Divided Argument

Good Dig

Episode Summary

The October Term is now underway, and that means it's time for Season 4 of the show. We catch up on the inevitable shadow docket happenings before diving into a discussion of two cases that were argued earlier in the month. First, we dig into Acheson Hotels, LLC v. Laufer, and debate which jurisdictional ground the Court will rely on to get rid of the case. Then, we give the people what they want and talk about admiralty law in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC.

Episode Notes

The October Term is now underway, and that means it's time for Season 4 of the show. We catch up on the inevitable shadow docket happenings before diving into a discussion of two cases that were argued earlier in the month. First, we dig into Acheson Hotels, LLC v. Laufer, and debate which jurisdictional ground the Court will rely on to get rid of the case. Then, we give the people what they want and talk about admiralty law in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC

Episode Transcription

[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 it's been a little bit longer than we wanted it to be. Will, we were supposed to record last week, and then I got terrible stomach flu. 

Will: You were sick enough you couldn't even tell me yourself. You had to have-- [crosstalk] 

Dan: Yeah, I had to outsource that. I was just like in bed and had to have Danielle reach out, so apologize for that. But we're back. The bad news is, I had prepped everything last week, and now some of the stuff I've read is going to be a little rusty. But I did actually prep, which sometimes I do, maybe sometimes I don't. [Will chuckles] So we'll see how much I can make it seem fresh. 

Will: All right. 

Dan: There's a lot we could talk about. It's been a while. And then they had a sitting in October where they did only six cases. I actually found this sitting a lot more interesting than I expected it to. I listened to most of the arguments, and there were enough things here that I could imagine pulling another episode together. So there's this case, Pulsifer v. United States, got some really interesting questions about statutory interpretation. There the Justices got deep into the broad questions about statutory interpretation. 

Will: Yeah.

Dan: There's the CFPB case, really interesting constitutional case, about Congress's appropriations power. Those are both ones I want to talk about at some point, but we're not going to get today other than we could just say a word about the arguments. But I wanted to dive into Acheson Hotels v. Laufer and Great Lakes Insurance v. Raiders Retreat Realty, which is the admiralty case that we discussed whether we were going to talk about and people demanded that we talk about. 

Will: Yeah. Can I claim an I told you so on that one? 

Dan: Sure.

Will: I think I had sort of [crosstalk] about the case and you made fun of me. And then possibly the most enthusiastic outpouring of feedback we've had on one side of an issue in a very long time has been the demand from the people that we cover, whether under federal admiralty law, a choice of law clause and a maritime contract can be rendered unenforceable if enforcement is contrary to the strong public policy the state has laws displaced. That seems like-- 

Dan: Yeah. I guess it tells you something about our listeners, is that the people who listen are the ones who want deep dives on these nerdy technical cases. I guess there's enough places where people can go for commentary on the big cases like CFPB, this sitting, and they want, I guess what only we're willing to provide-


Dan: -which is deep dives on admiralty. But a little bit of shadow docket activity that we should probably talk about, maybe a little bit more than we can get into. But what should we talk about there in terms of what happened in the shadow docket?

Will: Well, let's see. So there's one case that's a follow up, I think we talked in the last episode, which is over a month ago now about this pending issue involving the jawboning of social media companies in a case out of the Western District of Louisiana that is called Murthy v. Missouri. In the intervening month, the Supreme Court has now granted cert in that case. They granted a stay at the lower court decision. This is one of these pending Fifth Circuit nationwide injunctions that the Supreme Court decided to stay and also went ahead and granted cert over the dissent of Alito, Thomas and Gorsuch. So I'm not sure we need to say much about it because now that'll be on the docket for us to talk about.

Dan: Yeah, dissent from granting the stay. 

Will: Right. Not from granting cert. Although I think there's just a norm that even if you don't want a grant cert, you don't normally say anything about that. 

Dan: Yeah, I don't recall ever seeing a dissent from the grant of certiorari. 

Will: There's one or two in Stern and Gressman in 1960s and 1970s that I think are the last. 

Dan: Yeah. 

Will: And of course, some are reversal, it involves a grant of certiorari which people-- [crosstalk] 

Dan: Yeah. Or, GVR, but that's different. 

Will: Yeah. They're often dissenting more from the VR than they are from the G. 

Dan: Yeah.

Will: But sometimes people dissent to say, “I would deny the petition,” which is a way of dissenting, anyway.

Dan: So that one, there was the injunction purported to enjoin federal officials from coercing social media companies in engaging in censorship or actively controlling these social media companies’ decisions about content moderation, whatever that means. But I think there was some real concern that that injunction was going to chill federal officials from doing stuff that probably they should be allowed to do, like talk to social media companies about addressing misinformation, things like that. 

Will: Well, this is that there's a whole range of behavior that swept up in that including like, “We are currently actively investigating this crime. And it would be really helpful to the investigation if you could take down these posts that are going to tip off our investigation to hear saying mean things about the COVID vaccine that are bad for our brand,” or whatever. It's hard to disaggregate all that on the fly.

Dan: Yeah. Alito dissent says that the stay standard is not met here, but we will see what happens in that case on the merits. We have another-- Yeah, go ahead. 

Will: I was just going to say, I do love the fact that the Alito dissent closes with applying our settled test for granting a stay. I would deny the government's application. I feel like, at this stage of the game, is there really a settled test for almost anything on the shadow docket. 

Dan: [chuckles] There purports to be, right? There is a written test. 

Will: There are many tests. 

Dan: Yeah, fair. Okay. We have-- [crosstalk] 

Will: When the next edition of Hart and Wechsler's comes out, it's going to have a chapter on the Supreme Court's docket that will just include trying to walk through all the different tests that the court reports to apply, and the different statutes, and how the court often loses track of which one is involved. It's a mess. 

Dan: Yeah. Okay. We have another case coming out of Missouri on the shadow docket. And this is one involving something I talked about before, this Missouri law that I'm not going to get into the details of it because I mangled it a little bit last time, but basically is a-- Missouri law that is aimed at stopping local officials from enforcing federal firearms laws that the state believes are inconsistent with what the state understands and the state legislature understands to be the scope of the Second Amendment. There's a very strong argument that at least aspects of this law are basically an attempt by the state to nullify subvert federal law and so forth. The district court had enjoined the law, the Eighth Circuit had refused to overturn that and the Supreme Court also refuses to grant a stay overturning that injunction. 

We have a very short statement by Justice Gorsuch who is joined by Justice Alito that refers back to Whole Woman's Health, the 2021 case about whether who can be enjoined. That was the Texas abortion law that had these weird features that made it like there was no clear state official who was in charge of enforcing it. Instead, it let private parties do stuff. And here Justice Gorsuch says, “I'm okay with not granting the stay, but I'm just going to note that the injunction purported to bind private parties not before the district court or challenge the provisions of the law themselves that would be inconsistent with the equitable powers of federal courts,” and then citing Whole Woman's Health v. Jackson. 

Will: Right.

Dan: So basically, this is a very kind of like formalist fed court's understanding of federal judicial power, which is, courts don't hold laws unconstitutional. They issue orders barring certain people from doing certain things. The reasoning can be because a law is unconstitutional, but courts don't have the rid of erasure power just to go and delete statutes. 

Will: I think this was one of Missouri's arguments in its stay application was, at a minimum, you've got to stop this because the district court is committing the rid of a racial fallacy. And so I take Justice Gorsuch be signaling, “I like that argument, but I'm going to at least interpret the district court not to be committing the rid of a racial fallacy whether.” Yeah.

Dan: Yeah. Okay. 

Will: Great. 

Dan: What else? 

Will: There's a whole showdown over redistricting in Louisiana that I don't completely understand, therefore I don't know that we need to say anything about it other than, as usual, there's a very interesting and thorough Substack post on this by Adam Unikowsky in which he further pursues the Fifth Circuit as the new Ninth Circuit theory. I'm not deep enough in litigation to know whether it's a fair accusation, but part of what's at issue is like the timing and the back and forth on who's going to draw the maps to comply with Allen v. Milligan in various states in the circuit. 

Dan: Yeah. There'd been a lot of kind of stuff going on below, but the district court had was planning to have a remedial hearing where maybe the district court was going to draw maps, but now the state gets more time. But there's also an underlying appeal going on below about whether the district court correctly found that there was a violation in the first place. So that’s going to get-- [crosstalk] 

Will: There is this complicated set of almost border on a Catch 22 principle of, before the court draws the maps, it should give the legislature enough time to draw the maps. But then at some point, it's too close to the election to impose new maps because that will be too disruptive. And if in the period when you're supposed to be giving the legislature the time to draw the maps, they're also litigating whether or not they really have to draw the maps. You can get into this weird cycle where it's like, “It's too early to make us draw the maps. Actually, maybe we don't have to draw the maps. Oh, okay. We have to draw the maps, but it's too late for us to stroll the maps.” And so I take it. We're at one stage for that sign curve right now. Who knows where it'll end up. 

Dan: Yeah. But the Unikowsky post, I liked a lot. He talks about this idea of the horseshoe in politics, which is like, as you get way far in the extreme left or extreme right, they converge into crazy land. He says that, if you look at the old generation of hardcore progressive judges like Reinhardt and Gregerson, people who are no longer really represented in the federal judiciary, the way they approach cases looks a lot like how some of the really right wing judges on the Fifth Circuit approach cases.

Will: Yeah.

Dan: Don't care about precedent, actively trying to subvert the Supreme Court, various features like that. [crosstalk] 

Will: I think there's some grounds never argued by the parties disregarding the standards of review. Yeah, it's interesting. I think he doesn't say, those are necessarily bad. Like, there is a theory of judging in which lower court judges with a strong vision of law, which in the Fifth Circuit might be a particular form of aggressive, creative originalism, should be trying to implement that theory of law even if the Supreme Court doesn't believe in it. There's a-- [crosstalk] 

Dan: If it's fair to call it originalism versus just some kind of hardcore-- [crosstalk] 

Will: [crosstalk] Right. Whatever it is, they believe in it strongly. They took an oath. They presumably believe it's what they took an oath to. 

Dan: You're so charitable. It has nothing to do with the fact that these folks are positioning themselves for the next Supreme Court vacancy if there's a Republican president. Nothing at all. 

Will: Look, it may or may not. It's hard to know what's good for your chances of being in the next partof vacancy. Reinhardt did not get himself on the shortlist for the Supreme Court by being Reinhardt or Gregerson. It's the opposite. It's more like, “Well, if this is the job I'm going to have for life, I may as well try to make the job as [laughs] interesting and fun as possible.” So I'm just saying, Unikowsky purports to, at least in his newsletter, say, like, it's a theory. It's just note that when Reinhardt had theory, we all thought it was very bad, and now there's a similar kind of structural theory going on in the Fifth Circuit. You could say, “Well, it's different because Reinhardt was doing it in the service of evil, and Judge [unintelligible [00:12:34] was doing it in service of good.

Dan: Or, the opposite, depending on your-- [crosstalk]

Will: You can't say the opposite. 

Dan: We're not allowed to say that on this show. 

Will: You're allowed to say it.

Dan: I don't really say it. I guess I'm inclined to think it's both bad, then I'm a middle of the horseshoe kind of guy. [crosstalk] Yeah. Some people a kind of boring, milk toast centrist, which some of our would be listeners don't like and maybe don't listen to the show for that reason, but I have to be who I am. 

Will: I'm a little more horseshoey, as you know. 

Dan: You're a little bit more extreme horseshoey. You're on the right curving around to the [crosstalk] horseshoe.

Will: Well, the point is the sides are very close to each other. But yeah, I think we don't have an adequate explanation yet for why lower court judges are supposed to be potted plants when the Supreme Court, like, why they're supposed to adopt this attitude towards the Supreme Court. That's not just trying not to get reversed, but it's like taking everything the Supreme Court says and trying to implement it as if they were like agents of the Supreme Court. And that is—[crosstalk] 

Dan: I don't think that makes you an extreme horseshoe type. My guess is you probably think, it's okay to maybe judges should rely mostly on arguments that the parties have made and not--

Will: I think that's complicated too. On the one hand, I think in an ideal world, the rulings would apply only to the parties, and you'd do only what the parties have said. In our world, where we apply the rulings to people who are not the parties, it's not clear to me why we should let the parties shape what the effect on nonparties will be, like, in a world of Fifth Circuit precedents, not all the parties like district court, sure. But I've always wrestled with, even when I was clerking, I would be like, “Some very bad lawyer came in and framed the case this way. We're now going to write an opinion that for 20 years creates some stupid legal distinction that nobody believes in just because this lawyer said it that way.”

Dan: Yeah. Although maybe the norm should be different at the Court of Appeals versus the Supreme Court. In theory, the Court of Appeals, it's a place where there's appeals as of right, and maybe that should be a more party focused system. Whereas with the Supreme Court, the Court is really just granting cases, not because of the parties, because it wants to settle some big legal question once and for all. 

Will: Yeah. I just think that might come with weakening the stare decisis effect of Court of Appeals rulings, which I'd be in favor of. 

Dan: Yeah. [crosstalk] 

Will: Maybe make all Court of Appeals rulings non precedential.

Dan: You mean within the circuit? 

Will: Yeah. It'd be like a fact. The way a non-precedential ruling is like “Well, this has been decided before, so we won't just depart from it casually, but we don't feel the same obligation to follow it.” 

Dan: Yeah. Because there's nothing in federal law that requires that. That's a practice that each circuit the panel rule right that they each come to on their own. 

Will: Well, this is part of the question. There's nothing in federal law that requires Supreme Court decisions to be precedential. That's just a practice that everybody comes to on their own.

Dan: Yeah. And maybe it violates due process according to Justice Barrett in her academic work. 

Will: Yeah. I don't think so. I don't think it violates due process. 

Dan: Yeah, but it was an interesting argument. She's kind of tentative in her conclusion in that article, in any event. Okay. I think that's the law stuff that's happened that's not merit's cases since last time. Is there anything else you want to talk about? 

Will: This weird gambling thing that I don't understand. 

Dan: Yeah, I found that confusing enough.

Will: Let’s talk about it later.

Dan: I read stuff about it, so let's not talk about it. We probably do need to revisit Supreme Court ethics. I know you hate talking about this stuff. 


Dan: You get super nervous when we're talking about it. Maybe because-- 

Will: I don't get nervous. 

Dan: Yeah, I think you're going to get uninvited from the secret private jet gatherings or whatever. You've never been on a private jet, have you? 

Will: Not that I can think of. 

Dan: You would know. I haven't either. Maybe some listener can hear this and give you a private jet ride. Yeah, I think it's fair to say this is not your favorite topic. 

Will: I've still never heard from Leonard Leo. 


Dan: Yeah, I guess that originalist against Trump thing that you spearheaded is not going to be forgotten. 

Will: Well, not if you keep bringing it up. 

Dan: That's your albatross. Like, my Gorsuch style hashtag creation. 

Will: The difference is, I'm proud of mine. 

Dan: Fair. That was a good dig. That was one of your best ones. 

Will: [laughs] 

Dan: Yeah, I like that. Okay, but the thing that we do need to talk about is, I hadn't realized that this had gotten anywhere, but the Senate Finance Committee had been investigating some of the financial transactions involving Justice Thomas that were came out in the media some months ago, and I guess that they subpoenaed some people and got some documents and stuff. But the conclusion that came out in a memo from the Finance Committee Democratic staff is that, “So we knew that Justice Thomas got a loan from a friend to buy his really fancy motor coach, his RV that he travels the country in and hangs out with the ordinary people and sleeps in Walmart.” [crosstalk] 

Will: Justice Thomas calls it the bus, but the Democrats call it the luxury motor coach. 

Dan: [laughs] Yeah, I don't care what you call it, but let's call it the RV. That seems like a neutral term. We knew that it had been purchased with the loan because it was $267,000 vehicle, which is like more than Justice Thomas's annual salary. But what we now maybe have learned, although there's a dispute, is that Justice Thomas did not repay the principal on the loan at all that he was making. He made at least some interest payments to his friend, Tony Welters, but this memo purports to have found that he never repaid the principal at all, and then the principal at some point was forgiven. 

This is potentially a big deal for a couple reasons. First, it's not consistent with what Justice Thomas has said, and his spokesman continues to deny that. But it also could have had some serious tax implications. It's unclear, and also perhaps should have been reported as a gift on his financial disclosures. 

Will: Yeah, this seems super weak to me. It's interesting. So just to make sure I understand this right, the other party, Mr. Welters, he takes the position that the loan was “satisfied.” But the idea is that he may be wrong to characterize that as satisfied because he did not, in fact, receive all the money that he's entitled to. And so that may be a form of loan forgiveness, we think. But we're not totally sure what happened. It seems to be the case, as far as we know that Justice Thomas was paying over $20,000 a year. Those are the annual interest payments, although the committee is like, “We're not sure he actually was, because we--” [crosstalk] 

Dan: I think there's evidence that he did it once but there's one-- 

Will: Right. But there's no evidence he didn't-- Like everybody says, both parties say he did. It's just that we don't have all the checks. 

Dan: Yeah. But so Welters has said, “Well, it was satisfied,” but then has not been willing to clarify exactly what that means. The committee staff did find a letter saying from Welters to Thomas saying, he wouldn't seek further payments, the loan, despite being entitled to them. 

Will: There's this phrase in the memo that the loan agreement originally was a “interest only loan.” So I couldn't figure out whether-- [crosstalk] 

Dan: I understood it to be it was an “interest only loan” for five years, and then there was a balloon payment at the end. [crosstalk] 

Will: At the end. And then they extended—

Dan: [crosstalk] -the full amount.

Will: And then they extended that. We don't know at the time they extended it what the nature of that agreement was. 

Dan: Yeah. This would be a very large gift, from one person to another, like an extremely large gift. If a nearly $300,000 loan was forgiven without any of the principal being repaid, that's an extraordinarily large gift, one that most friends would not provide to another friend. 

Will: That's true. Although I also had the reaction was this wrong that a 7.5% interest rate is an extraordinarily high interest rate for a between friends. That's a real market rate interest rate. 

Dan: Yeah, but that was consistent with, what I thought, the original story was that this was supposedly an arm's length transaction. I don't think 7.5% is that high for a vehicle loan, particularly one for a hard to value luxury vehicle like this. I don't know, what car loans were like in 1999, but I think that's probably not--

Will: I'm against car loans, I confess. 

Dan: You're against car loans? 

Will: Yeah. 

Dan: Why? 

Will: They involve taking on debt. 

Dan: Okay, but debt is useful, right? What's wrong with debt? 

Will: I don't know, I was raised to believe, you should buy a cheap car that you don't have to take out a loan for rather than a safe car. 

Dan: That solely just depends on interest rates. I bought my first car. I got a 0% interest rate from Toyota. That was a great deal for me. 

Will: Well, that may be right. I'm just saying-- [crosstalk] 

Dan: Okay. I can give you more financial advice later. Do you believe in mortgages? 

Will: Yes, reluctantly. 

Dan: Okay. So I just googled 1999 car loan interest rates, and what I'm seeing is there was some fluctuation. But in November 1999, commercial banks were charging 8.67% and finance companies were charging 7.47%. 

Will: Okay. 

Dan: It was a bit lower in earlier quarters in the year. So that actually sounds like a pretty good interest rate if those were the averages for all vehicles. This was a kind of--

Will: A hard to value rate. It just is closer to the arm's length. And then do you understand this tax thing? So as I understand it, when you forgive a debt, that's an arm's length transaction like for the bank, then that is usually income. But a forgiven debt between friends is usually recharacterized as a gift. 

Dan: Yeah, if it's a gift. If it's a gift, there would be no tax to the recipient. There would be either gift tax or a requirement of use of lifetime exclusion by the giver, by the donor. 

Will: Sure. 

Dan: It's not clear whether any of that happened here. 

Will: Right. And we don't know which of either of those. The memo takes a position. I think that or the New York Times story takes the position that this should be income, but it's not clear why that's true. But maybe it's true. And then I also couldn't figure out the satisfied thing. I take it if in 2008, what they'd done is just continue to extend the agreement, said, like, “We're going to modify the agreement against that the interest rate is now zero and the balloon payment is due in 50 years.” That might be functionally the same. I guess it would matter eventually to Justice Thomas’s-- [crosstalk] 

Dan: I think the question would be how much below market rates would the interest be and so forth.

Will: Because that could then turn it into a gift?

Dan: Yeah, that's my understanding. I'm not a tax person, but I do know a little bit more about tax than your average person. A hobby is learning some of this personal finance stuff. 

Will: Yeah. Okay. Anyway, the claim is that Justice Thomas's 2008 financial disclosure report should have something about this. I'm not quite sure whether we know that's true or whether it depends on a bunch of these characterization questions we don't actually know, but this seems really weak. 

Dan: Yeah. Seems really weak? 

Will: Yeah. 

Dan: Why? That's an extraordinary gift made to a Supreme Court Justice that wasn't disclosed. If it's true and it does seem, like, there's some reason to think it is true. 

Will: He had already collected hundreds of thousands of dollars. It seems like a totally reasonable gift. If it happened that it was a gift and maybe it should have been reported as a gift, I don't know. But it also seems-- 

Dan: Maybe it should have been reported as a gift to forgive a $267,000 loan. 

Will: Yeah, I'm not sure. So they had this claim that it was satisfied, and I don't know whether there's some term of the loan that the Senate doesn't have access to that might suggest a different characterization than they're talking about. I'm not sure. 

Dan: Okay. But if it was in fact just forgiven as a gift, you think that just is totally fine-- [crosstalk]

Will: I guess then it should be disclosed. That's the rule for all gifts, I assume [unintelligible [00:24:53]. 

Dan: I think so. I think that's my understanding is that certainly gifts of that-- 

Will: That size?

Dan: Caliber should be disclosed. I don't know. It doesn't bother you at all to have Justices accepting extraordinary gifts that ordinary people don't usually get? 

Will: This transaction does not bother me at all, I gather-- [crosstalk] 

Dan: Does anything bother you? None of this stuff bothers you, because I have a friend who's I'd say maybe further to the right than me on the horseshoe spectrum, who was like, “You know what? A lot of this stuff, I think, is BS. This one does seem a little troubling to me.” 

Will: It's 15 years ago. 

Dan: What does that have to do with anything? 

Will: Well, how much does it bother me? If you ask me like, “You should report it--  [crosstalk] 

Dan: It's actually 15-- [crosstalk] 

Will: -years ago.” Yeah. 

Dan: It would bother you if it was today, but not 15 years ago?

Will: Bother me more if it's today than 15 years ago. 

Dan: Why? He was a Supreme Court Justice when it happened. 

Will: Yes, but also it was 15 years ago. [chuckles] 

Dan: Why does that matter? Like, it's only coming to light now. Would a Justice taking a bribe 15 years ago not bother you? 

Will: It would bother me less than today. 

Dan: It's beyond the statute of limitations?

Will: It would bother me less than today. Imagine if we found some new troubling dissent, a bunch of weird claims. If Justice Thomas issued it today, I'd care about it more than if I read it for the first time and it was like, “That guy’s, 15 years ago, what?”

Dan: That seeks like-- 

Will: But especially when we're talking about going back and disclosing something. I don't know-- 

Dan: What? I'm not even following what you're saying. 

Will: There's a statute of limitations even for misreporting income on your tax returns, right? The IRS learns that 15 years ago, you underreported some income, even they don't care. 

Dan: Well, I don't know, if even they don't care is quite the right way to describe it. Depending on whether it's intentional or not, the statute of limitations is longer--

Will: Like six years for intentional things? 

Dan: It's three years for unintentional and six years but-- I don't know, I think that the point isn't whether he can be punished for it. The point is whether we should think it's troubling to have Justices accepting-- Because we keep moving the goalposts a little bit, where it's like, “Oh, it's just a ride on a private jet that would have gone empty.” We're just going to keep going, in terms of the number of this is a situation where this Justice is getting a lot of financial benefits from wealthy benefactors. Again, I don't think it necessarily translates. There's any reason I think it translates to changing his votes in particular cases, but I don't know, I think that that's concerning and that Justices shouldn't be doing that, or at least it should be much more transparent if that's happening.

Will: I'm not saying that everything that happened was totally fine or that in 2008, Justice Thomas received the correct legal advice about this transaction. I'm not saying that. But I do think one of the reasons we have those statute limitations norms is that it can sometimes be hard 15 years after the fact to be sure we have exactly the whole story. And here, this is all weirdly secondhand and on an admittedly incomplete picture, and that's the kind of picture where I think we should be hesitant before we make too big a deal out of things that happened a long time ago. 

Dan: Well, I'm waiting for the day when there's an ethic scandal that will move you. Maybe it's never going to happen. 

Will: I was upset about the book thing. 

Dan: The Sotomayer book thing? 

Will: Yeah. 

Dan: An ethic scandal involving one of the conservative Justices that moves you? Has there been one? 

Will: I don't remember. 

Dan: Yeah, I would remember, I think. I think so, assume that there will be more. I will suggest one other thing. You're like, “Oh, it can be hard to figure out what happened.” The people that were involved could tell us what happened. The two people that are involved are being very unclear and not being forthcoming about the details and just issuing very brief statements. Presumably, there is a fairly clear answer to this like, “Did he pay back $267,000 or not?” And someone could just tell us. 

Will: They both claim that it was satisfied. [crosstalk] 

Dan: Yeah. They're not answering follow up questions about what that means.

Will: But I take it another thing that could have happened is that it could have been that Justice Thomas provided some additional consideration. So it was not forgiven, but there was a different transaction.

Dan: A different undisclosed transaction. What would that transaction be? 

Will: I don't know. Maybe Justice Thomas agreed to let him borrow the RV whenever he wanted to. 

Dan: [chuckles] Rental fee. Okay, well, maybe this isn't the last word on the story. 

Will: Sure, it's not. 

Dan: I don't think this is necessarily impeachable, but again, I think that Supreme Court Justices should not necessarily have luxury lifestyles subsidized by wealthy people. And to the extent that they are doing, that should be disclosed publicly, transparently, so people can evaluate whether that bothers us. But I don't like it. Okay, cases in the time that we have. So which one do you want to talk about first? 

Will: Shall we talk about Acheson first? 

Dan: Okay, Acheson, this is kind of a fun one. We went for this one because it has big jurisdictional element. It's got a couple jurisdictional questions which I think is well within our wheelhouse. And so jurisdictional issue that the case is about, and then there's the jurisdictional issue that the case has come to be about. 

Will: Yes. 

Dan: So what the case was originally about is there are folks who are testers under the Americans with Disabilities Act, the ADA, who-- There's a rule that there's ADA has rules about whether buildings have to be accessible with ramps and so forth. But there's this other regulation which going beyond that says, “Hotels have to put that information on their website, whether their rooms are ADA accessible.” And [crosstalk] hotels will do this. 

Will: Even if they maybe don't have to have ADA accessible rooms because they have some exemption for-- [crosstalk] 

Dan: Yeah. Irrespective of whether-- That's just a separate question of whether they're violating the ADA by not having them. 

Will: Right. Even if they have the rooms, they can get in trouble for not telling you they have the rooms. 

Dan: Yeah, it's supposed to be on the website. So people with disabilities is called the reservation rule can figure it out when they're making a reservation. 

Will: Yeah. Okay.

Dan: Okay. That's the rule. There are folks like the plaintiff in this case, Ms. Laufer, who go around and go to websites of hotels all over the country, sometimes places that they might want to visit, sometimes places that they admittedly don't have any plans to visit and check. And if they don't, they send them hotels a letter saying, “We're going to sue you about this,” or they actually initiate a lawsuit and hotel can fix it if it wants to and pay a small $10,000 settlement, or it can go to trial. The ADA, as I understand it, it doesn't have damages actions has, so you can go get an injunction for it. But this generates a lot of money for lawyers, and Ms. Laufer has done that herself, has done this all over the country, and there was like a circuit split involving these cases, and there's different cases from different circuits where she's a named-- [crosstalk] 

Will: Laufer circuit split. 

Dan: Yeah. She's not the only one, but she is a prolific filer of these cases. And so what the issue comes to the court about is whether there's Article III standing, whether she has Article III standing to bring these cases if she doesn't have any intention to actually go to that hotel, like ever. 

Will: Right.

Dan: And that's a hard, interesting question. But now there's this other jurisdictional question, which is about whether the case is moot. So after cert is granted-- Exactly why this happened is something that's disputed. But after cert is granted, a little bit before the merits brief came out, the Laufer has decided to give up all of her cases all over the country, is like filing stuff in district court saying, “Please dismiss this case.” “Why is that happening?” She says, “It's happening because it turns out one of the lawyers involved in some of these cases was sanctioned in a different district court for doing unethical stuff. That lawyer was kind of local counsel. There's a different lawyer who has not been sanctioned yet, but maybe is also doing unethical stuff.” And she's like, “Okay, this is making the cause of seeking Justice for disabled people look bad, and so I'm just going to give up on everything.” That's the charitable story. 

The uncharitable story is she recognized the significant chance that this Supreme Court was going to resolve this case against her and make it much harder to bring these cases and so trying to evade Supreme Court's jurisdiction. Also, the defendant in the case doesn't own the hotel anymore. [chuckles] This case is arguably doubly moot. And so now there's this question about like, should the court just get rid of the case on mootness grounds, or should it get rid of the case, resolving the question of standing? Sometimes the court doesn't have a choice, or at least arguably doesn't have a choice because mootness is jurisdictional, and you're not supposed to then decide the merits of a moot case and supervisory opinion, etc. But I guess because standing is jurisdictional too, everybody agrees that the court can decide which one it wants to get rid of the case on. 

Will: I think they agree with that. I'm not positive about that. Yes, but standing and mootness are both jurisdictional. So there's like a well settled order of battle that you have to deal with jurisdictional and a few other threshold, not quite jurisdictional issues before you get to the merits, but that you have usually some kind of discretion between various threshold issues. I do think a dismissal for lack of standing and a dismissal for mootness might be formally different. Might a mootness dismissal be without prejudice and a standing dismissal be with prejudice or something, I think? I'm not positive about that. 

Dan: I took the argument as to acknowledge that the court, at least the disposition from what the court was going to do was going to look the same. They were both going to be vacated. The judgment would be vacated, assuming that the court-- It seems like that is going to happen. It seems like the court is probably going to vacate, it'll either vacate on mootness grounds. 

Will: Right. Maybe this is just one important ingredient to add is that it seems pretty likely that if the court reached the standing issue, it would conclude there's no standing. That seems relevant. 

Dan: But I think less certain on that, right? 

Will: I don’t think less certain but presumably-- [crosstalk] 

Dan: Acheson, the defendant, I think definitely has a number of votes for that. 

Will: They have a number of votes for that. That's like, I think, the standard view, but that's the way the wind is blowing about this court's treatment of standing generally. To the extent that people think there is any strategic aspect in Ms. Laufer’s attempt to drop her cases, presumably it's some sense of-- Otherwise, likely to issue a resounding standing victory for ADA testers. Maybe there'd be more pressure to wait it out and maybe this issue will come—[crosstalk] 

Dan: The Chief Justice seemed very worried about this like, “Aren't you of trying to evade our jurisdiction question?” He asked multiple questions about that at the oral argument. 

Will: Yes, right. Here are my two obvious takes. It seems like normally the healthy thing to do when you have these two issues is to decide the case on the easy issue rather than the hard issue. 

Dan: Yeah. 

Will: So if everybody agrees the case is moot. I think all parties agree the case is moot. The only thing and Adam Unikowsky, who already mentioned earlier, is the one representing Acheson Hotels, even he said, “I agree the case is moot. I just think you should say there's no standing.” The only question for him is the order of battle. I guess Ms. Laufer does not agree that there's no standing, but even she agrees the case is moot. So normally-- [crosstalk] 

Dan: She filed the suggestion of mootness in the first place. 

Will: Right. So normally, I think the standard view would be, “Look, the court unanimously agrees the case is moot. Why get to the harder issue?” It's like judicial minimalism. But I do think the Supreme Court has this regular concern that comes up in a lot of cases of strategic mootness that obviously is related to the certiorari process that you think like, there's a standard dynamic of you litigate aggressively in the lower court for a position that the Supreme Court might later reject. You play the certiorari lottery and hope that just they can't catch them all, and so lots of reasons the court might not grant cert, even if it didn't totally agree with the disposition. Then in the rare case, the other side wins the lottery, then you just settle the case so the Supreme Court. So heads I win, tails you lose. The court has had this happen in a number of its mootness cases, where it seems to get really annoyed at post grant conduct, designed the case. Now, it's funny, maybe came up in the argument, but Chief Justice-- 

Dan: Which issue is easier, like, was debated? 

Will: Yeah, I was going to say so Chief Justice Rehnquist had this proposal for how to deal with this mootness problem that was never adopted. Probably, maybe can't be adopted. But Chief Justice Rehnquist, in a case called Honig v. Doe, proposed this rule that, “Once the Supreme Court has granted cert, cases don't become moot anymore.” Like, “Mootness has always been understood,” he argued, “to be a little bit more prudential than other doctrines.” It has these prudential exceptions for abortion cases and election cases and stuff like that. And so one prudential exception we should make is like, once we have granted cert and started to look at this-- It's really what you said earlier. The Supreme Court is resolving these cases not because of the parties. The Supreme Court is resolving these cases because of the nation. 

So once you've granted cert, let's just say it stops really being about you and it's just about settling the law. Now Justice Scalia had a dissent saying that's like, “Totally lawless, and we can't do that,” but maybe the court wants to do it. 

Dan: I don't think that they're going to adopt that broad rule, but I could certainly see them writing an opinion saying that in this case, it makes sense for us to decide the standing issue first. You can make it actually an argument that standing is conceptually easier. I think the Chief asked a question about this where he's like, “Well, standing is something that it matters at the beginning, whereas mootness is something that happens later chronologically. So maybe decide that first.” 

Will: Yeah, I don't even think the Chief was able to say it was easier, but it's more like it was conceptually prior. Like, a case becomes moot only if there was a case, and therefore-- 

Dan: But there were some questions about like, are we certain that the mootness issue is easier? Probably is is easier, but-- [crosstalk] . 

Will: This also interests me. There's a Sixth Circuit case I used to teach on the first day of federal courts called in re 2016 election. That's one of these amazing short, totally teachable Sutton[?] opinions that has this issue in it, where it's like, in the middle of the 2016 election, somebody calls the district court to tell them that the polling places are the lines, there was a car accident, and that they need to keep the polling places open somewhere in Missouri for longer. And so the district judge just enters an order in re 2016 election like keeping the polling places open. 

Dan: Complaint initiated by phone call by unknown plaintiff. 

Will: By unknown plaintiff against unknown defendant. And so then after the election, it gets the Sixth Circuit judge that writes this great so standing opinion. It's like, “You can't do this.” [chuckles] District courts can't just issue in re 2016 election. We don't even know who the plaintiff is. At a minimum, when you get this phone call and you want to do it, you should ask some question like, “I'm sorry, who is this?” 


Dan: Yeah, I'm willing to say that that sounds like a little horseshoey to me. 

Will: Yeah. But one of the dissent from, I don't know which judge it is, said, “Look, of course we need to vacate this order, but we should vacate it on mootness grounds because also the election is over, and surely we have to resolve it on mootness grounds rather than this ground.” And Jeff Sutton's like, “Look, we could resolve it on either ground.” Maybe that's a case where the standing ground is just so obvious. 

Dan: Yeah.

Will: But maybe it's also just a case where the standing ground makes such an elegant point that the court wants to make it. 

Dan: Yeah. And so one thing that came was, “Look, maybe we do the mootness now, and if this ever happens, at that point, we can go ahead and just decide the standing question.” Coming back to Unikowsky, who argued-- This is like an all Unikowsky episode, who argued this case for the hotel said, “Well--“ He actually very adeptly gamed out what would happen in other circuits if the court were to get rid of this about how-- Actually, it would be fairly unlikely that the court would issue would get teed up for the Supreme Court again because there's binding precedent in some circuits. Even if the opinion below in the First Circuit were vacated, it would still remain persuasive precedent. And so you'd have to have a defendant that was willing to stick with the case all the way through the process at the circuit level and believe that on the hopes of getting Supreme Court review. I found that somewhat persuasive in his view is just, “Look, this is fully briefed. Go ahead and decide the issue,” which they might.

Will: Yeah, they're not going to. 

Dan: You think it's definitely moot? 

Will: Definitely it's too strong, but it seems like-- [crosstalk] 

Dan: I think there are going to be some votes to do the standing thing. 

Will: Exactly. I predict it will be unanimously declared moot. Some number of Justices that is more than zero and less than five will issue an opinion explaining why there's no standing. That will be persuasive authority in the lower courts and that will, in fact, nudge all the lower courts away from finding standing because they'll recognize that where this is going. 

Dan: But these cases will still get filed in other circuits where they have precedent on the books, right?

Will: Maybe. But maybe those courts will reconsider their precedents. 

Dan: Yeah.

Will: Yeah. My prediction is that that's what the Supreme Court will do and that it may well be that over time, all the circuits then, on their own, coalesce around that minority opinion, especially if it's by Justice Kavanaugh, Chief Justice Roberts. Everybody knows the writing on the wall, the [unintelligible [00:42:38]. 

Dan: The merits are pretty interesting because there is precedent saying-- There is standing for a tester who goes and tries to-- who has no intention of renting an apartment, but nonetheless goes and talks to the rental agent and says, “Hey, are there vacancies?” 

Will: Yes.

Dan: And they're told because of their race, “Sorry, no vacancies,” and then they're telling white applicants, “Yes, there are vacancies.” That person has standing. But is this like that-- [00:43:05] Is this person actually experiencing discrimination or is this person just having no actual injury? All they're doing is getting information. 

Will: That part of the case, which is the original issue of grants cert on, where Adam Unikowsky has this incredibly nuanced theory about what is it to experience discrimination and what is stigma and then the ways in which disparate treatment is different from failure to accommodate at the stigma level. That's like law school seminar level, like, discrimination theory. And actually, persuasive and might work. 

Dan: But is the discrimination not having the information or is the discrimination something further down the line? 

Will: The theory is there are two kinds of discrimination. There's like actual functional discrimination. You didn't get something you wanted, which is present in neither case. The tester doesn't want the apartment and the tester here doesn't want the information. And then there's also stigmatic discrimination, which is present in the tester case, where one person is treated differently than another but is not present if I just view the same website you view and it doesn't contain information. It might be right. It's wild. That's what this is going to turn on, but I do think that's what's going to turn on. 

Dan: Okay. So it might as well put you to the test. How many votes for no standing? Three? Three. I think Chief. 

Will: Sure. 

Dan: Okay. I feel like more confident about him than anybody else. He seemed at least. He had like Justice Kennedy-esque concerns about evading our jurisdiction. 

Will: Three votes is my guess. Chief, Kavanaugh, Alito. 

Dan: Okay.

Will: Could be as much as four, could be as few as one. 

Dan: Okay. I guess I'm slightly less confident. I think they might scrape together enough votes to do the standing thing, but fair enough. We'll see. I'm not going to make a hard prediction because I don't like being told I'm wrong. 

Will: You just made me do it. 

Dan: Yeah. Make you do a lot of things I'm not willing to do myself. 

Will: It's funny to say that. 

Dan: Yeah. Okay. So we could get a lot deeper into that one, but I want to talk about admiralty or I get too hungry for lunch that I have to break. So this one, didn't know a ton about admiralty, but now I know a tiny bit about admiralty, and actually did prove to be maybe more interesting than I expected it to. But in terms of making you do stuff, I am going to make you summarize the issue in the case. 

Will: Okay. There's an insurance contract between the Great Lakes Insurance company and the respondent, Raiders Retreat Realty Company that amounts to whether or not-- 

Dan: Which is some rich guy’s LLC that owns his yacht, I think. 

Will: Yeah. And it amounts to whether or not they're going to pay for the damage to his yacht, as their insurance company contract might suggest, or not because he didn't do some other unrelated stuff that kind of forfeited his rights-- [crosstalk] 

Dan: He didn’t have fire extinguishers and maybe didn't fulfill his promise to put the right fire equipment on his yacht. 

Will: Yeah. We believe if you were to ask some state jurisdictions about this, potentially Pennsylvania, they would say maybe the insurance company should have to pay that are skeptical of insurance companies denying coverage on those kinds of ticky-tack, unrelated things. But others might feel differently. There is a choice of law clause in the contract that picks New York law. While this case arises in federal admiralty, but this is an area of admiralty law where there's not like federal substantive admiralty. There's not a federal law of contracts that governs. Everybody seems to agree that some state law of contracts is going to govern this provision. And the question is what state's law? And then there's like a meta question. 

Dan: Does everyone agree to that? I thought there's a question about that. Isn't there a larger question about like, does federal admiralty law just incorporate state law or does it contemplate some creation of federal common law? 

Will: Well, I think that's at the meta level. 

Dan: Okay. I'm going to get confused on this. 

Will: Okay. The insurance company thinks New York law applies because the contract is-

Dan: [crosstalk] -law clause there, right? 

Will: -New York law and they think there's a federal admiralty law that says do whatever the contract says, basically. 

Dan: Subject to some more limited exceptions. 

Will: The respondent thinks probably Pennsylvania law applies, some other law applies because the choice of law clause is unenforceable because rather than applying a federal common law that makes choice of law clauses enforceable, we should apply state law to decide whether the choice of law clause is enforceable. But the point is, you might imagine a world where the answer is just like choice of law clause, why could you pick New York law? You might imagine a world where you just say there is an admiralty law of insurance. 

Dan: Yeah. 

Will: That's just going to tell us what the answer is. Nobody has that view. Nobody has the view that and that preempts the choice of law clause. The strong federal position would be like, you can't even pick New York law because there's just some federal admiralty law that says the insurance company wins, even the insurance company doesn't say that. 

Dan: Is that quite right? 

Will: I think so. The insurance company thinks the choice of law clause is enforceable. That's what I'm saying. 

Dan: Right. But also contemplates that it could be unenforceable for federal law reasons. 

Will: Yes, but they don't--

Dan: There could be a federal law of admiralty which would in some cases declare.

Will: Right. But they don't think there's a general federal law of admiralty that just occupies the field of insurance and regulates the interpretation of preempts all choice of law clauses and regulates the field of all insurance in the way that--

Dan: But the thing doing the work is the federal laws. Under that theory, the federal law's choice to rely on and incorporate state law- 

Will: Sure. 

Dan: -is ultimately a question. This is where this gets confusing. That is a question of federal law where federal law has by its own choice chosen to incorporate state law. Is that accurate? 

Will: Whether it's a choice or not is debated. 

Dan: Yeah. 

Will: But one way to think about this is that it's federal all the way down. This is admiralty. So it's all about federal law and federal policy, and federal policy chooses to incorporate some state law and chooses to incorporate the party's choice of state law. That's I think the petitioner's framing. The other way of thinking about this is sort of the opposite, that insurance is like normally a state law topic and sometimes we preempt state law choices when there's something federal statute or some other federal thing that preempts state law. Here there's nothing that preempts state law, and so state law is still there. They're coming at it from opposite ends, but the point is, both of them have gotten a little like even the respondents agree, it's possible for federal law to preempt state law in this area. And even the petitioners agree, federal law has at least chosen to devolve a lot of this to the state law level, even if it's just at the choice of law stage. 

Dan: Yeah, I think we can keep trying to clarify it, but I think it's just going to get more confusing. 

Will: We have two relevant cases that come up a lot. One is a case called Wilburn Boat, which nobody had ever heard of until this case was granted. 

Dan: Well, the land bound had not heard of it. 

Will: [laughs] Look, I was one of four people to organize and take the admiralty law in the federal system reading group when I was in law school, and I had not heard of it, which doesn't mean that there weren't people who'd heard of it, but I had not heard of it. 

Dan: I thought you would have heard of it. I was referencing my favorite line in the petitioner's brief, which [chuckles] talks about how the insurance company denied coverage for not having the fire extinguishers, which had nothing to do with the underlying claim, says, “Although that denial may seem harsh to the landbound, it reflects traditional maritime principles,” which I enjoyed and which [chuckles] Justice Alito referenced in the oral argument. 

Will: Yeah. Under the doctrine of uberrimae fidei. 


Will: It's funny. It's rarely a good tactic in a brief to make the area of law seem more impenetrable intentionally. That's clearly a choice. It's to just say like, “I know this is weird, but I promise admiralty law is weird and full of weird Latin phrases that you've never heard.” It's a way to try to gin up the specialist admiralty.

Dan: Yeah.

Will: Okay. Wilburn Boat is the case where the Supreme Court says, “We're going to use state law in a lot of maritime insurance questions.” It's not that long after Erie, not that long after a case called Southern Pacific v. Jensen, where the court starts to develop the federal common law admiralty, but it's the case that says that there's a bunch of state law here. You could see it as a federal common law case where it's saying, “As a matter of federal common law, we're going to choose to use state law.” But it's the case that says there's a bunch of state law here. And then there's a case called the Bremen, which says that, “When thinking about choice of forum, which is different from choice of law, like where you litigate, there is a strong presumption that choice of forum clauses are enforceable.”

Dan: As a matter of federal law. 

Will: As a matter of federal law. 

Dan: So those are not just state law. 

Will: Right. And neither of those controls this question about the enforceability of choice of law. The more you think of it from the Wilburn Boat perspective of like, choice of law, this is a very statey topic-- The more that might incline you towards respondent’s frame and the more you think of it, as like, “Well, we have a strong potential choice of forums enforceable, so why not choice of law? Those are kind of similar.” And as Jeff Wall for the petitioners kept saying at argument, if anything, might be more skeptical of choice of forum clauses because those can force you to go litigate in some inconvenient place. So for certiorari right choice of law clauses should be strongly enforceable. 

Dan: Yeah. So two precedents that really cut in opposite directions and the court is just going to have to pick. But in terms of extreme-- not extreme, but the spectrum of positions, there is an interesting amicus brief from Louisiana, Mississippi and Pennsylvania, not necessarily always states that agree with each other, taking the view that actually this really just isn't a federal law question that the idea that there's federal admiralty law is like a Lochner era creation, and all that federal courts are supposed to do in admiralty. It's just a grant of jurisdiction and it ultimately is a state law question. 

Will: Yeah. This is what we spent all our time on in the Admiralty and the Federal System Reading Group. So this is a critique, most powerfully associated with the work of Professor Ernie Young, who has several articles making versions of this point, and it's totally right that for the first 150 years of the country, admiralty law was an area of what they thought of as general law. So the federal courts reached independent judgments about admiralty law, so did the state courts, but neither of them was like the supreme lawmakers for the other. Indeed, probably the leading article on general law by then professor, now Judge William Fletcher, is about the general law of marine insurance, the very topic we have here. 

So until the Lochner era, I think it's quite clear this would have been regarded, not quite either way, like neither party is quite right, it wouldn't just be state law, but certainly there wouldn't be a preemptive federal policy. We would just use general principles of law that the courts share in. 

Dan: This is related issues have come up in the work of Jack Goldsmith and your colleague Curt Bradley about international law. 

Will: Yes. 

Dan: The federal courts have jurisdiction over cases arising under law of nations. But is there a federal body interpreting international law or is that just in a post Erie world, is that really also just a question of state law? 

Will: I think almost everybody understands that Bradley and Goldsmith are obviously correct of international law other than a few law professors, but I think the court probably understands that. Admiralty is more confusing. 

Dan: Why is that an easier question in your view? 

Will: Admiralty is more confusing because there is this Article III grant of jurisdiction to federal courts in admiralty. There's something specially federal going on in admiralty in a way, there's not a clause that says, “Federal courts shall have jurisdiction in all cases arising under international law.” That clause might have put more friction on the Bradley-Goldsmith view. But the point is that was just a grant of jurisdiction, and especially in a world before federal question, jurisdiction applied to everything before diversity jurisdiction was even as broad as it is, that was just putting these cases in federal court. It was not giving them a different lawmaking power than the state courts had. 

There is a kind of interesting story about the court's development of this preemptive federal common law admiralty, which does seem to have been in part to preempt a bunch of state workers’ compensation statutes that the court hated for Lochner type reasons. This is a whole suspicious story there. So I do think if you were an originalist to this, at a minimum, both sides would be wrong, and maybe the respondents would be closer to right. 

Dan: Yeah. It's not supreme federal law. It's also not supreme state law. It's general law, and courts should just make their own judgments. You'd have this question. Like, if there is a state that had a statute on point, what would a federal court do? They would pretend the statute didn't exist, if there was a state statute that said these contracts are unenforceable. 

Will: No. In diversity cases, federal courts would generally apply state statutes where they applied. Now the federal courts have to apply the--

Dan: No. But in the originalist position where neither both positions are wrong, what is the federal court supposed to do? 

Will: The federal court is supposed to follow the state statute if the state statute applies, but they have to apply the general law of conflicts to figure out whether the state statute applies, which used to exist and no longer exists. And so you should figure out which state's statutes validly apply to this, which is in turn a little bit complicated, but we could have done that through using sort of the first restatement of conflicts or early choice of law reasoning. Now maybe there's an argument--

Dan: [crosstalk] -the second restatement gets a lot more loosey-goosey functionalist squishy, right? 

Will: Yes. The second restatement is maybe now the general law of conflicts. It's much more loosey-goosey. Although the one thing the second restatement is actually not loosey-goosey about and is quite definitive about is the enforcement of choice of law clauses and contracts. The second restatement takes the view, which was not the classical view, that choice of law clauses and contracts are very enforceable, unless they are contrary to the public policy of the state that is most connected to the case. So even the second restatement might point us towards, if Pennsylvania is the state that's most connected to the case, then we'd have to ask whether they violate Pennsylvania public policy. 

Dan: We have in this case an amicus brief filed by Professor John Coyle of UNC and Professor Kerm Roosevelt of UPenn, who-- Professor Roosevelt is, I think he's the reporter of the forthcoming Restatement Third of Conflict of Laws, and Coyle is the leading expert in the US on choice of law enforcement selection clauses. 

Will: Yes. 

Dan: They say, “Do the restatement approach.” 

Will: Adopt the restatement as the federal common law rule. 

Dan: Yeah. But then also in the alternative, to the extent that this is just an area where federal law incorporates state law, you also do the restatement because state law here incorporates the restatement. 

Will: Right. They think that favors the petitioner, if we do that?

Dan: Yes. 

Will: They filed this as a brief in support of neither party, and they want to remand. Does that functionally favor the respondent, do you think? 

Dan: Well, I think if you're the respondent, you'd rather just have an affirmance, right? 

Will: Sure. But I think if you were to go back to the lower court and tell them to apply the second restatement of conflicts, that could well amount to deciding that Pennsylvania is the most interested state and that could well be a path back to the respondent’s-- [crosstalk]

Dan: I think that's right. 

Will: Yeah. No, I thought their brief was the most helpful on the modern law of conflicts. I thought the Louisiana brief was the most helpful on the original law of federal courts. It's unfortunate that both of those are absent from the framing of the case and presumably will be absent from the court's opinion in the case, because it's hard to know what to do with this case if you aren't thinking it through that way. 

Dan: Yeah. 

Will: I think I mentioned this briefly, but the lineup of the case is interesting because it's Jeff Wall, incredibly respected oral advocate, former Acting Solicitor General and Deputy Solicitor General for the petitioner and for the respondent, first time Supreme Court advocate, but extremely experienced appellate advocate Howard Bashman of the How Appealing blog, regular friend of the show. So that makes it an interesting showdown between the two of them too. 

Dan: Yeah. 

Will: Then Adam Unikowsky was also on the briefs for the respondent Howard Bashman's side-- [crosstalk] 

Dan: Yeah. That’s why I said it was an all Unikowsky episode. 

Will: Yeah. Do you think the reason Unikowsky didn't argue the case is because he was also arguing Acheson and two arguments in a sitting is too much? 

Dan: Maybe. Although I think if anybody could double duty in a sitting, Unikowsky could do it. He just lives and breathes the stuff. I think he knows all Supreme Court cases by heart. 

Will: Yeah. I do think this is interesting. It's one of these cases where probably the way this case was framed and argued in the Court of Appeals and the way you think about in the Supreme Court, it is a good example of the size of that delta. I think at the Court of Appeals level, you spend a lot of time trying to parse these precedents and saying, “Well, we have this case, Wilburn Boat, and it tells us to do this. And is this closer to Wilburn boat or is this closer to the Bremen?” And from the court, I felt like there were a lot more questions that are just like, “What the hell's going on here?” [chuckles] 

Dan: Yeah. 

Will: I take it the petitioner is going to win like 7-2 or 8-1 on something that's going to say something like, “Admiralty is very federal, choice of law clauses are very good.” [chuckles] And our most recent case says, “Federal enforceability of choice of stuff clauses, there it's choice of forum are good and this is also good.”

Dan: But maybe not actually resolving how it comes out in this case, sending it back down to sort it out or-

Will: Maybe.

Dan: [crosstalk] -do you think it actually just resolving? 

Will: I think they'll just resolve it. Say, there's a strong presumption of enforceability and nothing we've heard convinces us to rebut that strong presumption of enforceability or something like that. 

Dan: Yeah. I did think that Jeff Wall was very good here in threading a lot of needles and giving the court exactly, just being very clear, “Oh, this needs to be a super, super, super narrow opinion. We agree with everything the court below did, except for this one little thing.” He's somebody who can gets away with joking with the court more than almost anybody. One thing that Justice Thomas asked Bashman, I think, was about what happened to the boat, and then Jeff gets up for rebuttal and leads off, he's like, “I just want to say the boat's fine. Boat was recovered,” which got a lot of laughs, and then goes into his substance. I think if I had to predict, I think he is going to win. But the rationale, I could see it going multiple ways. 

Will: Yeah. This is one of those areas where, as evidenced by your reaction when you first heard about it. On the one hand, it's such a technical area of law that you have to master these kind of weird, arcane precedents, even if you're land bound, but you also have to communicate them to Justices who remain land bound. And so being able to walk that line of knowing all this weird stuff, but being able to convey it in a way that that just sounds intuitive. So it's a tough lift. 

Dan: Okay. So maybe I like admiralty more than I thought I did. 

Will: Yeah. I'm still holding out hope that the court will recognize-- Maybe there'll be an opinion by one or two Justices that flags the-- In an appropriate case, I would decide whether all of admiralty has gone wrong, like, that's a Justice Thomas style concurrence or maybe a Justice course of style concurrence. I guess I'm hoping for somebody to at least acknowledge that and lay the seeds for fixing that in a future case, even if it's not going to be this one. 

Dan: Yeah, I think that there's not appetite to do that here, but yeah, I could see that being planted. I am interested to see whether there's someone who's written a little about general law in this different area of Fourth Amendment law, whether there is going to be some interest in revisiting those questions. I don't think the court is going to overrule Erie, which is if you keep following that path, I think that's where you have to land. But maybe the court would cut back on its logic in some places. Maybe admiralty is different. 

Will: I forgot to mention also. In diversity cases, there's this case, Klaxon, that says, in diversity cases, all choice of law questions are just resolved by using state choice of law, whatever state the federal court happens to be located in. So also, if this were a diversity case-- 

Dan: [crosstalk] -second order choice of law question, like, when you're figuring out which law applies, whose law do you look at to figure out which law applies? 

Will: Right. So in a diversity case, I think it's totally clear that respondent’s would win. In a diversity case, you'd look at like, where is the district court? The district court is in Pennsylvania, then you apply Pennsylvania public policy to decide if the choice of law clause is enforceable. 

Dan: Which is weird though, because then it turns a lot on forum selection-- [crosstalk]

Will: Yes. Although that's how all choice of law. So I have been very critical of the Klaxon rule, at least as extended to federal question cases. Last term or the term before the court had a case about choice of law in a federal question case, the Foreign Sovereign Immunities Act, where everybody seemed to think Klaxon was totally fine. There's a little bit of discussion about this. But the idea though is that there is no federal what Klaxon says is, “There is no federal choice of law.” So Erie says, “There's no federal common law, therefore, there's no federal common law of choice of law. Therefore, we just have to use state choice of law and the state we use is the law of where we sit.” 

There's a way in which that is a choice of law rule because picking the law of the state where you sit rather than some other state is kind of a rule, but that's like the black letter rule. So the court will be saying that admiralty is different from diversity, but we're saying, in admiralty, there is a federal choice of law rule or at least a federal choice of law presumption for the enforceability of contracts.

Dan: Probably. 

Will: Probably.

Dan: Not certain but yeah. 

Will: Yeah. That's where they're going to be splitting admiralty and other parts of Article III. 

Dan: All right. Should we end our discussion there? 

Will: Yeah. 

Dan: Okay. Well, we actually got through everything we intended to get through. In a perfect world, we will come back and do another episode on a couple of other cases from last sitting that I enjoyed. Maybe it happens, maybe it don't, maybe it doesn't. No promises. But I'm happy with this one. 

Will: Yeah, there's another sitting coming up soon, Dan.

Dan: [exhales] Okay. We just need them to give us opinions. It's a lot easier for us just to read the opinions and mouth off about them, but I guess at the beginning of the term, we have to actually do a little bit more work. 

[Divided Argument theme]

Dan: So thanks very much for listening to the show and bearing with us despite once more lengthy hiatus. But now we are in-- Is this Season 4? 

Will: Yeah.

Dan: Yeah, Season 4. So thanks for bearing with us for now. Three plus seasons, if you want more episodes, and maybe even more frequent ones, please rate and review on the Apple Podcast tour or your other podcast source of choice to encourage more people to listen, send the show to your friends, talk us up on social media, all those things because I think that our potential audience universe of listeners is not infinite. Not everybody wants to hear about admiralty, but I think there's always more people who could learn about the show and might listen to us. 

Go to our website, dividedargument.com. We put up transcripts of the episodes relatively shortly after they air. store.dividedargument.com for merchandise. And you can send us an email, pod@dividedargument.com. We do read those. Not always great about responding, but we incorporate the feedback, particularly if people tell us they're really interested in hearing us talk about certain things, like admiralty and leave us a voicemail, 314-649-3790. 

Will: We especially like voicemails in song form, and I especially would love to hear some admiralty themed sea shanties, if anybody knows how to come up with those, but we'll see. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

Dan: Yeah. And if there is a long delay between this and our next episode, it is because we are on a pleasure cruise on a yacht owned by Raiders Retreat Realty Company Limited Liability Company. 

Will: I will be on an Oklahoma houseboat. 

[Divided Argument theme]


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