PUBLIC LAW LITIGATION AND ELECTORAL TIME

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public and private), such as when they engage in temporal forum shopping between the court before and after judicial elections. Third, state judges may pursue their preferences in light of their own electoral time, such as when they choose to pursue midnight adjudication. This Essay suggests reasons to be concerned with these time-motivated behaviors, especially when they seek to entrench policies and to counteract the results of democratic elections. How courts, policymakers, and the public will respond to these concerns, only time will tell.