"A reference to horn book Civil Procedure does not cut it here."
And take solace in the fact that even a former Supreme Court Justice and former Dean of the Marquette law school, Prof. Janine Geske, is similarly unsure as to the case's procedural posture at this point.
What one really needs to be skeptical of are Prof. Esenberg's conclusory pronouncements, not openminded contemplations of possible procedural alternatives going forward. (And I don't rely on any horn book for that view, as I've never owned one in my life.)
Prof. Esenberg, it's useful to recall, assisted in enabling Wisconsin Manufacturers & Commerce to wage its multi-million-dollar political campaign against Justice Louis Butler. WMC even named its campaign after one of Prof. Esenberg's Federalist Society memorandums, and Prof. Esenberg (and McIlheran) went to bat repeatedly for one of Louis Butler's most scurrilous attackers. As such, he's not exactly a disengaged academic observer.
And, thanks to that torrent of politically motivated B.S. raised against Justice Butler, the nomination of this principled, capable, and highly qualified judge to the federal district court flounders still among a gaggle of disingenuous Republican hacks in the U.S. Senate.
Gableman's "distasteful" escapades pale in comparison to that effect.