With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an interesting Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization."
With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization."
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, we need to be quick. We have a hard stop in less than an hour. I am trying to squeeze in a recording session before office hours. We have, [chuckles] I think, three plus opinions to talk about. Can we do it?
Will: Well, I think you should invite all your students to join. But failing that, the opinions are short. I think we can do it.
Dan: At least, the majority opinions are short. Let me try to lead us through as quickly as possible. Okay, Shadow Dockety order. This is a cool one. This is a category of order, non-merits order, that we don't talk about much at all. Martinization. Okay, Martinization is when the Supreme Court tells a pauper, an in forma pauperis or IFP petitioner who has filed a number of previous petitions that have been deemed frivolous by the court.
After a certain number of those-- I think my memory, the number is four, they will tell the petitioner, “No more. If you want to file another petition in the future, you've got to pay the filing fee and print the fancy briefs in booklet format,” which is not a trivial cost.
Will: As many people pointed out online, the booklet printing really swamps the filing fee.
Dan: Yeah. Booklets are more than $1,000 typically. So, it's a non-trivial cost. Okay, it's called Martinization, because the court first did this in the certiorari context to a guy named Martin. And so, now, [chuckles] he has the indignity of having this procedure attached to his name.
Will: Isn’t Martinization also a dry-cleaning thing? There are dry cleaners that are like, "We Martinize." Isn't that a--
Dan: That does sound vaguely familiar, but it's not something I've ever researched and it's not something I recall ever having to had done to my clothing. Do you have any sense of what it means?
Will: No. Justice Jackson suggests in this opinion you're about to talk about that actually Martin was not the first that they dated somebody named MacDonald in 1989.
Dan: For extraordinary writs.
Will: Yeah. And then, to Sindram, and then Martin doesn't do it to surreptitious. So it's a coincidence that this is Martinization rather than McDonaldization or Sindramization. But I take the way.
Dan: Yeah. But I guess if it's cert-specific, though, as I understand it. So, we had one of these pretty common. My memory is when you're in the cert pool as a clerk, you write a lot of memos saying deny. And sometimes you would say, “Deny IFP,” or sometimes you would say, “Describe it as frivolous” in the memo. After a certain number of those, the recommendation would become frivolous Deny and-- [crosstalk]
Will: Right. Cut them off.
Dan: Yeah. So, we did that to Mr. Howell, who is a prisoner in Indiana. Everyone is okay with it, apparently, or at least not objecting to it, other than Justice Jackson, who has a six-and-a-half page dissent.
Will: Right. She says, “This is probably a mistake, and it's going too far. At least applying it to incarcerated prisoners goes too far, because they've got all sorts of problems. And in lots of ways, we try to make sure that people who are in prison have access to the legal system. The administrative burden involved in reviewing repeated, even frivolous petitions filed by prisoners is minimal. It's hard for them to flood the system, because it's hard for them to file things at all. So, I would not apply the filing bar the court imposes for frequent frivolous filers to prisoners who, like Howell, seek to proceed IFP.”
Dan: Yeah. She's picking up a banner previously carried by Justice Stevens-
Will: Yes, good.
Dan: -who was a dissenter in Martin and always-- I think my memory is he would just routinely dissent from Martinization orders.
Will: Yes. Justice Stevens had a perpetual dissent in every Martinization order. It appeared on the orders list back before reading the orders list was cool. So, Justice Stevens had by far more dissents per term than anybody else on the court and nobody ever counted it. I have thought ever since Justice Stevens left the court that it was a shame that nobody else on the liberal wing of the court was going to pick up that banner. I tried unsuccessfully for several years to get Justice Sotomayor to pick up the banner.
Dan: How? Did you talk to her?
Will: No. She doesn't know who I am.
Dan: You just tried to send her to-- [crosstalk]
Will: I just announced you should do it over and over again.
Dan: Yeah.
Will: And then, when Justice Jackson joined the court and started becoming skeptical of Munsingwear orders, which are-- I was like, “Maybe we're going to get there.” So, I'm going to say it now. I think this is Justice Jackson's best opinion of all time, possibly [Dan chuckles] going to be the best opinion of her career. Good for you, Justice Jackson.
Dan: Is that faint praise, or is that just speaking to your enthusiasm?
Will: People complained that we were too mean to Justice Jackson before.
Dan: [chuckles] So, you're picking this. No comment about that. Yeah, I will say I think the point is fair that the court has maybe arguably gotten too aggressive with these. The petitioner here, Howell, has apparently filed only six petitions, whereas if you go back to Martin himself, had apparently filed 54 [chuckles] petitions.
I wonder whether for someone who's filed six, even if they're frivolous, how much of a burden is that really imposing on the court? these are getting denied-- A clerk writes a three-line memo and then it gets denied. it's not obvious to me that it actually imposes that much more burden on the court. And so, it seems like the reason to do this is like, “You're mad at these prisoners for filing these frivolous things”?
Will: Well, I will say we don't know the equilibrium in a world without Martinization. Maybe somebody would start filing multiples a day or something, I'm not sure. The burden is not just the law clerks. The court has a whole staff that has to handle-- Even just the-
Dan: The clerks. Yeah.
Will: Keeping track of them, putting the docket system, putting them on the carts, wheeling them around everybody. [Dan laughs] If you reach the point where there were hundreds and hundreds of frivolous petitions filed every day, even if the clerks just had a macro that said frivolous deny, there would be a burden. Anyway.
Dan: Yeah, I think that she seems to want to have a blanket rule that “We don't do this to prisoners.” Because she says, “Look, there's cases where we've granted cert and IFP petitioners, and they have meritorious claims.” That's certainly true. The question is, would stuff slip through? it maybe suggests to me that we might want to calibrate the rule a little bit. Maybe you get 10.
Will: Yeah. So, I'll say one other thing that she-- I don't think she says this, is you can also say the Martinization rule made more sense when the court was not a court of error correction. Because you could say, “Look, even if there's some inJustice, or that's what the court of appeals and district courts are for, and the Supreme Court is there to resolve issues of nationwide importance” which a pro se litigant could raise.
But losing access to a cert petition from the speaker litigant is not a huge loss in the court's point of view. As the court has become more and more and more a court of error correction on the interim docket and otherwise, now Justice Jackson's intuition in some ways makes more sense.
Dan: Sorry, that's a surprising thing.
Will: The court has become more and more of a court of error correction?
Dan: Well, relative to when. Certainly, it's less a court of error correction than it was 50 years ago, right?
Will: Okay. Relative to 2016, 2006, 1996, 1986.
Dan: You think on the merits docket, that's the case, or just on the interim docket?
Will: Well, the interim docket has taken over the merits docket. I think on the sum total of the dockets. If you take the-
Dan: That's interesting
Will: -set of opinions, I think that's just become much more of an error-correction focus.
Dan: Could we get somebody to do some empirics on that, just to go through and code cases? I wouldn't say they've become less of one, but-- I don't know, I feel like we used to see more routine summary reversals.
Will: Well, I think we did talk about the extent to which summary reversals have moved to the interim docket, and then a couple moved back to the summary reversal docket this fall. But in the general expectation, the general vibe, that if a lower court obviously wrongly says something about the Constitution, I think the expectation that the Supreme Court will intervene. And if the Supreme Court doesn't intervene, it's because they're okay with it, has just really gone up.
Dan: I guess I feel like that claim is right, if it's a case involving the government or it's like a case involving an executive branch policy. I don't know whether I would agree that it's right as a matter of course.
Will: If it's a case involving any politically charged issue.
Dan: Okay. Yeah.
Will: Guns, speech,-
Dan: That's fair.
Will: -girls, whatever.
Dan: Okay, that might be true. It's always interesting to see one Justice going out on their own, staking out a different unique position. Obviously, this isn't persuading the rest of the court. I'm not sure this is going to make any meaningful difference. But I think it's good for people to be thinking about the court's procedures and be like, “Is this the right way to do it?”
Will: I think it's good even if it doesn't persuade anybody. I think it was good that Justice Stevens was there just even as the Martinization process went forward flagging like, "I'm not sure I'm okay with this," or "I'm not okay with this. I think that was good. I think this is good.” No shade. Kudos to Justice Jackson.
Dan: Great. Okay, one down. In theory, we've got three majority opinions to talk about. Can we do it? Should we start with Coney Island, because we've talked about that one before?
Will: Yes, with Ben.
Dan: And it is the shortest.
Will: Coney Island before. This is the case we talked about at the Wilkinson Stekloff live show about what the time limit is under Rule 60(c)(1) to get relief under 60(b) for something, a judgment you think was under that jurisdiction. What is a reasonable time?
Dan: Well, no, no, no. Whether it has to be done within a reasonable time.
Will: Sorry. Right. Whether it has to be done within a reasonable time.
Dan: Which is seemingly what the rule says, like if you read it-- [crosstalk].
Will: It is what the rule says. It is what the lower court said it says. It's not what any other court of appeals had said it says, but it is what the lower court and a great opinion by Joan Larsen said it says. It is what Lisa Blatt said it says to the Supreme Court. It is what the Supreme Court unanimously agrees that it says. It is not what the not-very-good first-time advocate who maybe deserved his client by keeping the case argued.
Dan: Yeah. Yeah, I guess one question that we toyed with-- I think when we talked about the argument, we felt pretty confident that the court was going to say the reasonable time requirement applies. It's going to side with the Lisa Blatt position. One question I toyed with was, could a different advocate have made a difference? Maybe. Maybe could have threaded the needle in a certain way, tried to get the court-- Here, the court says, “This reasonable time requirement does apply contra the argument of the respondent that it just doesn't apply, basically that you can always challenge a void judgment.” Maybe a better advocate could have gotten the court to say more about the breadth of a reasonable time requirement.
Will: Yeah.
Dan: Like, something more helpful on remand, “Yes, it applies, but 100 years is reasonable if it's a void judgment,” or something like that. They wouldn't say that.
Will: Right. Go for footnote 5. So, I think the way the case was framed was pretty simple. In a blog post at some point after the argument, I tried to flag the three questions that were arguably outside of frame, which are, is this time load unconstitutional, is there another way to attack void judgments, and what is a reasonable time, which are all bigger questions. The court resolves the first question. The court gets into the constitutional question.
Dan: Ish.
Will: Well, ish. They say that Justice Sotomayor writes separately to say, "I don't even think we need to resolve the constitutional question." The majority says, "Well look, [chuckles] we got to resolve something. The only possible basis for this argument [Dan laughs] is a constitutional argument." So, even though the petitioner didn't really raise it, [chuckles] we got to say something.
It doesn't resolve what is a reasonable time, or are there other ways to attack or disregard a void judgment outside of this process, which I think is actually the most important question. And in footnote 5, the court reserves that and just says, “Rule 60(d) preserves parties' ability to obtain relief from a judgment in limited ways other than through a Rule 60(b) motion. We express no view regarding the limits applicable to obtaining relief through one of those methods,” nor does the Court actually say what they are.
I think that's the biggest area where there'll be left to litigate later, and that if you were counsel for Coney Island Auto Parts, I think you might have tried to put more emphasis. You might have said, “Look, even if I can't get relief under 60(c), or under-- Even though I can't get relief under the rules, I can in some way not comply with it or collaterally attack it or do that,” whatever, all of which is left for another case.
Dan: Yeah. You're right. Justice Sotomayor says, “Let's not resolve the due process issue.” I felt like reading-- This is on page four, reading the majority opinion, the court was basically deciding it, but not 100%. It said, “Giving a party a reasonable time to seek relief from an allegedly void judgment may well be all that due process demands.” [Will laughs] Doesn't that suggest it's at least possible that due process demands more?
Will: [laughs]
Dan: “It is hard to accept the proposition that due process requires such a regime.” It says that after pointing to some other examples, saying, “Look, if this were right, there could be no time limits for appealing void judgment and no time limits for seeking cert. It is hard to accept the proposition that due process requires such a regime.” So, I don't know.
Will: We cannot divine any principle requiring courts to keep their doors perpetually open. I guess you're technically right, although, can you imagine trying to write the opinion that says “In 2026, we said we couldn't divine any principle and it was hard to accept this proposition. We now accept it. We now divine and accept it”? [chuckles]
Dan: Well, maybe that argument wasn't sufficiently argued.
Will: That's true.
Dan: And with the benefit of further briefing.
Will: That's true. That's true.
Dan: Look, I would not feel great if I was an advocate of the due process position. I thought the court was a little bit cautious.
Will: The reason to be a little bit cautious is also the answer to that question actually has to turn on what is a reasonable time and what are the other things available.
Dan: Yeah.
Will: It's not that in the abstract--
Dan: Which we're not told.
Will: In the abstract, a reasonable time seems hard to be unconstitutional, unless reasonable is understood in some fairly strict way to not include things that are reasonable and/or there's no other alternative, and so suddenly, you're having void judgments enforced against you without adequate opportunity to fight them. So, maybe it has to be written that way. And maybe it's just written that way to make clear that they're not inviting the exact replay of this case. The slightly better advocate who actually squarely raises the constitutional question.
Dan: Yeah. If there is a due process concern, you might interpret reasonable to be very generous in this one context. I also don't think it totally follows that if the petitioner is right, that would mean you can't have time limits for filing appeals? I don't know, that didn't strike me as such a gotcha argument as the court thought it was.
Will: Why?
Dan: Well, you might say due process requires there be some avenue to attack a void judgment forever. It doesn't have to be the direct appeal.
Will: The majority would agree with that. They'd say, “Yeah, that's why footnote 5 for.” Just as it doesn't have to be the direct appeal avenue, it doesn't have to be the rule--
Dan: Well, maybe it does. Maybe that's the only avenue.
Will: Maybe. That's where we're back to the-- Then it'd be the same issue as the appeal, I think.
Dan: Yeah.
Will: it might be. The appeal is the only option for your--
Dan: Yeah. But normally, I guess the normal understanding is appeals happen shortly after a judgment and whereas there is this opportunity later to come back and challenge the judgment, and that's normally what we would have-- I guess if you had asked me ex ante, like, “When's the time to go get a judgment that was entered improperly fixed?” I’d be like some later motion.
Will: Right. But it's not even clear it's a motion under Rule 60(b). For instance, it could be a motion with the new enforcing court where you say-- So, I think the point that unites us for the majority, is it might well be true that there has to be some way to challenge a void judgment. It does not follow that the procedure that has sitting in front of you has to be the way with no time limits. That's true of the appeal example and it's true of the 60(b) example.
Dan: Yeah. Good. We don't know what's reasonable. Reasonable could be a very long time in this context. Reasonable could, for example, incorporate concerns about notice. Maybe it's a really long delay is reasonable if the defendant of the judgment does not have notice of the judgment, does not have notice of the action. Maybe that would entitle you to have a long delay and then file as soon as you become aware, that could be valid.
Will: Yeah. The court even suggests at one point that it's maybe by analogous, analogy to latches, maybe 11 years is fine if there's a reason you waited so long to challenge it.
Dan: Yeah. Okay, one down.
Will: That brings Lisa Blatt's record to what, like, 99 to 1 or something?
Dan: She's lost, I think three or four.
Will: But 99 to 4?
Dan: Pretty good record. Okay, that one's out. You get to pick which of the next two we
talk about. Ellingburg or Berk v. Choy.
Will: Okay.
Dan: I keep wanting to call that one Bok Choy.
Will: [laughs] I, of course, pick the Erie case, Berk v. Choy.
Dan: You do? Because you initially said you didn't want to talk about this one. I had to lean on you a little bit.
Will: I wasn't sure I could get you to talk about it.
Dan: What? I was clerking when Shady Grove was decided. I wasn't one of the clerks on the case, but it was interesting to me.
Will: Did you not find that traumatic?
Dan: No, I thought it was interesting. It was traumatic.
Will: The court didn't issue a majority opinion and has made conflict of law professors and civil procedure professors curse the court's name for a decade.
Dan: Well, I don't teach either of those classes, so I was fine with it.
Will: Berk v. Choy presents the question of whether or not a state rule about medical malpractice claims applies to state claims filed in diversity. Basically, to file a medical malpractice claim, you have to have an affidavit saying that your claim is not bogus, and that has to be under state law attached to docket the complaint.
And now, we're in federal court, which is supposed to apply state substantive law and federal procedural law, the Federal Rules of Civil Procedure-ish, but state tort law. And so, the question is really, is this rule substance or procedure? And the court says--
Dan: And just to be clear, like you said, to docket, so you have to have this basically at the same time. If you're in state court, you don't file your complaint and then file this later on. It's like, you got to do this sometime.
Will: Right. It's like a required part of your complaint effectively, or required attachment to your complaint.
Dan: Well, yeah, it's not part of the complaint like you said.
Will: Exactly.
Dan: I think they have to be filed physically separately.
Will: Right. The standard way this is often conceptualized is what I just said of like, is this procedure or is this substance? That's famously impossible to answer because obviously it's both.
Dan: Procedure effective purpose.
Will: Right. It's a procedural rule whose purpose is to make the claim substantively harder to bring, and you can think of all sorts of rules a little bit like this. And the court last confronted this general problem in the Shady Grove case you mentioned, where it was unable to muster five Justices behind one plurality opinion. And now, in a very short opinion--
Dan: Which was about whether a state law that said this kind of claim cannot be brought as a class action, whether that was a procedural rule or a substantive rule that would override the Federal Rules of Civil Procedure, Rule 23, allowing class actions.
Will: I think it was no statutory damages in class actions.
Dan: Yeah. Okay.
Will: And so, class actions are a procedure question, but what are the damages as a substantive question? [chuckles] And so, none of this substance in this procedure is both substance and procedure. In a pretty short opinion by Justice Barrett, the court says, “This law doesn't apply in federal court.” The court says, “I think, implicitly adopts the plurality opinion, the Scalia opinion of Shady Grove as good law, and also glosses it in a pretty simple and pro-Federal Rules of Civil Procedure way.
Or, basically says, “Look, if there's a rule of federal civil procedure on point, that's pretty much the end of the inquiry. Because the Rules of Decision Act authorizes the Rules of Civil Procedure. And so, you can't-- Even if a valid rule of civil procedure displaces contrary state law, even if the state law would qualify as substantive under Erie's test,” which the court had already said, but I think just the court says a lot of this with much more of a--
Dan: In that situation, I guess you'd have to make a strong showing that the Rules Enabling Act in that application was unconstitutional.
Will: Yes, I guess so. I take it the court's not including that possibility. I take it you could have a rule of civil procedure. There could be a thing labeled a rule of civil procedure that's not actually a rule of civil procedure, although since the Rules of Civil Procedure have to be approved by the Supreme Court. It's hard to imagine how one would be approved that--
Dan: Like, it would be invalid under the Rules Enabling Act.
Will: Right. Not unconstitutional under the Rules Enabling-- If I proposed a rule of civil procedure that said, anytime Will Baude files a claim, he gets all the money he wants from whoever, and then I bribed somebody on the committee to push it through.
Dan: Isn't Steve Sachs running the committee now?
Will: I think that's the Appellate Rules Committee.
Dan: Okay. Okay. We're safe then. No, he's too principled to do that. But I think if I were on the committee, who knows what I'd do.
Will: Yeah. So, I take it that could still be invalid and probably wouldn't be promulgated by the court unless you bribe them, too. I'm not planning a bribe or conspiracy, to be clear. So, that's pretty straightforward.
One thing that's really great about this opinion, the opinion we just talked about but even more important for this opinion, is how short it is. It's so short that you could almost just put it in a casebook unedited.
Dan: Yeah, not quite as short. It's 11 pages, but pretty short. We've got three short majority opinions today. Let's bring back short opinions.
Will: Yeah. I almost wonder if it's intentional. I almost wonder if you can imagine Justice Barrett, who has taught law school classes, actually thinking like, "Let's write an opinion that could just go in the Civ Pro and Fed Courts casebooks," lays it out, gives you the rules. Maybe without the footnotes, but it's nice.
It is a little odd in two respects. So, one is, I don't know that states have fully thought this through. When states enact these various kinds of tort reform laws, which are in part work based on procedure, my guess is they have not thought through that the laws would be more effective if they were rewritten or at least it's a sidecar law. They still have this law and then have a sidecar substantive law that was clearly non-procedural, because you could amend your tort law.
Dan: What's the motorcycle in that, the laws of the motorcycle in-- What’s the sidecar?
Will: The sidecar would be a new version of this statute that says, “In addition to the affidavit of merit and separate from any requirement that you file an affidavit of merit, as a matter of law, no claim can succeed on the merits if it's not accompanied by an affidavit of merit or something.”
Dan: At the outset.
Will: I think you just say it as-- [crosstalk] You just describe it as a merits rule as a matter of law, then Rule 8 would pick it up and enforce it as a rule of substance. I think several people flag this, too. A lot of states have these kinds of laws for, what are called, anti-SLAPP laws. SLAPP stands for Strategic Lawsuit Against Public Participation.
There are various kinds of libel and other libel claims against people exercising their First Amendment rights that try to not put the speaker through the burden of litigation and give you a way to dismiss the claim very quickly at the outset, sometimes give you attorneys' fees, so you can leave nasty up reviews and not have to worry that the kebab store will file a frivolous claim against you. A lot of them may fail this test, too, which is--
Dan: Yeah, we don't have a Supreme Court case.
Will: No, there's famously a split on this. I think the standard assumption, is that this case may resolve the split against the anti-SLAPP laws. Although, again, each law is written a little bit differently. Some do have a little bit more of a sidecar aspect. You try to have a substantive rule and a procedural rule, so that the substantive rule can still be enforced in federal court.
So, I assume that there are smart tort reform people at the ALEC or whatever think tank it is that helps get these things passed. They're thinking about how to draft a model malpractice reform law, model anti-SLAPP law, that still complies with Hanna v. Plumer and Berk v. Choy, but it's just a trickier problem than it might seem.
Dan: And so, there is unanimity on the court that this is a procedural rule. There is a difference of opinion between the majority and Justice Jackson. So, we have another one where eight Justices appear to be on one side and Justice Jackson is on the other side about which rule of federal procedure this state rule would conflict with, which seems like maybe not the most consequential question. For the majority, it seems to largely turn on Rule 8, which contains the basic pleading requirements for federal claims.
And for Justice Jackson, she says, “It's actually not Rule 8 because these things, these affidavits, are not pleadings. Rule 8 is regulating the content of pleadings. It's in fact Federal Rule of Civil Procedure 3,” which says, “A civil action is commenced by filing a complaint with the court,” okay? Whereas in Delaware, you can't commence the action, you can't even get it docketed unless you file this extra thing.
Will: Yeah. So, if a state says, “You have to file both a complaint and a shumplaint,” and the shumplaint [chuckles] has to contain some extra stuff, [chuckles] should we read that as violating Rule 8's requirement? Because it has to be in the complaint because they're basically requiring extra stuff to be in the complaint, or should we read it as violating the Rule 3 requirement that all you need is a complaint? Do you understand--
Dan: Does anything--
Will: Do you understand what is at stake in this disagreement?
Dan: I'm not sure anything. There is a separate thing about which there's disagreement that maybe there is something at stake about.
Will: I think what would be at stake is suppose a state said, “You can docket a claim with just a complaint,” but then it can be dismissed unless it also contains an affidavit, I think that would satisfy Justice Jackson, because it's no longer violating Rule 3, but it would not satisfy the--
Dan: So, it would say if you-- [crosstalk]
Will: You could docket a suit with just a complaint, it will be dismissed upon a motion to dismiss if it's not also accompanied by an affidavit of merit. I think that version of the statute would satisfy Justice Jackson's test, because there wouldn't be a Rule 3.
Dan: Because it's not conflicting with Rule 8. It's just an extra thing that doesn't-- [crosstalk]
Will: It certainly doesn't conflict with Rule 3, because [crosstalk] docket the suit. [crosstalk] And then, at that point, she'd be more generous about Rule 8, and she'd say, "Well, Rule 8 just says this is how you can dismiss a suit for failure to state a claim, but it's not exhaustive. It leaves open the possibility there are other ways to dismiss the suit, like, failure to contain an affidavit," I guess.
Dan: I guess. Yeah. Okay. Something maybe slightly more substantive. This is footnote 1 in her concurrence in the judgment, which gets at the mode of analysis in these kinds of cases, where she says, "To the extent that the court suggests that the Federal Rules plain text is all that matters when answering the Erie question, that is not what our precedents hold."
She cites a case called Gasperini and the dissent in Shady Grove, and Justice Stevens' concurrence in the judgment in Shady Grove that said, “No, you should interpret the Federal Rules in context.” So, you are bringing a more of a loosey-goosey interpretive framework that is sensitive to important state interests and regulatory policies.
Will: Yeah. And almost like a--
Dan: I don't totally know what that means.
Will: Well, it’s almost like constitutional avoidance or Rules Enabling Act avoidance as applied to the rules, right?
Dan: Yeah. That suggests that you would interpret federal rules narrowly to be less likely to conflict with state rules.
Will: I think she's right that there is tension between the approach taken in Shady Grove and now Berk v. Choy and the approach taken in Gasperini.
Dan: Which apparently eight Justices agree with now, this plaintext, which is interesting because you could imagine, let's say, some of the other Justices-- It doesn't even necessarily have to be a left-right issue. If you're a really pro-federalism Justice, you might want to say we should really strive to minimize these kinds of conflicts.
Will: So, can I ask one other substantive question? Is this approach right?
Dan: Are both of them wrong?
Will: Yeah. So, the Rules Enabling Act, 28 U.S.C. § 2072, says, "Such rules shall not abridge, enlarge, or modify any substantive right." And John Hart Ely argued, as I understand it, that--
Dan: He was the law clerk on Hanna v. Plumer, right?
Will: Yeah, exactly. He argued that what was the substantive right was partly a question of state law. So, while it's true, the A question, is this a rule of practice or procedure, just asks whether the rule is a rule of procedure? He's argued that at B, if a federal rule of procedure takes away a state rule of substance, then that's a B problem, that the rule is now abridging, enlarging, or modifying a substantive right.
He thought there were a lot more such cases like that in a way, I think he would say, "I have a state law substantive right not to have frivolous medical malpractice claims filed against me," where frivolous includes any claim that isn't accompanied by an affidavit of merit. That's like a substantive right of doctors to be left in peace to do their fricking jobs that the state believes in. And now, we are using a federal rule of procedure, Rule 8, to modify and abridge the doctor's substantive right to be left alone to do his job. Now, Steve Sachs tells me I'm wrong about this. So, probably Steve Sachs vs. John Hart Ely always has to go to Steve Sachs.
Dan: [chuckles] Well, why, because Steve's alive?
Will: Just because John Hart Ely was a genius and Steve is a super-genius, and super-geniuses are better than geniuses. [Dan laughs] I'm probably out of my skis.
Dan: But you can describe everything as a state substantive right that way. Don't you have a state substantive right not to be sued in a class action for statutory damages?
Will: Yes.
Dan: Because I still feel like whether it's a substantive state right, I still would want to say, "Okay, but does it make sense to say you have a substantive right not to be sued unless this procedure is followed?" That sounds more like a procedural right, even though, look, procedure is valuable.
Will: Right. So, I don't know where the substance-procedure line is. That's where we started. That's a impossible or very hard line to draw. But the majority seems to say there is no second step. The majority says, “If it really is a rule of procedure and it's covered by the rules of procedure, then we don't care what state law it displaces. The inquiry is only about the proceduralness of the federal law that does the displacing and never about the substantiveness of the state law that gets displaced.”
Dan: Maybe there's a little bit of wiggle room there for extraordinary cases, right? Yeah, maybe not. Maybe this is it.
Will: Look, I'm glad I have it all cleaned up, I don't teach civil procedure, so I'm sure this is right for reasons that are too hard for me to understand.
Dan: Does Steve like the result here?
Will: We should get him on the show.
Dan: Okay. Well, hopefully. If not, we've got a problem.
Will: Okay.
Dan: I was going to ask you the pre-Erie world, would they ever have followed state procedural rules in the pre-Erie, pre-Rules Enabling Act world-- [crosstalk]
Will: In pre-Erie, there were federal statutes, the conformity laws, that largely required them to follow state procedural rules and to use the state forms of action. So, there was tons of state law. But that was both pre-Erie and pre-federal rules of procedure. The federal rules of procedure, in part, are designed to produce uniform rules of practice in federal court.
So, it used to be in the pre-1930s world, if you were an expert in Illinois law or Illinois procedure, you could file in Illinois state court and Illinois federal court, and they were pretty much the same. But you couldn't really be a federal practitioner, because the rules of federal practice in every state were different, depending on the conformity laws of the state. Post rules of procedure--
Dan: That sounds incredibly confusing.
Will: Well, it's just as confusing now for people who practice law in Illinois state courts and suddenly have to go into federal court. It's just a question of--
Dan: Yeah. Although if you're a federal judge, would you have to do multiple states' procedures, or would it just be based on where your court was?
Will: I think it was based on where your court was, although the appellate court would have to figure out the--
Dan: Okay. Yeah, simple enough.
Will: And now, we just think the uniformity of being able to have fancy appellate lawyers and fancy trial boutiques around the country doing federal practice in every court is the more relevant confusing, which is fine. They're just different kinds of uniformity.
Dan: All right, next case.
Will: Okay. Last case.
Dan: Ellingburg v. United States.
Will: Okay. This is a crummy one. Does that mean you have to do it?
Dan: Do I have to? I'm happy to do it. This one is even shorter. We've got a five-pager, five-page majority opinion by Justice Kavanaugh. This is about a statute called the Mandatory Victims Restitution Act of 1996 which says, “Defendants convicted of certain crimes have to pay monetary restitution to victims.” This is a very common part of judgments against criminal defendants after they've been convicted.
Defendant here was sentenced in 1996. That's when the law came into force, and was ordered to pay restitution in the amount of about $7,500. Has not paid it, I guess, 30 years later. And his argument is he didn't have to do this, because actually he committed the relevant crime prior to April 24th, 1996, when the act became law, which makes this an ex post facto punishment.
We have a principle in constitutional law that you can't punish people for crimes under laws that were not in place when the crime occurred. Very, very longstanding principle. I would consider it a basic principle of legality. But it doesn't apply to laws generally. It's been understood to apply to criminal laws.
Will: Only since the 1790s.
Dan: [chuckles] Yeah. And so, I think somewhat routinely they are ex post facto civil laws for better for worse.
Will: Right. You see all these billionaires trying to flee California before they enact an ex post facto wealth tax, right?
Dan: Yup. Okay. And so, the question is, this law, basically is it civil or criminal? Because if it's civil, we don't need to worry about this retroactivity ex post facto thing. If it's criminal, if it's punishment, then it can't apply. Answer, “Yes, it is criminal. In fact, it is plainly criminal for purposes of the ex post facto clause.”
We have Justice Kavanaugh's opinion that, as he sometimes does, doesn't give us a distilled-down simple rule. Instead, he says, “Look, here's some factors.” This reminded me a little bit-- Was it United States v. Texas, that one where he was like, "Here's five reasons why there's no-- [crosstalk]
Will: I forgot whether it was United States v. Texas or Biden v. Texas, but yes.
Dan: Yeah, I forget what the caption of that one. You know what I'm talking about, though.
Will: Yes.
Dan: And he was like, "Five reasons--”
Will: “Five reasons why Texas can't join the immigration authority.”
Dan: Yeah.
Will: So, I agree. Although I think there is an overarching theme here, which is just that the hard cases under the ex post facto clause are where the government says, “This is civil, but we're worried it's de facto criminal,” as the test is like, “Well, we mostly defer to the government says, but we got to make sure.” But here, as I understand it, he's like, “Look, the government basically says it's criminal. The statute basically admits it's criminal.”
Dan: And also, the United States here has confessed error. So, this is a case where the Solicitor General's office said, "Yeah, we're wrong. Sorry." And so, they had to appoint John Bash to come in and argue as an amicus in support of the judgment below. In an earlier age, would this case have never arisen, they just would have done a little GVR in light of the confession of error.
Will: Maybe. Although I think there are other circuits that had said this, too, right, or was the Eighth Circuit the only one?
Dan: Yeah. I wonder whether-- You feel like you couldn't do that if there's a circuit split as opposed to a case where it's just a one-off?
Will: Yeah. Because you want the other circuits to correct themselves, too.
Dan: This is an issue of really diminishing importance. How many people are there who still haven't satisfied their restitution judgments that were entered more than 30 years ago? It's probably a non-trivial amount. There is a closed class, right? No new defendants are falling into this class, because the statute is now in force. Similar issues could arise.
Will: Right. I think similar issues could still arise, because what if the penalties change or adjusted for inflation, they have to ask and you apply them retroactively, or what if you--
Dan: Yeah.
Will: I don't know.
Dan: But this exact question-
Will: Yeah.
Dan: -is going to apply to fewer and fewer people every year, which is often one of the reasons that the court denies cert. Diminishing importance.
Will: Yes. You could easily have denied cert in this on the grounds that-- Again, this goes to the error-correction point. On the grounds that while this is obviously wrong, it doesn't really matter. But the court did not deny cert.
Dan: Okay. So, yeah. The features of the MVRA that tell us that it's plainly criminal. It's labeled a penalty for an offense. Court may order restitution only with respect to a criminal defendant, only after a conviction. It's imposed during sentencing. It's imposed with other criminal punishments, like imprisonment and fines. It's placed in Title 18, Crimes and Criminal Procedure. Lots and lots of clues.
He alludes to in the footnote to what you were talking about that maybe there are situations where Congress didn't intend criminal punishment, but the statute may still be deemed criminal or penal if the party challenging the statute provides the clearest proof that the statutory scheme is so punitive, either in purpose or effect, as to negate the government's intention to deem it civil. So, I don't totally know what that would look like.
Will: I think that's ex parte Garland. So, I think in the Civil War, Congress imposed a pre-Section 3 loyalty oath requirement. You couldn't be a member of the Bar unless you could take an oath saying you'd never support the confederacy, which was described as just a civil rule. And the Supreme Court said, “That's actually a de facto criminal rule, and therefore--”
Dan: Because it's designed to punish people for-- [crosstalk]
Will: Having committed reason.
Dan: Yeah. Okay, so, short majority.
Will: The only reason I want to talk about this case was the concurring opinion by Justice Thomas and Justice Gorsuch, which, first of all, doubles down on something Justice Thomas had written before, which is his questioning whether this court's 1798 decision in Calder v. Bull is rightly decided. Calder v. Bull is where the court said, “The ex post facto clause only applied to punishment for a crime.” It has been 228 years, and it's still on the table of opinions Justice Thomas is willing to reconsider, which is, I think, a record for Justice Thomas.
This is also an opinion that the great William Winslow Crosskey, who I've been writing about, thought was wrong and previous opinions Justice Thomas has cited Crosskey's analysis as the lead unfortunately does not get cited here. But then, Justice Thomas now has a new move which is like, "Well, even if I can't overturn Calder v. Bull after 228 years, we should return to the original understanding of Calder v. Bull," which when it said--
Dan: Which is broader. As he reads it, it’s broader.
Will: Exactly. When it said criminal law, it didn't mean the modern tests for criminal law. It meant basically, to a first approximation, anytime the government is the person imposing the-- The government is the real party imposing the thing.
Dan: So, it's a public wrong versus a private wrong.
Will: So, it fits nicely into the Thomas, Caleb Nelson and all theories of public versus private rights in standing. So, for the same reason that Justice Thomas would resolve a lot of standing cases by saying, "Look, if the proper party in a civil case is an individual, but the proper party when it's a public wrong is the government.” So, he would bring that in here and say, “In most cases, the inquiry will just come down to who enforces the law, the sovereign or the injured party. And if the sovereign is the one enforcing a public wrong against you, then it's a crime.” Do you think that would be true for all the other criminal law provisions, too? The jury trial right and all that stuff? Is this a Calder-only rule, or would Justice Thomas actually give you the full benefit of the criminal--
Dan: So, you mean when is it a criminal case or when is it a civil case for purposes of criminal procedures-- [crosstalk]
Will: Yeah. If Justice Thomas is suggesting that the original understanding of criminal in 1798 in Calder was this test, should that also be the test for the fifth--
Dan: False Claims Act cases?
Will: Yeah.
Dan: That would be big. That's interesting.
Will: And False Claims Act, you sometimes have the private person as a relator, but I don't know.
Dan: But they're acting and they're stepping into the shoes of the United States.
Will: Yeah, but even tax penalties. Like, not just your taxes, but the penalties that are currently treated as civil, would Justice Thomas now say, “That's actually criminal, and so the Self-Incrimination Clause applies and the Sixth Amendment applies and all that stuff?”
Dan: I don't know. Yeah, that's interesting. I don't think we're going to answer that question today, because I'm about out of time.
Will: Ask your students during office hours.
Dan: [chuckles] We'll see if we get there.
All right. Well, thanks very much for listening. If you like the show, please rate and review on your podcast app of choice. Visit the website, dividedargument.com for transcripts. blog.dividedargument.com for commentary from the wider extended Divided Argument universe. store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com, and leave us a voicemail at 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your further support.
Dan: And if there's a long delay between this and our next episode, it will be because it has been determined we have issued too many frivolous episodes, and we are barred from filing further-- [crosstalk]
Will: Justice Jackson--
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