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Friday, March 31, 2023

Is Declaratory Judgment the Answer to Republican Forum Shopping?

UCLA Professor Jonathan Zasloff, my friend and coauthor, has an intriguing article today on The American Prospect, suggesting that the Biden administration can preempt Republican forum shopping by initiating declaratory judgment actions in the DC District Court. Here is the gist of his argument:

What is to be done? The best short-term answer is to beat the Republicans at their own game, and sue first.

As soon as the administration issues a controversial rule that it has reason to know will be challenged by abusive litigation, it should immediately bring an action in federal court in the District of Columbia that the rule passes legal muster. The defendants would be states with histories of filing abusive litigation, as well as groups like Stephen Miller’s America First Legal, which has already proclaimed its strategy of filing abusive suits in front of handpicked judges. No one’s rights are violated by such an action: If Republican AGs want to argue against a rule’s validity, they can always do so. What they can’t do is look for their favorite right-wing judge to give them a preordained ruling.

I am leaving comments open, but will screen for relevance.

Posted by Steve Lubet on March 31, 2023 at 08:58 AM | Permalink


There's no standing against public interest groups just because they have a history of involvement in highly political cases.

As JHW notes, the text of the Declaratory Judgment Act specifically binds only the parties.

And if we're just going to think off-the-wall proposals, this is a bad one, as what's to stop conservative groups from getting a declaratory judgment with nationwide effect vis-a-vis the ACLU, in a Texas court, which would prevent them from litigating other cases?

Finally - as a practical not formalist matter, if we're going to do this why not just set up a constitutional court that reviews all statutes and regulations, without need for any case or controversy?

Posted by: Kyriarchy | Mar 31, 2023 11:32:20 AM

Paper link in my previous comment accidentally included the period and close parenthesis. This link should work: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4332658

Posted by: Scott Dodson | Mar 31, 2023 11:17:46 AM

The American answer to forum shopping has often been "more forum shopping," so the use of DJs in this context fits within that tradition. (See here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4332658.) One mechanical hurdle, though, is the ripeness doctrine. Preemptive defendants filing DJ actions need to show ripeness with proof that a dispute with that particular opponent is imminent. (For one successful DJ action that probably sets the ripeness boundary, see MedImmune.) That showing could be difficult.

Posted by: Scott Dodson | Mar 31, 2023 11:01:19 AM

I guess I can see why it's called a "short-term answer." I understand that by its nature the American Prospect has a deliberately limited scope, but it seems to me that the best and highest duty of law professors, when writing for popular publications and/or publications of limited scope, is to deliberately defy those constraints and write whatever they think is important to say--and *all* that they think is important to say--without regard to what the editors would *like* them to say. Otherwise, why be a professor at all? Why not just join Twitter and get a side job as an influencer on TikTok to pay the bills?

Without sacrificing his position that this is fundamentally a Republican problem, Prof. Zasloff could have talked about whether and why he thinks nationwide injunctions are a problem, how and why he thinks they differ from declaratory judgments, whether he thinks any of the suits had legal merit aside from his disgust with the litigation strategy, whether he thinks there are institutional reasons for DoJ's approach other than fecklessness, what distinction he sees between a nationwide injunction and a nationwide declaratory judgment (his declaratory judgments are both party-specific), what the shortcomings of an executive-centered rather than legislative-centered approach are and how this approach games out, why he expects the administration to take this approach given what he says about the DoJ's current policy (and therefore why this is a "short-term approach" at all; if it's unlikely to happen in the short term, what makes it a short-term approach?), whether he thinks Democratic AG countersuits are differently situated and why he thinks the Democratic AG mifepristone suit was filed in the Eastern District of Washington, and no doubt more besides. I think that would have been a much more interesting commentary and a more productive one for readers. Instead, it seems to me those readers are left stumbling around in something worse than the dark.

I make no assumptions about the answers he would reach to these questions. I do think many of them were obvious and necessary questions to ask in the context of this commentary. I do not think "space" or "necessity" or "the editorial position of this forum" are valid answers for an academic. I think it is much better to think of academics who are inclined to speak to the public as having a duty to say things readers need to hear and do not want to hear in any given forum, to defy editors and editorial perspectives, and in their way to bring an academic perspective to, and against, the blindered perspectives, inevitable profit-seeking and audience-stroking, and degraded nature of modern media and public discourse.

Posted by: Paul Horwitz | Mar 31, 2023 9:46:55 AM

I don't think this works. A declaratory judgment only binds the parties. So the trick for conservative challengers is just to find someone not already included in the declaratory judgment action and have them file suit.

Posted by: JHW | Mar 31, 2023 9:15:17 AM

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