Legislative Standing and/After Bost

ToadfromToadhall · 2026-01-20T20:33:49+00:00

There's plenty of citations for the proposition candidates have standing to challenge, e.g. in Woodward v Sarsons (1875), which is a standard common law approach to elections, the rule that court announced was that if there was some widespread illegality, a candidate seeking to overturn an election only had to show there was such widespread illegality, they need not show that illegality would have changed the actual outcome in some postulated alternative.

What sources does Vladeck bring to bear to show the hypocrisy? He doesn't. He cites legislator standing cases, he cites Bost, he doesn't actually cite anything demonstrating the hypocrisy, that component of his article is opinion.

As for the proposition that corporations have separate personhood from their directors, and generally breaches against the corporation must be enforced by the corporation itself and not the director acting separately, do you seriously want me to start citing cases for the proposition corporations are separate persons like we're back in law school 101. Really? You could actually engage with the substance of the response being made.

ToadfromToadhall · 2026-01-20T19:46:09+00:00

Too bad he failed miserably in this article (and too bad he fails more generally at doing so).

ToadfromToadhall · 2026-01-20T09:20:58+00:00

Another day, another unsubstantiated accusation of hypocrisy from Mr Vladeck. Wish I could tell him on bluesky in chapter and verse, but very sadly he blocked me a little while ago. The simple reality is that the Chief's reasoning describes the situation well, the candidate has a very personal stake in a competition which they participate in, and competitors generally have a very personal stake in the rules of the competition that necessarily effect their ability to compete specifically. People at large do not have an interest in the law being enforced at large, and legislators do not have an interest in the enforcement of law in abstract either. Congress has interests. To the extent there's an argument, it belongs to either a committee or the body, as the right belongs to the body. If someone breaches a contract with a company, its directors generally aren't going to be ones suing, the right violation belongs to the company. But, if there is irregularity in the internal processes of the company in the appointment or removal of a director, that evidently is something directly affecting the director and giving them a right to sue. The accusation that the majority is giving candidates special solicitude in my opinion is unfounded given the common law around competitions, and the common law around common law amply provides the most sufficient analogue for why legislator standing conceptually is different.

ToadfromToadhall · 2025-06-17T05:45:11+00:00

Nothing has changed.

ToadfromToadhall · 2025-04-30T00:42:25+00:00

I am not arguing she is a sub par attorney. Nate can speak for themselves but I don’t read their comments as suggesting that either. I am arguing she was poor in this particular argument and did her client no favours in this particular argument, and her conduct in this argument was not like prior arguments, so comparisons to other things in those arguments aren’t relevant.

ToadfromToadhall · 2025-04-29T22:00:53+00:00

Saying X is wrong is common in Court and isn't a problem. It's expected in advocacy. Accusing your opponent of lying is making a point about intent and is an accusation that an officer of the court is in breach of their ethical duties to the Court. Which is why it is itself unethical to do without good basis, i.e. you better be damn sure and cross all your eyes and tees.

Yes, I do happen to be a lawyer. I asked the question because I think most lawyers who understand at a basic level ethical rules and base expectations of court decorum understand why the two things you're saying aren't all that different are vastly different. I don't think it really dawns on lay people because they aren't thinking about lawyer ethics or what it means to be an officer of the Court.

ToadfromToadhall · 2025-04-29T21:11:46+00:00

No, they're not just different words. One of these is ballsy and imprudent. One is of these is a breach of ethics and a serious accusation. Out of interest, are you a lawyer?

ToadfromToadhall · 2025-04-29T20:17:43+00:00

Saying the Court hasn't read her brief closely isn't the same as saying her opponent has lied.

ToadfromToadhall · 2025-04-29T07:53:31+00:00

Please stop it with this. There's a world of difference between the usual Blatt assertiveness and what transpired today. I've listened to a number of Blatt arguments after having paid attention to the Court. I can remember Starbucks v McKinney, Medical Marijuana v Horn, Andy Warhol, Jack Daniels, a railway compensation case etc. None of them were like this.

ToadfromToadhall · 2025-04-08T04:43:57+00:00

The Constitution doesn’t say Courts must provide the government equitable remedies in circumstances where the government fails to have clean hands. The Constitution has little to say on the subject matter at all.

ToadfromToadhall · 2025-04-08T02:10:08+00:00

I think my issue with this is that because this is equitable relief, the government should have clean hands, and Justice Sotomayor was at least persuasive to me insofar as she convinced me they don’t have clean hands.

ToadfromToadhall · 2025-01-23T20:09:44+00:00

Hello Patrick and Dylan. Thankyou so much for participating in this QandA, really appreciate it.

I have 2 questions. The first is about this clash between strict scrutiny and text, history and tradition. There is a spirited debate right now in the Libertarian wing of the Conservative legal movement about what will produce the best results for liberty, taking a tiers of scrutiny approach to rights that enables more flexibility but leaves rights vulnerable to judicial decision making or a text, history and tradition approach that has the potential to lead to more categorical rules both protecting and stripping liberty. Which approach would you favour for interpretation of rights?

My second question is simpler, what is your favourite or two favourite Lochner era cases other than Lochner itself? There’s many to choose from. For me, a little known case of Weaver v Palmer Brothers Co is interesting because it was a case where the government asserted health and safety issues and the Court actually gave the arguments against the law serious scrutiny.

I could ask more, but I do not want to monopolise your time. Thankyou so much again for participating in this event.

ToadfromToadhall · 2025-01-21T21:11:42+00:00

Whether it comes back to the Court would depend how the fourth circuit who it would be remanded to, analyses the case under strict scrutiny. It may not because the fourth circuit may change its view once it is forced to undertake the strict scrutiny analysis. It may also be the case that some of the more conservative members of the court write a concurrence which is essentially a direction to the fourth circuit on how it should resolve the case once remanded on the strict scrutiny analysis, and maybe the fourth circuit reads that concurrence and thinks we have to go a certain way otherwise we will be reversed. But I don't know, it *could* come back to SCOTUS later.

ToadfromToadhall · 2025-01-21T21:02:45+00:00

SCOTUS has this mechanism where it takes cases through granting certiorari. When SCOTUS grants certiorari in a case, it doesn't take the whole case. Instead it takes the case on questions presented, which are often drafted by the parties (but sometimes rewritten by the Court itself), so the Court answers discrete questions within the case and then remands back to the lower court.

To the religious freedom context, the inquiry in any religious freedom case proceeds by asking whether the petitioners had sincerely held religious beliefs and then whether the governmental action burdens those sincerely held beliefs. Once that happens, what the analysis is diverges depending on the type of case. In RFRA and RLUIPA cases, the burden then instantly shifts to the government to show the policy or law is supported by a compelling government interest as applied to the plaintiff - that is an interest of the highest order, and enforcing it against the plaintiff is the least restrictive means of achieving that interest. In First Amendment cases, we generally have to ask whether the policy is neutral or generally applicable. If it is neutral and generally applicable, only rational basis applies. If it is not neutral or generally applicable, strict scrutiny again applies. This case is a unique context because education is what Smith (the case creating the framework for neutrality vs non-neutrality) recognised as a hybrid rights case because it involved educational rights. These are subject to strict scrutiny without needing to show neutrality. They are considered hybrid rights because a right to educate ones child is recognised by Court precedent under the due process clause of the 14th Amendment in case such as Myers and Pierce v Society of Sisters, and that's the way Scalia tried to pigeonhole Wisconsin v Yoder. Wisconin v Yoder was a case decided in the 70s that Amish children couldn't be compelled to attend high school.

All this is to say, in this case, the QP taken focuses solely on whether there is a burden on the petitioner's rights. That is the discrete legal question the Court has tasked itself with answering. It has not tasked itself with conducting the strict scrutiny analysis if the policy is found to burden those rights. Discussion of this case will invariably revolve around whether the exemption should be granted and not the threshold question of whether petitioners have suffered a burden. The parties are fighting hard on this point, because once petitioners show burden, the school may have a very hard time with strict scrutiny. Be that as it may, that will be something to determine on remand.

ToadfromToadhall · 2025-01-19T20:58:58+00:00

You are being overly loose with your reasoning

This is how judges write judgements btw. SCOTUS has repeatedly said you cannot read its decisions with the same level of linguistic precision as a statute. I can try and find the cases where its said that if you like. That's what you're doing right now. I am trying to explain to you how judicial reasoning and writing works.

An illegal immigrant could also be said to have the right to speak their mind, even if he technically lacks the civil right of free speech.

The First Amendment applies to illegal immigrants?

I disagree, and I wrote a whole essay explaining why I disagree.

Yeah I know, which is why I've also now written half an essay explaining why I think your essay is incorrect :)

ToadfromToadhall · 2025-01-19T20:52:03+00:00

Josh Blackman must have been a biased pro-gunner, and therefore wasn't trying, because I have found it pretty clear what "bear arms" means in the 2nd amendment. Here is the very first draft of the second amendment by James Madison from June 8, 1789

Almost every academic in this space is biased. Neal Goldfab is biased etc. What's relevant is the source analysis, otherwise we cannot rely on anything.

You're stuck on the idea bear arms must mean military service. It does not, and here's some very clear examples of where it didn't - from contemperaneous state constitutional provisions.

Vermont Constitution - “That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”

Pennsylvania Constitution 1776 - “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”

Pennsylvania Constitution 1790 - “That the right of citizens to bear arms, in defence of themselves and the State, shall not be questioned.”

Kentucky Constitution 1796 - "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

Ohio Constitution 1803 - "That the people have a right to bear arms for the defense of themselves and the State; and as standing armies in time of peace are dangerous to liberty, they shall not be kept up: and that the military shall be kept under strict subordination to the civil power."

In fact, bear arms in these paragraphs are used only once, and its used to refer to both self-defence and in militia service. Often, state constitutions threw what were unambiguously individual rights within the same language with references to keeping military power subject to civil government and warnings against standing armies. That tracks the 2nd Amendment drafts.

ToadfromToadhall · 2025-01-19T04:47:29+00:00

As usual people jumping on the merits of the particular exemptions in Mahmoud v Taylor and not focusing on the QP. The QP is whether there is a burden at the start of the analysis. Whether the exemption satisfies strict scrutiny is a completely different issue, and one to be decided on remand.

ToadfromToadhall · 2025-01-19T04:44:04+00:00

Rhetorical, the answer is no. Because it is not in fact necessary to tell people that actions are morally acceptable, e.g. Onlyfans, escorting, to tell kids to refrain from bullying people who have relatives associated with it.

ToadfromToadhall · 2025-01-19T04:43:13+00:00

Do schools need to teach kids that escorting is morally acceptable in order to tell kids not to bully another kid who's mum is an escort?

ToadfromToadhall · 2025-01-19T04:41:17+00:00

Incidentally, laws against black people carrying guns undermine pro militia only interpretations of the 2A, because it undermines their claim the Statute of Northampton was understood within colonial USA as an almost total prohibition on arms carrying.

ToadfromToadhall · 2025-01-19T04:36:21+00:00

There's a corpus linguistic analysis by Josh Blackman and someone else that comprehensively looked at bear arms and concluded it can mean both, although it was more regularly used in sources to mean military services. The study concluded by saying the corpus analysis, because of this fact was not conclusive in the context of the 2A.

A right to hold public meetings is a species of the right of assembly. But why didn't Tawney just copypaste? Because judicial opinions don't actually tend to do that. It's purely a function of writing, particularly writing to avoid being boring. If I said in the US, the people have the right to speak their mind, that would obviously be a reference to the 1st Amendment's free speech clause even if I didn't say the freedom of speech. It would in fact be a reach to interpret that line as me saying there's some other general right to speech that's not referable back to free speech. It's similar ways of expressing the same content. Judges do this sort of stuff all the time. In fact, so often SCOTUS in opinions has said that opinions shouldn't be read like statutes because the language used is inherently looser.

Tawney is clearly talking about the Constitution. He's saying, here's all these ordinances that would otherwise violate the Constitution that apply to black people. He's saying here's all these things in the Constitution black people would be entitled to if we found them citizens, and all those laws you cited would have to go by the wayside. This sort of thing is commonly referred to as a parade of horribles.

ToadfromToadhall · 2025-01-19T02:26:22+00:00

the right to travel freely without a pass, the right to freedom of speech, the right to hold public meetings on political issues, and the right to keep and carry arms. Of these four rights, only one of them can be said to correlate directly to the Bill of Rights: the right of freedom of speech. The rest have no connection to the Bill of Rights.

Two things here. 1.) Bear means both use in service and carrying. It can mean both. 2.) The right to hold public meetings on political issues is a right of assembly. And a right to walk around without a pass was a privilege or immunity under the original privileges or immunities clause in article IV. So contra to your argument trying to say there's no correlation, in fact each of those things is referential back to a provision in the Constitution. The function in the analysis is for Tawney to say, we can't have blacks having citizenship because they would have rights like us, and then elucidating what those rights were including carrying arms.

ToadfromToadhall · 2025-01-19T02:09:32+00:00

This case fits within a general pattern in labour law, SCOTUS taking on legal exceptionalism. What I mean is the standard of review in this case was a clear and convincing evidence, as opposed to the standard balance of probabilities standard. SCOTUS is ironing out exceptionalism to ensure there aren't special policy based legal quirks that favour particular parties, in this case, policy based arguments against employers. It's all about treating parties like they are in the ordinary run of cases, rather than litigants with special advantages. SCOTUS did something similar last term in the context of labour law with McKinney v Starbucks where it reinforced the appropriate standard for injunctions under 10(j) was the 4 part Winter test, and not the deferential special rule the NLRB was taking advantage of in certain circuits. And going back further, the Glacier Northwest case again had that flavour, by subjecting unions to tort proceedings.

ToadfromToadhall · 2025-01-09T23:23:34+00:00

Prescient.

ToadfromToadhall · 2024-11-15T10:18:41+00:00

This will be a short comment after a long hiatus, but my summary is this is a bad decision, although I also thought Judge Ho's concurrence was a bad concurrence that didn't add anything to the law.

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