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Thursday, June 01, 2023
What is the Court planning for § 1983 "and laws"
My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.
The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.
We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.
Posted by Howard Wasserman on June 1, 2023 at 11:18 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink
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