A federal trial judge in the course of adjudicating a controversy temporarily enjoins nationwide enforcement of a law. The universal preliminary injunction (UPI), however, is incompatible with the Anglo-American legal tradition. The traditional injunction is a procedural equitable remedy that may not be gratuitously issued for the direct benefit of third parties, that is non-parties to a specific matter in litigation. Equity acts in personam, not in rem, particularly when it comes to preliminary injunctions and specific performance orders; it imposes, for example, personal duties on a trustee and creates personal equitable property rights in the trust beneficiaries that are incident to those duties. See 1 Scott on Trusts 3 (1939). Whereas a judgment at law merely declares the plaintiff’s rights. Accordingly, the U.S. Sup. Ct. has held that federal universal injunctions “exceed the equitable authority that Congress has given to federal courts.” See Trump v. CASA, Inc., 2025 WL 1773631. Equity’s in personam limitation also renders federal and state UPIs problematic, both as an institutional matter and as a matter of due process. A single trial judge presumes to usurp prerogatives of all his fellow trial judges when it comes to determining doctrinal applicability, not to mention prerogatives of the appellate bench. And as a UPI can adversely and directly affect the personal rights, duties, and obligations of third parties not before the court, they are constitutionally entitled to advance notice and an opportunity to contest the UPI’s universality.
Assume a state trial judge issues a state-wide UPI against enforcement of a state statute in a matter involving an irrevocable discretionary trust for the benefit of the settlor’s widow. Terms of trust provide that upon her death any remaining entrusted property shall be distributed free of trust to a charity. The trustee makes distributions to a checking account held jointly by widow and her son. Trustee negligently distributes income and principal into account for 6 years following her death, exhausting the trust’s corpus, the trustee having failed to exercise due diligence in monitoring the widow’s health and well-being. Twelve years following her death charity discovers the malfeasance and commences a breach-of-trust action against trustee personally. Until then charity had been unaware of trust’s very existence, which is the fault of the trustee and thus another breach of trust. Son has vanished, and in any case is judgment proof.
Under §1005(c)(3) of the Uniform Trust Code the trustee may be off the hook. It provides that a judicial proceeding against a trustee by a beneficiary for breach of trust must be commenced within five years after termination of trust. This ultimate repose provision applies even if trustee had negligently failed to apprise beneficiary of trust’s very existence. If trustee via the routine accounting process had made such a disclosure, we might have had a case of constructive fraud, a possible exception to §1005(c)(3)’s availability. For an explanation, see §8.15.60 of Loring and Rounds: A Trustee’s Handbook (2025), which section is reproduced in appendix below]
Assume our state trial judge is inclined to find the ultimate repose provision unconstitutional and temporarily enjoins all trial judges in the state from enforcing it. Recall that the trust relationship is a creation and ward of equity, with the injunction being one of equity’s procedural remedies. The trial judge is presuming to usurp the prerogatives of the state’s appellate court system when it comes to determining state-wide applicability of legal and equitable doctrine, and as a corollary the prerogatives of his fellow trial judges. This would be so even if enforcement of trusts were an executive function rather than a judicial one such that it was the state’s executive officials who had been on the receiving end of the UPI. Cf. Kavanaugh concurrence in Trump v. CASA, Inc. (“But when it comes to the interim status of major new federal statutes and executive action, it is often important for reasons of clarity, stability, and uniformity that…[the U.S. Supreme Court]…be the decider.”).
As to the due process issue, the UPI itself is constitutionally suspect in that third parties who would be adversely and directly affected by the trial judge’s negation of the UTC’s repose provision have not been given a timely opportunity in this litigation to oppose the state-wide applicability of the UPI. This is a jurisprudential incident of equity’s acting in personam.
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