Administrative Law

On the Sacketts and S.B. 8

Governments should not design laws and regulations to frustrate judicial review.

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Michael and Chantell Sackett purchased a small lot upon which they planned to build a house. As they began work on the parcel, they received an Administrative Compliance Order (ACO) from the Environmental Protection Agency (EPA) ordering them to stop work and restore the parcel to its prior, undeveloped condition. Failure to comply, the EPA declared, would expose them to fines of up to $65,000 per day—$32,500 each
for violating the Clean Water Act (CWA) and the ACO. The Sacketts sought to challenge the EPA's order, as they did not believe their parcel was subject to federal regulation under the CWA, but they were told they would have to wait. In the EPA's view, the ACO was not subject to judicial review. If the Sackets wanted to contest EPA's jurisdiction, they would have to wait for the EPA to initiate an enforcement action against them.

According to the EPA, the Sacketts faced a choice: Cease using their own property or continue to develop the parcel and expose themselves to the risk to tens—if not hundreds—of thousands of dollars in fines. Each day of noncompliance would incur more fines, and the EPA could wait years to initiate an enforcement action.

The conundrum faced by the Sacketts is not unlike that faced by abortion providers in Texas under S.B. 8. The law prohibits providing abortions after six-weeks, and subjects violators to substantial penalties, yet because of the law's structure, abortion providers have no clear way to challenge the prohibition unless and until it is enforced against them. As a consequence, it is difficult, if not impossible, for abortion providers to challenge the law's constitutionality without exposing themselves to substantial financial and legal risk.

In each case, the choice is between complying with a potentially unlawful command, or refusing to comply at the risk of ruinous financial penalties. In each case, pre-enforcement judicial review appears unavailable. Seeking a day in court to challenge the government's dictate would only come at great financial risk.

The Sacketts ultimately got their day in court. They argued that the CWA did not bar pre-enforcement review of an ACO and, in the alternative, that a prohibition on pre-enforcement judicial review of the ACO would violate Due Process. The Supreme Court ultimately agreed with the Sacketts, but not on constitutional grounds. Rather, the Court concluded that the ACO was a final agency action subject to judicial review, and therefore CWA actually afforded the Sacketts an opportunity to challenge the ACO before racking up daily fines for noncompliance. The question of whether imposing penalties for failing to comply with an unchallengeable ACO would violate due process, was left undecided.

Unlike the CWA, there is no statutory ground upon which abortion providers can seek review of Texas S.B.8's prohibitions. There is no alternative interpretation that would enable abortion providers to seek pre-enforcement review (though it may be possible for the federal government to file suit, as is being claimed in current litigation).

Just as some who support extensive wetland regulation thought it was unfair and unjust to expose the Sacketts to penalties while denying them their day in court, some opponents of abortion should be concerned that S.B.8's structure exhibits some of the same pathologies that (rightfully) concern conservative critics of the administrative state. Noble ends should not be pursued through dastardly means.

The reality is that government entities often take actions in a way calculated to frustrate judicial review. If one is inclined to think this is a problem (and I do) then it should be a problem without regard for the subject matter. Just as environmental protection should not require denying landowners the right to challenge regulatory restrictions on their land, opposition to abortion should not require denying abortion providers or pregnant women the opportunity to contest the lawfulness of restrictions on abortion.

NEXT: Challenge to California's New Content-Based Restriction on Speech Outside Vaccination Centers

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  1. “The reality is that government entities often take actions in a way calculated to frustrate judicial review.”

    This is indeed a reality, but the problem is the judicial branch not the legislative or executive. The Executive branch is always going to try to grab power, as is the legislative. The legislative may even unconstitutionally delegate a power grab to the executive, hoping to avoid political accountability. Congress critters can then both bash the rule/agency while disclaiming responsibility.

    No, the real problem is the judiciary which is overly deferential to the other two branches. The judiciary lets the other branches get away with it. The other two branches will always try to grab power, the judiciary needs to grab it back (“No you cannot do that.”). Unfortunately, the nature of the judiciary esp the Roberts court appears to be fecklessness.

    1. Executive regulation that has not been explicitly voted on and approved by Congress is void. It violates Article I Section 1, giving all lawmaking power to the Congress. Congress can approve the Federal Register to validate it. Until it does, the regulation is void. That would be a courageous judicial review.

      1. The judiciary keeps applying these “oh you meant well so its ok” reviews aka rational basis.

        Probably the last justice to firmly grab power for the judiciary (“Yes we can review it and no you cant do that”) was Marshall in Marbury vs Madison.

        1. I don’t think that’s the idea behind rational basis, it’s more ‘you’re the democratically elected branch so we’re not going to second guess the wisdom of your policy decisions.’

          1. A distinction without a difference. “Oh so you meant well” lol

            1. It’s not about intention it’s about different roles for different branches, policy evaluation is not the job of the courts it’s the job of the democratically elected branches.

            2. One day conservative ‘black robed tyrants’ types are going to have to have talk with conservative ‘judicial activism will save us’ types.

              1. It’s often the same people different times of the day.

        2. “Yes we can review it and no you cant do that” – Marshall in Marbury vs Madison

          If that’s what you think Marshall did in Marbury v. Madison, you may need to read that judgment again.

    2. “real problem is the judiciary which is overly deferential to the other two branches”

      What country do you live in? Not the US.

      Federal courts have the final say in everything.

      1. The deference expresses itself in WHAT they say: “Sure, go ahead!” in almost all cases.

        1. We’re talking about abortion law here, right?

          1. To be clear, the federal courts are very deferential to the federal government. Not so much to the states.

  2. I have not seen a good proposal for judicial review of such laws, a proposal that would minimize the impact on standing, sovereign immunity, and justiciability doctrines. Allowing review in the Sacketts’ case was a straightforward application of existing law. Not inevitable, but consistent with the letter and the spirit.

    1. The judiciary needs to stop waiting for permission and simply say “no agencies cannot legislate or threaten penalties without due process”

      In the case of SB8, there is an avenue for judicial review. Maybe not by the federal govt, but certainly abortion providers have a defense.

      1. The whole point is that review by way of defense alone isn’t enough.

        1. There is an opportunity here. Sell abortion litigation insurance. Very expensive for one doctor, but spread across everybody who might perform an abortion in Texas not so expensive. Alternatively, a law firm could offer to defend any and all SB8 cases for a modest up front fee from a large enough pool of facilities.

          Anybody care to speculate on whether it would be legal to insure against the $10,000 fee as well as cost of litigation?

          1. Don’t you need good litigators, at the ready, in order to exploit this business opportunity. That sounds like a lot of up-front labor cost.

          2. Not actuarially feasible, in as much as the expense of paying out isn’t independent. If you have to pay out for one doctor, you’ll likely find you have to pay out for every doctor you sold a policy to. If you don’t have to pay out for one doctor, you probably don’t have to pay out for any.

            You need the policy holders to be statistically independent for insurance to work.

            1. It is in fact true that no abortionist will need to pay out anything absent an “overturn” of Casey. It’s a bet, and a good one, so I don’t see why it isn’t both actuarially feasible and probably gets cheap reinsurance, exactly as Mr. Carr proposes,

              And no, you don’t need crack litigators beyond, maybe, the first time. You say “undue burden, Casey is still good law, Bride is still good precedent” and the judge says “no damages or costs”. Full stop.

              The last thing the anti-abortionists want is damages awarded. THEN there’d probably be a Federal case.

              1. It is in fact true that no abortionist will need to pay out anything absent an “overturn” of Casey.

                Unless, of course, a Texas court rules that an abortion provider doesn’t have standing to assert Casey as a defense to an SB8 suit. And assuming he can find an attorney willing to work for free.

                1. LOL! An abortionist doesn’t have standing to assert Casey? Good one.

                  Like Pitman, or whatever that supid judge’s name is, you want to enjoin TX courts hearing suits on the basis that you imagine the TX courts might get TX law wrong. Doesn’t work that way.

                  1. LOL! An abortionist doesn’t have standing to assert Casey? Good one.

                    Um, that’s exactly the argument that anti-abortion people have been raising: that abortion providers do not have standing to assert the rights of women who may seek abortions. That was floated in Hellerstedt by Thomas, and then adopted by Thomas, Alito, and Gorsuch in June Medical Services (and Kavanaugh suggested he was open to that argument in that case).

                    And SB8 expressly says that they don’t have standing unless SCOTUS insists on it. 171.209(a).

              2. “It’s a bet, and a good one, so I don’t see why it isn’t both actuarially feasible and probably gets cheap reinsurance, exactly as Mr. Carr proposes,”

                Because it’s not statistically independent.

                Look, it’s probably a good bet that, on any given day, you won’t have a major earthquake in Los Angeles. But it’s still not a good market for insurance, because if you have to pay off one policy, you’re probably going to have to pay off EVERY policy. Which means you have to charge the full payoff as a premium to not risk ending up deep in debt if things go wrong.

                Insurance works for statistically independent events, because they average out in the aggregate; Accident insurance, for instance, because if Bob breaks his leg, it doesn’t mean Phil will break his leg. So if you sell thousands of policies, you’ve got fairly predictable expenses.

                You don’t in this case. If one abortionist needs a payout, they probably all do. And, where are you going to get that money?

                You’re proposing a bet, not insurance.

                1. Hurricane insurance isn’t statistically independent either, but you can still get it for amounts larger than Fed coverage. Or a pitcher can insure his arm. You’re right, it’s a bet. It’s also insurance. Pay the premium and Lloyds will sell it to you. And the amounts involved here don’t offer any barrier to underwriting.

                  1. As a former Floridian… Hurricane insurance in that state is largely funded by the state these days. More than 60% of homes are insured by the “insurer of last resort.” Without hurricane insurance, most people wouldn’t be able to buy homes in Florida. It’s a huge problem there. Whereas in the Bay Area, California, earthquake insurance is about 25% the cost I was paying for hurricane insurance. (And hurricanes damage Florida nearly every year.)

  3. That is a lucid, well-thought-out, intelligent argument. Thank you, Prof. Adler.

    The comments, however, will resemble the work of Jim Carrey and Jeff Daniels. Why not find a better blog, Prof. Adler?

    1. Adler needs to find a place where his shoddy work won’t stand out.

      That Kook approves of it speaks volumes.

      1. Which Conspirators meet your disaffected standards and bigoted approval, Gandydancer?

        1. Some are worse than others. This Ilya person is also a jackass.

  4. Why does Professor Adler hate innocent babies?

    1. If you think babies are innocent, wait until they wake up and start crying.

  5. Thomas Jefferson said it best;
    “ A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means”

    1. “Now if you don’t mind me, I must be off to order beaten my slave children to induce them to make nails faster.”

      1. Queenie. Upon setting foot in France, all of Jefferson’s slaves were freed. They were there 5 years, attended cooking and wine school, acculturated to France. Upon the end of his ambassadorship, every single one chose to return to his slavery in Virginia. They were family. That included Sally Hemmings, their children, her brother.

        1. There were no beatings. There was taking advantage of the soft touch, Jefferson.

          1. Authoritarian nut doesn’t know what he’s talking about. In other shocking news, MidEast Peace talks break down.

            “Randolph reported to Jefferson that the nailery was functioning very well because “the small ones” were being whipped. The youngsters did not take willingly to being forced to show up in the icy midwinter hour before dawn at the master’s nail forge. And so the overseer, Gabriel Lilly, was whipping them “for truancy.””

  6. The Sacketts sought to challenge the EPA’s order, as they did not believe their parcel was subject to federal regulation under the CWA,

    No one thought that. Everyone behind this case believed the parcel was subject to regulation under the CWA. It was chosen because they wanted a parcel which would surely trigger the lawsuit they planned, to cripple enforcement of the CWA.

    1. Do you have some basis for this claim, or are you just giving a practical demonstration of how Section 230 and cheap, unedited internet-based publishing makes it easy to spread defamatory content?

      1. Don’t you realize that everybody agrees with Lathrop, and only denies it to be contrary? Lathrop thinks their challenge was meritless, so obviously the Sacketts did, too.

      2. Noscitur, google, “Satellite Photo of Sackett Site.” There you will find slightly helpful satellite photos, and more helpful on-scene photos, showing the filling operation in process. They leave no doubt that the site was a permanent wetland before it was filled. It is not a close call. No special expertise required on this one.

        By the way, other satellite photos I have seen show an unmistakable remnant stream delta at the shoreline point where Sackett’s land drains into the navigable waters of Priest Lake. It looks as if previous shoreline development may have altered the flow away from the natural drainage flow, but that is not clear. In any case, it is impossible that the Sackett wetlands do not drain into Priest Lake, whether by a former drainage, or by an altered newer drainage. The alternative would be a pond, putting the Sackett property entirely under water, and still finding an outflow over whatever artificially elevated barrier had backed up the water, and from there into Priest Lake.

        As I recall, Sackett himself was described as a self-employed professional excavator. If that is true, doesn’t it doubly assure that he could have been in no doubt that the filling he was doing was prohibited?

          1. ?

            What’s that link?

            Google as I suggested. Several promising choices appear. Use your judgment. One is a .pdf. Go for that one.

        1. No special expertise required on this one.

          I would punctuate that somewhat differently: “No, special expertise required on this one.”

          Of course, more important than your fake expertise in interpreting satellite photos is the fact that you don’t seem to understand the legal issues at stake. (I mean, the underlying legal issues, not the question of whether the EPA’s decision was a final appealable order.) You just assume away the very dispute over what the CWA means. Have you read Rapanos? You don’t seem to understand it if you have. The issue isn’t whether the property is a wetland; that’s just a threshold question. Just because something is a wetland does not mean that the CWA reaches it.

    2. Couldn’t you say exactly the same thing about SB8? The clinic that sued doubtless joined with and was selected by activist groups for the specific purpose of crippling enforcement of SB8. They are doubtless as hostile to the purpose of SB8 as you are saying the Sacketts were of the CWA.

      But so what? Why does that make either lawsuit illegitimate?

      The choice of either complying or being subjected to large cumulative penalties as a result of later enforcement actions that call for separate retroactive penalties for every day or activity remains a problem regardless of the motivations of the people who are suing.

      And the answer shouldn’t depend on their motives. It should depend on whether or not they have pointed out a real problem.

  7. In general, I don’t think there’s a constitutional right to pre-enforcement challenges. The best example of the application of this principle is the Tax Injunction Act, which requires you to pay an unconstitutional tax and ask for a refund.

    But here’s the distinction: the Tax Injunction Act is not an attempt to prevent the constitutionality of tax laws from being litigated. Indeed, people bring challenges to taxes every year. Most of them are unsuccessful, but the TIA doesn’t prevent them from being brought. You just have to pay the tax first and then litigate to get it back. The point of the TIA is to ensure the collection of taxes, by avoiding situations where a taxpayer litigates and then by the time the litigation is over, the tax is uncollectable because assets are gone or uncollectable.

    There are all sorts of similar statutes- exhaustion requirements (e.g., the Prison Litigation Reform Act), venue statutes (the Tucker Act), etc. But none of them are designed to preclude judicial review, only to set a procedure for it so that other interests are not compromised.

    In contrast, the Texas statute has no similar purpose. The only reason it contains all these picayune enforcement restrictions is to prevent a challenge from being litigated and chill abortion rights in the meantime. That’s an illegitimate purpose for restricting or cabining judicial review, and should be treated differently by the courts than the Tax Injunction Act or the Prison Litigation Reform Act is.

    1. The real problem with SB8 is just that it allows you to be sued for conduct which the courts were telling you was constitutionally protected at the time you engaged in it. Without that provision it would scare nobody, because you’d have notice of whether or not you’d be liable at the time you engaged in the conduct.

      If the Supreme court makes clear that you can’t reach back to conduct that was declared constitutionally protected at the time it was engaged in, even if the Court later changes its mind, then all chilling effect goes away.

      1. So if the courts declared that event had qualified immunity? I thought we were saying that QI was a problem?

        1. Qualified immunity is a problem because,

          1) It’s got no constitutional basis, the Supreme court just invented it.
          2) In practice, it isn’t really all that qualified.

          This would be more of an implied ex post facto limitation on the courts.

      2. That’s absolutely one problem with it, but I think the chilling effect is broader than that, because there’s also a debate as to whether particular abortions are constitutionally protected given the flux the law is in. In other words, even with the legal rule you propose, if I were counsel for an abortion clinic, I would still be worried about an abortion at, say, 11 weeks, on the grounds that a court could hold that under Roberts’ concurrence in June Medical that was no longer truly protected.

        I think the basic thing the courts have to do is just hold that you can’t set up a private attorney general system FOR THE PURPOSE OF EVADING JUDICIAL REVIEW. That violates due process. If there are other state interests that justify setting up a private attorney general system and no pretext, then you can do it. But under the facts here, you can’t.

        1. “That violates due process.”

          The private AG has to bring a lawsuit in state court. That’s the due process.

        2. But, wouldn’t that “law in flux” issue be a problem even in the absence of SB8?

          1. No, because there could be a preenforcement challenge.

            1. There have been preenforcment challenges, the concern is, rather, that the result of the previous challenges will be reversed. Texas has laws against the abortions in question, they are currently unenforceable due to Roe. If Roe is overturned, can the state go back and prosecute everybody who violated them relying on Roe?

              If not, doesn’t the same reasoning apply to SB8?

              1. No, if you get an injunction against a law preenforcement, you can go ahead and do abortions. If you don’t, you can’t. And it doesn’t matter what SCOTUS ultimately rules- you never get in trouble relying on the lower court.

                But with SB 8, with no preenforcement challenge, you can perform an abortion that is legal under current law and get sued as a result. That’s the one we agree is bad.

                But you can also perform an abortion that results in a court ruling that “that was never constitutionally protected, because Roberts’ concurrence in June Medical changed the law”, and then you get stuck.

                1. No, if you get an injunction against a law preenforcement, you can go ahead and do abortions. If you don’t, you can’t. And it doesn’t matter what SCOTUS ultimately rules- you never get in trouble relying on the lower court.

                  Case law, please.

                  1. You actually think that a person can be sued for doing something in reliance of a preliminary injunction that said the person could do it?

                    1. Please try to catch up. The injunction can only prohibit enforcement of the law, WHILE THE INJUNCTION IS IN EFFECT. It can’t “sa[y] the person c[an] do it” or that doing it is legal.

                      Your disbelief in this is no answer to my request for caselaw. Time to stop waing your arms and step up.

                    2. The party requesting an injunction can be required to pay if the injunction turns out to have been unjustified in the light of later legal developments. The New Jersey sports betting litigation ended with such an award.

        3. If there are other state interests that justify setting up a private attorney general system and no pretext, then you can do it. But under the facts here, you can’t.

          Of course you can. TX wishes to award damages as a penalty to post-heartbeat abortions, and this law provides a mechanism to do so immediately, if and only if SCOTUS overturns Casey. If SCOTUS overturns Casey than enforcement should never have been enjoined, so why should the abortionsts be immune from suit?

          Or prosecution, subject to the statute of limitations. SB* notes in its preamble that the pre-’73 abortion laws are still on its books and, in its view, valid.

          This claim that that criminals are entitled to rely on overturned SCOTUS precedent protecting them from prosecution is based in what? No arm-waving, please.

          1. Of course you can. TX wishes to award damages as a penalty to post-heartbeat abortions, and this law provides a mechanism to do so immediately, if and only if SCOTUS overturns Casey. If SCOTUS overturns Casey than enforcement should never have been enjoined, so why should the abortionsts be immune from suit?

            Because the law recognizes reliance interests and constitutional law is not a game of gotcha.

            1. Because the law recognizes reliance interests…

              What part of “No arm-waving” eluded you?

      3. If SCOTUS admits Casey was wrong then Casey-allowed abortions were not CONSTITUTIONALLY protected at any time. They were merely SCOTUS-error protected.

        And TX has made certain abortions criminal. SCOTUS’ improper interference with enforcement, it it is improper, does not make them legal.

        1. That’s. Not. How. Due. Process. Works.

  8. I hate all forms of too-clever-by-half inside-baseball solutions to complex problems, they’re inherently brittle and invariably wind up perpetuating the problem. We see this kind of thing all the time in software engineering, where instead of finding a root cause to a problem and fixing it, some oh-too-clever coder has put a patch on a patch. Seasoned devs know that complexity kills. It is the enemy of progress.

    By all means, kick the issue of abortion back to the legislatures where it has belonged all along. Roe v. Wade is itself one of these too-clever “solutions” that has just prolonged the agony. S.B. 8 seems exactly the same.

  9. Only a law professor could think that a lack of judicial review is a problem.

    We live in a juristocracy already.

    1. Really?

      Maybe you should re-read the first amendment sometime and pay special attention to the last clause about the right to petition the Government for a redress of grievances.

      I haven’t seen this argument made before, but crafting a law that cannot be challenged would seem to run afoul of the 1A.

      1. It seems it can be challenged. It just has to be enforced first. Which is how all other laws are treated in our society.

      2. “cannot be challenged ”

        You can still challenge the law with the political branches. Petitions, letters, marches, running candidates etc.

        1. So any Constitutional right is revocable if you can craft a devious enough law? That seems to bode poorly for the Constitution, as well as privacy rights and bodily autonomy.

          1. …the Constitution, as well as privacy rights and bodily autonomy.

            Ya think? That ship has sailed,

            But, no, SB8 can be challenged whenever it is enforced by TX contrary to SCOTUS precedent. That simply hasn’t happened yet.

    2. We live in a juristocracy already.

      Judicial supremacy is more commonly called kritarchy, I believe.

  10. The bigger problem is federal courts legislating their political preferences via judicial decisions and dictating state law when they have no legitimate constitutional authority to do so.

  11. The CWA was not deliberately drafted so as to avoid judicial review. S.B. 8 was.

    1. The statute may have not been drafted that way, but the EPA was attempting to apply it that way.

    2. To be more specific, SB8 was deliberately crafted to avoid lower court review. The idea is that it would rocketing up to the Supreme court, to provide an opportunity to overturn Roe. Something that’s hard to do if the lower courts effectively shoot down every test case.

      1. It was crafted to avoid federal lower court review. You still have to bring a state court action to enforce.

        1. That’s not “review”, though.

          1. If damages or costs or injunctive relief were awarded that would enable review. Up to SCoTX first, I would think.

      2. Given that the court is one vote shy of granting unprecedented injunctive relief against the law, I think the drafters may have miscalculated. A proper procedural posture could easily find one more vote, if not five more, to overturn the $10,000 damages award in a test case. The other states pushing incremental abortion restrictions have a better strategy. They may not win, but they aren’t going to piss off the anti-abortion (or anti-judicial activism, if you prefer) wing of the court. For example, the Supreme Court let stand an injunction against a ban on selective abortions based on Down’s syndrome.

        1. There are no $10,000 damage awards and, absent an overturn of Casey (or an abortionist somehow failing to raise the undue burden defense) there can’t properly be any.

          Your concern about TX getting any comeuppance is unnecessary. Some abortions have probably been halted and I’m not seeing any downside for TX.

  12. Apparently there have been some actual suits under SB8. Why haven’t we heard about them? Why couldn’t they be used as vehicles to determine the validity of the law?

    If Texas state judges are moving glacially slow on them, couldn’t they be removed to federal court?

    https://www.google.com/amp/s/www.forbes.com/sites/alisondurkee/2021/09/20/first-private-citizen-to-be-sued-under-texas-abortion-law-is-doctor-who-publicly-admitted-performing-abortion/amp/

    1. That said, the Texas Supreme Court has interpreted the Texas Constitution as imposing standing rules analogous to the federal judiciary’s Article III standing requirement. The plaintiffs described in the article don’t appear to have standing.

      So a quick way to resolve these particular suits would be to hold that SB8’s “anyone can sue” provision is limited by state constitutional standing requirements, and these plaintiffs don’t have standing.

      1. …the Texas Supreme Court has interpreted the Texas Constitution as imposing standing rules analogous to the federal judiciary’s Article III standing requirement.

        Unlike various suits that ReaderY hasn’t heard of, this is news to me. Got a link?

        SB8:

        Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
        ABETTING VIOLATION. (a) Any person, other than an officer or
        employee of a state or local governmental entity in this state, may
        bring a civil action against any person who:
        (1) performs or induces an abortion in violation of
        this subchapter;
        (2)…

        1. Unlike various suits that ReaderY hasn’t heard of, this is news to me. Got a link?

          Yes, things that require actual knowledge of law rather than mindless parroting of Blackman posts are all news to you.

          “The requirement in this State that a plaintiff have standing to assert a claim derives from the Texas Constitution’s separation of powers among the departments of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a “person for an injury done him”. A court has no jurisdiction over a claim made by a plaintiff without standing to assert it. For standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical.”

          DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008). (Internal footnotes omitted.)

    2. Why haven’t we heard about them?

      “We”?

      If Texas state judges are moving glacially slow on them, couldn’t they be removed to federal court?

      What would be the basis for removal? And how would a typical SB 8 plaintiff have standing under TransUnion?

    3. Nothing is slow here. The deadline to file an answer or motion to dismiss may not have come yet. (Is it 21 days from service of process?) And these smell like ordinary tort cases, same as if the doctor backed into your car in the parking lot. Those don’t go on a fast track where I live unless you choose small claims court.

  13. Disappointing. Based on the headline, I was hoping Prof. Adler was going to make points about SB 8 using the Louis L’Amour books.

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