534 (1991) (“[S]eparation of powers [is] aimed at the interconnected goals of preventing tyranny and protecting liberty.”); see also Ilan Wurman, Constitutional Administration, 69 Stan. L. Rev. 359, 368–69 (2017). ↑
  171. Of course, injunctions predate modern conceptions of separation of powers. But the primary reason the Framers adopted separation of powers as a critical structural principle for the Constitution was to provide increased protection for individual liberty compared to the traditional English system. See Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 16–17 (2006) (“Having endured the tyranny of the King of England, the framers viewed the principle of separation of powers as the central guarantee of a just government.”). ↑
  172. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840, (1994) (Scalia, J., concurring) (“That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers.”). ↑
  173. Charles de Montesquieu, The Spirit of the Laws 174 (Thomas Nugent trans., 1873) (1748) (stating that, if those functions are united, “the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator” (emphasis added)); accord The Federalist No. 47 (James Madison); see also Irving R. Kaufman, The Essence of Judicial Independence, 80 Colum. L. Rev. 671, 701 (1980) (arguing that separating the judiciary from the legislature is central to ensuring “impartial justice”). ↑
  174. Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887, 931 (2020) (“The structural injunction has faced criticism on two major grounds: federalism and separation of powers.”). ↑
  175. Fed. R. Civ. P. 65(d)(1)(B)–(C). ↑
  176. See supra note 34. ↑
  177. Wright et al., supra note 35, § 2955 (explaining that, since Rule 65(d)’s language “strongly suggests that only those acts specified by the order will be treated as within its scope and that no conduct or action will be prohibited by implication, all omissions or ambiguities in the order will be resolved in favor of any person charged with contempt”). ↑
  178. See, e.g., Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 906 (7th Cir. 1995); see also supra notes 120–25 (discussing Schering). ↑
  179. See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (declining to enforce an injunction on the grounds it violated Rule 65(d), because the order was neither “‘specific’ in outlining the ‘terms’ of the injunctive relief granted,” nor “describe[d] ‘in reasonable detail . . . the act or acts sought to be restrained’”); see also Int’l Longshoreman’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76 (1967) (overturning “unintelligible” injunction); Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945); see also Atiyeh v. Capps, 449 U.S. 1312, 1317 (1981) (Rehnquist, C.J., in chambers) (staying order requiring prison officials to reduce prison population by “at least 250” by a particular date because it “falls short of this specificity requirement”). ↑
  180. In Madsen v. Women’s Health Center, 512 U.S. 753, 808–09 (1994), Justice Scalia suggested in his concurrence that the injunction at issue should be read narrowly to satisfy the precision requirement. But in doing so, Justice Scalia did not suggest that a judge’s intent could be used to cure an otherwise defective injunction. Instead, he effectively used the precision requirement as the basis for a substantive canon of interpretation, analogous to the constitutional avoidance principle. Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (declining to interpret a federal law in a way that would raise “difficult and sensitive questions” under the First Amendment). Under Justice Scalia’s approach, courts should reject a broad interpretation of an injunction that would cause that injunction to violate Rule 65(d)’s “axiomatic requirement that its terms be drawn with precision.” Madsen, 512 U.S. at 809. ↑
  181. See, e.g., Malley v. Briggs, 475 U.S. 335, 342 (1986) (“[O]ur role is to interpret the intent of Congress in enacting [42 U.S.C.] § 1983 . . . .”). ↑
  182. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future violations” of the underlying legal provisions.); cf. Cont’l Ill. Nat’l Bank & Trust Co. v. Chi., Rock Island & Pac. Rye Co., 294 U.S. 648, 676 (1935) (noting that an injunction may be issued “for the purpose of protecting and preserving the jurisdiction of the court ‘until the object of the suit is accomplished and complete justice done between the parties’” (quoting Looney v. E. Tex. R.R. Co., 247 U.S. 214, 221 (1918))). ↑
  183. See supra note 77. ↑
  184. See supra notes 108–09 and accompanying text. ↑
  185. See, e.g., Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 632 (7th Cir. 2003) (Posner, J.) (describing an injunction as “appallingly bad” and ordering its modification sua sponte); W. Water Mgmt., Inc. v. Brown, 40 F.3d 105, 109 (5th Cir. 1994) (recognizing a district court’s authority to modify injunctions sua sponte with prior notice to the parties). See generally Wright et al., supra note 35, § 2961 (noting the “universally recognized principle that a court has continuing power to modify or vacate” an injunction). ↑
  186. See Jost, supra note 11, at 1109 (explaining how courts can use their power to modify injunctions to address unexpected changes in circumstance); see, e.g., Chrysler Corp. v. United States, 316 U.S. 556, 560 (1942) (modifying injunction in light of the parties’ actions). ↑
  187. See United States v. Armour & Co., 402 U.S. 673, 681–82 (1971) (refusing to interpret a consent decree beyond its “four corners,” and declaring that the Government should instead ask the trial court to modify the decree if it is not achieving its intended purposes). Requiring a textualist approach would also incentivize judges to craft injunctions more precisely, to accurately embody their intended proscriptions and promote their goals. ↑
  188. See supra notes 31–33 and accompanying text. ↑
  189. See id. ↑
  190. This argument does not go to the nature of an injunction. Instead, it is an argument about the court’s role in interpreting injunctions. In other words, the argument does not claim that an injunction is the intent of the drafter; rather, it claims that, to perform their role as agent honestly, courts should seek to implement the drafter’s intent. ↑
  191. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010) (discussing the faithful agent theory of interpretation). ↑
  192. Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1284–85 (2020). ↑
  193. Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both, 99 Cornell L. Rev. 685, 686 (2014) (“A central ambition of most theories of statutory interpretation is to ensure that judges act as faithful agents of the legislature . . . .”); Frank H. Easterbrook, Judges as Honest Agents, 33 Harv. J.L. & Pub. Pol’y 915, 915 (2010) (“The honest-agent [theory] is not controversial.”). ↑
  194. Manning, Equity, supra note 13, at 16 & n.65 (“[A] faithful agent’s job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community.”); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63 (1994); see also Fallon, supra note 191, at 687 (“In textualists’ estimation, courts best act as faithful agents by enforcing the fair meaning of the words that the legislature enacted.”). ↑
  195. See Easterbrook, supra note 191, at 922 (describing difficulties in identifying the desires of drafters); Krishnakumar, supra note 190, at 1334–35 (“[M]any textualists take the view that the enacted text is the best available evidence of Congress’s intent and that close attention to the text is the only way to accurately effectuate that intent.”). ↑
  196. See, e.g., In re W.R. Grace & Co., 475 B.R. 34, 95–96 (D. Del. 2012) (discussing injunction incorporating statutes relating to asbestos claims); In re S.N., No. E055823, 2014 WL 185651, at *4 (Cal. Ct. App. Jan. 16, 2014) (discussing injunction incorporating statutes relating to gang violence). ↑
  197. See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1237 (2015) (explaining how different theories are appropriate for interpreting various types of texts). ↑
  198. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958) (first proposing this famous example). ↑
  199. Cf. Clark v. Martinez, 543 U.S. 371, 380 (2005) (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”); Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (explaining that, if a statute has criminal and civil applications, courts “must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”). ↑
  200. See, e.g., Matter of Rimsat, Ltd., 98 F.3d 956, 965 (7th Cir. 1996) (interpreting an injunction that quoted § 543(b) of the Bankruptcy Code by construing that provision of the Code). ↑
  201. Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (holding that an agency’s interpretation of its own regulation that reflects its “fair and considered judgment on the matter in question” is “controlling unless ‘plainly erroneous or inconsistent with the regulation,’” even if the agency adopted that interpretation without notice-and-comment rulemaking and communicated it in an amicus brief (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989))); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) (holding that Auer deference “enables the agency to fill out the regulatory scheme Congress has placed under its supervision,” but cautioning that “th[e] Court has cabined Auer’s scope in varied and critical ways”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (providing that, when a regulation’s “meaning . . . is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”). ↑
  202. Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.”). But see Hanah Metchis Volokh, The Anti-Parroting Canon, 6 N.Y.U. J.L. & Liberty 292, 311 (2011) (“[T]he fact that a statute and a regulation use the same words should not always lead to the conclusion that they mean the same thing.”). ↑
  203. Gonzales, 546 U.S. at 257. ↑
  204. Id. ↑
  205. See supra Section II.A. ↑
  206. See supra note 200 and accompanying text. ↑
  207. See supra note 27. ↑
  208. See supra note 42 and accompanying text. ↑
  209. Cf. Morley, Beyond the Elements, supra note 26, at 477 (discussing “[t]he need for consistency between the standards for preliminary and permanent injunctions”). ↑
  210. Fed. R. Civ. P. 65(b)(1). ↑
  211. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (holding that consent decrees are “hybrid[s]” that can be characterized as both contracts and judgments). But see Thomas M. Mengler, Consent Decree Paradigms: Models Without Meaning, 29 B.C. L. Rev. 291 (1988) (arguing that a consent decree cannot be treated either as a traditional contract or court order). ↑
  212. Local No. 93, 478 U.S. at 519 (“[B]ecause their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.”). ↑
  213. See, e.g., EEOC v. Local 580, Int’l Ass’n of Bridge, Structural & Ornamental Ironworkers, 925 F.2d 588, 594 (2d Cir. 1991). ↑
  214. 420 U.S. 223 (1975). ↑
  215. Id. at 238. ↑
  216. Id. ↑
  217. See Local No. 93, 478 U.S. at 518 (agreeing that a “consent decree looks like and is entered as a judgment”). ↑
  218. ITT Continental Baking, 420 U.S. at 247 (Stewart, J., dissenting) (accusing the majority of “proclaim[ing] a new rule of construction for consent orders or decrees” that was “totally at odds with our previous decisions” and “directly contrary” to precedents allowing a court to consider only the “four corners” of a consent decree); see also United States v. Armour & Co., 402 U.S. 673, 682 (1971) (“[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.”); United States v. Atl. Refin. Co., 360 U.S. 19, 23–24 (1959) (interpreting language in a consent decree based on its “normal meaning,” rather than adopting “another reading” which “might seem more consistent with the Government’s reasons for entering into the agreement in the first place”); Hughes v. United States, 342 U.S. 353, 356–57 (1952) (applying plain-meaning interpretation of consent decree). ↑
  219. See Fed. R. Civ. P. 65(d)(2). ↑
  220. Alternatively, federal courts could create a body of federal common law principles for interpreting consent decrees. Creating such a unique interpretive regime distinct from the law governing other types of injunctions seems unnecessarily duplicative, complicated, and burdensome. And any such body of federal common law is likely to be plagued with the same inconsistencies and indeterminacy as the law governing constitutional and statutory interpretation. ↑
  221. Differences in contract law among the states could substantially impact a consent decree’s proper interpretation. For example, states differ on whether contracts must be construed in light of an implied duty of good faith and fair dealing; states that have recognized such a duty have adopted different approaches on how to construe and apply it. See Richard A. Bales, The Discord Between Collective Bargaining and Individual Employment Rights: Theoretical Origins and a Proposed Reconciliation, 77 B.U. L. Rev. 687, 751 (1997) (“[S]ome but not all states imply a duty of good faith and fair dealing into every contract . . . .”); Thomas A. Diamond & Howard Foss, Proposed Standards for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated: A Framework for Resolving the Mystery, 47 Hastings L.J. 585, 590 (1990) (“[A]uthorities differ about the methodology for determining whether conduct violates the covenant [of good faith].”). ↑
  222. Armour & Co., 402 U.S. at 681. ↑
  223. Id. at 681–82 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.”). ↑
  224. See Manning, supra note 15, at 70–71, 74 (advocating for textualism because legislation embodies a compromise); see also Easterbrook, supra note 159, at 63 (noting that a non-textualist interpretative approach ignores that “laws are born of compromise”). ↑
  225. See Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637, 663–64 (2014). ↑
  226. Id. at 682–88. ↑
  227. See, e.g., Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper, 545 F.3d 21, 25 (1st Cir. 2008) (explaining that “even if all of [the] conditions [for contempt] are satisfied, the trial court retains a certain negative discretion . . . to eschew the imposition of a contempt sanction . . . in the interests of justice”); Trials, 45 Geo. L.J. Ann. Rev. Crim. Proc. 569, 683 (2016) (“Courts have broad discretion in finding civil contempt and in imposing sanctions . . . .”). ↑
  228. See United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) (“In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.”); e.g., United States v. Henderson, No. CR 10-117 BDB, 2012 WL 787575, at *3 (N.D. Okla. Mar. 9, 2012) (“In exercising that discretion, the Court will consider factors such as the egregiousness of the violation, the extent to which the disclosure maligned Petitioner’s reputation, and any countervailing considerations that might have supported the disclosure or that militate against imposition of the severe sanction of contempt.”). ↑
  229. See, e.g., Angiodynamics, Inc. v. Biolitec AG, 946 F. Supp. 2d 205, 213 (D. Mass. 2013) (“The text of a court order determines its power over parties. To allow parties to independently deduce the purpose of a court order and determine what acts would be most in line with the purpose—regardless of the text—would make this court irrelevant.”). ↑
  230. See, e.g., Navajo Nation v. Peabody Coal Co., 7 F. App’x 951, 956 (Fed. Cir. 2001) (affirming trial court’s refusal to hold a party in contempt for violating an injunction, because the party’s actions “did not thwart a purpose behind any of the [trial court’s] orders” (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 694–95 (9th Cir. 1993))). ↑
  231. The original form of the rule of lenity specified that courts could not extend a criminal statute beyond its text, but could narrow the statute in favor of defendants by considering its purpose. See, e.g., State v. Norfolk S. R.R. Co., 82 S.E. 963, 966 (N.C. 1914) (“It is an ancient, but just and equitable, doctrine which extends a penal statute beyond its words in favor of a defendant, while holding it tightly to its words against him.”); 1 William A. Hawkins, Treatise of the Pleas of the Crown, ch. 30, § 8, at 77 (1st ed. 1712) (“Penal Statutes are construed strictly against the Subject, and favuorably and equitably for him.”). The rule thus called for different methods of interpretation: textualism to prevent the extension of criminal statutes and purposivism to narrow them.

    Such blending of methodologies is uncommon, if not disfavored, today, because each method of interpretation rests on a different set of assumptions and principles. Our proposal avoids this difficulty by permitting courts to consider purpose and other non-textual methods only at the remedial stage, after the court has determined that the text of the injunction has been violated. ↑

  232. Abbott Labs. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed. Cir. 2007) (“[I]nterpretation of the terms of an injunction is a question of law we review de novo.”). ↑
  233. See, e.g., In re Managed Care, 756 F.3d 1222, 1234 (11th Cir. 2014) (concluding that an appellate court should give “great deference” to a judge’s interpretation of an injunction that he entered); Schering Corp. v. Ill. Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“When the district judge who is being asked to interpret an injunction is the same judge who entered it . . . , we should give particularly heavy weight to the district court’s interpretation.”); Hensley v. Bd. of Educ. of Unified Sch. Dist. No. 443, Ford Cnty., 504 P.2d 184, 188 (Kan. 1972) (“When the same trial judge who entered an injunction order hears a later contempt proceeding based on violation of that injunction the interpretation . . . will generally be followed by the appellate court.”); see also Salazar v. Buono, 559 U.S. 700, 762 (2010) (Breyer, J., dissenting) (stating that “the construction given to an injunction by the issuing judge . . . is entitled to great weight” (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 795 (1994) (Scalia, J., concurring in judgment in part and dissenting in part))). It should be noted that Justice Scalia’s endorsement of deferential review is at least somewhat in tension with his concern that allowing the judge who entered an injunction to determine whether that injunction was violated is a recipe for abuse. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J. concurring). ↑
  234. See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982) (stating that plenary review is necessary to achieve consistency in the law). ↑
  235. See id.; Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th Cir. 1996) (observing that the interpretation of an injunction “clarifies . . . the injunction”). ↑
  236. Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49, 55 (2010) (“[D]eferential standards . . . mean that reversal often does not follow from an appellate court’s conclusion that it would have implemented the applicable law differently were it the decision maker in the first instance.”). ↑
  237. Cf. Jeffrey M. Surprenant, Comment, Pulling the Reins on Chevron, 65 Loy. L. Rev. 399, 420 (2019) (“[E]mploying a de novo review would encourage both legislative drafters and their agency helpers to write clear statutes that will withstand judicial scrutiny.”); Laurence H. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 824 (1990) (stating that Chevron should lead Congress to be more careful in drafting laws when it wants to avoid delegation). ↑
  238. Anita S. Krishnakumar, Textualism and Statutory Precedents, 104 Va. L. Rev. 157, 204 (2018) (“Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question . . . .”); see also Christine Kexel Chabot, Selling Chevron, 67 Admin. L. Rev. 481, 509 (2015) (“[T]extualists assume Congress has provided a single, objectively determinable meaning in statutory text.”). ↑
  239. William Ortman, Rulemaking’s Missing Tier, 68 Ala. L. Rev. 225, 246 (2016) (identifying various “structural epistemic advantages” that “reduce the likelihood of legal error” by the appellate courts). ↑
  240. See Marin K. Levy, Visiting Judges, 107 Calif. L. Rev. 67, 139 (2019) (noting the pressures faced by district judges and not appellate judges). ↑
  241. See Ortman, supra note 237, at 247–48 ↑
  242. In arguing that appellate courts should review interpretations de novo, we do not mean to say that appellate courts should review de novo the decision to impose contempt for violations. An injunction’s proper interpretation is a question of law. It is distinct from the subsequent question of whether to hold a person who has violated the injunction in contempt. Decisions about whether to impose contempt sanctions on violators depend on a myriad of factors. See supra note 226 and accompanying text. An appellate court should overturn that decision only if it constitutes an abuse of discretion. Perez v. Danbury Hosp., 347 F.3d 419, 423 (2d Cir. 2003) (reviewing a “finding of contempt under an abuse of discretion standard”). ↑
  243. Horwitz, supra note 17, at 1078. ↑
  244. See id. at 1078–85. ↑
  245. See id. at 1085–90. ↑
  246. See id. at 1072–78. ↑
  247. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). ↑
  248. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency . . . .”); see also Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 (1989) (providing a similar justification for Chevron deference). ↑
  249. Smiley, 517 U.S. at 740–71. ↑
  250. Auer v. Robbins, 519 U.S. 452 (1997). ↑
  251. See Kisor v. Wilkie, 139 S. Ct. 2400, 2412 (2019) (plurality opinion) (“We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities.”). A closely related justification for deference to agencies that the Kisor Court identified is that interpreting federal laws necessarily involves policy decisions which Congress has empowered agencies to make. Id. at 2413. There is no comparable assignment of policy-making authority to federal trial courts. More importantly, contempt proceedings are held after an alleged violation of an injunction has occurred. Allowing trial courts to implement policy considerations when interpreting an injunction at that late point would acutely raise the notice and abuse problems outlined earlier. ↑
  252. Cf. Grupo Mexicano de Desarrollo, SA v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (explaining that federal courts’ equity powers are limited by the historical practices of the English Court of Chancery). ↑
  253. Bray, supra note 4, at 446 (“There was no appeal from the Chancellor . . . .”). ↑
  254. Horwitz, supra note 17, at 1085 (“The second basic justification for judicial deference is not grounded on the legal authority of the institution to which the courts defer, but rather on its epistemic authority.”). ↑
  255. See United States ex rel. Graham v. Mancusi, 457 F.2d 463, 469–70 (2d Cir. 1972) (Friendly, J.) (“It would still be for the judge who saw and heard the witnesses at the trial or, better, another judge who would see and hear them without having been exposed to the illegal evidence, to determine where the truth lay—not for appellate judges reading a cold record.”); see also Brown v. Plata, 563 U.S. 493, 555 (2011) (Scalia, J., dissenting) (“[H]aving viewed the trial first hand [the trial judge] is in a better position to evaluate the evidence than a judge reviewing a cold record.”). ↑
  256. See, e.g., Emps. Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995). ↑
  257. Id. ↑
  258. 139 S. Ct. 2400, 2412 (2019). ↑
  259. Id. ↑
  260. John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1355 (1998) (arguing that textualists can consider other people’s interpretations of a statute, because “the way reasonable persons actually understood a text” can be useful evidence of the text’s meaning, particularly “if those persons had special familiarity with the temper and events of the times that produced that text”); see also Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1451 (1997) (discussing the evidentiary value of other people’s interpretations of a text). ↑
  261. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). ↑

  262. Id.; cf. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1238 (2007) (“Skidmore’s sliding scale encompasses three zones or ‘moods’ reflecting strong, intermediate, and weak or no deference.”). ↑

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