Watch Snobs

[00:00:00] [Dan Epps] Oh, yay. Oh, yay. Oh,

[00:00:03] [Will Baude] yay. The judicial power of The United States shall be vested in one supreme court.

[00:00:08] [Dan] Unless there is any

[00:00:09] [Will] more question, you'll be able to find an argument in this case.

[00:00:11] [Dan] All persons having business before the honorable, the supreme court of the United States are admonished to give their attention.

[00:00:20] [Will] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:26] [Dan] And I'm Dan Epps. So we are getting going after some technical snafus. I thought we were gonna have to abandon this recording session, but it's working. So let's everybody keep your fingers crossed. If you're listening to this episode, I think it must have worked well enough for us to get far enough into the episode.

[00:00:47] [Dan] So we'll see.

[00:00:49] [Will] Well, if it's a seventeen minute file, you know why. Yeah.

[00:00:53] [Dan] It's throwing me off. Gotta get back into the back into the headspace of podcasting. But I think we can do it. This should be a relatively efficient episode because we've got some quite efficient opinions to talk about and not a ton of other stuff that has happened, but a couple other quick notes before we dive into substance one, just a reminder that we are in partnership with SCOTUS Blog and hopefully SCOTUSblog will send some more listeners our way in the towards the end of the term, which is when SCOTUSblog's listenership readership really starts to peak. So if you're discovering us from SCOTUSblog, welcome.

[00:01:31] [Dan] Last time we also made a pitch for more reviews on the Apple Podcast app and a number of you have delivered. We've gotten a bunch of reviews and they actually are positive since the last episode. So thank you to those that already have. If you haven't, this would be a great moment to do that. Okay.

[00:01:49] [Dan] Some other feedback. Foot fault.

[00:01:52] [Will] Yes.

[00:01:54] [Dan] So a listener wrote in and said, this was meant as a double entendre because the DNA in question was found in the accused's boot. I think it's clearly right. Right? It must be. It must be.

[00:02:09] [Will] This is amazing. Yes. This is the justice Thomas dissent from the about looking at evidence, and yes, he called the foot fault. That's really funny.

[00:02:21] [Dan] Yeah. Yeah. And also more like, not the kind of, like, move you normally see in a justice Thomas opinion, which are just known for being very straightforward and kind of spare, like, not a lot of rhetorical flourishes.

[00:02:36] [Will] Yeah. No. This is like the funniest thing Justice Thomas has written in a long time. Yeah. He's just he's not normally going for funny.

[00:02:44] [Dan] No. No. He's not. I mean, think his writing is effective and clear. It's just he's not going for quotable necessarily.

[00:02:52] [Dan] That doesn't seem to be his mode. He just wants to be kind of straightforward. Okay. So some other people just, you know, hassled me about not knowing enough about sports and tennis and I guess volleyball. It's apparently a thing.

[00:03:07] [Dan] But you know, this one, I don't feel bad about that. I do feel bad about not much not catching this one.

[00:03:15] [Will] Yes. I agree. Reflects badly on both of our senses of humor.

[00:03:18] [Dan] So it goes. Some other things. What else have we got? Do you know about this one? Louis Levesque, hopefully, I'm pronouncing that correctly, which is he was a listener and a recent Penn Law grad, wrote in response to our discussion about Justice Thomas reading and citing several Sam Bray articles in the disgorgement case and sort of joking about whether he might have gotten that wrong.

[00:03:48] [Dan] Apparently, that happened in this case, Aldridge versus Regions Bank. You must be aware of this. Right?

[00:03:54] [Will] I am aware of this. I was just talking about it with Sam and my officer before we recorded.

[00:03:59] [Dan] Yes. So the Sixth Circuit cited multiple of his articles to hold that a surcharge remedy is not available under ERISA. And then Sam had to come in and write a search stage amicus brief explaining that the sixth circuit got it wrong. Apparently, got a scholarship wrong.

[00:04:15] [Will] Yes. The question is if this happens too often, are we at risk of a, you know, courts engaging in sort of a more frequent, you know, CVSB, call for the views of Sam Bray.

[00:04:27] [Dan] I mean, that would be that would be good for our blog, think, where he's a frequent contributor.

[00:04:32] [Will] Uh-huh. This cert petition, by way, has been CVSG ed by the court in April.

[00:04:37] [Dan] Okay. Well, that suggests that there was some persuasive effect of that amicus brief.

[00:04:44] [Will] Yeah. That they did not CVSB, because again, Sam had already filed a cert stage amicus briefs, his views were known.

[00:04:52] [Dan] Okay. Some other things. One thing that's kind of interesting, it is now early to mid June. We're recording on June 11. This will probably be released a couple days after that.

[00:05:02] [Dan] And we still are not aware of whether justice Alito has hired more than one clerk.

[00:05:10] [Will] Multiple people have told me of confidence that he has.

[00:05:13] [Dan] Okay. Alright. Yeah. I've heard some rumors to that effect, but it is norm sometimes in the past, we've seen these situations where the justice hires only one clerk and then that's a signal of impending retirement because retired justices get to hire one clerk. This happened with justice Stevens is my memory.

[00:05:30] [Dan] Yes. But we it's also been sort of authoritatively reported by Jan Crawford, who usually has very good sources, that he is not retiring.

[00:05:38] [Will] So Yes.

[00:05:40] [Dan] So I guess he's a little secretive, and he asks his hired clerks to be a little secretive.

[00:05:44] [Will] Right. Now I, notwithstanding all this, still thought it's, you know, reasonably likely he might still decide to retire in the last day of the term and just hasn't told anybody yet. But again, several people told him with confidence he would never burn Jan Crawford. Like, she is his source, it's just not conceivable that he would burn her.

[00:06:02] [Dan] I mean, even if he changed his mind, I mean, people can make their own life decisions.

[00:06:06] [Will] Yeah. I don't know. As

[00:06:09] [Dan] long as she as long as he gave her the scoop before sending the letter, I mean, I think that would be fine.

[00:06:14] [Will] I guess that's true. He'd have to unburn her.

[00:06:16] [Dan] Yeah. Okay. Well, that will be interesting. I believe Justice Thomas has hired more than one, so there's it's also been reported he's not planning on retiring.

[00:06:28] [Will] Yeah. I assume he is gonna become the longest serving justice in the court. He's not far from that record, and it seems like it'd be hard to stop now. For justice Alito, we talked about this. It does seem like we are this summer is perfectly positioned for the nomination of an Alito of placement who is the most like justice Alito in the sense of being, you know, a conservative jurist who's not judge Judy or judge Janine or whatever.

[00:06:54] [Will] Because

[00:06:56] [Dan] of heading into the midterms?

[00:06:57] [Will] Well, Republicans still hold the Senate. Yeah. But several of the people they hold the Senate with are people who have been primary by President Trump and are probably not gonna vote to confirm anybody they don't actually like. Yeah. So between, you know, Cassidy and Cornyn and McConnell's going out and you have Susan Collins who's, you know, under fire already for confirming for voting to confirm Kavanaugh.

[00:07:22] [Will] You know, that block of people would surely vote to confirm an Oldham or a Boumite and surely would not vote to confirm Donald Trump junior or, you know, something like that. Now where exactly a Bovet or Island Cannon or something falls in that spectrum, we could debate. But and I'm not saying that Justice Alito's, you know, watching the whip count. But

[00:07:47] [Dan] But I mean, I think justices are aware of this. I mean, there's a reason Justice Breyer retired when he did. What's the reason? Well, I mean, that Biden was president. Yeah.

[00:07:58] [Dan] Okay. Right. I mean, they're at least aware of that level. I mean, the thing that's I've always wondered about is what happens if a president loses the Senate kind of at the midterm? Would a justice consider like submitting their letter of resignation on like November 8 to give that president an opportunity to fill the seat before the senate turns over?

[00:08:21] [Will] Oh, I see.

[00:08:22] [Dan] Like the lame duck confirmation. Yeah. Maybe.

[00:08:25] [Will] The other question is just And now that we're

[00:08:27] [Dan] would be seen as pretty partisan, though. Right?

[00:08:29] [Will] I think so. Yeah. Or is that what's we've seen as not just partisan, but also as sort of provoking a certain kind of political chaos?

[00:08:37] [Dan] Yeah.

[00:08:38] [Will] Yeah. Now again, we have seen allegations of the court being willing to provoke political chaos in the election cases, but I think it's different. The one question is whether the now that we've sort of innovated the conditional resignation, I resign, but I reserve the right to keep my seat thing, you know, hasn't yet come up that somebody has not been confirmed for a sufficiently long period of time that we

[00:09:00] [Dan] So do I mean, I know we have resignations pending confirmation of the successor. Are there resignations pending, like, me not changing my mind? Is that a thing?

[00:09:11] [Will] Well, I think there's a question about the resignation pending confirmation of the successor, whether that's irrevocable or irrevocable commitment. Yeah. Because assuming that the person has not actually resigned, then, you know or at least yeah. If it's an actual resignation, it's not clear it could be conditional. And if it's not an actual resignation, but really just a statement about future intent to resign, then presumably it's revocable.

[00:09:34] [Will] So if justice Alito were this summer to resign pending confirmation of my successor, if his successor were not to be confirmed, Democrats would take the senate at the midterm, and then it was clear we're talking like at least two more years.

[00:09:47] [Dan] So I was recalling an episode from I guess this was in 2018 when judge Michael is it Kanne? Had said he was gonna go senior and had wanted his seat filled by a former clerk, but then that was gonna happen and then it wasn't gonna happen and then he unretired Yeah. And stayed on the bench for several years until he died, which I thought was interesting. Wasn't totally sure if that was proper or not. But I guess, you know, maybe he had just said I plan to go senior and like hadn't formally filed the paperwork.

[00:10:27] [Will] I have been meaning to dig in, yeah, to that sequence of events.

[00:10:32] [Dan] Have you really been meaning to dig into that sequence of events? Is that, like, on your actual list of things you wanted to do? Yes. Okay. We'll see whether you get there.

[00:10:41] [Will] And he's the Seventh Circuit judge. I think the as I recall, the former clerk of his who was supposed to replace him was Tom Fisher, the solicitor general of Indiana, who's a good guy. And, you know, then he just yeah. Then he just held out. And I but I've always been a little confused by the metaphysics about again, that he takes senior status and untake it.

[00:11:01] [Will] That can't be right. I guess he must announced his intent to take senior status,

[00:11:05] [Dan] then Yeah. I mean, if you just say it out loud and don't, you know, do anything formal to convey the election to senior status, I mean, that seems like it should be okay.

[00:11:17] [Will] Right. Yeah. Although so there's a article about this by Vasan Kesavan, who's a fellow who'll be on the market soon and has written a bunch of interesting formalist art articles, several of Michael Stokes Paulsen, about which kind of goes to question of, like, when does a vacancy if it's just an intent to resign, then does that mean there's no vacancy yet? Yeah. Does that mean nobody could be how can you be nominated?

[00:11:41] [Dan] Yeah. Or confirm How can, yeah, how can the senate confirm you?

[00:11:43] [Will] Yeah. To a vacancy that doesn't exist. So what Kesavan argues is you actually can be nominated and confirmed to a vacancy doesn't exist. You just can't be commissioned to it. And so as long as the way the kind of whole thing works is that you have a conditional resignation that takes place in the confirmation of your successor, and then upon the resignation, you're then commissioned to the office, which has now nearly become vacant.

[00:12:05] [Will] That's fine. And that this actually means you could have a sort of stock of nominated and confirmed people just sort of, like, waiting in the wings with their commissions ready to go.

[00:12:14] [Dan] What if a Democratic president just, like, did that for nine justices before?

[00:12:21] [Will] As I understand the argument, and Vasan can correct me if I'm wrong, those commissions would be kind of locked and loaded. Now if a future Republican president didn't want to appoint those people, they don't have to commission them. So

[00:12:35] [Dan] That's kind of a Marbury versus Madison move?

[00:12:38] [Will] Exactly. Yes. It's related to the, like, when does it commission vest and the key to the act of commissioning.

[00:12:43] [Dan] Couldn't you go get, like, Mendemas as long as you didn't file it in original jurisdiction of the Supreme Court?

[00:12:49] [Will] Well, maybe. Although in the case of Marbury, his commission was his commission was signed and sealed and just not delivered. Okay. And so I think the point at the conclusion in Marbury was that the president had made the final ever revocable decision to commission him, and the delivery, which is not key at the vesting of a commission, is all that had not happened.

[00:13:11] [Dan] Interesting. So there is still some discretionary authority?

[00:13:15] [Will] That I think if I think under in Marbury, I think if Yeah. The outgoing secretary of state, chief justice Marshall, had decided not to even try to deliver the commissions. And so no. Actually, I don't like these guys. Just like ripped up the commissions rather than sending them for delivery, then there would have been no case for rhodomineumus.

[00:13:34] [Dan] That's interesting. Although it does seem like, you know, the constitution doesn't necessarily say there's this extra step there. Right? You know?

[00:13:41] [Will] Well, it does. It says the president shall commission all officers in The United States. Okay.

[00:13:45] [Dan] Shall.

[00:13:46] [Will] Shall. But the shall it's unclear whether the shall is a duty or a condition precedent. Like, is the point that you can be an officer only after being commissioned, or is the point that the president just must do the commissioning? Yeah. But the longstanding view is that it's sitting out sort of condition or the third step.

[00:14:03] [Dan] Yeah. Okay. Well, we won't resolve that. One other little thing I spotted, did you see this so in the Walford case, which we discussed a while ago, this is the Hawaii case about Hawaii's attempt to kind of change the trespass law so that you have to have permission to bring a firearm under private property. Yeah.

[00:14:23] [Dan] In late May, the challengers to the law filed a motion for leave to file a supplemental brief.

[00:14:33] [Will] Right.

[00:14:33] [Dan] Sort of say sort of thing like, hey, there's a couple recent cases that have come out in the lower courts in the Fourth Circuit and the Second Circuit that have gone the other way than from the Ninth Circuit. It's sort of like what in the Court of Appeals we call a 28 j letter, which is not a motion. You just kind of file a letter and you say, hey, it's notice of supplemental authority. This other thing happened. But they filed this on May 22, and then it's a short brief.

[00:15:02] [Dan] The motion was granted on June 8. So I don't know in like I don't know if, you know, you might have thought that would suggest they would grant it, you know, in the run up to the decision coming out. And so maybe it would have come out on Thursday the eleventh, but that didn't happen. Sometimes when there's a bunch of motions like that pending, you kind of just deal with them all when the opinion comes down. So it's a little weird to me, like, why, you know, more than two weeks later, why is that motion granted?

[00:15:38] [Will] Yeah. Well, let's

[00:15:39] [Dan] no further action.

[00:15:40] [Will] From the docket also, like, the first version was not accepted. And then there was

[00:15:44] [Dan] a I think that was just a file I think it was just a filing error. But the

[00:15:48] [Will] but the corrected one took four days to come in. Yeah. So you it's still and that's still

[00:15:57] [Dan] It still leaves a lot of time.

[00:15:58] [Will] Yeah. I'm actually surprised it was granted.

[00:16:01] [Dan] Some way to just submit supplemental authority without a motion. Cause I'm just so used to the court of appeals practice, you know, in my day, I've sent a number of those letters.

[00:16:11] [Will] Well, think they're I mean, I think yeah. People just like lodge stuff at the court all the time.

[00:16:17] [Dan] Yeah. Mean, there are letters that people just file, that parties file. But I don't so okay. So I don't know if you I was hoping you might have some thought on what that might mean.

[00:16:28] [Will] No. I'm a little surprised the court cares what the court appeals thinks, to be honest.

[00:16:35] [Dan] Well, mean, maybe they don't. Maybe they just wanted to say you can file the brief and we'll ignore it, but you are allowed to file it.

[00:16:42] [Will] Right. I just I don't know.

[00:16:44] [Dan] Yeah. It relevant. I mean, they care at the cert stage, right, to know, you know, what the other courts of appeals done. And so it might be

[00:16:52] [Will] Right. It affects be helpful. Serverliness. But I thought once you got to the merits, who cares?

[00:16:57] [Dan] Yeah. I mean, might not you might care that this happened just because it informs, you know, there's maybe there's gonna be future petitions that come in or, you know, those are gonna be I don't know. It just it is useful for them to know.

[00:17:10] [Will] And I guess it's useful for them to the extent they wanted to reverse the Ninth Circuit, and somebody's gonna complain that they're like out there reversing the Ninth Circuit and, you know, even though that there were no keys on their side. Now the more, you know, the more friends they can have, the better.

[00:17:23] [Dan] Yeah. Okay. Well, I don't know what to make of that. Okay. One other thing to note before we get into substance, I thought we should note it now rather than at the end when people might not be listening, which is that you and I are about to go on a little vacation.

[00:17:36] [Dan] I think I mentioned this. Sorry. You didn't go on separate vacations. We're not vacationing together as much as I would enjoy that. We could commission one of those like celebrity cruises, right, where people like go on a cruise with their favorite comedy comedian or musician or something.

[00:17:54] [Dan] I don't think we would get any takers, but that would be fine. No. We're going on separate vacations for roughly the same time period and so we are not gonna be recording the week of June 15. No. I offered to bring my equipment and you were like, oh, we're both gonna be on vacation.

[00:18:12] [Dan] Let's not bother.

[00:18:13] [Will] Yep. We're gonna miss an opinion day, at least one.

[00:18:16] [Dan] Yeah. And so, you know, whatever comes down and, you know, we are starting to get into the zone where, you know, bigger cases are gonna be coming down. We didn't get any last week. I don't I think it's fair to say that we know the ones we got that are big. We, you know, didn't get any this week.

[00:18:37] [Dan] So maybe something big will come down next week, and so you will have to wait roughly a week for us to circle back to it. So apologies, but we are we're then back after that for I'm back for a couple weeks, and so we will do our best to catch up on the big things that happen. And then I'm gone for a little bit, and so you know, we may have some catch up sessions in later in July and into August. I was looking at our episode list so far and this is going to be our nineteenth episode of the season and I think we set our previous record last season with 28 episodes. And so and just as a reminder that the season doesn't turn over until the first Monday in October.

[00:19:29] [Dan] So what do you think?

[00:19:29] [Will] Do you

[00:19:30] [Dan] think we will break that record this season?

[00:19:33] [Will] No. But I would like to.

[00:19:34] [Dan] You don't think so? You don't think we can do 10 more?

[00:19:39] [Will] Oh, we can. I'm just not sure we will.

[00:19:42] [Dan] Yeah. Well, I mean, let's say we do three before end of July Uh-huh. Three or four. Then we just need to hit like five or six, you know, between mid July and early October. It's doable.

[00:20:01] [Dan] Maybe we'll try.

[00:20:03] [Will] I think last year we got, you know, we had these long pauses and gaps, and that filled us with pent up energy and guilt that sort of had us come out of the gate with a ton of episodes after that. And I just think now we're at a more even keel, just predictably. But I Dan, you wanna do 20 episodes between now and the first month of October, I'm there.

[00:20:21] [Dan] Yeah. You probably are. You've got a pretty good appetite for podcasting. Yeah. When was that but when was our really long break where people thought the podcast had been canceled?

[00:20:33] [Dan] Was that this past fall? Was that this season? No. Think last year.

[00:20:37] [Will] I think that was last year.

[00:20:38] [Dan] Okay. Yeah. I think that's right. That was a little unfortunate. Well, I'm looking at our episode list.

[00:20:44] [Dan] You know, we went yeah. We went July 28, August 9, August 29, September, and you know, we kind of kept it even, I'd say, with a reasonably large break around the holidays. Okay. So we'll see what happens. So apologies in advance.

[00:21:03] [Dan] So we had three merits decisions that came down today, the day we're recording, Thursday, June 11. I think it's fair to say none of the three is a blockbuster.

[00:21:17] [Will] I live for the venue of Klaus Dan.

[00:21:19] [Dan] I mean, they're they've given us enough that we can we're gonna get an episode out of it, but we have three. Two of them we're gonna talk about. One of them we are not going to talk about, that one is FS Credit Opportunities Corporation versus Saba Capital Master Fund Limited and that one is actually the longest of the three. I don't know if that's the reason we're not talking about it, but it doesn't help. And that one is about the SEC and the Investment Company Act and whether there is implied private right of action for rescission of a contract that violates the Investment Company Act.

[00:22:05] [Dan] Mhmm. And the is no.

[00:22:07] [Will] As always, it's no. This is definitely the case I've gotten the most emails about. I'm on multiple different law professor email threads about these cases. One sort of from the more corporate law, investment law side, and one from the more fit court side.

[00:22:22] [Dan] So You were in a corporate law

[00:22:25] [Will] email group? Well, no. It's just like some people started emailing.

[00:22:28] [Dan] Okay. Just like random people or friends of yours?

[00:22:32] [Will] Friends and colleagues.

[00:22:33] [Dan] Who, you know, want your insight. These are corporate law professors that want your insight?

[00:22:37] [Will] There's some corporate law professors and some corporate professors in this one, but so the so Okay. And the other one

[00:22:43] [Dan] I don't have any email groups like this. I gotta get some of these going.

[00:22:47] [Will] You can join any of my email groups you want, Dan. It's it is interesting. It has, like, some textualism versus letters of history stuff in here. Mhmm. The majority by justice Barrett cites Frank Easterbrook, statutes, domains, and congress is a they, not an it.

[00:23:04] [Will] But it but the whole opinion feels very very nineties, very early February. Right? Implied causes of action, legislative intent and committee reports versus text. So

[00:23:17] [Dan] Well, speaking of that, do you know what opinion has been the longest outstanding at the court this term as of now?

[00:23:25] [Will] Well, it was Callais. It's not anymore.

[00:23:28] [Dan] So now it's Landor versus Louisiana Department of Corrections and Public Safety. Oh, that's Big case about whether there is a private right of action for damages created by the Religious Land Use and Institutionalized Persons Act. Yeah. And this is one we've talked about once or twice, I think, being litigated by a friend of mine and friend of the show, Zach Tripp. And I think it was, you know, I was very happy to see that he got it granted and it's a case that has such horrible facts that it was kind of hard to imagine that having made the decision to grant that you could rule against the petitioner who is the Rastafarian who had his head shaved despite like literally having in his hand a copy of a Fifth Circuit opinion saying the prison officials couldn't do that.

[00:24:16] [Dan] They still trash. Yeah. Yeah. And it's just and so but then after the argument, the kind of common wisdom was, oh, you know, maybe this guy's not gonna win. The court is not enthusiastic about recognizing a private right of action here.

[00:24:28] [Will] Right. Because the problem is RLUIPA, which is the statute of surrender, is a spending clause statute. Yeah. And based on things the court has said previously and ways of thinking of spending clause, it's not obvious that a state's decision to accept money can then create federal causes of action against third parties who aren't people losing the money. Yeah.

[00:24:46] [Will] Yeah. The conventional wisdom had been that the plaintiff was gonna lose. Yeah. I guess the longer it takes, right, the more I mean, well, some case has to be last, so it's not like, oh, it has to be explained. But this case being last makes me think maybe it's a flip.

[00:25:02] [Will] Yeah. Like, it could go either way, but it could well be a flip.

[00:25:05] [Dan] We're going on more than seven months now. Right? This was argued November 10.

[00:25:11] [Will] Right. Or maybe it's just one of these cases that's gonna get us like a 87 page theory of RLUIPA from Justice Thomas.

[00:25:19] [Dan] Or just the spirited dissent.

[00:25:23] [Will] Yeah. Or I wonder I mean, this is probably too much. Maybe somebody one of the conservatives in the court is gonna finally realize they need to reconsider Boerne.

[00:25:33] [Dan] Is this is that the case to do it in?

[00:25:36] [Will] One I mean, sure. And then And so you would

[00:25:40] [Dan] You don't need the spending clause if Boerne was wrong and RFRA was right. It's because RFRA has never been taken off the statute books?

[00:25:48] [Will] Well, RFRA has been taken off the statute books, but the congressional theory underlying it, you can support a statute on any congressional power, even the one that's not the one Congress anticipated.

[00:25:56] [Dan] Oh, I see. I see.

[00:25:57] [Will] So you could say, we're upholding RLUIPA not just a suspending clause statute, but actually as fourteen five legislation.

[00:26:05] [Dan] Has RFRA been taken off the statute books? Because there's still provisions of it that I thought apply to the federal government that have never been

[00:26:12] [Will] The provision of federal government has been when last I looked into this, which is in response to something Jonathan Mitchell wrote somewhere, I think when RLUIPA was passed, there's or when RLUIPA was amended as part of one of the cleanups,

[00:26:25] [Dan] they did

[00:26:26] [Will] they did take parts of RFRA off the statute books.

[00:26:29] [Dan] I see.

[00:26:30] [Will] In the way they changed the definitions of state and govern like, they changed various definitions in a way that I see. Don't I remember how much they took off the books, but I believe they did Yeah. Sort of conform.

[00:26:40] [Dan] Okay.

[00:26:40] [Will] But again, yep. Anyway, that's what I'm calling it.

[00:26:43] [Dan] Yeah. That would be interesting. That would be interesting to have like a kind of split majority where the three liberal justices say there is a private right of action with spending clause, and then two justices say, you know, we would uphold it on, you know, Congress's power to enforce the you know?

[00:26:59] [Will] Right. But it could even just be it's still five justices or six justices saying it's unconstitutional, but then a 87 page concurring of Justice Thomas saying, in a future case, I would reconsider Boerne versus Flores. Hopefully, going in, you know, the way he does.

[00:27:15] [Dan] Yeah. Yeah. That could be. Okay. Well, let's keep an eye out on that one.

[00:27:20] [Dan] So, you know, I guess if I was the petitioner there, if I was Zach, I haven't talked about it. But maybe I would start to be getting a little optimistic again, even if you felt like the you know, I don't know if you thought the common wisdom was right about the argument, but to the extent that, you know, was the common wisdom was right, then maybe it starts tilting the other way. I don't know. Or maybe there's just like

[00:27:40] [Will] The longer the jury is out, the more optimistic the criminal defense lawyers get.

[00:27:47] [Dan] Yeah. That seems right.

[00:27:48] [Will] I mean, not always.

[00:27:49] [Dan] Okay. So that's all we're gonna say before we get to the actual cases we are talking about. So do you have a preference as to which one we do? I was also gonna quickly note, I guess there was an interesting dissent from denial sorry. It's interesting statement respecting denial from cert by Justice Sotomayor earlier this week in an ineffective assistance of counsel case that was about the right basically like prejudice or harmlessness stare standard for an ineffective assistance claim, where the claim is that the attorney didn't properly preserve a Batson claim.

[00:28:25] [Dan] Kinda interesting. We don't need to get into it, but it might be if you're interested in those issues worth taking a look at because it sounds like

[00:28:33] [Will] Sort of like what you've written about, right?

[00:28:35] [Dan] Yeah. Yeah. No. I'm it's one I'm interested in and the question of harmless error, you know, when do you reverse a conviction, what does the defendant need to prove to show that the conviction the error was harmless or not? And basically, she's making the argument that I guess Mississippi has this rule that like to prevail in that context to show that you received ineffective assistance of counsel by failure to raise what would otherwise be a meritorious Batson claim, you need to show that like you would have been acquitted otherwise, which is impossible.

[00:29:06] [Dan] Right? Which is impossible. Right? You like, how are you gonna prove that? I show that like this black juror would have, you know, persuaded all the other jurors to, you know, vote in my favor.

[00:29:17] [Will] Is it enough to show you they would have gotten a hung jury otherwise? Or is that it?

[00:29:20] [Dan] I don't know. Even so, I don't know how you would prove that.

[00:29:24] [Will] Sure.

[00:29:25] [Dan] You know, as she described it, it says, you know, we require a different substantive outcome that a defendant would have been acquitted rather than convicted. But yeah, don't know. Have no idea how you would do that. That seems impossible. So that seemed like she might be right, but we will have to wait for another year to get an answer to that if she can persuade others to want to decide that.

[00:29:46] [Dan] Okay. So of the two, which ones do you wanna talk about? Which first? Which one do you wanna talk about first?

[00:29:51] [Will] Let's do Buddy Ayers first.

[00:29:53] [Dan] Okay. This is Keathley versus Buddy Ayers Construction Incorporated. And this is sort of bankruptcy adjacent, but sort of not. It's got enough bankruptcy in it to kind of like make me a little nervous, you know, when I'm trying when I was trying to figure out how much to dig into it, but

[00:30:12] [Will] You're the one married to a bankruptcy lawyer.

[00:30:15] [Dan] Yeah, I know. I know. And I, you know, I figured that's her department. I don't need to worry about that stuff. But it's only I'd say it's light bankruptcy.

[00:30:22] [Dan] It's like the bankruptcy stuff is collateral to it. And so let me try to describe how this works. So you know, you declare bankruptcy, Right? I don't know if you've seen the famous Michael Scott. Yes.

[00:30:37] [Dan] I declare bankruptcy episode of The Office. But so somebody declares bankruptcy and then you're supposed to disclose all your assets to the bankruptcy court and that includes like claims you have. Right? You know, I have a legal claim against this other person that might get me money because that's that has value. Right?

[00:30:56] [Dan] That's something that is relevant to your assets and how much you can pay creditors and so forth. Okay. And so we have a debtor here who you know filed a chapter 13. He and his wife filed a chapter 13 bankruptcy petition and the bankruptcy court approved a repayment plan. After that point, but while the bankruptcy proceeding was still open, guess, he was in a car accident, you know, with a driver.

[00:31:27] [Dan] The other driver was somebody who worked for the other party in the case, Buddy Ayers Construction Incorporated. And then, you know, so he then he has a claim and he gets a personal injury lawyer. He tells his bankruptcy lawyer about this, but then nobody goes and tells the bankruptcy court that this happened, which is meaningful because it affects his assets. Right. Right?

[00:31:50] [Dan] Okay. Then what happened?

[00:31:52] [Will] Then the Fifth Circuit says, well, your claim against

[00:31:56] [Dan] Woah. Woah. Woah. You're skip skipping way ahead. Okay.

[00:31:59] [Will] Sorry.

[00:32:14] [Dan] That ultimately the Fifth Circuit is gonna say, mister Keathley cannot sue the construction company.

[00:32:23] [Will] Right. Because he already took a position earlier that he didn't have a claim. And so having said he had no claims against the construction company, he must have no claims against the construction company. Right? That's the theory?

[00:32:35] [Dan] Okay. And just to be clear,

[00:32:36] [Will] the construction company relied on that in some way. Right?

[00:32:38] [Dan] No. So, yeah, This is the thing that makes no sense to me about the way this doctrine works here. The way this doctrine works is the doctrine of judicial estoppel, at least as it's been going in the lower courts, we'll talk about whether that's legitimate in a second. Basically, you say something to a court about something. And even if this other party is not involved in that court proceeding at all, they get to come in later and be like, oh, well, you said something inconsistent, like, five years ago in some other case.

[00:33:11] [Dan] Therefore, I win. Yes. That makes no

[00:33:14] [Will] that Well, it doesn't make no sense. Right? So opportunism and changing your mind is something we worry about. Yeah. And, again, it could be that you could rely and can't show that you rely.

[00:33:25] [Will] It could be that you notice that in various cases, you know, the government has been taking the position. I mean, think of this version. Right? So, like, president Trump maybe did or didn't create a weaponization fund to pay $1,776,000,000 to various people. And then somebody sues him to get a TRO against the weaponization fund, and he tells Judge Leon, oh, there is no weaponization fund.

[00:33:51] [Will] There it doesn't exist. And so judge Leon denies the TRO. And then, like, a month later, he starts paying people out under the opposition fund. And so some, you know, other person sues and says, wait a minute. You said there was no opposition fund, like, in court to your own advantage.

[00:34:06] [Will] You can't then just go around breaking your word.

[00:34:08] [Dan] Now I thought the government can't be estopped.

[00:34:11] [Will] Well, the govern so the government can't be collaterally estopped. Is judicial estoppel subject to the Mendoza rule? I'm not sure. I actually think the government Yeah. I mean, the government regularly is estopped in the sense that, you know, the court makes the SG say things to the court and then says, you know, like, the SG promised us they'd bring the birthright citizenship case back, or the SG promised us they'd comply with this judgment.

[00:34:38] [Will] And everybody seems to think

[00:34:39] [Dan] That's not I don't know if that's legally binding, though, in the way that

[00:34:43] [Will] It doesn't cover everybody seems to think it's such a big deal that the, you know, it the Estoppel is so powerful that it never has been forced.

[00:34:51] [Dan] Yeah. I just find this kind of ridiculous, which is this, you know, construction company that, like, you know, who's the driver, like, caused this accident. They somehow, like, I don't even know how they figured this out. They looked into this guy, figured out he had bankruptcy pending. They were like, oh, he didn't disclose this to the bankruptcy court.

[00:35:08] [Dan] Therefore, you know, we win this completely unrelated personal injury suit. Right. Credit to, you know, the construction company's lawyer for, like, figuring this one out. Right.

[00:35:20] [Will] So okay. So the court thinks this is ridiculous too, and we wish to talk about that in a minute. Yeah. I take it part of the reason, though, to think it's ridiculous is it's not that it's okay to hide the fact that you have a major lawsuit from your creditors and then try to bring it anyway. It's that the construction company shouldn't be the beneficiary.

[00:35:37] [Dan] Right? That's at least my strong instinct.

[00:35:39] [Will] It's the creditors who should say Yeah. Well, you had these claims to go to construction company, like, that money should go to satisfy your debts. Yeah. Yeah. Okay.

[00:35:47] [Dan] Okay. And but just to be clear, like, I don't think that there is clear evidence that this guy was concealing anything or, you know, acting with ill intent. I mean, he told his lawyer, we can debate the facts there. But I do think it would be bad if this guy had fraudulently submitted documents or something. I don't think that's what happened here.

[00:36:10] [Dan] Okay. But so the court Fifth Circuit said he was stopped. He had tried to argue that shouldn't apply because it was inadvertent. Mhmm. And the Fifth Circuit said no because we have a kind of narrow rule for inadvertence, which is basically we will only consider inadvertence as a ground for avoid in avoiding judicial estoppel where the debtor did not know the facts underlying the claim or there was no potential motive to conceal the claim.

[00:36:49] [Dan] Like, that's a two part, you know, you have to show one of those to be able to wiggle your way out of judicial estoppel for inadvertent mistakes. And the court is going to say, no, that's not the rule. This is an equitable rule. And so it's a holistic approach can kind of take a bunch of things into consideration. There's not these flat, you know, strict rules about what you can consider.

[00:37:16] [Dan] This is kind of a general Michael Coenen has a paper called rules against rulification, which is sometimes the court comes in and says, look, lower court, you tried to like turn this fuzzy thing into a rule. You can't do that. You have to keep it fuzzy.

[00:37:31] [Will] Reasonable doubt. You can't put a number on

[00:37:33] [Dan] it. Yep. Right.

[00:37:35] [Will] So, I mean, obviously, if you take these terms inadvertent and mistake literally, then the Fifth Circuit can't be right. Like, obviously, you could do something inadvertently where

[00:37:45] [Dan] Yeah.

[00:37:45] [Will] You knew the underlying facts

[00:37:47] [Dan] Yeah.

[00:37:47] [Will] But just didn't think about it, didn't realize they're relevant. And while, sure, you could have had a motive to do it for personal gain, you didn't. You just did it inadvertently. Right? That Yep.

[00:37:58] [Will] Similarly, of course, you can have a mistake where you knew some things and then didn't say them when you're supposed to. That's what made it a mistake.

[00:38:06] [Dan] Right? That's a fact. Like, that's what makes it inadvertent rather than advertent.

[00:38:13] [Will] Well, or that's what makes it, yeah, inadvertent rather than just, like, outside of your knowledge entirely. Right?

[00:38:18] [Dan] Yeah. Yeah.

[00:38:18] [Will] Yeah. Again, if you think this estoppel doctrine is valuable because courts have such a limited window into what's going on and really rely on lawyers doing, like, a lot of work to make sure they've run the ground, everything relevant, and told the court everything relevant. And if they screw it up, they get in trouble later. Then you could justify having a harsher rule on that kind of incentive grounds, but apparently, we don't.

[00:38:47] [Dan] Okay. So the actual majority opinion, and this is one by Justice Jackson, is quite short and nine pages. There are a lot of things that the court doesn't decide in this and let's try to make sure we can get them all. So first, the court like does not clearly say judicial estoppel is a thing. Right?

[00:39:16] [Will] I think they say it's a thing. Judicial estoppel is an equitable doctrine intended to protect the integrity of the judicial process.

[00:39:25] [Dan] Okay. So they do not say it is a thing in bankruptcy. Right. They say we assume without deciding.

[00:39:32] [Will] Right. They say we've never applied judicial estoppel in the bankruptcy context. But let's assume it does.

[00:39:37] [Dan] Okay. And we also are going to assume without deciding that there is an exception of in inadvertence or mistake.

[00:39:45] [Will] Yes. Okay. So both

[00:39:48] [Dan] of those could be wrong.

[00:39:49] [Will] Assuming this doctrine applies and assuming this doctrine has an exception Yeah. The Fifth Circuit was wrong with the about the hypothetical exception of the hypothetical Yeah.

[00:39:57] [Dan] And I guess, you know, the court has once relied on this doctrine in this New Hampshire case. This is a case in the court's original jurisdiction, which I had not known about. Yeah. And so there is like one thing you can cite, but you know, if you were trying to rely on this as, you know, authority for more judicial stope, it's pretty thin.

[00:40:22] [Will] It certainly is not about bankruptcy. Right? It's about the location of the Piscata River.

[00:40:29] [Dan] Okay. So a lot of questions unanswered, but let's talk about the separate opinions. Uh-huh. So one by Justice Thomas, joined by Justice Gorsuch doing what he often does is to kind of say, like, here's the thing that everybody's been doing and the court seems to be doing and actually is wrong. It has no basis.

[00:40:49] [Dan] And I thought this one was reasonably persuasive where he just says, look, judicial stople is kind of a new thing. It doesn't know, you certainly can't trace it back to old English law. I guess it first started popping up in this 1857 decision of the Tennessee Supreme Court, but like didn't get widely adopted at that point outside of Tennessee and only really became a thing in the last few decades in at least in federal courts.

[00:41:16] [Will] So this is what I love about the law, is there could be a thing called judicial estoppel that like we've all heard of, and you know what a estoppel is, you know what judicial is. So it makes sense. Sounds like a thing that's been around for a long time. And then somebody says, oh, actually, it was invented by the Tennessee Supreme Court in 1857. And as of 1956, the tenth circuit said, oh, this is a weird thing.

[00:41:34] [Will] This encounter with a of reception outside the state of Tennessee. The idea that something that seems so natural and, like, you don't really think where it comes from. It's just like some weird Like disgorgement. Tennessee export?

[00:41:46] [Dan] Yeah. Disgorgement, kinda new. Entrapment, you know that one? That one is really new. I think I sort of before studying it, I was like, oh, that must be one of these ancient criminal law defenses.

[00:41:57] [Dan] And now it's actually something that was made up in recent decades.

[00:42:00] [Will] In Tennessee?

[00:42:01] [Dan] I don't know whether it originates in Tennessee. I don't believe that to be the case, but I mean, people are always saying,

[00:42:08] [Will] you know, you can't make fetch happen.

[00:42:10] [Dan] And I guess this is just Yeah. You just if you just keep saying something

[00:42:14] [Will] It's just proof that you can, or at least Tennessee can.

[00:42:17] [Dan] Is there a general law of judicial estoppel now?

[00:42:21] [Will] It's an interesting question.

[00:42:22] [Dan] Maybe? Like, if every court starts saying it's a thing, right, doesn't that make it a thing?

[00:42:28] [Will] I mean, court saying it a thing is a thing is one major factor in it being general law. Now what first principles it derives from and why courts say it's a thing and, like, the it's a more complicated story. And if it's a you know, if the last couple of decades of the way it's crept in have been through inadvertence or mistake

[00:42:46] [Dan] Yeah. So to speak,

[00:42:47] [Will] then maybe not. Yeah. So just as Thomas says, you know, even though it's despite the widespread modern adoption of judicial stopal, its foundation remains questionable. Where does it come from? What authority does it have?

[00:43:02] [Will] There is a little bit of interesting sort of general law energy to it. Yeah. He notes that, you know, the court has applied it in this New Hampshire versus Maine, and he says, ah, that's different. It's an original jurisdiction case where I think what he says is general law still applies in original jurisdiction cases. He says, in an original jurisdiction case, the court understood itself to have greater flexibility in adjudicating the dispute that the lower courts have in ordinary diversity actions.

[00:43:25] [Will] CF Massachusetts versus Missouri, explaining even after Erie that controversies between states are decided based on the accepted principles of the common law or equity systems of jurisprudence. This is just straight out of Steve Sachs constitutional backdrops in finding a law. Right? It's the, like of course, in original jurisdiction cases where you couldn't just defer to state law nor does it seem like the submigration make it goes up. You still do general law.

[00:43:49] [Will] So maybe there is a general law of judicial estoppel, but only applies in original cases.

[00:43:55] [Dan] That they can make up. I mean, there's another really interesting eerie question here too, which is footnote three. I don't know if you were gonna get to that.

[00:44:03] [Will] Go ahead.

[00:44:05] [Dan] Which is a question about whether, you know, in a diversity action, which this was in federal court, whether judicial estoppel is a matter of state substantive law or federal procedural law. Right? Because if it's state substantive law, you know, you'd have to go to state law to figure out whether to apply it and, you know, and see whether the state has adopted it. Or if it's federal procedural law, there's like a, you know, some common law of judicial stump that applies in all federal courts, I guess.

[00:44:41] [Will] So right. So it's I mean, it and it is kind of interesting to then to really try to ask the Fifth Circuit, like, why does this cause of action fail? Right? Why does the fact that I made a mistake in bankruptcy mean like, are you saying that federal bankruptcy law you could have an estoppel doctrine that comes from the federal bankruptcy proceeding. That's like, if you don't state your claims in federal bankruptcy proceeding, then they cease to exist.

[00:45:04] [Will] Yeah. It's almost like federal bankruptcy preemption. Yeah. Or you could say, no, it's a matter of state law or whatever he's basically suing the, you know, the company for. Just say, like, one element of your tort claim is that you have not previously denied the existence of your tort claim.

[00:45:20] [Will] Which is weird. Which is weird. But then also the footnote contains the most interesting and confusing thing ever, where he then says, you know, one of these approaches would at least cohere with the treatment of the related but distinct doctrine of equitable estoppel, which is treated as a substantive question governed by state law and Erie. So I take this domain despite justice Thomas' broadside against judicial estoppel, he's still okay with equitable estoppel. Yes.

[00:45:50] [Will] And what's the difference between equitable estoppel and judicial estoppel?

[00:45:53] [Dan] I think the difference is that it has a longer history.

[00:45:57] [Will] Right. But what even is the different like, what is an equitable estoppel claim that's different from a judicial estoppel claim?

[00:46:03] [Dan] I think you have to show reliance there.

[00:46:06] [Will] Right? That's right.

[00:46:07] [Dan] Yeah. I mean, think so on page two, he says it requires the party invoking the doctrine to prove that it was itself the object of a previous representation, that it relied on the previous representation, and that it was prejudiced by the change in positions. That seems totally reasonable to me.

[00:46:22] [Will] Me too. That's what makes this opinion so convincing actually is that part of the reason maybe judicial estoppel takes off, you don't think about it that much, is it rhymes with this other thing, equitable estoppel, that is a long standing principle that you can't, like, bait and switch people and tell them one you know, take one position in court and then suddenly like flip your position to

[00:46:44] [Dan] Like if there was some previous lawsuit involving Keathley and the buddy Ayers construction company and he had been like, oh, don't worry. I'm never gonna sue you for that. And then like the next day and they rely on that in some way and the next day he files a suit. I mean, okay. Fair.

[00:46:58] [Dan] Right. Right. But here, it's just this total windfall.

[00:47:02] [Will] Yes. Or similarly, if in the you know, I'm gonna maybe I could stop it as a part of the government either. But if I think it does. But if when, you know, the president denies that there's an anti opposition fund to stop it from being enjoined, and then, like, a few weeks later, you know, you try to enjoin it again or something, you might say, you know, if you're somebody who's relying on that, I dropped my lawsuit with prejudice because I was told there was no fund. And then it starts up again, you know, then maybe the Yeah.

[00:47:31] [Will] So that makes sense to me. And equitable estoppel is also sort of related to unclean hands, these other, like, longstanding equitable doctrines that you can't sort of do shenanigans as a way to screw their party. Yeah. But judicial estoppel used as just a way to make people who are inconsistent or liars lose their case lose their cases is maybe not a thing.

[00:47:54] [Dan] Yeah. It just seems like a weird way to sort of like, it's you sort of like, you know, turning litigants into private attorneys general to, like, protect the integrity of unrelated court proceedings or something like that. It's basically like you are a litigant. If you can go you should go out and like look at everything this person has done, your opponent has done in court ever. And if they've ever said anything consistent, we're gonna you know, you're gonna get the benefit of winning your case, you know, to protect the integrity of that other judicial proceeding.

[00:48:25] [Dan] That seems weird to me.

[00:48:27] [Will] Right. Well, yeah, it's not totally weird from a judge's point of view. It's like judges really don't like it when litigants don't tell them stuff that they wanted to know. And so if one of the sanctions for that is you're forever at risk of your statements being used against you

[00:48:41] [Dan] Yeah.

[00:48:41] [Will] Then you'll be more careful.

[00:48:42] [Dan] Yeah. But I don't know. I found somewhat persuasive the argument that this is a little bit on shaky ground. There's also a separate opinion by Justice Sotomayor who I think captures some of my intuitions as well. She's coming at it from a different angle, But she says, you know, a couple things she says, I write to address why it may not ever make sense to apply judicial estoppel when bankruptcy proceedings are pending and why in any context judicial estoppel should always turn on the totality of the circumstances.

[00:49:14] [Dan] So the first one I think I found also persuasive, which is basically she's like, look, in this situation, the bankruptcy is still going on. Right? And to the extent that there's a problem here, the problem isn't with the personal injury suit. The problem is that inadequate disclosure in the bankruptcy proceeding. And so the solution is make sure the guy goes and tells the bankruptcy court about it.

[00:49:37] [Dan] And then the bankruptcy trustee and the bankruptcy court can figure out what to do about it.

[00:49:42] [Will] Right. Whereas this remedy, whose only judicial estoppel, one remedy is dismissal of the tort claim.

[00:49:49] [Dan] And It might actually hurt the creditors. Right?

[00:49:52] [Will] For sure.

[00:49:52] [Dan] Like, they're not gonna get there's money that they could get that they're not gonna get. So this is just, like as a matter of distributive justice, this one makes no sense.

[00:50:01] [Will] I love that Justice Sotomayor is looking out for the little guy, the four creditors.

[00:50:06] [Dan] Yeah. Okay. So that was persuasive. And then with respect to, you know, the, you know, totality of the circumstances, you know, I mean, shit, what she said, you know, basically just equity, you know, look at everything. Seems reasonable.

[00:50:24] [Dan] Yep. What do you think about that?

[00:50:26] [Will] You know, I mean, it's always hard to argue with the tally of the circumstances, but it's not as obvious to me. If it's for a real doctrine, it's not as obvious to me that it's bad to, you know Bad to ruin it.

[00:50:39] [Dan] In some way. Yeah.

[00:50:40] [Will] Right. Or that's the structure of what counts as, you know, what you're looking for. Now, again, I Yeah. You know? So

[00:50:47] [Dan] I mean, I think I might wanna make more rules on the front end to be like judicial estoppel applies only when x y and z. There's an active misrepresentation rather than a mistake and you know?

[00:50:59] [Will] I also think I guess I think do you think there's a little bit of a potential category confusion? Like, to tell into the circumstances as a rule of evidence, like, should look at everything. Mhmm. But look at everything to decide what. Yeah.

[00:51:11] [Will] Yeah. You know? So you could say, inadvertence or mistake is the only exception. And then we look at a tout of the circumstances to decide if it's inadvertence or mistake. And you just let decide what counts as inadvertence.

[00:51:22] [Will] And, you know, again, either it does or doesn't count as inadvertence when you knew you were hit by a truck, but you didn't know Yeah. You we didn't think weren't thinking in the front of your mind that you were gonna sue them. Yeah. So, anyway, I don't disagree with that part exactly, but I'm just not sure it's totally helpful. Okay.

[00:51:39] [Will] But I think all these bands are great. All I like all of them. I like the majority. I like Thomas concurrence. I like American concurrence.

[00:51:46] [Dan] Yeah. Nice The Chorus. Tight package. Interesting stuff. Different directions.

[00:51:51] [Dan] Bringing together a lot of different areas of law. This is a good one.

[00:51:55] [Will] This is a good one. I like the intersection of bankruptcy and tort law and the application of hypothetical exceptions and hypothetical doctrines in those areas is like the Supreme Court sweet spot. We need more of this.

[00:52:05] [Dan] Yeah. Yeah. It's not ideological in the same way. Okay. Well, that one's down.

[00:52:11] [Dan] Last one to talk about is Abouammo versus United States. Uh-huh. And this is a case that somewhat rare, you know, occasionally litigated question of Article III venue in criminal cases.

[00:52:28] [Will] Uh-huh.

[00:52:28] [Dan] Right. This is an interesting so the original unamended body of the constitution does not have like a ton of individual rights, but the ones it has tend to relate to criminal prosecution. And one of them, which is in Article three, has a rule about where a criminal prosecution has to take place. And specifically, it says, the trial of all crimes except in cases of impeachment shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed.

[00:53:06] [Will] Yes. And then the Sixth Amendment adds that again, and then also adds the right to a jury of the state and district wherein the crime shall have been committed. So both clarifies that in holding it in that state, the jury has to be from that state and supplies a district requirement, which is interesting because it

[00:53:24] [Dan] Yeah.

[00:53:24] [Will] Sort of presupposes the existence of districts.

[00:53:27] [Dan] Yeah. Judicial districts. I mean, and it's interesting because, I mean, typically, that part of the Sixth Amendment is not called venue, it's called vicinage, right? Because it what it really specifying is that you have to have a trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. And so I've never looked into this, but I don't know whether the Sixth Amendment would then provide any protection for a not for a bench trial, you know, for something that doesn't rise to the level of the jury trial requirements, something where you're, you know, imprisonment of six months or less, you know, whether that could be tried anywhere in the US for a federal, like a federal citation.

[00:54:15] [Will] Well, doesn't the same issue come from an article three? Because the article three requirement also says the trial of all crimes shall be by jury and held in the state where the crime has been committed.

[00:54:25] [Dan] Yeah. Guess if you read it as the trial of all crimes, and then crimes are defined as, for purposes of that provision, things that require a jury, then, yeah, then fair enough.

[00:54:35] [Will] Right. Because that's I think the theory by which a jury is not required for petty offenses is that they're not crimes.

[00:54:43] [Dan] Yeah. I mean, although they obviously are. Right? They're not crimes for purposes of those provisions, I guess.

[00:54:48] [Will] Well, there's some like Blackstone. There's some sources that use crime

[00:54:52] [Dan] Yeah.

[00:54:53] [Will] As distinct from misdemeanor. I mean, like the impeachment clause, high crime. You know? Yep. Yep.

[00:54:58] [Will] Anyway, the facts of this case are a criminal prosecution under 18 USC fifteen nineteen.

[00:55:05] [Dan] Can I say one other thing about venue in the sixth amendment first? Okay.

[00:55:09] [Will] Go ahead.

[00:55:09] [Dan] Are you going to Yellowstone on your vacation?

[00:55:14] [Will] No. But are you talking about the perfect crime?

[00:55:16] [Dan] Yes. AKA the zone of death, right, which is there's this one part of Yellowstone National Park, which basically because of the vicinage clause, you know, makes it, like, impossible to convict the person of a crime?

[00:55:34] [Will] Yes. Because it's one of Yellowstone is one of the only places where the lie the district lines don't run along state lines. So the district of the Yellowstone is all one district, even though pieces of it spill over outside of Wyoming into Idaho and Montana.

[00:55:50] [Dan] So yes. So if you commit a crime within the area of Idaho that is within in the part of the park that's in Idaho, but that's still within the district of Wyoming, you would have to find jurors who lived in Idaho in the district, and there's nobody who lives there.

[00:56:10] [Will] Right. Or at least they're not 12 people. There's some point where I thought we maybe one or two people live there, but not enough to form a jury. Yeah. Right.

[00:56:16] [Will] Because there are enough people who live in the district of Wyoming and the state of Wyoming that in the Wyoming part, you can easily do it. Yeah. But in the overlap, in the 50 square mile swath of Idaho, you can't feel the jury. This is an article by Brian Kalt called The Perfect Crime, 2005, Georgetown Law Journal. Great article.

[00:56:35] [Dan] As well as the subject of a novel called Free Fire. I read the description of that novel, the kind of back cover of that novel to my current students when I talk about this.

[00:56:47] [Will] Oh, is it good? Is the novel good?

[00:56:49] [Dan] I haven't read the novel. I just read the description on the back. It does not sound good at all.

[00:56:55] [Will] It sounds amazing.

[00:56:56] [Dan] I mean, it sounds like a cool premise.

[00:56:58] [Will] I'm gonna order it as soon as we're off the show. I'm take on vacation.

[00:57:02] [Dan] Are you?

[00:57:04] [Will] Yeah. Totally.

[00:57:05] [Dan] Why don't I read you the description and see if you still agree with it.

[00:57:08] [Dan] Joe Pickett's been hired to investigate one of the most cold blooded mass killings in Wyoming history. Attorney Clay McCann admitted to slaughtering four campers in a back country corner of Yellowstone National Park, a free fire zone with no residents or jurisdiction. In this remote 50 square mile stretch, a man can literally get away with murder. Now McCann's a free man and pickets about discover about to discover his motive, one buried in Yellowstone's rugged terrain and as dangerous as the man who wants to keep it hidden. Compelling?

[00:57:40] [Will] But that means he's read the article. This is about this legal loophole.

[00:57:43] [Dan] Yes. Yes. That's my understanding. Again, haven't read it, but that is my understanding. And that is what Wikipedia says.

[00:57:52] [Dan] Okay. Well, you're gonna read it. It's 432 pages. You're gonna report back on our next post vacation episode. I'm gonna take I mean, you were stopped from doing otherwise.

[00:58:02] [Will] Dan, I've already ordered it. It should arrive tomorrow on my birthday. You literally just ordered it? Yeah. You know, I've been reading Jim Comey writes mystery thrillers now.

[00:58:12] [Dan] I did not know that. I read his like memoir, but I didn't I have not Oh,

[00:58:16] [Will] that was boring. But I've read his first three, therefore, I read the first three. I enjoyed them.

[00:58:20] [Dan] Do you think they're ghostwritten? Or do you think that's actually just what he's doing?

[00:58:24] [Will] I'm very naive, Dan, but they don't feel ghostwritten. They feel like they're written by Jim Comey.

[00:58:33] [Dan] So they feel like they're written by someone who has not spent their professional life, you know, developing skills to be a strong fiction writer.

[00:58:41] [Will] They feel like they have I'm not I enjoy them. But they have a they have an amateur feel, and they have a feel of somebody who has, like, specific points he wants to make about the practice of law and was willing to make them at the expense of some narrative conventions. Okay. I like them.

[00:59:02] [Dan] I don't totally know why you're picking those. I mean, there's a lot of books to read in the world, but okay. So let's get to the facts of this case, which are actually kind of interesting. And I'm kind of surprised I didn't like learn about the facts of this case, like back when it was happening. I mean, must have been in the media, but I seem to have just missed it.

[00:59:21] [Will] Yeah. I had no idea this is happening. Yeah. Alright. So there's a federal statute, 18 USC fifteen nineteen, that makes it a crime to knowingly falsify a document with the intent to obstruct a federal investigation.

[00:59:35] [Will] Mister Abouammo was a Twitter employee who, I guess, leaked some kind of information to the Saudis in exchange for hundreds of thousands of dollars.

[00:59:47] [Dan] Yeah. $300,000 and a Hublot watch, which is a very

[00:59:53] [Will] What kind watch is that?

[00:59:53] [Dan] It is a fancy expensive watch company. It's Swiss, but it's kind of like it's kind of looked down upon by the watch snobs because they've they tried to really kind of embrace kind of bling culture. And they don't have great resale value for that reason. They are quite expensive and some of them are nice. So apparently, according to the government's brief, he attempted to sell it for $42,000.

[01:00:19] [Dan] I don't know what happened with that attempted sale.

[01:00:22] [Will] How does Hublot compare to like Patek Philippe or Rolex?

[01:00:27] [Dan] So I mean, nowhere near Patek, is one of the holy trinity of watch brands along with Vacheron Constantin and Audemars Piguet.

[01:00:39] [Will] Okay.

[01:00:40] [Dan] And then nowhere near the demand in terms of Rolex, which is considered like, you know, a little bit more mass market. They make many many, you know, tens tens 10 or a 100 times as many watches as the Holy Trinity, but they're very very much in demand. But still respected for the quality of the watches that they make. And so, Hublot.

[01:01:02] [Will] Somehow my social media feeds have decided that I want to see a lot of Rolex content. And so I like constantly get pictures of Ferris. It might

[01:01:10] [Dan] be time. It might be time with all your podcast profits. Yeah. We haven't turned any podcast profits. I guess we've made a few dollars from t shirts here and there.

[01:01:19] [Will] Yeah. We could sell a branded watch. Okay. So then there was an investigation after mister Abouammo had relocated to Seattle. And the course of which he created a fake invoice, sent it to the FBI agents, threw them off the trail.

[01:01:34] [Dan] I feel like you're glossing over what makes this so fun. Okay. Go ahead. Right? Which is the FBI cut, like, starts investigating this And, know, they come see him and they're like, you know, you got all this money.

[01:01:46] [Dan] Why? And so as you said, he creates a fake invoice, but he does it while the FBI agents are still in his house. He goes upstairs for like nearly half an hour while the agents are downstairs. I don't know what he tells them he's doing. He's like, oh, yeah.

[01:02:02] [Dan] I've got the invoice. He's like, I don't know if he's getting like, you know, like Apple pages or something. Like, he's doing like, you know, some graphic design up there for half an hour. And then he comes back down and he's like, oh, I just emailed it to you.

[01:02:16] [Will] You've got it now. I feel like this is a task for Claude.

[01:02:22] [Dan] Well, this was pre Claude. Okay? This was a few years ago. Like you're really kind of handing it to the agents on a silver platter. They're like, what is this guy doing upstairs?

[01:02:32] [Dan] And so they get it. They immediately look at the file metadata and it's like, you know, created yesterday. Yeah. And so, you know, I mean, this is not end up being the only thing this guy is convicted of. He's convicted of like five other crimes, none of which are gonna be at issue here.

[01:02:47] [Dan] So this case, know, the outcome of this case actually makes no difference because he was sentenced to time served. But, you know, there still is an important principle at stake, is article three venue. So where do they try to charge him? So he this all happens in Seattle. Right?

[01:03:01] [Dan] He's he makes the fake invoice. He emails it to them.

[01:03:05] [Will] Right. Although he's being investigated by the San Francisco based FBI Yes. And this is all

[01:03:09] [Dan] part of his Forced stuff that happened there.

[01:03:11] [Will] His original misconduct is in San Francisco.

[01:03:13] [Dan] Yes. But that is not what he's being convicted of for this crime.

[01:03:17] [Will] Right. And I think it's according to the facts of the case, which might be wrong, they suggest that the agents didn't discover the documents metadata until they got back to San Francisco. So they but I'm not sure that's right. So they charge him in San Francisco, of course, where the San Francisco FBI is working at the crime. And so the question is, can they do that for this charge?

[01:03:42] [Will] Right? Was this charge committed in the Northern District Of San Francisco or the district the Northern District Of California? No. And the answer is no.

[01:03:52] [Dan] Yeah.

[01:03:52] [Will] The answer is the crime has one element, making a document. They're falsifying a document. The document was falsified in Seattle. So that's where you gotta charge it.

[01:04:03] [Dan] Yeah. I mean, I think it's more than one element. Right? There's also a mens rea element.

[01:04:09] [Will] There is a mens rea element. Yes. But the court says the mens rea elements don't count. Yeah. You're thinking about sort of the elements for venue

[01:04:19] [Dan] It's the conduct. Right? That's what we care about is where did the conduct happen. Right.

[01:04:24] [Will] Although, why is that? Like, if the question is where was the crime committed and if the mens rea is part of the crime, then might we have to ask where was the mens rea committed?

[01:04:33] [Dan] Yeah. It's interesting. I mean, I think that sort of like the mens rea typically attaches to conduct. Right? So you have to do the conduct with the mens rea.

[01:04:42] [Dan] And so I think it would be rare. I'm sure we can come up with examples where like you have, you know, you have the two elements and they like happen at different times. Usually that doesn't work. Right? Like if you completely accidentally and non negligently run over someone with your car, and then like the next day you're like, gosh, I'm glad I killed that person.

[01:05:05] [Dan] That doesn't retroactively turn it into murder.

[01:05:08] [Will] No. But like, imagine that they'd interviewed him in San Francisco. And he said, hold on. Let me fly back to Seattle and get the invoice.

[01:05:16] [Dan] Yeah.

[01:05:17] [Will] And so then while he was in C while in San Francisco, he hashed the intent to falsehood his document, and then he actually falsifies it in Seattle.

[01:05:24] [Dan] That's a harder case.

[01:05:25] [Will] The majority seems to say, we don't care about the Mens rea.

[01:05:29] [Dan] Yeah. I mean but maybe there yeah. I don't unless you can somehow describe the conduct of traveling as part of a continuous course of conduct.

[01:05:39] [Will] Well, part so part of what the court says is there are lots of statutes that are more complicated and reach courses of conduct, like inchoate defenses and conspiracy statutes or have multiple or have as an element that it actually does obstruct an investigation.

[01:05:53] [Dan] Yeah.

[01:05:54] [Will] And then you might have to ask where does the obstruction occur. But simple crime and they even say it's kind of a trade off. Just says, look. Simple crimes are nice for the government because they don't approve very much. But in exchange, they don't get a lot of options about where to prove it, which is interesting.

[01:06:09] [Will] So, I mean, I like all this. You know, I like the I like the formalism. I like the venue clause. Justice Kagan does also open with some declaration of independence stuff, which is nice since it's the two fiftieth, and one of the grievances of declaration of independence was kind of a vicinage problem. But it is a little weird in that, like, in, say, personal jurisdiction contexts, we do the opposite.

[01:06:33] [Will] Right? In the personal jurisdiction context, we regularly say, even though you've never set foot in this state, because you sort of intended at this state, you know, you did something in your state but with the intent to harm this harm our state. Like, our state has jurisdiction over you. They can get their hands on you. They can call you in.

[01:06:52] [Dan] Yeah. Although there are limits there, right, because of Walden versus Fiore, the case that I litigated back when I was in private practice, you know, which is you can't just say, you know, you did something that has some effect somewhere else. Right? There's this idea of, like, express aiming. You have to, like, you know, metaphorically fire the gun into the other state.

[01:07:11] [Will] Right. But it but this kind of intent is exactly the kind that would normally count. If you did something in your state

[01:07:16] [Dan] Yeah.

[01:07:16] [Will] With the intent to frustrate an investigation in my state Yeah. That's exactly the place where we'd say, like, doctor even calls it, like, purposeful availment or something. You know, like Yeah. We would and we would let the you know? In other words, if there were a tort with exactly the same offenses, he could be sued in California and will be subject to California process for it.

[01:07:38] [Will] Right? Yeah. Probably. So why do crimes happen in one place when torts happen somewhere else? Or does this mean our personal jurisdiction doctrines are actually insufficiently originalist and territorial, and we should sort of

[01:07:58] [Dan] I mean, that's you know. Well, I mean, first of all, there's not a rule that says you can only be sued in a place where the crime happens. Right? Because a jurisdiction can have extraterritorial tort law. Right?

[01:08:10] [Dan] I mean, there might be constitutional limits on whether it can apply its law extraterritorially. But I mean, a state could say, yeah, the crime happened across the border, but the harm was felt here and our state law says, you can sue anybody who hurts you. Right? There's not like I mean, if there was a, you know, an article three personal injury lawsuit provision, maybe that would be different. But there's not.

[01:08:34] [Dan] Right?

[01:08:35] [Will] Right. Although we do we say the due process clause enforces some sort of limits on legislative jurisdiction. But I mean, it's pretty narrow. Right. But also it's like nothing in article three actually says you can't have extraterritorial crimes.

[01:08:49] [Will] It says you have a right to be tried in the state where the crime was committed.

[01:08:53] [Dan] Yeah.

[01:08:54] [Will] But it doesn't say, you know, that you can't have that you couldn't either say, like, you know, all crimes against California are committed in California in some way. Or

[01:09:08] [Dan] Although to be clear, this is a provision that only applies to the federal government. Right? This is in article three. And so this is just this is a question about where within the boundaries of one sovereign the prosecution has to take place. And it strikes me as a pretty different question when you're saying, you know, can this sovereign hail you into their courts at all?

[01:09:29] [Will] Yeah. Although Right. Since the Sixth Amendment, I think, largely duplicates this. I mean, even though the venue and vicinity are technically different Yeah. I'm not sure they're different, but I mean, this is in conflict, this is one of the, I mean, one of the things I teach is that it appears to be the case that we have a implied territorial territoriality requirement for criminal law sometimes.

[01:09:50] [Dan] Yeah.

[01:09:52] [Will] Not always. And by the way, what do we do about extraterritorial federal criminal law? So, like, there are federal criminal statutes that apply abroad, like murder on the high seas and piracy and, you know, those kinds of things. So those crimes are federal crimes that are not committed in a state.

[01:10:09] [Dan] Yeah.

[01:10:10] [Will] Article three thought about piracy and says when the crime is not committed to the new state, the trial should be at such place or place as the congress made by law have directed.

[01:10:19] [Dan] So they thought of that one.

[01:10:20] [Will] Okay. Good.

[01:10:22] [Dan] Yeah. Okay.

[01:10:22] [Will] I just have one last footnote to this, which I thought was interesting, and I couldn't tell it was new, which is footnote three. So the court says, note that there are a lot of other statutes, including other obstruction of justice statutes that have a statutory venue rule. And the court says, you know, we're not deciding what to do with those statutory venue rules. On the one hand, the venue rule is constitutional, and so Congress can't change it. But we have sometimes suggested that Congress's view of appropriate venue, even if not coincident with our conduct elements test, may make a difference to analysis.

[01:10:59] [Will] We don't decide what to do with that here. That seems like it's a potentially important issue to tee up.

[01:11:05] [Dan] Yeah. This came up at a real argument. Some the defendant's counsel said looking at this other statute section fifteen twelve that it might be unconstitutional in some situations.

[01:11:22] [Will] Yeah. And I mean, the majority seems quite open to that. Even quite Yeah. Trending in that direction despite not endorsing it.

[01:11:31] [Dan] And there was an interesting exchange where the, you know, the petitioner, the defendant's counsel said, you know, we think the government would also agree that in some situations, section fifteen twelve, you know, applying it would be unconstitutional. And then, you know, the government, you know, Anthony Yang was asked about that and kind of waffled a little bit about that, but said, no. No. We would defend it under any circumstances, but, you know, kind of seemed to acknowledge that there might be some harder arguments under some facts.

[01:12:07] [Will] Yeah. So that seems anyway, I would think if you're a defense lawyer, even, you know, under the statutory venue provisions, there's probably a lot of interesting room to quibble Yeah. With whether they are fully constitutional. And the court thinks they're important because they're part of the declaration of it. They are important because they are part of the declaration of independence.

[01:12:30] [Dan] And then one other thing to note that even if you do win one of these as a defendant, you know, it's not a literal get out of jail free card because in a case that I think we talked about Smith versus United States, remember this one? The court had previously said that a dismissal or, you know, overturning conviction on venue grounds does not bar reprosecution under the double jeopardy clause.

[01:12:58] [Will] Mhmm.

[01:12:58] [Dan] So I mean, he could be subsequently tried for this crime in Washington. I think that's there's no reason for that to happen because this, you know, he's convicted of other stuff, sentenced to time served. I mean, I don't think there's really any upside to the government. But if you can imagine a case where it mattered. Right?

[01:13:17] [Will] Right. Well, it's kind of funny if he got time served on this charge, he gets it thrown out. If they did charge him again, you know, he might not get time served on the second charge. He might actually

[01:13:27] [Dan] I know.

[01:13:27] [Will] Do a few months.

[01:13:28] [Dan] Yeah. That's possible.

[01:13:31] [Will] I take it if they were to do that just to punish him for being annoying and challenging venue, that would be unconstitutional. Right?

[01:13:38] [Dan] Yeah. I mean, it seems like in that instance, if it's the same crime, it seems like you should have to get credit for the time served on the like reverse it's weird though. It's not I mean, that's normally, you know, if your conviction gets reversed, it's like in the same court system. Right. Right?

[01:13:57] [Dan] And then you would get time you would get credit. Yeah. It's weird.

[01:14:01] [Will] Well, previously, the conviction was sort of folded into other convictions. So it's hard to yeah.

[01:14:07] [Dan] Okay. Anything else to say about that?

[01:14:11] [Will] No. It's a great country.

[01:14:14] [Dan] I agree with that in large part. I don't know if this case makes that clearer to me. I mean, doesn't change my views, but

[01:14:23] [Will] The venue clause doesn't make you feel patriotic and

[01:14:27] [Dan] I mean, I think it's fine. I mean, I think it's fine. I don't think it comes up all that much, but, you know, it's good to have. Probably not in my top five or six prim pro provisions, but, you know. Okay.

[01:14:41] [Dan] What

[01:14:41] [Will] what is top five?

[01:14:42] [Dan] We don't spend a lot of time with it. I love the double jeopardy clause. Sure. It was a lot of fun. Like the sixth amendment, although I'm, you know, I like the kind of jury trial component more than the vicinage part.

[01:14:52] [Dan] You know, I like due process, know, reasonable doubt is in there. I got a lot of stuff got a lot of stuff in there. Confrontation, that one's a lot of fun, like teaching that one. I don't know. There's a lot there's a lot of good stuff.

[01:15:06] [Will] These days, I'm really liking the grand jury clause.

[01:15:09] [Dan] Yeah. That's a good one. That's a good one. Not incorporated.

[01:15:16] [Will] Although Justice Harlan would have incorporated it.

[01:15:19] [Dan] Yeah. The first Justice Harlan.

[01:15:22] [Will] The great dissenters.

[01:15:23] [Dan] The second Justice Harlan would not have. He was not a big incorporator.

[01:15:27] [Will] No. But he used to reading all these Harlan dissents, Plessy, and civil rights cases, and Lochner, and then you get to incorporation of the grand jury clause. It's like Yep. There he is again. Yep.

[01:15:37] [Will] Dissenting. Okay.

[01:15:39] [Dan] So thanks very much for listening. If you didn't rate and review in our last plea, please do that. Keep those reviews coming. Visit our website for transcripts on dividedargument.com, blog.dividedargument.com for commentary from the extended divided argument universe, store dot dividedargument dot com. For merchandise, send us an email pod@dividedargument.com.

[01:16:03] [Dan] You can leave us a voice message on our website or you can call and leave us a voicemail, (314) 649-3790.

[01:16:11] [Will] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your support.

[01:16:18] [Dan] And if there's a long delay between this and our next episode, it will be because we're on vacation, so we've already told you there will be a long delay. But if there's an even longer delay, it will because one or both of us ventured into the zone of death and we're killed. And no one can be held to account for that crime in any venue.

[01:16:44] [Dan] The case is submitted.