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Thursday, August 26, 2021

District court finds standing in SB8 litigation

Opinion here finding standing as to all defendants, contrary to much (but not all) of what Rocky and I argue. There is a joke in here somewhere about either judges or law professors not knowing the law, although obviously I think we are right and the court is wrong. The defendants filed a Notice of Appeal, which I presume they will argue, and the court will treat, as a petition for writ of mandamus since there is no basis for appeal (no finality, no collateral order, no certification of interlocutory review and no possibility of certification). This is a good case for mandamus because parts of this decision are clearly erroneous.

I will post some analysis of the opinion this weekend, as we begin editing the article to discuss and critique the opinion.

Posted by Howard Wasserman on August 26, 2021 at 04:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Maybe it's a little shaky for the judicial defendants, but as to the SAD (don't you just love that name?) at least, the opinion seems to be sturdy enough. And your article endorsed proceeding against the SAD to some extent.

Is this really a good mandamus case though? I wasn't aware that mandamus was much of a thing for denials of 12(b)(1) motions. On a quick check, the only case-law I found was, coincidentally, in CA5 (the June Medical case). That opinion, with an uber-reactionary panel, actually denied such a mandamus despite arguably more extreme facts. In that case, the district judge had essentially refused to engage with the standing analysis. Here, in contrast, while you can quibble with how the DJ applied the relevant precedents, he did at least acknowledge them. That doesn't seem like a prototypical mandamus situation to me.

The NoA thing is great too. I'm sure CA5 will have no problem letting that glaring procedural error—by litigant that's at least supposed to be sophisticated—slide since it's the state we're talking about. Had it been the plaintiffs instead, you better believe the court would rake them over the coals for it.

Posted by: kotodama | Aug 27, 2021 7:28:04 PM

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