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Tuesday, September 07, 2021

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.


Posted by Howard Wasserman on September 7, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Judicial Process, Law and Politics | Permalink


All of this talk of plaintiffs as deputies, vigilantes, bounty hunters, etc. is really unprofessional. No judge would let you get away with that in front of him/her/ze.

"It is difficult to imagine an action more “traditionally the exclusive prerogative of the State” than bringing a criminal prosecution."

Did the author really read the law, or only the media accounts? The text of SB8 only authorizes civil action. No threat to life or liberty. No death penalty or imprisonment to anyone involved.

Bad premises lead to faulty logic. Faulty logic and not reading source materials lead to bad results.

Posted by: Non-Texan | Sep 7, 2021 12:38:43 PM

The third to last paragraph is illuminating, makes a point I have not seen elsewhere.

Posted by: John Bogart | Sep 7, 2021 11:01:58 AM

Seems like the obvious analogy is to qui tam suits under the FCA. As I understand it (minimally), under common law, the real party in interest is not the relator in a qui tam proceeding, but the government itself. Of course, that could imply that the sec. 1983 action lies against the government itself, not the private plaintiff, which get you state action but probably plays havoc with other 1983 elements.

Posted by: Curious | Sep 7, 2021 10:44:38 AM

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