The Law of the Case

 As the final post-election cases are getting filed or appealed, there is no chance whatsoever of success. The reason is a legal doctrine that most non-lawyers have never heard of. It’s called “the law of the case.” Once a higher level court has ruled on facts or law, those decisions are binding on any subsequent proceedings in those cases or other cases that rely on the same legal theories or purported facts.

The concept of law of the case is particularly intriguing in the context of the pre-election challenges in the Georgia senator runoff election. Last week, two federal courts have already dismissed cases concerning Georgia’s voting and counting procedures. Both judges at oral argument noted that the same issues were previously decided by their higher court, the 11th Circuit, and that the appellate court’s determinations were binding upon them.

As a side note, one of last week’s cases was argued on behalf of the Republicans by a qualified election attorney. In a devastating reference to previous cases argued for the President, he began his argument this way: “I’m George Terwilliger. I’m not Sidney Powell. I’m not Lin Wood. I’m not Rudy Guiliani.” It did him no good. If there is one lesson that “the law of the case” should teach is that you MUST put on your best case at the beginning, since losses at the beginning may haunt you later on. [Written December 20, 2020]