August 01, 2010

Is Reading a Legal Blog in One's Field Now Part of the Due Diligence of Lawyers?

When I was travelling on Friday, the Eleventh Circuit decided Scott v. Roberts, preliminarily enjoining the trigger provision of Florida's public financing law. This makes it all the more likely, for reasons I've written about, that the Supreme Court will grant cert. in the 9th Circuit McComish case reaching a contrary conclusion.
Howard Bashman rounds up the stories.

Richard Winger pointed out that the opinion cites to this blog. It is an interesting citation, made in response to an argument made by the candidate supporting the law that he reasonably relied upon the possibility of extra matching funds in deciding to opt into the public funding program:

    McCollum should have known that the excess spending subsidy was vulnerable to legal challenge. On the day that the Supreme Court decided Davis, a leading scholar of election law wrote that the decision "calls all [asymmetrical] provisions in public financing systems into question." Rick Hasen, Initial Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down Corporate and Union Campaign Spending Limits and Blows a Hole in Effective Public Financing Plans, Election Law Blog (June 26, 2008, 7:55 AM),
    http://electionlawblog.org/archives/011095.html (all Internet materials as visited July 30, 2010, and available in the Clerk of the Court’s case file). After Davis and before Scott entered the Florida Republican primary, two federal district courts had declared similar state laws unconstitutional. See McComish, slip op. 9139; Green Party of Conn. v. Garfield, 648 F. Supp. 2d 298 (D. Conn. 2009). We agree with the district court that if McCollum did not know that he could not comfortably rely on a subsidy under section 106.355 in the event that an opponent ran an expensive campaign it cannot be said that his reliance was reasonable.

This is the first case I've seen (though there may be cases I have not seen) in which a court suggests that a person (or that person's lawyers) need to keep up with legal developments noted on a legal blog (as opposed to just the more usual reliance on cases, law review articles, and continuing education materials).

P.S. For all those who say that my analysis of the direction of Supreme Court election law jurisprudence is too much chicken little, note the title of my post and its date. Unfortunately, I seem to be right on the money in pegging where the Roberts Court is going.

Posted by Rick Hasen at August 1, 2010 10:42 PM