10 December 2020

The Real Defendants

(compliance with principles expressed or implied in Campbell v. Acuff-Rose Music, Inc. not assured)

Texas Attorney General Paxton seems to have a first-year-civil-procedure problem. So do those who signed That Complaint along with him. Well, they've got more than one problem. But most of the other problems flow from their inability to resolve this one.

One of the main principles of the common law is that one must sue the actual party that is both legally and factually responsible for the wrong that one is asking the court to remedy. Sometimes — like in the state next door to Gen Paxton — the plaintiff (claimant) can add others who may be partially or jointly reponsible for performing any remedy as a "direct action" (see La. Rev. Stat. § 22:1269 (suing the insurer)). But even under the direct-action rubric, one must still correctly name the actual party or parties that caused harm; one cannot sue the insurer alone.

The latter, however, is precisely what Texas v. Pennsylvania et al., No. 22–O–155 [sic], does. This "matter" never should have been Texas v. Pennsylvania et al. Very much in the style of a forfeiture action, it should have been Texas v. 1,995,691 Unidentified Pennsylvania Voters, et al. Which exposes what Gen Paxton is really saying: The yahoos1 in Philadelphia and Pittsburgh voted wrong… in substance, because a mere procedural failure would not harm any interest of Gen Paxton or the State of Texas. There were 595,538 mail-in voters in Pennsylvania who clearly didn't harm Texas (they voted "correctly"). If this all sounds far too much like some bad 1970s film about illusory elections in banana republics (or Spain or Greece… or the Soviet Union, bringing a new shade of meaning to "Red State"…), it should. I am reminded of "direct action" lawsuits against gun manufacturers that fail to name the individual who pulled the trigger, a defect any 1L can identify (and will be expected to identify a couple years later on the bar exam) — and that Gen Paxton has identified himself, more than once. Now I know that sports rivalries can be a bit overboard, but this is excessive even when the Cowboys play the Eagles and both teams could still finish the season with a winning record.

So, Texas bar regulators, we have a clear breach of Tex. Disc. R. Prof. Cond. 1.01 here ("an incompetent lawyer is subject to discipline," id. com. 6). Watcha gonna do about it? And what does this say about your bar exam as a screen for attorney competence?

  1. It's tough to cast aspersions on the current dean of the University of Virginia's law school for this years-after-graduation failure of basic legal competence by its politician-graduate. That doesn't mean I'm not going to, though.