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Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink


Just to illustrate , the concept of preliminary injunction , in a ruling , posted at the time by Wasserman in another post here ( Esther Koontz V.Randall ) also concerns the invalidation of a law ( Kansas state ) here I quote ( p.13, 14 ) here :

Federal Rule of Civil Procedure 65(a) authorizes district courts to issue preliminary injunctions. The relief afforded under this rule has a limited purpose—a preliminary injunction is “merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The Tenth Circuit has specified the following standard for district courts to follow when deciding whether to issue a preliminary injunction:

“To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.” .

A link to the ruling :


P.S : And by the way , there is no such thing like : " judicial supremacy " for that is a synonym to the " rule of law " . A regime , where rule of law , is not the utmost fundamental concept , reigning supreme above all , always on top , is not by definition , a democratic regime . For , the very definition of democracy , is a regime , governed by the rule of law , and the essence of the latter , is the " judicial review " governing all actions and instances in fact .


Posted by: El roam | Jul 12, 2018 11:51:46 AM

Interesting , but with all due respect , and judging only your post ( and not the related article , not read by me ) It seems that the respectable author , doesn't understand at first place , what is an injunction ( whether Universal or not , doesn't really matter ) . For such injunction , doesn't nullify nothing by essence . It is just observing the current balance state between parties , ignoring effectively the merits , and deciding :

Who is going to suffer more irreversible damage ? ( or at all ). In light of it , before deciding or prevailing on merits , the judge considers typically , whether the balance is in favor of freezing the ongoing action of the defendants typically , or , to let them keep on moving , until , the whole trial , on merits , is prevailed .

Moreover :

It seems that the respectable author of the post, hasn't heard of the rule of law as the supreme reigning doctrine . That is to say , that no authority , no person , no official is above the law . Means:

The courts , don't care about the lawmaker , but the law . If the law , is contradicting the principle of the " rule of law " and the concept that no one is above the law , courts shall and must prevail in accordance . Why ?? because of too many reasons , just some few :

First , the judges are ultimate experts of law . Second, the lawmaker in democracies , is not competent to legislate ( an assembly of laymen in law ) . Third , one must have effective path , for blocking the act of the public authority , and at once so .As such , There is no other way typically , but order of courts , reigning all over the system .

Well , We won't stay young here ….


Posted by: El roam | Jul 12, 2018 11:08:11 AM

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