We check in on some Court-related news and Dan gives Will a hard time for his recent bold claim about the conservative justices. We then dig deep into Mallory v. Norfolk Southern Railway Co., a fascinating personal jurisdiction case being argued in the November sitting.
We check in on some Court-related news and developments and Dan gives Will a hard time for his recent bold claim about the conservative justices. We then dig deep into Mallory v. Norfolk Southern Railway Co., a fascinating personal jurisdiction case being argued in the November sitting.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, it's been a little while since we recorded, despite my promises, but we are going to get back to more regular recording. I know we keep saying that, but it is going to happen. But I've been busy. I was involved in two Supreme Court related symposia, just in the last three days.
Will: I know. How did you manage that?
Dan: I don't know. People keep inviting me to stuff. One of them was here in St. Louis, over at St. Louis University, or as SLU as people in the know say. I was involved in a symposium for Steve Vladeck's Childress Lecture. It was very cool and very interesting. They brought some cool people in to talk about Steve's lecture. Steve's lecture is sort of thematically related to his upcoming book, which is called The Shadow Docket.
Will: Great title.
Dan: Which is a title, which I think you popularized. Is that what we're saying now?
Dan: You're maybe not the first person to string those two words together. But the book is called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic which I had--
Will: That’s quite a subtitle.
Dan: Yeah, which is not out yet. I've read the introduction too. I thought it was quite interesting. So, I think that's going to be a good one to look for.
Will: I've preordered it. I haven't read anything on it but I'm looking forward to it.
Dan: The controversial part is the "Undermine the Republic" part, I think that's going to be interesting. It looks like he's got some interesting history there. He starts in the early 20th century with the Judges Bill. So, I'm sure we'll have more to say about that when that comes out. But Steve gave an interesting speech that was basically about how scholarship and reporting and so forth is actually too focused on what the court does in its merits cases, and we should look at other things that are happening, the internal dynamics of the court as well as other stuff that court is doing such as the shadow docket.
I also did one virtually, unfortunately, but because there was the conflict between these two symposia at the University of Wisconsin that was about various forms of controlling the court. I talked about the possibility of controlling the court through democratic action. I was on a really interesting panel. That was a conference that, again, brought together a lot of interesting people thinking about these things from a lot of different angles. So, lots of interesting things going on, obviously, as you can tell. There's a lot of popular and scholarly interest in the Supreme Court thinking big thoughts about the Supreme Court, what its role should be, should we change features of it? And I think that conversation is not going to be super soon, especially as the court continues doing pretty bold things, some of which are going to make a lot of people happy and a lot of people deeply unhappy.
Will: I guess we're contributing to that by doing this podcast.
Dan: Making people unhappy/deeply unhappy?
Dan: Or bringing the conversation?
Will: Bringing the conversation, bringing attention to everything the court's doing.
Dan: Yeah, I think we all are also making some people happy, other people deeply unhappy. I saw this quote from you, which you had told me, I think that you were going to say but you did say it. You were at this panel at Harvard. You can tell me the exact quote, but you said like, "This current court is more focused on law than any court in history," or "in recent history"?
Will: I think I said recent memory. I have to look at that, beyond memory. I mean, the subject of the panel I was on was "Law and Politics in the Roberts Court. What should we make about the changing relationship of law and politics in the Roberts Court? Does that change how we should respond to the courts?" The prompt was what has been the change in the relationship in law and politics? And obviously, everybody else in the panel assumed that meant that the court was doing less law and more politics. [crosstalk]
Dan: Assumed or made the argument?
Will: That's what they said. [crosstalk]
Dan: And they assumed. Everyone else assumes. You're the bold thinker, who actually thinks about things.
Will: That's fine. Anyway, I took the opposite stance in that some of the things that make people uncomfortable with the court, like its willingness to dispense with precedent, its indifference to what the median voter thinks about things, I argued, come from the fact that the court really believes this stuff. And so, the belief in law is actually making them more radical than people are used to. And that made a lot of people very upset.
Dan: It just strikes me as an empirical claim. It's an unfalsifiable empirical claim. It could be that they don't care what the median voter thinks, it could be also that they care what the median Republican voter thinks.
Will: Sure. Weird thing with these panels with the Supreme Court is everybody opines maybe about things that they can't prove. I will say, I have a little bit of a regret of putting it this way. I sort of accept that the framing that there's a difference between law and politics and that there's been a change in the law-politics ratio. And after the panel, some arguments with some folks, especially my friend, Richard Ray, convinced me that maybe it's not even empirical, maybe it's definitional. Maybe all courts believe in law equally, and just have different conceptions of law.
Dan: Yeah, that's what my reaction was, which is, I don't think that if you asked earlier courts, like, "Do you not care about law?", we care about it very deeply but they have a different approach. It's not the Baudean-- [crosstalk]
Dan: Do you have an adjective yet?
Will: Yeah, Baudean is fine. But I don't like Baudesque.
Dan: I think Baudesque would subtly mean something different, sort of like School of Baude, like--[crosstalk]
Will: Yeah, right. What I was trying to get at was the sense of like, everybody believes in law, but this court's vision of law might be less correlated to politics, and it seems more radical, it's less correlated to politics and more correlated to weird documents-- [crosstalk]
Dan: It could be more correlated in different forms of politics, right?
Will: That's why I said the framing of the panel is sort of assuming that the relationship was changing, may have led me astray into asking what is it going up or down. Rather than just saying like, "Can we really tell the difference?" So, what everybody else said it was going down, I felt like I have to say it was going up.
Dan: Yeah, that's interesting. I think that one argument about the court that I found persuasive and interesting recently was this book by Neal Devins and Lawrence Baum called The Company They Keep: How Partisan Divisions Came to the Supreme Court. And the basic idea of the book is that over time, the court in general and the Justices in particular that is have been speaking to more polarized and separate audiences, that they're no longer just thinking about Republican Justices. Don't care what the New York Times thinks. They may care what you think, and what the Wall Street Journal editorial page thinks, which I think there's something to that even if it's a more indirect relationship, that we are seeing people speak to different audiences and we're seeing more splintering.
Will: Yeah. I think there's something that feels true and that plays into this weird relationship that the other part of the media has with the court where they're upset about the way the Justices speak to different audiences, audiences they regard as polarized, speaks to different news sources they regard as polarized. And then sort of like, "Why won't the Justices pay attention to us?" And then, they are constantly like insulting the Justices and calling them names too. And there's a little bit of a like, "I hate you. You're terrible. Why did you leave me? Come home," dynamic going on there.
Dan: Yeah. But the median voter hasn't done that.
Will: Right. Again, that gets back to how can we tell law apart from politics? It's the same phenomenon that they describe of polarization of the different political groups. Could also be a law thing. So, Ryan Doerfler and I wrote an article that also got us a lot of negative attention on the internet called Arguing with Friends, where we argued the--
Dan: Yeah, you sort of say this is like, "Right, this is good."
Will: Well, the law version is good. What you should do, you have legal views, you don't want to just make it all up on your own. You want to get a gut check from other people. But you're the only one who thinks that then you second guess yourself, but you want a gut check from people who share your legal premises. So, the Justices on the court who have similar methodologies, get their gut checks from each other and from their clerks and probably from other people who have them. How can we tell the difference between the lobbyist gut check versus the politics-based gut check? That's hard to tell.
Dan: I guess I could see that cutting entirely the different way, which is, if it turns out that like 99% of people that share your methodology also share your politics, there is this danger of an echo chamber.
Will: Yeah. What you really like is sort of the right people who share your methodology but don't share politics. So, Ryan and I-- Ryan is a very far left scholar who has a lot of textualist methodologies than I--
Dan: Published in Jacobin. Have you published in Jacobin?
Will: Never been asked. No.
Dan: Okay, socialist. It's still probably the leading socialist publication.
Will: It might be.
Will: He favors not just court reform, but constitutional reform and a lot of other very radical changes to the system. But when I talk to him--
Dan: So, do you. You favor radical changes, just in a different direction.
Will: [chuckles] Well, there you go. But having put it like that, you can talk too about a textual argument, when the Supreme Court just has some textualism case and is really, really valuable. Maybe the Justices don't have enough people like that in their lives.
Dan: Yeah. Well, anyways, I thought your claim made me think. I read this interesting article a while back about how we make doctrinal work more rigorous, and when we make empirical claims about the doctrine, we should be more careful and see if the claims are falsifiable. I can't remember who wrote it, but--
Will: You're trolling me, Dan.
Dan: Just a little bit. Yeah. Just a little bit.
Will: Yeah. I cowrote that article under duress with a couple of my colleagues.
Dan: [laughs] Under duress. You didn't consent to it. That's going to be relevant to--
Will: I consented, but it was coerced.
Dan: It was coerced.
Will: The article, among other things, argues that application of a properly rigorous methodology proves that originalisms are law. I'm glad to have gotten [unintelligible [00:09:53] sign on that.
Dan: Does it actually say that?
Will: For its evidence, it doesn't say it's conclusively proved. I'm bad about these panels. I should be more careful of what I say, it's actually true.
Dan: You just let loose.
Will: That statement was premeditated. That's what makes it worse.
Dan: Okay. But then, you get pushed back and Twitter gets mad.
Will: Well--[crosstalk] Yeah, I just wasn't being sufficiently careful.
Dan: Yeah, Twitter might change soon. Elon Musk is in control. Some people might leave, other people might join Twitter as a result. It could be that the center of gravity on Twitter and the common wisdom that it seems to generate could shift. We'll see about that. I haven't been as Twitter active recently. It was not really making me happy but I do miss a lot of news and stuff. So, maybe I should get back on there. Speaking of news, is there any news I've missed? Because I haven't been super Twitter active.
Will: Well, you may have missed my most recent piece about the court's independent state legislature doctrine case, which we talked about, previewed, I think at the end of last season.
Dan: Yeah, this is you and former Judge McConnell, Professor McConnell at Stanford.
Will: That's right. We cowrote an article that appeared in The Atlantic called The Supreme Court Has a Perfectly Good Option in Its Most Divisive Case; In Moore v. Harper, the justices should not side with the views of either party. And we put forward basically a middle ground position that state legislatures should be bound by the state constitution. So, partisan gerrymandering by state legislatures can be restrained by the state constitution, contrary to the radical independent state legislature theory, but state courts should not be allowed to step in and draw their own maps, their own nonpartisan maps.
Dan: So, they could say like, "You guys failed. Go do it again."
Will: And there are a bunch of options. We, for obvious reasons, in The Atlantic we didn't get into the weeds of election law remedies. So, there's the, "You failed, draw it again." And, of course, there are states that have ended up in a standoff about that. So, maybe there should be escalating penalties, if the legislature fails repeatedly, you could imagine saying--
Dan: Jail them?
Will: Well, there are courts that have done that. I wouldn't counsel that. But you could imagine saying the state just can't feel the congressional delegation if they don't have proper maps, which the legislature obviously wouldn't want.
Dan: That's aggressive.
Will: Yeah, that may be too aggressive. You could also imagine rather than drawing your own maps using more of a severability approach, where you take the existing maps, and just tweak the unlawful parts as the minimum amount necessary to make them lawful, which then looks a little different.
Dan: Doesn't that create the problem that you're saying that the court is drawing them out?
Will: I think there's a difference. I mean, it's typical in election law cases. It says the court doesn't start at the legislature map and ask how many people do I need to move to make this not a gerrymander anymore. They have independent special masters and their own evidence and sort of start afresh. Part of the problem is it's actually hard to articulate how many people you need to move to make a map, not a gerrymander anymore, because the standard is so mushy, which gets us back to the merits, but there's a range of remedial options. And there are also lot of federal statutes actually on the point that provides sort of various backup options and there's been some brief in the case about those. But our main point is that we should refocus all of the energy to the remedial question, like say no to the big ISLT, and then refocus on the more nuanced fights about remedies.
Dan: Any other news? Justice Thomas issued an administrative stay to stop Lindsey Graham from testifying. Is that right?
Will: I believe that's right. The administrative stay pending for the briefing so the case arises at 11 Circuit. And I think the briefs about whether Graham's will testify it, all came in.
Dan: This is the Georgia grand jury that's investigating whether Trump and Team Trump illegally made an attempt to meddle with the election there.
Will: Right. And the question is whether the Speech and Debate Clause or some other constitutional principle stops a state grand Jury from being able to haul a US senator, in front of them for testimony this kind of thing. That's got a lot of amicus briefs. I think as with, in the Yeshiva case, Justice Sotomayor issued an administrative stay, and then the full court eventually denied the stay, I don't think the fact that as Thomas did this, tells us anything other than they wanted a lot of briefing and they wanted to--
Dan: But continues to cause people to ask questions about Justice Thomas's participation in these election challenge-- These cases are emerging out of the Trump election challenge when his wife was to some degree involved in the strategy, thinking about that with the President and the President's advisors.
Will: Sure. Although I think here, and the last case we talked about, at least some emails she sent were maybe going to be disclosed in consequence of the ruling sort of indirectly. I'm not sure that's even true here. But certainly, the bigger picture question of sort of, is there just a general appearance of impropriety having Justice Thomas involved in all this Trump stuff. He seems to think not.
Dan: Or not to care.
Will: One other interesting thing, did you see this little story about Judge Leval and the MoneyGram feud?
Dan: I did. I had not known the context to this until I saw that this happened. Why don't you explain?
Will: So, the court had arguments in October in some state disputes, original jurisdiction disputes, Delaware versus Pennsylvania, New Jersey, and Arkansas versus Delaware, on who gets to claim unclaimed MoneyGram official checks, sort of like which state gets to [unintelligible 00:15:19] bunch of stuff that ultimately wasn't claimed to the tune of hundreds of millions of dollars. And apparently, Judge Leval, Senior Judge to the Second Circuit, has served as a special master below and issued a recommendation and gone up to the court.
Dan: [crosstalk] -had the argument.
Will: Yeah, and the court had heard the argument, and then in an order last week, Judge Leval told both sides that, "Upon reading the arguments before the Supreme Court and returning to the record in the case, I can no longer subscribe to the entirety of the recommendations I made to the Supreme Court." And he said that he has now changed his views about half of the property for the court, and it's going to tell the court that he's changed his mind. I've just never seen anything quite like this. This would be the equivalent-- I mean, a special master is not quite the same as the lower court, but it's sort of the equivalent of a lower court, hearing the argument and then one of the Justices saying, "Oh, whoops, I goofed. I guess, you should reverse me."
Dan: Yeah. Although there's not really a procedural mechanism for the lower court to do that. And here, it's a little different where the special master can file whatever-
Will: Yeah, that’s true.
Dan: -he wants.
Will: If you think of it like a law clerk, you could imagine-- not this ever happened to you or me, but you could imagine talking to Justice about the case before argument and then after argument something happened that caused you to change your advice.
Dan: Yeah. That seems like a less of a big deal than basically being like, "Oh, the whole premise on which this argument that you all participated in, that turns out that was wrong." Do you think that they're annoyed about that?
Will: Well, probably. [crosstalk] Compared to what? I guess if he's changed his mind, they probably rather know. Imagine, they got all this work to affirm him, and then he was like, "Yeah, actually, I probably should have been reversed on that." That would probably be more annoying. So, if he's not going to take it to his grave, he might as well tell us now.
Dan: Okay. We'll see what happens with that. Any other stuff before we dive in? One thing to note is that the court is hearing argument in the big affirmative action cases. Today, we're recording on Monday, October 31st, Halloween, you are not wearing a costume. I guess just advancing the intellectual support for this supermajority is scary enough to most people.
Will: Yeah, I was going to make kind of a joke like that.
Dan: Okay, I beat you to it.
Will: You're not wearing a costume either, Dan.
Dan: No. I'm too scared. I don't want to be scared any further.
Will: Yeah, my phone is blowing up with text messages about the affirmative action argument going on now, which we are therefore not going to be able to talk about, but I'm sure we'll return to that case.
Dan: Yeah. I wanted to come back to it maybe after the argument and start to see where we stood.
Dan: Can I ask a gut check question before we've gotten any at all into the complicated merits of the case? Imagine a world where the court says, "Schools can't do this anymore." I think at that point, it's very easy to imagine a world where the court applies some colorblindness to Title VII and other antidiscrimination statutes. Is that plausible to you or not?
Will: It is plausible. Justice Thomas has said that the federal government is not necessarily held to the same standard as the states. So, it gets a little messy, but it's plausible.
Dan: What do you think is more likely than not?
Will: That federal statute-- [crosstalk]
Dan: That’s the ultimate destination, that you just can't take race into account.
Will: Outside of the remedial context. I think the remedial exception will always remain.
Dan: What's an example of that?
Will: If you've been discriminated on the basis of race until recently--[crosstalk]
Dan: Oh, yeah.
Will: You can fix it.
Dan: Yeah, that makes sense. You think that is more likely than not though?
Dan: Okay. One thing I've been thinking about, talked to some people about the case, at a high level, and they're like, "Oh, no, that'll be disruptive to schools, but they can do all these workarounds." My instinct is the workarounds will also be illegal/unconstitutional because at least if they're adopted with the purpose of racial balancing--
Will: Oh, by colorblindness, you mean that race neutral things done for a racially balancing purpose will be--
Dan: Yeah. What do you think?
Will: I think that's more likely than not. On the other hand, we have states where affirmative action has been illegal for a while, like Michigan and California, where practice seems to have yielded a lot of workarounds.
Will: So, I think how much will we end up in that equilibrium or some [crosstalk] stronger.
Dan: But, obviously, people in the legal academy are looking at that very closely, because it could significantly shift strategies in law school admissions for next year, but more on that on a future episode. For now, I think we should probably talk about the case that everyone has been waiting for us to talk about, which is the hotly anticipated Mallory v. Norfolk Southern Railway Co. Maybe it's like medium anticipated.
Will: I told an NPR reporter, this was one of the most important cases to the term, and then I had to repeat the name for her and explain to her what the case is about because she had never heard of it.
Dan: I don't know if I agree it's one of the most important cases of the term, but it is a super interesting case, I think. I guess, could be.
Will: That might have been one of those times I was being non-rigorous.
Dan: No, I don't think it's fair to say you were trolling but just getting a little ahead of yourself. So, this is a case about personal jurisdiction, which is an issue that I think both you and I probably have thought about more than the median law professor.
Will: Do you teach civil procedure?
Dan: I do not. But I was involved in one of the bigger civil procedure cases, I was counseled for petitioner at the both the petition and merit stage in Walden v. Fiore.
Will: I remember that. I was in charge of the SCOTUSblog right up for those cases.
Dan: Wow. Okay.
Will: Which is not nearly as important of a role.
Dan: That's what really matters. That's a really shapes the results in that case. But that was, I think, a super interesting case about when states can bring people into their courts as a result of stuff that those people have done with respect to the state residents elsewhere. This case is about a different question, but it's part of a larger series of cases the court has been considering about personal jurisdiction in the last, I don't know, decade and a half, two decades. You decide where to draw the line. But basically, personal jurisdiction is about like a court's power over certain defendants, when it can sort of issue a judgment against a person or against an entity that is enforceable.
Will: Yes, personal jurisdiction is jurisdiction over the person. So, can the court not-- [unintelligible 00:21:52] case, but does it have the power over the people in front of it?
Dan: Yeah. Person meaning your natural person or corporate person.
Will: Yeah. And so just for general context, so your impression, do you agree with this that 100 years ago, we have whatever jurisdictional rules we had. Then, in the middle of the 20th century, jurisdiction increased so the court got looser, more willing to let courts exert personal jurisdiction in circumstances that hadn't before. Then, in the past decade, we've seen a little bit of a retrenchment. Your case being one of them, maybe not officially overruling anything, but being jurisdiction a little more limited than it was before we went to law school?
Dan: I think that's right although maybe it's more complicated. I think maybe what you're seeing is competing approaches that aren't necessarily consistently broader or narrower. Here's an example of that. So, I guess you're thinking of a case, International Shoe, which is about when can you bring an out-of-state plaintiff into state court. If they don't reside there, but because they've done things so systematically that they've effectively brought themselves within the jurisdiction of that court. They've had what we call minimum context, right?
Dan: And so, that's an expansion of jurisdiction. But then, some Justices sort of think, "Well, that's now the test for jurisdiction." Whether you look at the context or whether you look at, that it's fair. So now, it's all guided by fairness. And that approach might suggest some instances where we say there isn't jurisdiction when we might otherwise have. There's this case, Burnham, which is about can you get jurisdiction over somebody, a person, just by handing them the papers when they happen to be within the borders of the state even if they don't have all the fairness and connections and so forth?
Will: [crosstalk] -changing lanes at the airport or something?
Dan: Yeah. I think there's like some lower court case where they do it to the person on the plane in the air over the state.
Will: Oh, the state of Arkansas.
Dan: That's a case where that looking at the nonmodern approach actually leads to broader exercise of jurisdiction. But then, there's also cases where maybe it narrows jurisdiction, looking at this fairness considerations leads to narrower exercise of jurisdiction. Is that fair?
Will: That's also true. Okay, so let's try to break this down. I'll oversimplify things brutally and then you tell me if I missed anything important. There are two kinds of jurisdiction. One's called specific, and one's called general. And specific is you did something somehow related to the state and maybe the state gets jurisdiction over that thing you did.
Dan: You harmed-- you aimed your conduct at that state in some way.
Will: You went to the state and you hurt a bunch of people. You didn't come to the state, but you sent poison to the state. You didn't send the poison to the state, but you told somebody, whatever the actions are.
Will: The second jurisdiction, which is what this case is about, is called general jurisdiction, which is the place you can be sued over everything you did, even if it had nothing do with the state and for our regulator person--[crosstalk]
Dan: Happened elsewhere, involved a resident of another state, all that stuff.
Will: For a regular person, the classic example is your home state, your domicile. So, you can come to Illinois and sue me for anything I did anywhere. Illinois, they've got sort of full responsibility for me and so that way, there's always a place. If you don't want to fight about jurisdiction, or it's not clear where the right place to sue is, you can always just come here, come to my home court. And in a way, I have no right to complain about that.
Dan: Okay, I'm going to file that away for future reference.
Will: Maybe I should have picked a better state to live in for my--[crosstalk]
Dan: Or I can tag you when you come here. We're trying to get you here soon for a live show, by the way, here in WashU in St. Louis. And then, what's the rule for a corporate defendant? Where can you sue them for general jurisdiction, for cases that involve anything?
Will: For the corporation, we have to ask where they're at home. This is the idea of the modern test, which I believe is both their place of incorporation, but also their principal place of business. Does that sound right to you? Kind of the main places for the corporation. [unintelligible 00:25:52] about these, these is an old case, Hertz v. Friend, sets up a rule for the places here at home. And that's the general places that there's general jurisdiction over you. But there's also consent.
Dan: What does that mean?
Will: This whole idea of jurisdiction over the person, personal jurisdiction, is something that unlike other kinds of jurisdiction, can be sort of waived. It's about like, does the court have power over you, but one way you can always get power over somebody is that they just show up and say, "Okay, I submit to the court's jurisdiction."
Dan: It's something that you can-- it's not like a subject matter jurisdiction, which is like, does the court have the authority to rule on particular kinds of questions? That's not something that defendant can just say, "Yeah, you don't normally, but you do. But you can, in this case."
Will: Right. Subject matter jurisdiction protects the court, or the people by saying, like, "The court isn't supposed to rule on this kind of thing." Personal jurisdiction just protects the person, and so if you show up and say, "It's fine. I don't mind litigating here," then it goes away. This case is about a kind of consent general jurisdiction, a way that states want to get, especially corporations, to just agree to let anything they do anywhere be litigated in that state. In particular, Pennsylvania has a regime that used to be quite common in lots of states that say, "If you want to do business here, you have to consent to our jurisdiction."
Dan: For anything.
Will: For anything.
Dan: Yeah. Although there's a dispute in this case about whether how common that is, because you could imagine a range of possibilities. You could say, "If you want to do business here, you have to consent to jurisdiction for anything that happens here. Anything that involves our residents," something like that?
Will: Sure. There's a dispute about how broad it is, but in general, these kinds of registration statutes, maybe this one's an anomaly, maybe not, these kinds of statutes say, "If you want to do business here, you have to consent to our jurisdiction." Some kind of statutes, this was common. They were upheld by the Supreme Court over 100 years ago. And the question is, is it still okay?
Dan: Yeah. And this is confusing, because they are upheld in an earlier era when the modern developments of personal jurisdiction had not yet transpired. This idea that even though you don't have this traditional basis of jurisdiction, like physical presence, you can have such context with a forum that it's still fair to bring you. It's an earlier era where the way in which you had to get jurisdiction was or for a corporation was to have somebody there who could be served with process, that's like handed the papers that are like, "We sue you."
Dan: Traditionally, before these kinds of statutes, the way to do that was to serve those to the principal, like the lead person for the corporation. And that's not possible if that person chooses not to come to the state. And so, that meant that a corporation could just do all sorts of stuff, shipping all sorts of things, whatever, all sorts of things that are directly affecting this other state in violation of its laws, say, hurting people or whatever. But there's nothing that state can do about it, because they can't get the papers when the principal's in the state. But that's not true anymore as a matter of constitutional personal jurisdiction doctrine.
Will: You don't need to give the papers to the person in the state and we have a very different test for when you can obtain jurisdiction. And there's one more change which is what makes this case so tricky, which is we now think about corporations very differently than we used to. So now, as you may know, corporations sometimes have, let's say, constitutional rights, like the right to free speech, Citizens United, the rights of the Religious Freedom Restoration Act, the Hobby Lobby. Hundred years ago, I think it's fair to say that the general gestalt of the rights of a corporation were much lower. So originally, a corporation only existed in the state that created it. And if you wanted the corporation, because it's an artificial creature of the law, so it's limited to the jurisdiction that state, if you wanted the corporation to exist in other states, you had to affirmatively go out and get the other state to recognize the corporation. At the limit, you might even have to create a new corporation in every state you want to do business that they would say would exist in every state. And now, we don't have this.
Dan: And the idea was more generally that you could condition-- you don't have the right corporation, there is no right to do business, so you could put in a condition on it if you wanted basically or at least subject to other constitutional constraints that we're going to talk about in a few minutes.
Will: Yeah. All those pieces together, that vision of jurisdiction, that vision of corporations, it was pretty natural for the court to say, "Sure, you can tell a corporation that if they want to do business in your state, they have to consent to jurisdiction generally in the state." For instance, make the Secretary of State their agent for service of process or whatever. But is that still true in light of all the things that have changed?
Dan: Yeah. Also, again, there is this debate in this case about how much that was true. Was it really true that there was a big tradition of making corporations as a privilege of doing business in state X, that there was a general tradition of rules that said that corporation has to be agreed to be sued in state X for anything whatsoever by anyone from-- [crosstalk]
Will: Right. So, there are two questions. One is, is this case extending the tradition beyond even its own terms? Is this taking it to the breaking point? And should the tradition in any event, should it be cut back, or is it no longer good law in some way?
Dan: Okay. Let's talk about the briefs at a high level, because they're interesting. Personally, in terms of their structure, the lower court here, Pennsylvania Supreme Court said, "Yes, there's this old case saying that this is fine. But we now think as a condition of doing business, Pennsylvania can make you consent to everything, that doesn't comport with modern notions of due process. And so, we're going to say that's not constitutionally permissible." And so, our petitioner in the case is challenging that, that holding and saying, "No, there's a long tradition of doing this." And the respondent is trying to say, "No, you can't sue us there." And so, if you look at the structure of the briefs, they're flipped in terms of what they lead with, what they put at the end. So, the petitioner's brief who are trying to say, exercising jurisdiction is totally fine, and the kind of lead firm on this is Keller Postman, which is a firm founded and made up of a bunch of folks that we know. People that clerked your term, actually Keller is a Kennedy clerk, the term before me, the year you clerked, and Warren Postman was a Souter clerk that year, and I was in law school with Warren. Some very smart people, and they're doing a lot of plaintiff's side work.
And so, if you look at their brief and just look at the table of contents, Roman numeral I is, "Pennsylvania's corporate consent by registration statute is permissible under the original public meaning of the due process clause." And so, they're leaning into originalist-type arguments, sort of trying to capture the current wind on the court. Whereas if you look at the other side's brief, which does not deal with original public meaning until page 39. It's still the final Roman numeral V in the brief. And so, that brief is focusing more on that modernish doctrine. The fairness, minimum context, International Shoe stuff.
Will: Yeah. And then, they will have the precedent in the middle. The petitioners say, "The original meaning requires this." Pennsylvania finds this 100-year-old case, confirms that we're right. And you shouldn't get rid of those things based on like modern considerations. And Carter Phillips, who is the other side, says, "That's a matter of basic modern doctrine and modern common sense. This can't be right. The old case is not controlling, and originalism doesn't help them."
Dan: Yeah. And it's interesting, because I think in recent years, there have been some cases cutting back on personal jurisdiction and maybe doing so in a way that's favorable to corporations, making a little harder to sue them under general jurisdiction everywhere. But those cases have not really been sort of deep originalist cases. I think that holding leans more on the modern, fuzzy principles of due process. Do you think that's fair?
Will: I think definitely in originalist cases. It's a mix of modern fuzzy principles of due process and suspicion of anything that happened during the Warren Court, says a little bit-- this is like one of the more common and maybe not so great originalist heuristics is like if it happened during the-- if the Supreme Court said it during the 50s, 60s, or 70s, it's probably wrong.
Dan: Is that really what's going on there? Or isn't this all of a piece with the Warren Court stuff if they're doing this fuzzy fairness analysis?
Will: Yeah, it is a different version. It will be it's fuzzy fairness analysis, but done by today's conservatives rather than yesterday's liberal-- [crosstalk]
Dan: Yeah, to protect against aggressive plaintiff's lawyers.
Will: But anyway, I think it's right to say there have been modern cases cutting back on jurisdiction over corporations that haven't really thought it through from first principles. And I think there also hasn't been a ton of good originalist civil procedure scholarship until the arrival on the scene of our friend, Steve Sachs, who has written a series of articles and also amicus briefs, including this case, trying to make a case for how originally the Constitution is actually supposed to speak to all these jurisdictional questions.
Dan: Yeah, so there's this Steve Sachs amicus brief, super interesting, and let's get to that in a second. There's also an amicus brief from the US government. Did I miss it? Is there an amicus brief from the state-- Sorry, the Commonwealth of Pennsylvania? I did not see one. In theory, there should be one because doesn't Pennsylvania have this sovereign interest in upholding its laws?
Will: You would think.
Dan: Isn't that weird?
Will: That is--[crosstalk]
Dan: Maybe they could argue, but they seem to not be in the case.
Will: Maybe they're split. Maybe they have this law, but they don't really like it because I should say this, the basic fact pattern here is, this is a Virginia Corporation being sued for things that took place in Virginia and Ohio by somebody else who's from Virginia, so there's not a lot of Pennsylvania interest in this case.
Dan: Yes, that's fair, unless it wants to, I don't know, give its own courts fun stuff to do. That's totally fair. And there is a brief from Virginia, among other states, saying don't permit jurisdiction here. But again, it's interesting. The state prerogatives can cut in both directions. So, one, states might want to be able to let their courts to have as much jurisdiction as possible, but they also might want to have other states have as little jurisdiction as possible. So, maybe it cancels itself out. But the brief by Virginia is also joined by Alaska, Arkansas, Idaho, Indiana, South Carolina, which are states that lean red, but it's not your typical Texas SG led Red state brief. New Hampshire is a purple state.
Will: It's interesting also, the court regularly calls for the views of the Solicitor General when there's a case that they think involves a federal interest, and they want to know what the United States thinks. In plenty of cases, like here, the SG just shows up, tell the court things. Sometimes, the SG is trying to stay out of it, maybe because it actually has a delicate balance of different federal interests and then they get roped in. They could do that, Pennsylvania, if they wanted to. They could call Pennsylvania in and just say, "Tell us what's going on here--?" [crosstalk]
Dan: And they have done that. They have called for the view of the Texas Attorney General, and I forget which case, but it's certainly not something they do a ton, that seems bad to me. I think that the SG gets too much solicitude. I also think they should be more willing to let other parties argue with divided argument, name of this podcast, which is when you grant a motion that says, "The government gets to take 10 minutes of the argument time for the party that they're supporting," or, "They get to have 10 minutes in the middle if they're supporting another side," because it's helpful for the court to hear from the SG. I think that's totally fine. I just think that they basically always let the SG do it. They used to deny them occasionally. I haven't seen them deny it in some time, but I may have missed one.
Will: I think there's a rule that they deny one every couple of years just to keep the SG--[crosstalk]
Dan: I've heard people say that. But then I also don't remember the last time they did it. That's a thing that people say, but I wonder whether that's something that used to be more true. So, if someone can find the most recent denial and send it along, that would be helpful to us and we will thank you on the next episode. But here, they are coming in and saying, "We don't think jurisdiction should be appropriate here." And, again, this is a place where maybe the federal government has conflicting interests. So, the thing that they lead with is, we don't want this because we're worried about the foreign policy implications, because we don't want states to try to sue a bunch of foreign countries, allow suits against like random foreign countries in their courts. Which makes sense, but then the petitioners had also said, "Well, by the way, there's this federal statute that allows consent-based jurisdiction over certain kinds of entities." So, like the PLO, Palestine Liberation Organization shall consent to being sued if it does the following things, like gives money to certain things.
I thought that was interesting, because the SG does address that, addresses that in not a super long paragraph at the very end of the brief. It says, "Well, petitioner says this is going to be a problem for them but that's not true." And the reasons it gives are the following. It is governed by the Fifth Amendment, not the Fourteenth. Concerns foreign affairs, in which Congress gets a lot of deference. Applies only to a narrow set of defendants in a well-defined set of claims. Doesn't attach a condition to the right to do business, raising the question of interstate federalism. Applies only to claims in which the United States has a legitimate interest, not to claims that concern only other sovereigns. I think like only maybe half of those things are actually relevant. Far from clear to me that the Due Process principles under the Fifth Amendment are different than the Due Process principles under the Fourteenth. Maybe you could say that the defendants, the PLO, doesn't have due process rights at all. So, it's not a big deal. That's one way to deal with it. But I found that weird how brief that was. Did you think that was weird?
Will: I did. I thought that was a much bigger part of the brief, whether they're going to be coming in to say, whatever you do, don't mess with the federal statute. And maybe they just figure once they point out the federal statute exists and give some reason it's different, that's enough to put it on the court's radar, and then that's enough. I do think, by the way, there is a credible argument that the Fifth and Fourteenth Amendments are different, or at least again, that's what Steve Sachs argues in some of his scholarship, that the federal courts should not be subject to the same kinds of jurisdictional limits as the state courts are.
Dan: Yeah, that's fair.
Will: Partly because Steve thinks that these limits don't-- the Due Process Clause is the constitutional wedge for them. But then, a lot of the limits are coming from other kinds of background principles of law that treat the states very differently.
Dan: And let's talk about that in one second. I guess let's just get one other argument on the table. This argument I want to get on the table is this idea that it's an unconstitutional condition. That you are making the right to do business in a state contingent on waiving your personal jurisdiction rights. This is an unconstitutional condition. And there is this doctrine that the government can't make certain benefits depend on giving up other constitutional rights. There's some limit on that, right?
Will: Right. Yes, calling it a doctrine is a little generous. It's a recurring problem in the law that sometimes we say, the greater includes the lesser, so to speak. The government could decide not to create statutes at all, and so if it creates statutes, it can decide to create them for liberty and not for fascism or whatever. And then, other times we say, "No, it can't. That's an unconstitutional condition." So, the government can decide not to have police officers at all but it can't say that all police officers have to forfeit all of their rights to free speech and religion, because they don't have to exist at all. And I don't know that we have a super well worked out set of principles for deciding when those are okay, when they aren't, which was a big problem.
Dan: Yeah. And then the respondents in this case cite an interesting case I had never seen before. Home Insurance Company in New York v. Morse, which struck down Wisconsin law that says, "A foreign corporation can't transact any business unless it agrees not to remove suits by Wisconsin citizens from state to federal court." So, a little different, but I thought that was interesting. And it seems like a very on-point precedent for it that the petitioners have a lot of arguments as to why this can't be an unconstitutional condition.
Will: That goes to the point that you can't just say you're an out of state corporation, so we can demand whatever we want from you. There are some demands we can't make. Now, I think it's often been true that a state making demands that you not do federal stuff is especially problematic, going back to McCulloch. And so, we might think that the state demanding you waive your right to federal court is not just a normal unconstitutional condition problem, but almost a federalism problem.
Think of how this plays out in tag jurisdiction again. So, if you're physically present, the state can or whoever wants to see you can hit you with the subpoena and tag you, that's the basis for jurisdiction. And then, the question is, are there times that that will be leveraged in an unconstitutional condition's way? So, you can imagine it being like, I would say, "Look, I don't know what else you want from the state." You want to receive your pension from the state or some other thing that the state has that you want. And we'd say, "Look, you only have to show up in person, because when you show up in person, we're going to tag you." And you'd say, "Well, I don't want to show up in person. You're unconstitutional conditioning my right not to be present," or whatever the benefit is.
That helps tease apart, is tagging a good basis for jurisdiction? Yes. But there's still times they're illegitimate uses of tagging because you force somebody to be present where you can tag them maybe when you don't have the right to, maybe also yes. And so, both those are at issue here, is this blanket consent enough? And then, is the demand for consent, the threat that if you don't give us consent, you can't do business here, is that sort of improper leveraging?
Dan: Well, let's put the Sachs' brief on the table, which I think is something that is going to get a fair bit of attention because I think, Steve, a friend of the show, is an expert on these issues, has written several important articles on personal jurisdiction, and I think, obviously, is in tuned with what at least five or six conservative Justices, or at least most conservative Justices, what their approach is to legal questions, constitutional questions, originalist arguments. How would you summarize his position?
Will: Steve also has written extensively about the Supreme Court's decision in a case called Pennoyer v. Neff, one of the original territorial jurisdictional cases that's then revised by the International Shoe and the like. Steve's basic argument is that the petitioners are definitely right about the Due Process Clause, that what the Due Process Clause ultimately requires is that Due Process Clause is a backstop against states exerting jurisdiction when they don't have it. But if they have it, then the Due Process Clause is satisfied, and-- [crosstalk]
Dan: You may have it. [crosstalk]
Will: [crosstalk] -classic way to get it. So, he would say there's jurisdiction. They got jurisdiction through consent. It'd be by tagging example. If the state somehow tricked you into coming into the state and then tagged you, they've got jurisdiction, they satisfy due process. So, the due process question of the jurisdictional questions should be easy. What Steve says though is, if you're nervous about that, the unconstitutional additions problem, that's still in the case, it's just not a due process problem, it's, in this case, it will be a Dormant Commerce Clause problem. So definitely, Steve would say they have jurisdiction over states that's consented, maybe on remand, when the Dormant Commerce Clause is involved in the case somebody should say, "No, you can't tell corporations that they can't do business in your state. Therefore, this is a potential unconstitutional condition. But that should be left to the Dormant Commerce Clause, which is not part of the Supreme Court case."
Dan: Yeah. And they should remember-- can you just go back a second because I think we need to explain that a little bit more clearly. You say it's a backstop, so if states don't have jurisdiction, it's a due process. But when you say don't have jurisdiction, that's question [unintelligible 00:46:35]. So, what does he say about that?
Will: I think he says the Due Process Clause doesn't itself contain the--
Dan: Like a substantive content for--[crosstalk]
Will: Hardcoded principles of jurisdiction, those come from general law in the pre-Erie maybe even now. In this case, that's not that interesting, because I think, again, consent has a basis for jurisdiction, certainly was a well-accepted general principle. And even now, it's a relatively well accepted with general principle.
Dan: And does that answer the question for, what even if the consent is coercively obtained, falsely obtained, do you think that would bring it up, that would make it out of the question?
Will: I mean, if the consent is not real, that's different than if it's obtained through an unconstitutional condition, I think, is the idea.
Dan: Yeah. So, if it's fraudulent, that'd be different.
Will: Or if this coercion didn't actually consent, like I wrote a letter on behalf of the corporation with no relationship with the corporation saying, "I consent," that would not be real consent, because I don't actually represent the corporation. But that'd be different.
Dan: Do you think this is going to catch the Justices' attention and likely to persuade them?
Will: Well, I think this is going to catch the Justices' attention. I think Justice Gorsuch has already cited Steve's work in the past along as well as other people and noting the need for a turn to originalist principles in the due process personal jurisdiction area, so I'm sure he'll still be interested. Will anybody else be interested? I'm not sure. And as a purely strategic matter, sort of dividing up the issues in the case has the advantage that it lets the court say, "Okay, yes, jurisdiction is proper. We don't have to overturn our 100-year-old precedent," while still preserving them an out later, if they find that untenable under the Dormant Commerce Clause.
At the same time, maybe that'll seem unsatisfying for that reason to say, there's a little bit of a magic trick and saying, "See, this is fine. And don't worry, if you want to say it's not fine later, you can always pull that out of the hat somewhere else." Now, we talked about the Dormant Commerce Clause before in the show. So, again, maybe there's some advantage to saying, "Look, due process personal jurisdiction is a super important technical area that you should not mess up. So, get this right." And then, if you want to play around with the Dormant Commerce Clause later, which is kind of a mess, and you guys don't know what you're doing and the precedents super flexible and it's more judicial common law, that's fine. Just do it over there, and not over here. So, it doesn't [Dan laughs] it doesn't mess up civil procedure. I think there is some attraction to that.
Dan: Yeah. Steve has filed some, I think, influential briefs in the court. In the past, I got to be involved in a small way in one of them. He had a brief in a civil case, not about personal jurisdiction, but about forum selection clauses and transfer a venue called Atlantic Marine Construction Co. v. United States District Court. And I got my firm at the time, King & Spalding, to formally represent him, which was cool. And basically, without going too deep in the weeds, Steve had a way of thinking about the legal issues in that case that seemed more conceptually sound and consistent with the federal rules and the federal statute. The Supreme Court ultimately didn't endorse his views wholeheartedly, although the ultimate resolution of the case seemed like influenced by his way of thinking about it.
Will: Also, the Supreme Court, as you know, Steve asked the court for permission to show up at argument to get divided argument, which the court denied because they don't normally let random law professors get divided argument, but--
Dan: He's not a random professor.
Will: But the order denying his request for divided argument contained the interesting instruction to the parties that they should both show up at oral argument prepared to discuss his brief. So, it's maybe one of the more successful motions for divided argument ever in that it really put his arguments at the center of the case.
Dan: Yeah. They should have granted that. They should grant in those cases. The reason why that was possibly the right idea there was because his position was one endorsed by another party. He had a pretty different way of thinking about it and it seems like the court should have those issues before it.
Will: I agree. It was basically a three-way circuit split. And the parties had two of the three positions in the split, and Steve had the third. And so, you think just naturally, when you have that kind of an issue, you'd like all three positions represented. A couple of years later, they did let Aditya Bamzai get divided argument, just as a random law professor in a jurisdictional issue about the Court of Appeals for the armed forces. And I've always wondered if that was a little bit of a spillover, like from not letting Steve argue if there was a little bit of--[crosstalk]
Dan: Yeah. Although that case involves like Article III jurisdiction, right?
Dan: So, maybe they thought it was more important to have someone taking the-- I think he was the no jurisdiction.
Will: He was the no jurisdiction side and neither party was. Yeah, that's right, so you can't skip over it.
Dan: Yeah. But I think they also just think they don't want to have to deal with a lot of people asking all the time. So, I think that they reflexively reject them.
Will: Yeah. Well, the principles should be that only originalist law professors can get divided argument.
Dan: Originalist law professors named Baude and Sachs.
Will: No, no, Aditya Bamzai--[crosstalk]
Dan: Okay, yeah.
Will: So, what do you think's going to happen?
Dan: I struggle with this actually, I think that like a lot of the considerations cut in two different directions. I do think the petitioner, the pro-jurisdiction side, seems to make better historical arguments and originalist arguments. I thought the respondent gamely tried to point out ways in which some of the cases that they rely on are a little different and things like that, but it seemed like without-- and again, this is the thing that's challenging about these processing like-- if it's a brief making textual arguments or precedent-based arguments, those are easier for me to engage with. But these originalist briefs, I mean, they often require really drilling down in a way that I can't do without doing the work that would be required to write an article on the subject. But presumably, the people in the building working on the case will drill down, but my instinct was, at least petitioner had made at least a compelling case that this exercise of jurisdiction was consistent with historical practice.
Will: Yeah, I think that's right on the merits. And I think the fact that the court granted cert, obviously, has to give you some comfort if you're a petitioner's counsel. The fact they granted cert shows that they don't think this argument is not worth taking seriously. At the same time, I'm enough of a realist to think when you show up saying, "We're defending the right of a Pennsylvania jury to hold a trial about a case that has nothing to do with Pennsylvania on the basis of no real modern policy concerns," and some doctrines that are all gone by the wayside-- here's how I think. I do think the petitioner has a decent chance, but I think, do you agree with this, that to get to five, they need a weird coalition, like the most natural coalition for the petitioner is to take it to the three more liberal Justices who maybe are less likely to be sympathetic to big business and corporate rights. And add Justice Thomas and Justice Gorsuch are the most likely to like the idea of an originalist argument. And maybe once you have those five, maybe you can get more and get to be--[crosstalk]
Dan: Yeah. I mean, they'll probably lose Alito, who does some originalism and also doesn't do some originalism.
Will: Hard to imagine Justice Kavanaugh is going to be anything other than their eighth vote, just in terms of the more common-sense pragmatic approach he often applies.
Dan: He's a self-described originalist.
Will: He is, but there are common-sense originalists and then there are Justice Gorsuchs.
Dan: Fainthearted originalist?
Will: Just different spins. So, I think in that sense, it's a tricky coalition and one of things that this sort of the new court is we don't have a lot of experience yet with when can people successfully assemble that kind of majority.
Dan: I don't think it's a foregone conclusion what the liberal Justices are going to want to do because ruling for the respondents is the position that I think lines up more with the squishy fairness due process rationale that the International Shoe-- that's the respondents spend more time on that. This reminded me of current state of Fourth Amendment jurisprudence where there's a traditional way of thinking about it, which is look at traditional rights, property, things like that. Now, it's disputed exactly how much that's the original approach, but at least there's a very good case. And then, there's this mid-20th century revolution, where we say, "No, we just don't look at these traditional things. We look at reasonable expectations of privacy as a fuzzy concept." And then, there's some later cases led by Justice Scalia, that sort of say, "No, we have to look at these traditional rules." And then, there's this question about, do the traditional rules just supplement the new analysis? Or do we get rid of the new analysis and just go back to the traditional rules? And so here, it's like, do the traditional bases of jurisdiction still work or are they totally supplanted by this modern fairness analysis? And in Fourth Amendment it's like, do we still look at reasonable expectations of privacy or do we only look at the traditional property-based conception?
Will: Right. Is it one or the others or is it both and?
Will: This is a little what the tag jurisdiction case was about is that as the court thought about the tag jurisdiction case, everybody agreed that tag jurisdiction was arbitrary and weird. So, they weren't making the strong case that it independently satisfied the new test, but it satisfied the old test. And so, the court-- it's still there. But this is taking that to another level.
Dan: Yeah. What was your prediction? And by the way, some of the older cases, the more recent but little bit, not like last couple years cases, that make it harder for corporations to be sued, those are before-- some of the more recent personnel changes. So, we don’t totally know where people are.
Will: Yeah, I predict Mr. Mallory is going to pull this out 5-4.
Dan: Okay. That's good. That's a bold one.
Will: The one last looking at you have to flag since I'm teaching conflict of laws, is this also a weird twist of law question about this.
Dan: Oh, yeah.
Will: So, you might think-
Dan: [crosstalk] -law applies.
Will: Right. So, you might think that getting a Pennsylvania jury also gets Pennsylvania tort law. But, of course, that's up to Pennsylvania choice of law principles, which might not defer to Virginia or Ohio. But then it's also not clear that it's constitutional for Pennsylvania to apply its own law. So, there's an independent from the jurisdictional cases, there are a set of cases about constitutional constraints on a state's ability to apply their own substantive law, which are virtually nil. There are almost no limits. Except there is this one thing that's if you have nothing to do with the case, if you have no real connection to the specifics of the case, then you can't apply your own law. The court hasn’t been briefed it, maybe they don't care what law applies, maybe. But it's not obvious that even if Pennsylvania gets jurisdiction, that Pennsylvania law will apply. Just a funny little wrinkle.
Dan: And then if it does, then you'll have this potential challenge. There's a lot of stuff going on here. You're going to take the 5-4 prediction. I think that's not crazy. That's probably where I was leaning but it's hard to be confident. It's really hard to be confident.
Will: It's funny thinking about this alongside the California pork case we talked about recently, also Dormant Commerce Clause case. And I think where, at least I predicted that California was going to lose. And it is a little funny to imagine a world where the court's two interstate federal some cases are on the one hand, letting Pennsylvania state jurisdiction over any corporation as a condition of doing business in Pennsylvania and on the other hand not allowing California to ban [unintelligible 00:57:53] pork.
Dan: Yeah. All it takes is one Justice to see that they're different, potentially, and it comes out the other way. So, that's going to be interesting. We're going to see what the-- we'll learn something from the argument. Maybe we'll report back on--[crosstalk]
Will: For sure. Is Ashley Keller arguing this case?
Dan: Yes. Ashley Keller is arguing this one. On the other side, you have Carter Phillips, who is one of the most prolific Supreme Court oral advocates in recent decades, I've lost count, but probably in the 70s, 80s, something like that, in terms of oral arguments.
Will: I think the year that Ashley and I clerked together, I think Carter Phillips had six arguments that term. I think this may be Ashley's first argument but judging from the many arguments we had when we clerked, I bet he'll be good.
Dan: I think he is well prepared. So, I'm certainly going to listen to this one.
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Dan: And if we don't do another episode for a long time, it's because we've been subjected to general jurisdiction in some far-flung state.
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