1/This piece says if Repubs keep objecting in Congress 1/6 session it's "possible, though unlikely, that the business of counting the votes wouldn’t be concluded in five days, at which point the Electoral Count Act says that the recesses for debating objections to votes must end"

https://twitter.com/NewYorker/status/1346170771438264323

2/ The joint session of Congress does not go into "recess" to debate objections, however, but rather "dissolves." A recess is only when Congress is done with its business for the day. Even when Congress is barred from taking recesses, it may still dissolve to vote on objections.

1/ This piece argues based on a precedent set by Thomas Jefferson in 1800 that VP Pence should present & count only the alternate unofficial slates of electoral votes from states like PA when Congress meets in joint session to count electoral votes on Jan. 6. The argument fails.

https://twitter.com/CodeMonkeyZ/status/1343952036086251521

2/ Jefferson, as VP, presided over the joint session where electoral votes from the Election of 1800 were counted. Georgia's votes suffered from several technical procedural defects that were facially apparent.

1/ A new Texas lawsuit seeking to invalidate 100,000 curbside votes is flatly wrong & should be immediately dismissed. This legally baseless suit was filed by a Republican state rep, two Republican candidates, and a voter (not the Texas Republican Party) assets.documentcloud.org/documents/2040… 2/ In my view, the plaintiffs definitely have standing (though their claims are completely meritless). Candidates have a right to have their election resolved based solely on legally valid votes, & voters have a right to not have the weight of their votes diluted by invalid ones.

Are you an @FSUCollegeofLaw student? Sign up to take REMEDIES next semester!! Learn all the ways to sue in Restitution that your TORTS professor doesn't want you to know about!! Discovery the mysterious secrets of equity that lie BEYOND the common law! Baffle and confound your CONTRACTS professor with your mastery of the different ways to determine damages and maximize recovery! Master ancient incantations like REPLEVIN. LEVY on those who have wronged you! Scale the mighty wall of economic loss that separates contract & tort!

1/ Wisconsin Governor Evers order suspending in-person voting appears to exceed his power under Wisconsin law. The state lacks a broad election emergency statute empowering election officials to modify the rules governing the electoral process in response to unexpected disasters 2/ The Governor's Executive Order 74 purports to invoke the state's general emergency statute, Wis. Stat. 323.12(4)(b), which allows the governor to "Issue such orders as he or she deems necessary for the security of persons or property" in an emergency.
evers.wi.gov/Documents/COVI…

1/ If an act is unconstitutional, and it's "clearly established" that the act is also a crime in which officers may not engage or that dep't policy would prohibit the act, then a plaintiff shouldn't have to *also* show that the act's unconstitutionality is clearly established.

https://twitter.com/bradheath/status/1170025501316001792

2/ The "clearly established" law prong of qualified immunity is all about notice to officers & ensuring zealous law enforcement. The Supreme Court doesn't want police held unexpectedly liable based on activist judges' unpredictable ex post facto decisions to create new rights.

2Ls/3Ls at @FSUCollegeofLaw - The 2020 presidential election cycle has begun! To learn about everything going on - voting rights, constitutional restrictions, campaign finance, national party conventions, voter registration lists - sign up for Election Law in the add-drop period! @FSUCollegeofLaw Because next November, nobody's going to say "Hey, what do you think about that easement?" or "Do you think the Supreme Court is going to have to resolve that will?"

1/2 I don't know if @ProfRGold or @PoliceLawProf have looked into this at all, but I'd be very interested in an argument that facts cannot amount to probable cause unless, at the very least, they would survive Twombly-Iqbal plausibility review if alleged in a civil context.

https://twitter.com/pebonilla/status/1159483576196485121

@ProfRGold @PoliceLawProf 2/2 It seems like there are many opinions finding probable cause based on conduct that, at most, is merely logically consistent with the possibility of criminal activity, yet doesn't plausibly & affirmatively make the possibility of criminal activity the most likely inference.

1/ I want to warn anyone consdiering getting an @LGUS OLED flatscreen to absolutely avoid it. After 15 years with a normal LED TV, I finally "upgraded" to an LG OLED flatscreen for Christmas 2017. Within 7 months, the screen had serious pervasive burn-in. 2/ There was a giant dark spot in the middle of the screen, as well as horizontal and vertical bars always visible on the sides and bottom. It was especially apparent against red and yellow backgrounds, and discolored most other scenes.

New draft: "Floor Fight: Protecting the Presidential Nomination Process from Last-Minute Manipulation of the Rules for National Party Conventions" papers.ssrn.com/sol3/papers.cf… The Democratic & Republican parties nominate presidential candidates at national conventions. The rules governing the conventions aren't adopted until the conventions begin, after delegates have been selected & millions of votes cast throughout the nation in primaries & caucuses

In Ex Parte City Bank of New Orleans, 44 U.S. at 317, Justice Story declares "there can be no doubt that th[e] denial of appellate jurisdiction" from federal trial courts to the U.S. Supreme Court in criminal cases, including capital cases, is "a wise protective public policy." Story extolled the virtues of not having any appeals at all in federal criminal cases. For defendants convicted in federal circuit court (then largely a trial court), there was no intermediate appellate court & Supreme Court lacked jurisdiction to hear appeal or grant certiorari

"This appeal will resolve the conflict between the U.S. District Court for the Moon and the U.S. District Court for Mars over whether federal courts may craft federal common law for tort claims on extraplanetary colonies." Swift v. SpaceX, 456 F.24th 943 (Outer Space Cir. 2315) "I clerked on the S.D. Moon and had a great time. I didn't get any offers from D. Mars, which is fine since their Dormant Commerce Clause rulings over there are a mess and they act like they don't have to follow Supreme Court rulings just because they're on a different planet."

1/ Political gerrymandering cases are among the only cases under modern law which must be heard by three-judge district court panels and are subject to appeal as of right to the U.S. Supreme Court. For my forthcoming @GeorgetownLJ piece on 3-judge courts: papers.ssrn.com/sol3/papers.cf… 2/ In Shapiro v. McManus, a few years ago, the Court reaffirmed that it must hear an appeal from a three-judge district court unless the appeal does not raise any "substantial" federal questions, meaning it is frivolous or the arguments are squarely foreclosed by precedent

Senator Vest, re: debate over the Evarts Act, laying foundation of the modern federal court system: "The vacant seats here today evidence how little interest there is generally evinced on this question, although it is one of the most important to the people of the United States." Sept. 22, 1890.

1/ The various challenges to the census question show an important dichotomy between the APA and the Constitution. The APA doesn't actually care about an agency's (or agency personnel's) real, subjective motivation for engaging in certain actions, but Equal Protection Clause does 2/ This is perhaps best demonstrated by FOIA Exemption (b)(5) and the deliberative process privilege. "Pre-decisional" agency documents reflecting internal debates and discussions that occurred during deliberations over agency action are generally exempt from disclosure.

1/Here's a potential odd quirk-based on my reading of the Call for the 2020 Democratic Nat'l Convention (sec. IX(C)(7)(b), (d)) it seems a candidate may have to receive only 1,885 votes to win the nomination during the 1st round of voting, but 2,267 to win during any later rounds 2/ The Convention Call has the temporary rules for the convention, which the convention is likely to ratify & make permament. It says that a candidate must receive "[a] majority vote of all Convention delegates eligible to vote on the ballot in question" to win the nomination.

1/ So I got a @TDBank_US @visa gift card as a present a few years ago that says “good thru” 8/20 on it. Surprise, it’s not! When I tried to use it for the first time, I was told it didn’t work. I called & was told the card was closed and had 0 balance due to monthly service fees 2/ The card also says “funds do not expire,” except for the monthly fee they eat away until the entire value is gone without it ever being used. Here’s the catch - they said they could consider maybe undoing the fees, but not for me. They had to talk to the buyer.

1/ Bethune-Hill II - pp. 6-7 - The Court claims the VA House shouldn't be able to participate on appeal in a different capacity (i.e., on behalf of the State as a whole) than that in which it intervened in the district court. 2/ As the Court itself points out, though (p. 4), the House wasn't required to establish constitutional standing until it sought to take an appeal after the Virginia AG refused to do so. Thus, the House presented this argument at the first time it was required to do so.

Re: #SCOTUS ruling in Gamble: In my opinion, there's an argument inter-sovereign Double Jeopardy need not be symmetrical. There are many reasons a single state's prosecutorial choices shouldn't bind the federal gov't. But the analysis seems different for fed gov't binding states. From structural perspective, a single state's actions shouldn't give rise to double jeopardy bar against fed'l gov't. But the fed'l gov't represents the people as a whole, including the ppl of each state, so its actions may more reasonably preclude a state retrial (cf preemption)

@alahav 1/. Fascinating issue! Putting aside the merits, this is exactly the kind of case where a nationwide injunction is inappropriate. The rights at issue are divisible. The court could’ve easily issued a plaintiff-oriented injunction protecting only rights of parties before it. @alahav 2/ In terms of appeal, any beneficiary who stands to lose benefits if the statute goes unenforceable would have standing. Same for public interest groups. State standing is a little more debatable but good arguments can be made for it under precedent.

Just read Charles Black’s Structure and Relationship in Constitutional Law. It’s surprisingly focused on individual rights since it pre-dated modern federalism jurisprudence, and doesn’t really address using structural approach for separation of powers issues. The book offers two surprising (from a modern perspective) suggestions:
I. rights incorporated through 14th Amd should sometimes be narrower than when directly applied against federal gov’t
II. Constitutional cases should sometimes turn on which entity took or authorized actions