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Friday, November 27, 2020

Making students thirsty for Civ Pro

The Third Circuit unanimously rejected the Trump Campaign's appeal seeking leave to amend and to enjoin Pennsylvania certification pending appeal. Other commenters have described this vivisection of an opinion. I will add a few random thoughts.

• Trump attorney Jenna Ellis says the quiet parts out loud by complaining that the "activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," before cheering that it is "on to SCOTUS." Never mind that the complaint pointedly does not allege fraud, which is part of the problem. The "activist judicial machinery" is three Republican appointees, including a Trump appointee as the opinion author. Under what possible definition is this decision--declining to undo the results of the majoritarian process--activist? Unless, as we all suspect, activist is a decision that rules against us.

• I was glad to see the court reject the argument that due process or other federal law requires partisan poll watchers, let alone that poll watchers be given particular access or vantage. This has been creeping into the political arguments, including during Trump's press conference at the Irresolute Desk when he extolled poll watchers as "sacred in our country."* They are not, never have been, and need not be, as a matter of federal constitutional law.

[*] He surrounded this with an unusual use of his "a lot of people don't know this" verbal tic. Usually that tic accompanies something true that everyone (except Trump, presumably) has always known, such as that Abraham Lincoln was a Republican. Here, he is using it with a statement that no one knows because it is not true.

• The opinion throws Twiqbal and FRCP 15(a) into the public eye, which should make my students long for Civ Pro next semester. The case offers a somewhat different example of undue delay. The paradigm case is "we're 15 months into litigation, discovery is closed, we are three months from trial, why did you wait so long." Here, the delay is undue because of the plaintiff's litigation posture--a motion on your original pleading is fully briefed and amending now requires us to start over, contra your particular request to the court to rule quickly on time-sensitive injunctive relief.

• I agree with those who have said that Judge Bibas is a wonderful writer--crisp and able to turn a phrase, without being showy or obnoxious. A good example of legal writing.

Posted by Howard Wasserman on November 27, 2020 at 04:57 PM in Civil Procedure, Howard Wasserman | Permalink


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