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Saturday, July 13, 2024
More on the continued usefulness of Younger
A third post on the 11th Circuit and rethinking Younger:
The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).
An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.
Posted by Howard Wasserman on July 13, 2024 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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