We catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States, an interesting case about the scope of foreign sovereign immunity being heard in the January sitting.
We catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States (starting at 38:10), an interesting case about the scope of foreign sovereign immunity being heard in the January sitting.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast, I'm Dan Epps.
Will: And I am Will Baude.
Dan: We're back after-
Will: -a long hiatus.
Dan: -a predictable hiatus. You know who else is back, though? The Justices are back on the bench for handouts.
Will: What are those?
Dan: Well, yeah, let's explain these to people who are not totally familiar with them because I don't really understand why they exist, what purpose they serve today. But basically, there's this long, long tradition of the Supreme Court Justices going up publicly on the bench and actually reading their opinions, be like, "We've decided this case, and here's my opinion," and reading the whole opinion. I guess that was the original tradition. Sometime along the way, it evolved to the Justices continuing to do that, but just reading a capsule summary of the opinion.
Sometimes that includes language that isn't in the opinion itself, that they write separately. They're cool because they're these moments where you're in the courtroom and someone is reading this monumental opinion, and sometimes one of the other Justices who has dissented or written separately will choose to do so in open court, like to read a dissent or read a separate opinion. Pretty rare. When the Justice does that, it's a signal that they're really upset about the case. But the court totally stopped doing it during COVID. Not virtually, just they weren't doing it at all. They just were releasing the opinions when the opinions came out, and now they have brought them back.
Will: I assume this is the same thing for you when you clerked on the Court of Appeals. We both clerked on the court of appeals before clerking on the Supreme Court. And on the Tenth Circuit, we issued an opinion. It was just like one day it was on the website.
Dan: Yeah.
Will: I guess we probably pace or emailed the parties to the case or whatever to tell them the opinions were in the website, but otherwise, there was no--[crosstalk]
Dan: No particularly scheduled time. At the Supreme Court, we know when stuff is supposed to go up. Even in the COVID era, we knew opinions would be released at like 10:00 AM on Monday. The first one would come at 10:00 AM, and then 10:10 AM and so forth.
Will: Yeah, I think some circuits do a schedule. I don't even remember the Ten Circuit. Some circuits, it's like the opinions of the day go up at 09:00 AM that day. The DC Circuit has some well-known schedule, which was how some people figured out that Justice Kavanaugh was the nominee to [Dan laughs] Justice Kennedy's seat because a couple of opinions that Justice Kavanaugh joined got released at an off-schedule time that was like, "Oh, they must be trying to clear out these opinions while he's still there." But it's still, it's not the same something little ceremony.
The historical version, I think is even more extreme. I think once upon a time, the Justices didn't even necessarily write their own opinions. They would announce from the bench what the ruling was. That was the opinion. There was some guy in the courtroom who at first wasn't even employed by the court, just a reporter who just decided to write it down and tell everybody because you could make a lot of money telling people what the Supreme Court had said. But once upon a time, the oral announcement was in a way, like the ruling.
Dan: When did it become the case that they were actually writing their own opinions? I mean, John Marshall was like writing his own opinions, right?
Will: I don't remember the whole evolution in different courts at different times. Yes, I think the first thing that happened so another transformation was it used to be all the Justices would each say what they thought. Somebody would write it all down but John Marshall convinced them all they should just let him talk for everybody. I think it was Marshall who also did this was Marshall would then give the reporter a copy of what he was going to say to make sure it was reported correctly. I think even then there was a point where that was still technically his private notes that he was just giving us to make sure they reported it correctly. At some point, it transforms to written rulings and at some point, the Supreme Court creates its own official reporter of decisions office. Now we still have the announcement, which once upon a time was the ruling. Only now the announcement is just this a phenomenal thing.
The funny thing about it is almost nobody hears the announcements. There are hundred people in the courtroom who are usually there-- unless it's the end of the term, they're usually there for some other reason like to get admitted to the bar or to argue a case or just because it's the Tuesday. They hear the announcements and then they are recorded and released to the public a year later, so you can go back and listen to them.
Dan: Yeah. That seems to me pretty strange that now what we seem to be in-- I think that we've now settled on an equilibrium that oral arguments are just going to be live-streamed.
Will: Oh, God. Is that forever?
Dan: I think so. I don't see a good case that they're going to dial that back. Now, it's working well.
Will: Are they really? Oh, my God, it's terrible.
Dan: It's great, but why is it terrible? Do you think it's changing anything and fear worse? Why?
Will: Yes, I think the Justices are asking fewer real questions. I mean, it's always been a balance, but more and more things that are really just speeches. They more and more don't let wait for the advocates to answer. It's becoming like a C-SPAN--[crosstalk]
Dan: Really? I feel like they've gotten more as they've stretched out the length of arguments and they've gone to the round-robin of questioning, I think they've gotten more willing to let the advocates talk.
Will: Compared to 10 years ago, I think oral arguments are so much less substantive and so much more-- don't even contain the appearance of deliberation.
Dan: Hmm, that's interesting. First of all, I'm not sure I agree with that claim, but second, you also make a causal claim that it's because of COVID live streaming.
Will: I think live streaming is part of it. I think the round-robin thing is part of it. The complicated timing thing is part of it. I think some of it is just new Justices, there have always been a couple of Justices who are going to like that, and then once everybody starts doing it, it just changes the dynamic. I think some of it's the fact that the liberal Justices know that they can't win any actual cases, so their main outlet is just to make everybody look bad. There's no point in trying to argue about how different action cases should come out with anybody. You just need to get your zingers in.
Dan: Well, I would like to hear from listeners who are devoted court watchers as to whether they agree with this descriptively about the evolution of oral argument. Obviously, arguments are different now than they were, and part of that is the timing and personnel changes and so forth. Whether they agree or disagree about live streaming. I think it's been a good thing but I guess I was not totally persuaded that it's caused significant changes in behavior on the part of the Justices because do you think that many people-- it's not like these are on Fox News every day. I mean, I feel people are listening, but I don't really feel they're grandstanding for the talk shows.
Will: I thought they're grandstanding for somebody, may be Twitter.
Dan: Well, but that's going to go away because the Twitter servers are collapsing any moment, now that Elon Musk has fired basically everyone who works there.
Will: If you made me choose between Twitter going away and oral argument live streaming going away, I will admit that would be a tough choice.
Dan: You can have both.
Will: One of my many lame Supreme Court reforms that nobody ever liked the idea of was, and this was before oral argument live streaming.
Dan: Very familiar predicament for me. [laughs]
Will: And your proposals are not lame. Your proposals are crazy. You will see what I mean.
Dan: Fair.
Will: My lame proposal was they should not live stream oral arguments, but they should live stream handouts because the argument against live stream oral arguments is like the case has not been decided yet, and now the public has imbibed all these memes about the cases that are just like way premature. Often you see that that people prematurely think something crazy is going to happen because Justice so and so said something in oral argument. Whereas by hand down, something has actually happened, there's actual news, there's an actual ruling.
Dan: Yeah.
Will: This is the only time, because of the weird norms the Justices have, this is basically the only time the Justices ever speak publicly about their work because when they give public speeches, they're not supposed to talk about anything about the cases they give generic platitudes or talk about -- [crosstalk]
Dan: Or sometimes they do. Justice Alito does. I mean, he gives speeches where he goes into talks about all the different hot-button cases and things like that.
Will: And everybody gets mad at him. Then it's like he doesn't do it again for six months until he forgets. [crosstalk] Given how little of that we have and given how fraught that part of the discourse is, I thought, like, this is the one thing they could like-- these could be on the radio. Like, NPR could say, like, "At 10:00 AM, we're going to put Chief Justice Roberts on the line and he'll tell us all what's happening."
Dan: I think that's not crazy. I mean, I certainly think I would accept a weaker form of that, which is that is harder to justify not live streaming the hand downs. I mean, it's just weird they write these separate documents. I don't even think that the written documents are available publicly. I think some Justices choose to give them to reporters, but I don't think that the written-- [crosstalk]
Will: You mean the script of the hand down?
Dan: Yeah, I don't think that those are-- do they even do transcripts of these? It just seems weird that they go to this trouble to write these separate statements and they're trying to use them to make a statement, and then they just disappear into the void. There's about 60 public seats in the courtroom. It's just very, very odd. [crosstalk]
Will: I'm not even sure all the Justices have scripts for them. Justice Alito would always basically just say--[crosstalk]
Dan: "For reasons and opinion, we did this."
Will: [laughs] "For the reasons given--"
Dan: Those have found it in.
Will: Right. We reverse the Third Circuit. [chuckles]
Dan: Yeah.
Will: Or Ninth Circuit, I guess.
Dan: But Justice Kennedy, we would have longer ones and we would write those with him. I mean, he would want the transcript of those.
Will: One argument against live streaming them, I think, is that I don’t know if this is wrong, I don't think the other Justices get to see or sign off on what's in the statement. Sometimes the language of an opinion is the subject of intense negotiation.
Dan: That's true.
Will: I imagine if we're going to live stream these and make these more of a thing, then everybody would want to see the script before you read it.
Dan: Yeah.
Will: And then that has costs.
Dan: Yeah, maybe so. That's the best argument so far. Okay. I wish those have been live streamed because they would be fun things for us to talk about and play clips in the future, but because the audio will not come out for months, we won't really get much mileage out of them. What else?
One interesting, shadow docket thing that happened over the holidays that I haven't seen a lot of people talk about from the perspective of Supreme Court journalism, from the perspective of general news, and general interest news is this Gigi Jordan case. Did you see this? Will, this was something coming up on the shadow docket. It's this pretty terrible murder prosecution involving this woman, Gigi Jordan, who's a very wealthy former executive who was convicted of killing her autistic son in what's been described as a mercy killing. She was convicted and got then habeas relief and was released, but then the Second Circuit overturned that, and she was going to have to go back to prison and so she went and got an emergency stay.
Will: Like bail?
Dan: Yeah, like bail. Putting the Second Circuit's order staying that so that she was able to remain free on bail. She files an application on December 20th, the same day Justice Sotomayor grants this temporary stay. The government files a response a week later, she files a reply the next day. And then December 29th, two days after the government's response, Justice Sotomayor denies, and the earlier stay dissolves. And this woman is going to have to go back to prison. Something happens after that. What do you think was going on here? Was this just a temporary, status quo preserving administrative stay? Or, do you think that Justice Sotomayor changed her mind? It was something we've talked about before in the show is the seeming rise in these short-term administrative stays while the court considers things applications on the shadow docket.
Will: Yeah, certainly it could be that. It could be Justice Sotomayor sees the application and go like, "Well, before this person goes back to jail, the government should have to-- I want to hear more about why that should happen. And so, let's give it a week." I will say I hadn't heard of this case until you told me about it. Weirdly, not reported and shadow docket Twitter or anything like that. The initial application for a stay is by the Yale Supreme Court Clinic, and it's pretty convincing. The government response is also pretty convincing. It could be that Justice Sotomayor read this and said, "Oh, yeah, sounds right."
Dan: The second order says, "Upon further consideration of the application of counsel for the applicant, the response and the reply filed thereto. It is ordered that the stay heretofore issued by the undersigned is vacated."
Will: Right.
Dan: Suggesting, like, "Oh, second thoughts here."
Will: Normally when you get an application for a stay, I guess sometimes the court does grant an administrative stay, but often you just ask for a really quick response and then make decision.
Dan: Yeah. In the earlier order was not styled as an administrative stay.
Will: Yeah. Okay. I think it's probably just a case of changing your mind and that's actually not some sort of encouraging that the briefing matters even on the shadow docket. The one other thought I had, which hadn't occurred to me until now looking at the docket. Is it possible Justice Sotomayor, just wanted her to be home for Christmas? Like, you get this application on December 20th, and you're like, "Well, I'll give you a week, you can have Christmas at home."
Dan: That's crazy.
Will: Is that crazy?
Dan: Maybe. I don't know. I would like to think that a Justice wouldn't grant such an application without some, being persuaded that there's a pretty good argument.
Will: But it's like, on the margins, you're like, "Why wait a week for the response? Why not ask for a response faster?" Maybe you think, like, it's the 20th, I get a response on the 22nd, and then I send it to jail on Christmas Eve, that just feels cold.
Dan: It may just be that's when it came in and she wanted to grant it, and then she's not going to order people to file their spots sooner because it's going to really disrupt their holidays. Right. Anyways, this story is a pretty tragic of an already tragic case, which is basically hours after the stay is dissolved in the second ruling by Justice Sotomayor, committed suicide at home, and she presumably was going to have to report into be incarcerated the following morning. As a reminder that the shadow docket stuff is not just abstract legal issues. I mean, it really is stuff that is for individual people, these are crises, these are emergencies they matter. Often, obviously, with capital cases, life and death is at stake. In some other cases, too, even if it's not always immediately apparent.
Will: Yeah.
Dan: In lighter news, we had our great voicemail song, the Old McDonald's song about you, Will. I think that is probably the most popular bit we've ever had on the show. Is that fair?
Will: It's possible.
Dan: Yeah, It's up there as a possibility. A lot of uncertainty about who was responsible. I was [crosstalk] the author, but the singer, the artiste behind that has emerged.
Will: I think he's sort of a singer-songwriter.
Dan: I mean, he is now who is named Joel Fulton. He did say that he does not actually-- he really likes you well, he thinks you're smarter and wiser than him, and he learned something from you every episode, and he was really more kind of trying to rib the court and not just you personally. You're kind of a stand-in punching bag for people who don't like the court.
Will: I am used to that.
Dan: Yeah. I think that's going to be a feature of much of the rest of your career. So, Joel, thank you for that. I think I would, given the listener response, we might be willing to play another one of those tunes if directed at Will, in particular. By the way, I was listening to the draft of that episode in the car when I was driving my five-year-old to something, and he thought it was, like, just the funniest thing he'd ever heard. He thought the song was funny, but then he thought what I was saying about the song is really funny. And then multiple times he's tried to explain to his older brother what was going on, but he really has no idea what it was. He was like, "And dad had this thing, and there was an Old McDonald's song, and then he said that he was going to sing stuff in that voice to his friend." I was hoping to record the five-year-old describing it and get that on the show, but I didn't get a chance to get him on the record. So, maybe next time, so we can drag this bit out through one more episode.
Will: Yeah, that'd be great. I'd love to have him on the show.
Dan: All right. Another thing, this one's yours.
Will: I don't know about your law school, but the University of Chicago, like some other law schools has a public interest auction every year where professors auction off various--[crosstalk]
Dan: I don't even know if we've had it since COVID but I was the MC the year before COVID.
Will: Yeah. Various forms of sort of self-embarrassment. One thing that I auctioned off, with your consent, I think, was the chance to get a little moment on our podcast, which one of my students has bid for, and in particular, he's asked us to give us a public shout-out--[crosstalk]
Dan: Do you know what the going rate was?
Will: I don't know what the going rate was, I did not ask.
Dan: Yeah. Don't want to be embarrassed.
Will: I'd be embarrassed no matter what the answer is, really. I'm hoping that Joel Graczyk, the former editor-in-chief of the Marquette Law Review, now a great lawyer in the Chicago area, who is listening to the show, and shouting out to you on behalf of some of your friends here at Chicago, also asked if we could-- I also offered to answer a question on the air. The student also asked us to answer a question which you may have no view about, Dan. I have no idea.
Dan: I have views about most things.
Will: And this is one of the things I like about you.
Dan: If only they were good views.
Will: "We'd love to use the question and answer to settle a perennially contentious issue over which we've had many spirited debates. Which is the superior Star Wars trilogy? The prequels or the sequels and why? Of course, this framing presupposes that the original trilogy is superior to both the prequels and the sequels. If anyone would like to defend the alternative position that either the prequels or sequels are the best of all Star Wars trilogies, we'd consider the question is answered." I don't know if you have a view about this, I have strong views about this. Actually, I think the question is almost ill-formed. I completely agree with the premise that the original Star Wars trilogy, that's A New Hope, Empire Strikes Back, and Return of the Jedi, those are obviously superior to the prequels or the sequels. I believe that the sequels do not exist.
Dan: Yeah, so you're someone who was into the--
Will: Extended universe.
Dan: Extended universe and the novels and everything that--
Will: Yes.
Dan: I remember you had a review of Cass Sunstein's book about Star Wars.
Will: Yeah. Cass Sunstein wrote a book, The World According to Star Wars, that I wrote a review about in which I really used him as the punching bag for what has happened to the Star Wars universe since 2013.
Dan: Because once Disney takes over, they kind of just nuke the extended universe of everything that kind of happens. That's everything that happens after the original trilogy, which for people who are uninformed is episodes four, five, and six. Everything that happens after that, it was decanonized. There was this whole set of novels and comic books and stuff about, stuff that happens with Hans Solo and that's all erased.
Will: It was an amazing exercise and private ordering. So, like, Lucasfilm owned the IP and they licensed dozens of authors and role-playing games and all sorts of things to take place in the universe, but with like a general sense that you couldn't write about what happened before because we're going to get the prequels Lucas was going to make, so everybody stayed away from that. And there had to be coordination with stuff that happens after. So, these are major events The New Republic is formed. Eventually, some of the main characters die 15 years out. They have kids, and some of the characters are in certain places at certain times. All the authors had to kind of buy into that continuity. You had this incredibly large universal stuff, but if you really nerd it out, it all fit together.
Obviously, sometimes they'd screw stuff up and then they'd have to retcon it but it was amazing. I mean, some of the books were actually good, and many of them were terrible. But even the terrible books, there was some bonus to reading them because you'd actually get to fill in the picture of this universe. I was all in on the Star Wars extended universe for a long time.
Dan: This was coextensive with the kind of Magic: The Gathering period or overlapping, or just- [crosstalk]
Will: Overlapping. In addition to the Magic: The Gathering period, there was a Dungeon Master, and there was a long Dungeons & Dragons period. There's also a Star Wars: The Roleplaying Game made by the now defunct West End games that was in some ways even more popular or even more fun for us. We had an extended Star Wars role-playing universe that took place in the extended universe.
Dan: I have a newly hired colleague who I'm not going to name without his permission, but he too was curious, which we'll get back to this debate question a second. Which version of Magic: The Gathering you played? Because I understand that there's actually multiple versions, whether you use the old expensive cards or whether you do a kind of new version.
Will: So, I played before there were versions. I played pretty much. The only rule was your deck had 60 cards and you couldn't have more than four of any card. I think there was a set of, like a dozen cards, like The Black Lotus that you can only have one of, that is still like one format, now called like Legacy or Vintage or something, which I don't play because I don't have $800,000 to buy the really expensive cards. Now there are things like standard and limited and some crazy thing called Commander, all of which I now play to something available on my iPad, but I played in the days before that even existed.
Dan: But what is the one you play now?
Will: A mix.
Dan: Okay. Because I asked you this before and you told me something different, so now I'm--
Will: Okay. I mostly play limited, which is like where you draft cards. You build a deck on the spot, but I have two or three standard decks, which is where you're only allowed to use cards that are made in the past year, which is sort of an equalizer.
Dan: Yes, you don't have the million-dollar cards.
Will: But it's also a money maker because it's like you can't just have a deck and use it for five years.
[laughter]
Will: The most popular way to play magic now is a format called Commander, which serious magic players luckily down their noses at, but it's more popular than all of the magic formats combined, has bonkers rules, and it's designed for multiplayer games, and it's actually quite fun. In some ways, what I played when I was in 8th grade was more like a precursor version of that. We'd have, like, eight people sitting around the table at the public library all trying to play, like, an eight-person game, but we didn't know it never rules yet.
Dan: Okay. Well, I'm sure that's the topic we'll be revisiting on many episodes to come but there's your short answer to the question about magic. I can imagine one of my sons being into that later. So, I might have to consult you. But back to Star Wars. I've seen all the movies, was not somebody who really got into the extended universe at all. The prequel trilogy came out when I was in high school. I remember going a couple of times to Episode I in high school. I think it was pretty bad as a movie because it is. I think that it's pretty badly written. Episode I has the very annoying young boy, Anakin Skywalker. It's got all the pod racing, which is really just designed to sell merchandise. There's a weird age thing between Anakin and Padmé. Everything about it, I think, was not a well-executed movie, poorly written. I thought the special effects were surprisingly bad in comparison to the original trilogy.
I thought Attack of the Clones, Episode II also pretty bad. Maybe not quite as bad, but similarly not great. I think Hayden Christensen is a pretty bad actor, not great. Episode III Revenge of the Sith is better. Certainly, the best of the three. But I don't think it's great either. I don't think those are good movies.
Will: Do you like the new ones?
Dan: On balance, no. In part because as I understand it, what they said is, "Let's make a new trilogy. Let's have a couple of different directors do it, and let's have no plan and no coordination about what the overarching story is going to be and just figure it out as we go." They took a multibillion-dollar franchise and just said, "Let's wing it." You have Episode VII. What's that one called, The Force Awakens?
Will: Yes.
Dan: Which is basically just a total redo of Episode IV A New Hope. Very, very similar story structure. Basically the empire, who I thought we had destroyed, basically just comes back, looks basically the same. They call themselves a New Order now. They have this super powerful Starkiller Base, we have to go blow it up. It's Directed by J.J. Abrams, who also did the newer Star Wars, Star Trek movies. He's a director who I think is very good at producing candy-like stuff that is really enjoyable while you consume it and then as soon as you turn the TV off or walk into a theater, you are like, "What? That didn't make any sense." Someone who's also very bad at ending stories, like he was the director of Lost and the show Alias, both of which kind of, introduce puzzles and mysteries, but for which there's clearly no plan on how to resolve them at the end. It just ends in a train wreck.
Anyways, so that one I think is entertaining. And this is probably a more detailed answer than people wanted and probably more than they were entitled to given how much they paid for this. But I don't think when you step back, it's not. I think as a self-contained movie, it's perfectly entertaining. It's not original. I don't think it's great. I find Kylo Ren, deeply annoying, the kind of emo, lame Darth Vader. And as an attempt to make a movie within this universe, I think lame. I liked the second one, The Last Jedi director Rian Johnson for a bit. You're giving me a weird face about that.
Will: Go ahead.
Dan: Okay.
Will: These are just not Star Wars movies. I mean, it was an okay movie.
Dan: Yeah, I want to hear more about that. I thought so the thing that's weird about it is that he goes in a totally different direction. He takes the starting points from the first movies and decides that a bunch of the stuff was dumb and goes in a different direction. I thought it was as a movie, a better movie, but then they bring Abrams back for the last one, and then he erases all the stuff that Johnson did in the second one and tries to go back to his original vision, but it was clear that he had no play out. There's this mystery about who Rey, the female protagonist, who her parents are. I think they later interviewed, like, "Yeah, we didn't really know. We just made that up on this. We know that was the thing, we were going to have to resolve." It's just like, how do you steer this multi-billion-dollar plane without having a flight plan? I thought the third one was quite bad.
Will: I never saw that one.
Dan: You wouldn't even see it?
Will: No.
Dan: Okay. But you saw the second one?
Will: Yes, I think so.
Dan: You hate both just because they reject this extended universe.
Will: So, here's the thing. When these movies came out, I hated them and I felt they destroyed my love for the Star Wars universe. Literally I used to spend a non-trivial amount of my time, like a couple of hours a week thinking about the Star Wars universe, even a few years ago. After this, it was too painful to do that because you couldn't make it make sense. Thinking about the universe just brought me discomfort and pain and so I just stopped everything about Star Wars again.
In the course of writing this review of Cass's book, a very insightful research assistant of mine, who remained nameless for her own protection, had the insight that maybe I was giving the movies too much power and allowing them to destroy my love of the Star Wars universe. Maybe I should just reject them and refuse to acknowledge them as part of the Star Wars universe. I choose to inhabit the Star Wars universe, the real Star Wars universe, and those are just not part of it. They're just like a weird thing some people did and then labeled it Star Wars, but that was just a lie.
Dan: Did you see some connections between your experiential philosophy and your attitude towards Star Wars? There's this original understanding, there's this historical background, we've had this sudden break, totally illegitimate. Should restore the past.
Will: No. I made these arguments to me. Here's the thing, as to law, I'm more of a positivist. So, as to law, I think ultimately, it's a social practice, what our law is, and see if I don't like it, even if I might prefer the British Empire or something. There's just no denying that the narration was taken over. I don't mind, but I think law is only a social practice. I used to think that about Star Wars, and now I don't. I think even if I was the only person left on Earth who believed in the correct version of the Star Wars universe, I'd be entitled to do so and everybody else would be wrong.
Dan: When it comes to Star Wars, there is no moral relativism. This is the right answer thesis.
Will: We need to get off of this.
Dan: I know, okay.
Will: This all goes back, actually, before the extended universe problem to Han shot first.
Dan: Mm, which I agree, which is basically during the release of the original trilogy, George Lucas, retcons--[crosstalk]
Will: He amended the movie.
Dan: Yeah. He changes it.
Will: Yeah. He added a scene to the movie in an early showdown when we first meet Han Solo to settle the question of whether he is the kind of, like, a slightly morally sketchy person who would engage in a preemptive strike and kill somebody who had not yet attacked him, which he did in the original series. George Lucas adds a kind of additional attack to make Han Solo a little bit less morally gray. It's like an amendment to the movie. The canonical version of the movie is the version that George Lucas amended. And I refuse to acknowledge that.
Dan: Yeah, no, I agree that was bad. Do you agree that the prequel trilogy is also pretty bad?
Will: Oh, yeah, it's terrible.
Dan: Okay. All right. So, basically just two different, one is bad and the other you just think is not.
Will: It just doesn't exist.
Dan: Doesn’t exist. Okay, there's your answer. One other thing I saw that was funny on Twitter, is there's some kind of startup called DoNotPay, which purports to have a robot lawyer-like--
Will: Like AI?
Dan: Yeah, this tech has been in the news a lot recently because people everyone has worked up about ChatGPT, which is a thing you can go and just get to do natural language stuff, it will just write essays for you. These folks, Joshua Browder of DoNotPay has said, "I think this is an honest offer that they will pay any lawyer or person $1,000,000 if they have an upcoming case in front of the Supreme Court to wear AirPods and let our robot lawyer argue the case by repeating exactly what it says,” Now, first of all, you can't do this. I mean, you're not allowed to bring electronic- [crosstalk]
Will: Supreme Court will not let you wear AirPods. [chuckles]
Dan: Yeah, you can't wear AirPods. Even if you could, I'm quite confident they would not let you have someone else be dictating someone else or something else be dictating your arguments to you. So, I think this would be bad. I think you might get disbarred for doing this, but I wouldn't mind running the experiment. Could we do a moot court or something?
Will: Maybe a moot, I was going to say anybody who did this would not only be disbarred, but they would clear out the old room in the basement of the Supreme Court building that used to be the jail and lock you there for a night to punish you for your impudence.
Dan: Inherent contempt, yeah. I don’t know.
Will: How would you feel if one of your students did this in class? I don't know if you call them if you do the Socratic method, but you like-- [crosstalk]
Dan: Yeah, I think bad. I want you to do it yourself and think about it yourself, that said-- [crosstalk]
Will: You wouldn't think it was cool and they wouldn't tell you and you just try to figure out you could tell which students were actually-- [crosstalk]
Dan: Even if I knew that this was coming in some way. I think part of the process is I'm trying to teach the students something, and part of it is I want them to go through it themselves with their argument. It's not about teaching the lawyer something, it's about getting the best arguments in front of the court. Certainly, I don't think that there be anything in the rules that would bar a lawyer from going to ChatGPT or DoNotPay or whatever, and getting the AI to do a first draft of a brief, and then going through it and be like, "Yeah, this is a good argument. I'm going to use this, I'm not going to use that." Or having a conversation with the ChatBot and getting some arguments and then relying on them in the oral argument. The thing that seems wrong about it is the literal puppeteering.
Will: I once came out, I fed a lot of my past exams to it to see what kind of answers it would give. I will say the answers were not terrible. The answers would not have failed. They would not have gotten the median grade, I don't think. They would not have failed. But part of it, because it has this ability to kind of like- [crosstalk]
Dan: Is ChatGPT, more originalist or more kind of loosey goosey living constitutionalist?
Will: Loosey goosey. It seems to be unaware of the originalist. It's like you ask it, "What would Joseph's story say about this conflict question?" It just like says, "Well, conflict is hard. It depends on weighing the interest." It's absorbed this kind of 20th-century pabulum and it just attributes it to everybody. It's actually its biggest giveaway. You ask it like specific originalist questions, it can't give a straight answer. That's this trait of students who didn't learn anything in the class but kind of know how to BS, as you're like, is their standing in this case? Is often I ask the Fed court question, and I often ask some questions that have real answers. They're like, "Well, standing is always very complicated, and it's based on the separation of powers, and it depends on blah, blah, blah," and then I'm like, "All right. No, you don't know anything about this material."
Dan: Well, so I will happily accept a million dollars to judge a moot court conducted by AI. If anyone wants to pay me, might even take less than that. So, any other odds and ends?
Will: There's one thing to mention. An amicus brief that was filed in a recent case that we won't talk about, we won't preview in detail in the show now. It's being argued in February sitting Biden v. Nebraska, which is the Supreme Court case off the shadow docket, rocket docket, about the Biden administration's massive cancellation of student loans. An amicus brief in the case filed them half the administration by me and my friend and coauthor Sam Bray. The two of us, a two-law professors amicus brief. I haven't done one of these amicus briefs in several years.
Dan: No, really?
Will: Yeah, three or four years, I think. Certainly not since COVID.
Dan: Did you do one in the Nevada v. Hall issue?
Will: Yeah, Franchise Tax Bd. v. Hyatt 2019, I think.
Dan: Yeah. Okay, that was the last one.
Will: Yeah, there was Janice, there was Hyatt, and then there were a couple of, like, you should grant cert in qualified immunity cases.
Dan: Yeah.
Will: But the court didn't do. Maybe that's the most-- [crosstalk]
Dan: I think you can have unofficial versions of these where you just write the op-ed like you did that with the independent state legislature case where you had a theory that was out there. You and Mike McConnell put in the Atlantic. You didn't actually do it as a formal brief.
Will: No. I often have views about some court cases that I try to make known. I sometimes will on the show we'll talk about a case and I'll say what I think should happen, or sometimes it's a tweet, sometimes it's a blog post, sometimes it's an Atlantic article, but it's like an actual amicus brief. Brief has already gotten mostly good, although sometimes a quite upset reaction. I'll just read the first couple of sentences of the brief because it's not a combination of positions that anybody else is going to take in this case. "Amici believe that the administration's student loan forgiveness program is unlawful, but even if the executive branch has exceeded its authority under Article Two, that does not permit the judicial branch to exceed its authority under Article Three." And then we go on to argue that there is no standing in the case.
On the one hand, on the merits, the administration should lose, but the court should not reach the merits if it says no standing. And I don't think anybody else has a brief nominally on the side of the administration that begins by explaining that the administration's actions are unlawful.
Dan: Yeah, so I'm looking forward to maybe digging into that in a future episode. I will say that it seems kind of on brand-- [crosstalk]
Will: [laughs] is that a compliment or a--
Dan: It's nothing. It's just an observation, which is like, you've got this totally different way of looking at it. It doesn't necessarily cut fully either way, ideologically, at least in –terms of the outcome of the case, but you've been cleverer than other people. I think it sounds compelling and interesting. I'm going to look forward to digging in.
Will: I will say, I don't think there's anything clever about the brief. I mean, I do think it's correct, but I think in some ways-- [crosstalk]
Dan: If it wasn’t clever, why doesn't everybody else say it?
Will: That is what makes me wonder, is everybody else taking crazy pills? If you think the program was unlawful, it's tempting to either find standing or to keep your mouth shut about standing. I mean, there's a natural polarization about procedural issues in general. Maybe especially in really high-profile cases involving a trillion dollars like this one, and then maybe especially in this day and age.
Dan: Yeah. People either they want to win on the merits, so they want to lose on the other side to lose on the merits or whatever.
Will: I think this is more like a normie brief. This is actually like an obviously natural accommodation of petitions to think like, "Oh, this is unlawful, but there's no standing," and it's just like, no normies are filing an amicus briefs.
Dan: Okay, so more in that soon. Lots of other kind of little odds and ends I had built up in the note, but because it's been the holidays, there hasn't been actually that much really big stuff that we need to talk about, not really any opinions or anything.
Will: I think there are literally zero opinions from the court, like not even a per curiam. I mean, there are some things on the orders list, but if you go to the Supreme Court opinion section of the Court's website, I'm pretty sure there's nothing there. And that is not normally true by mid-January, [chuckles] I'm not sure it's ever happened--[crosstalk]
Dan: Presumably they've got some stuff they've been working on that will be out soon.
Will: You would think? There was a time when Justice Ginsburg and the Chief used to race to see who could get the first opinion out, it wouldn't be a long one. It'd be like an eight-page opinion on some, civil procedural issue or whatever. Maybe with Justice Ginsburg gone, there's just no pressure anymore to [crosstalk] done.
Dan: Maybe. Yeah. I don't know. We'll see. Okay, some other odds and ends, I think we can skip over and get to the one substantive thing I think we were going to talk about, which is, you want to take a stab at case pronunciation here?
Will: [laughs] For some reason, I always just call this case Halkbank.
Dan: Yeah. That's what the briefs are calling it.
Will: Yeah. But the Türkiye Halk Bankasi--
Dan: Türkiye Halk Bankasi v. United States. So apparently I didn't know this, but in June of last year, June 2022, the country formerly known as Turkey rebranded. And they explicitly said, "We're doing this to protect our brand identity." The country rebranded as Türkiye, which is, as I understand it, how you would spell and pronounce the country name in Turkish, which is going to take a little bit of time for people to get used to, but probably makes sense. Have you been to Turkey or Türkiye?
Will: Türkiye? No.
Dan: I have. It was lovely. I recommend it. What I don't recommend is if you are a Turkish state bank, trying to help Iran evade US sanctions, because that's the genesis of this case here. Tell us more about what happened.
Will: Well, so the Türkiye Halk Bankasi [chuckles] is a majority state-owned bank by the state of Turkey, which has now come into trouble under federal law, under possible federal prosecutions--
Dan: Because there's US sanctions on Iran. Iran is not allowed to do transacting various kinds of business throughout the world, including selling oil, there's some exception to that that says they can sell oil and gas to Turkey if the money is escrowed and only used for humanitarian purposes or whatever.
Will: Or maybe didn’t.
Dan: Yeah. Apparently, under this accommodation with the US, Turkey has to use its state bank to accommodate this. But basically, there's a criminal indictment here, that alleges that the State bank was involved in this kind of elaborate money laundering scheme where they were taking Iran's money and pretending that it was being dispersed for the approved purposes, but actually converting it to gold and then letting Iran have all its money for whatever purposes it wanted. Just on its face, putting aside the identity, the defendant would presumably be a pretty serious violation of federal criminal law involved various things like lying to federal treasury officials, all sorts of potentially bad stuff.
Will: Right.
Dan: Just at the allegation stage hasn't been proven but that's the allegation.
Will: Yeah. At the allegation stage, for purposes of the Supreme Court case, that may well be true. The question the Supreme Court has to confront, however, is can the federal courts hear a prosecution against essentially a state-owned enterprise which for some legal purposes, although that's part of the disputed in the case, for some legal purposes, is a part of Turkey potentially an arm of the foreign government, or it doesn't have some kind of statutory or sovereign immunity from the idea of prosecuting a part of the state in federal court.
Dan: Yeah. I was talking to you earlier and you were like, "I think this is a simple case." Maybe it is, but maybe it isn't, maybe the answer is simple, maybe you can tell me it's simply. I actually do think there's like a bunch of different conceptual steps here that need to be unpacked. To be honest, there are a lot of smart people largely involved in this case. I did not find the principal briefs on the other side quite as helpful as I wanted to because I just felt they didn't necessarily order things conceptually in a way that I felt they needed to be to really break down what was going on in the case because let me try to do my best. Again, this is something I'm just dive-bombing into. You've definitely thought a lot more about sovereign immunity generally than I have, you've written some about it. I don't know how much you've thought about immunity for foreign sovereigns versus just immunity for the US and state sovereigns domestically, Will, but I'm sure you thought about this more than I have.
Just as background, there is this preexisting legal principle that sovereigns the state is not allowed to be hailed into a court without its consent. Various traditions of potential exceptions to that. But that's the overarching principle. Now, when it comes to foreign sovereigns, other countries in the US courts, as I understand it, for a long time, there was this set of it was common law principles, not codified. What would happen and what sort of happen, maybe more in the 20th century someone would sue a foreign government or foreign instrumentality of a foreign government, and then the court would say, like, "Hey, US State Department, is this okay or not?"
Will: Yeah.
Dan: And the State Department would be like, "Yeah, it's fine," or, "No, it's not." And it's sort of unclear to me. There's a brief that kind of gets into this. We can talk about it in a second. The extent to which courts were just totally deferring to those determinations or just deferring to those determinations but that was a weird system. About less than 50 years ago, they passed the statute, the Foreign Sovereign Immunities Act which was meant to codify and regularize the rules for sovereign immunity over foreign states and their instrumentalities. That is a statute lays out some principles, has various exceptions, has rules for how you can sue a foreign state, and so forth.
Will: Okay.
Dan: That's the background.
Will: With you so far.
Dan: What?
Will: I'm with you so far.
Dan: And so, we have this case, so we have a US Federal prosecution that is being brought against this majority state-owned. I think it's owned by Turkey, but indirectly through like a Turkish sovereign wealth fund. It's a couple excerpts removed. Let's just say it's owned by Turkey. This is a state bank. It's criminal prosecution. And so, there's various things we have to figure out. So, first of all, well, maybe this isn't the first thing we have to figure out, I guess. Okay. One is where do you even start? Okay, one is--
Will: [crosstalk]
Dan: Yeah, you figure out because there's different places I could start.
Will: With you so far. Basically, I think one hard question, which is what both of the briefs start with, which is part of what makes the whole thing tough. There's a hard question of, like, could this bank or other foreign states have been prosecuted in federal court between 1789 and 1976, between the founding of the country and the adoption of the Foreign Sovereign Immunities Act? That's an important question because since sovereign immunity has this kind of historical common law aspect, often we try to first understand, like, what's the background principle? And then we bring in the statute.
I think the briefs have some plausible arguments on both sides about that question. In part that's, like, was there categorical immunity from criminal prosecution? Would it matter that this bank is not technically part of the state, et cetera? It's sort of a hard question. Like, what was the law up until 1976? And what about this? We're in the period where we just do whatever the State Department says. We'll have criminal prosecution. The State Department will presumably say whatever the government, the President, it's a supervisor whole executive branch. You could just say, "Look, I've decided to do this, so it's okay." That's a hard question.
The thing that I think is a simpler question, maybe not be totally obvious, you could still disagree about it. There's a simpler question about what about after 1976? The basic idea of the Foreign Sovereign Immunities Act was to occupy the field of foreign sovereign immunities. It simultaneously says, "Look, there is this kind of blanket immunity in general, except for a bunch of exceptions that we're going to set up, and this federal law is going to be the regime now. You use this instead of any kind of pre-1976 stuff."
Dan: That might be conceptually the first question, and then the other pre-1976 stuff you go to if that fails.
Will: And so then I think the 1976 statute has a very obvious textual answer and a very quite likely, not quite as obvious, but a quite likely obvious answer as a matter of congressional intent. I think it's a little funny about the case, is those two things are not the same.
Dan: Yes. So, yeah, let's start with the text of that provision of the FSIA because that very plausibly could be the thing that ends up resolving of the case.
Will: So, 28 U.S.C. 1604 says, "A foreign state shall be immune from the jurisdiction of the courts of the United States and of the states, except as provided in sections 1605 and 1607." Those are the exceptions.
Dan: It's pretty broad language. "Shall be immune from the jurisdiction of the courts of the United States."
Will: And there's a little bit of an argument about, like, does some exception about commercial activity apply? We can put that to one side for now. The Foreign Sovereign Immunities Act is pretty clear that an organization like this bank counts as a foreign state. Like, the Foreign Sovereign Immunities Act has a definition of state--[crosstalk]
Dan: For its own purposes. If we're in that world, then yes.
Will: "A foreign state like Halkbank shall be immune from the jurisdiction of the courts of the United States and of the states," that's what it says.
Dan: Yeah. And so, if you're trying to say that doesn't apply to the bank, it's a little tough.
Will: It's really tough.
Dan: Yeah. This is a place where the government is a little slippery. It really just jumps into the purposes and the overarching structure of the statute and really is not quite as upfront as it needs to be about this language. This language is very bad for the government because it is very plain and unequivocal. Now, it is true that the statute then goes on to have a bunch of provisions that are only about civil litigation.
One way to read that is to, "Look, it's completely barring all jurisdictions, and then it's having a small carved-out exception for certain kinds of civil litigation but it doesn't do anything in terms of criminal law." That said, there seems to be a fair bit of reason to think that the statute was really not even-- no one was really thinking about criminal law maybe when they passed it. There's an interesting amicus brief from Feldman, who was, I guess, one of the key drafters of this back when he was working at the Department of State and was primarily responsible for preparing the bill that became the FSIA, which said, this is not what this is about at all.
Will: I was in the room where it happened. [chuckles]
Dan: Yeah.
Will: There's a little bit to quibble with about some of the intent structure questions. Assume that's right, assume it didn’t occur to any of them they were doing this, but the statute says what it says. What do you think happens? Just like, does the text win, or does intent win when they're both clear and irreconcilable?
Dan: I think if you think the text is clear, I think the text is going to win.
Will: Is there any argument the text is ambiguous?
Dan: I guess you just have to figure out you'd have to read it to get to the other result. You have to say, "Look, when talking about the jurisdiction of the courts of the United States, that was necessarily meaning civil jurisdiction." I think that's what you have to do.
Will: I understand, but is that even an ambiguity is the idea that the word jurisdiction-- there's not even like a word to gloss. You have to be like, "Well, we meant to add the word civil, we just--"
Dan: Yeah, I mean, there could be a context in ordinary language when you use a word, but it's clear from the context that you're referring to a specific instance of that concept. Right?
Will: Sometimes. If this text is ambiguous, I don't know that it's possible to have unambiguous text, but you can say that even unambiguous text should be limited to its context sometimes when we know it is intent or whatever. But if this is-- [crosstalk]
Dan: Yeah, look, I'm not defending this. I'm just saying it's tough, it's not great. The government says, "Look, there's this other statute, 18 U.S.C. 32, 31, that just says, 'district courts of the United States shall have original jurisdiction exclusive of the courts of the states of all offenses against the law of the United States.'" This is as alleged, it's a violation of the law of the United States.
Will: So that's right. That statute has been around for a long time. The idea is a statute that says the courts have jurisdiction of all offenses against the law of the United States, and then we add a new statute later in time and more specifically that says, "Ah, but these people have immunity from the jurisdiction of the courts in the United States." Again, isn't that obvious, to the extent the two statutes are in conflict, maybe they are, the later in time more specific statute controls. That's just like black-white law.
Dan: I'd say that is a reasonable argument. That is a plausible argument.
Will: If it's true that nobody ever thought this meant this and this is not what it is intended, it will lead to terrible consequences because the evil Iranian money launderers will get out scot-free. Maybe those are all good arguments anyway, although I'm not sure they are in this day and age. I was kind of impressed to see just a stark textual issue, this stark, make it to the Supreme Court.
Dan: Why? Because you think that the lower court should have just clearly come out one way or the other?
Will: Yeah. Well, I will say that. I first encountered this just the statute language first before I got right into the background. I just like, "Okay, this seems pretty clear." And then I started trying to read the lower court opinions, and frankly, I found the argument so bad they were hard to understand, which may mean that I'm just not yet fully sympathetic to the Feldman United States interpretation here, but-- [crosstalk]
Dan: So bad they were hard to understand.
Will: Yeah. Again, maybe really, they aren't so bad. I just don't understand them. I don't understand why they're good. Maybe you can tell me why the argument is not just totally dead on arrival, but I spent of-- [chuckles] [crosstalk]
Dan: That's harsh. It's harsh. Judge Cabranes is not coming off well in that assessment. Yeah, I mean, I think that is tough. I mean, another thing we should pick apart is, is Halkbank just the state?
Will: Sure.
Dan: I think Halkbank is the state. if we're in FSA world.
Will: Right.
Dan: I guess it's unclear, when do we answer that question is the thing it's unclear to me.
Will: I think this is how the government, I guess, would frame it, is to say, "Look, if you agree with the government that it's totally clear this prosecution would have been fine until the FSAA both because the scope of criminal immunity is unclear and because in any case, Halkbank would not have been the state until 1976." Then you think the statute sweeps in and makes this doubly sweeping change both to eliminate all criminal cases against foreign sovereigns, even though nobody really thought about that. To define foreign sovereign broadly enough that includes-- this is not like it's just the United States v. the Republic of Türkiye. It's all sovereign entities. That's just like, such an astonishing change that if anybody had meant that, surely there'd be more evidence of it. The elephant in the mouse hole or the dog that doesn't bark, or whatever your favorite, has a logical metaphors. I guess that's the intuition on the other side. By sweeping aside the pre-1976 history, I've been kind of unfairly loading the deck in favor of the text.
Dan: Yeah. Although the pre-1976 history seems to me like maybe there's not as much there as either side would like there to be.
Will: Yeah. One of the strong cases for textualism and one of the strong purposes of the FSIA is kind of Congress come in and say, "Look, this is a mess. And nobody's even sure exactly what the rules are. At this point, we're just doing whatever the State Department says. So, let's just have some rules now." One of the points of that is to abstract away from debates about the practice. If you let people start bargaining away from the rules by saying, "Oh, well, actually, when you go back to the complicated pre-1976 practice that we found totally unworkable," then you start to undermine the whole point of having the statute.
Dan: Although maybe you go back and at least-- I thought the understanding was that, look, there was some set of rules. It just was a little impractical but that doesn't mean that there were no rules at all, nothing that you could discern. And that I thought the FSIA was not supposed to be a total transformation, but it was, to some extent, a codification of existing practices and a way to simplify them and to get rid of the discretionary case by case judgments.
Will: Yeah, that's true, too. The reason the discretionary case-by-case judgments was hard is because the rules were not totally self-applying to the actual cases that came up.
Dan: Petitioner at the bank, I'd say it's a rhetorically kind of aggressive brief.
Will: Well, by Lisa Blatt.
Dan: Yes, by Lisa Blatt, who is a very successful, well-known Supreme Court litigator, and it's a brief that doesn't really pull punches, and it really comes out full-throated assault. In the introduction, it says, "Until the decision below, no court had authorized the criminal trial of a foreign sovereign or its instrumentalities, nor did any administration attempt to prosecute foreign sovereigns for the first two centuries of the public. President Madison did not indict Great Britain for arson, for torching the White House in 1814. President Roosevelt responded to Pearl Harbor by unleashing the full might of the American military against Japan. Not a failing for prosecutors. Presidents Nixon and Ford did not turn to antitrust law to address the 1973 OPEC embargo. They chose diplomacy and sanctions." I thought that it was effective as far as it went but then the more I went on the briefs, the more I was like, I need to make sure we're clear on all the predicates and everything.
I want something that came up at various points and came up in this Feldman amicus brief written in part-- one of the lawyers on it is a friend of the show, Adam [unintelligible [00:56:06], which I thought was very well done, which is just like, look, the petitioners are just totally saying that the bank equals the state and it's a lot more complicated than that. If you look back at history, there wasn't this historical tradition of providing exactly the same level of immunity for commercial enterprises owned by states versus the states themselves. I felt like maybe I wanted to see more of that groundwork laid rather than just jumping straight to this treating this as if it's a prosecution against Turkey. Now, I think if we're in the FSIA world, then we have to treat them the same.
Will: Right.
Dan: Now, I'm confused about which step we figured that out at.
Will: The FSIA says that there's no jurisdiction against the prosecution against a foreign state, and the FSIA defines foreign state, I think, in a way that includes the bank.
Dan: Yeah. I guess if we think that the FSIA's immunity provision covers criminal jurisdiction, then it clearly would have to cover here, correct?
Will: Yes, right.
Dan: Okay. But so if it doesn't then that definition would not apply here.
Will: Right.
Dan: Yeah.
Will: Exactly.
Dan: Then we would have to go back to this history and what's the distinction and so forth.
Will: I think the government is probably right about what the law was before 1976. I found it not clear-cut either way, but if you put me on the Supreme Court in 1974 and asked me to decide this case without the FSIA, the government's argument seems more persuasive to me. But I don't think the government's argument that the statute didn't make this change that it obviously seems to make is as strong. Maybe this is my textualist cards, I guess, coming out is that just the government may be right, that this would be a big deal for the text to do it, but I'm not sure they've shown enough to show that it didn't happen.
Dan: Yeah.
Will: Can we talk about states for a sec?
Dan: Yeah. There's several states. Not states. Not foreign states. Like, states says Missouri states--[crosstalk]
Will: I originally started following this case because my colleague Curt Bradley, friend of the show, Jack Goldsmith, was following it and writing about it and have some blog posts on Lawfare that get into this textual issue. They make another point just in terms of the purpose and structure of the FSIA that I found pretty powerful. I'm curious if you do. I didn't see this in the briefs anywhere, I didn't see [unintelligible [00:58:24] respond to it, which is if the government is right, then can't states, not just the federal government, but couldn't any state also prosecute foreign instrumentalities?
Dan: Yeah, but there'd be no way to remove it to federal court. There'd be no way to get a US Supreme Court review of that decision if it's purely a state law matter.
Will: Right. This is the only statutory foreign sovereign immunity provision there is. So this one doesn't apply to criminal prosecutions, and it's the one that applies in the United States and state courts, then there'd just be general common law principles. Maybe you could argue I don't think this is in the briefs, but you could argue there used to be in the 70s, this, like, implied foreign affairs preemption that went out the window. You could maybe think, like some unwritten constitutional principle or something would say that the states can't prosecute a Turkish bank. It's not all obvious why that would be true. It would be this kind of case-by-case determination. Even if it were true, there'd be no removal to federal court, and maybe you get Supreme Court review at the end of the prosecution. The consequence of the other side would be to unleash potentially quite wild foreign policy consequences. I mean, can you imagine the state of Florida deciding to prosecute China for COVID?
Dan: Would it or-- I mean, has it ever happened before?
Will: I don't think the federal government was doing this either.
Dan: Yeah, but the fact that even if they win here, there's no particular reason the federal government is going to start doing it every day. I mean, presumably, there's all sorts of foreign affairs reasons why they don't do this very often, right?
Will: I'm just thinking about the states-- given the world we live in now and the states we have now, I guess I am thinking about [crosstalk] making a show of prosecuting, who knows?
Dan: If it is currently not clear whether that's possible or not, why haven't they gone ahead and done it? You just said, it's going to unleash all this, and it's like maybe or maybe not or maybe--[crosstalk]
Will: I don't think anybody thought of it either way, but after the Supreme Court case, people are going to think about it.
Dan: Well, after Bradley and Goldsmith's blog post, you mean that's what's going to give them all the idea. I think that was really interesting and it was surprising how that wasn't really coming out. It's not a textual argument. It's a structural argument looking at the implications of a different provision.
Will: I think it's a rebuttal to the argument that the text can't possibly mean what it says. You start with the text that seems to say, "No jurisdiction unless we say so." All we're creating is a special kind of civil jurisdiction with special protections like removal. And then the government and the Amici come in and say, "Well, obviously it can't mean what it literally says. That would be crazy, nobody thinks that." Now we're showing that actually that view also has some weird consequences if taken seriously. Maybe that's more of awash and then maybe you're back to the text a little bit.
Dan: Yeah, I think that's reasonable. So, some other stuff going on. I'll just quickly talk about the briefs and then maybe we can step back and go big picture. Some other interesting briefs I enjoyed reading. There's one by series Ingrid Brunk and William Dodge, which is not so much about the underlying merits, but just saying, like, "Look, the thing that's really important is that these decisions can't just be the executive branch. This is a judicial three determination. I guess there was this period, middle of the 20th century as I understand the brief, again, without knowing the background, when courts were just like saying, "Okay, State Department, you decide. This brief is saying, 'Look, this is something that's core kind of Article III judicial determination, and you can't just defer on that,'" that seemed persuasive to me.
Will: I think it's very sneaky.
Dan: Yeah. Say more.
Will: There is this long-standing debate about federal common law, the extent to which international law is federal common law, the extent to which federal courts should make determinations about international law that contradict the determinations of political branches. That's part of the scholarly fight in some ways between Bradley and Goldsmith and people like Dodge. I think this brief is trying to lure the courts into little bit more of the federal common law space. That makes it sound too disingenuous, but I think the argument seems plausible in part because it's pitched as this historical argument against this, like, [crosstalk] part of the practice. I think in a way, that's bound up with all those bigger debates that the Court has usually either stayed out of-- [crosstalk]
Dan: If the choice is between when you're trying to figure out the scope of these immunities, assuming that it's not resolved by the FSIA, if there's choices between just total deference the executive versus the courts figures it out on their own, you must agree it's the latter, right?
Will: I agree it's the latter, but I don't agree that it's federal common law.
Dan: Yeah. [crosstalk] -a question
Will: They're taking an intuitive position that you guys should decide and then trying to in the course of getting the courts to agree, "Oh, we should decide," it'll also maybe get the courts to say, "We get to make federal common law in this area," which the court-- [crosstalk]
Dan: And the answer is instead determining preexisting common law rules rather than giving courts the power to make new common law rules is that--
Will: It's not Federal and it's not made. They can look to what is-- [crosstalk]
Dan: It's a law of nations.
Will: What is the sort of, yeah, law of nations in a preexisting sense?
Dan: As it existed in 1789, and then we're stuck with it? Or is there--?
Will: I think as it exists today, like the way the court does it in the Alien Tort Statute context, which court does, it says, "Well, we have the paradigm case for 1789 of piracy. And then if you can show us a really powerful practice that's risen to have the force of law today, we might add that."
Dan: But do you think that's okay?
Will: I think that kind of reason will be okay, but it's not how the amicus brief [crosstalk] is not they make you think of it?
Dan: Fair.
Will: It's a great brief.
Dan: It's academic amicus briefs. Often as an academic, I say those are often among the best.
Will: This is another one of these two amicus. It's not brief on behalf of 71 million of-- [crosstalk]
Dan: There's diminishing inverse returns with each additional amicus. So, I like the one professor brief.
Will: Yeah.
Dan: Like the Sachs brief, [crosstalk] it has to be Sachs and Baude, I'll accept it.
Will: [chuckles] Yeah, that’s fair.
Dan: I'd rather have the Bray brief, but I'll accept Bray and Baude.
Will: The secret of my academic success is to staple myself onto a bunch of coauthors and bring them down a little bit.
Dan: Well, you're canceling all that out by stapling yourself off to me on this podcast. Yeah, I think that being able to just come in and say, "Look, I have a different way of thinking about this than everybody else does, and I have a lot of expertise." I think is really helpful. There are a lot of briefs that are like brief of 72 criminal law professors and they're just saying the arguments you'd expect and people are joining them not because all 72 of those professors have really read it and really thought about the issue and written articles about it and come up with their own theories. It's because they agree with the bottom line. Everybody knows that. And people, like to put it in their resume that they joined amics brief, but it's just not--
Will: Do you get to put that in your resume?
Dan: Well, I don't join those briefs, but I think some people do, and some people put them in the briefs. I was persuaded by-- we've probably talked about this before, the Richard Fallon article he wrote a number of years back about how academics should not just toss their names on amicus briefs willy-nilly, but you should only do it if you really know the issues, really have thought about it carefully. Basically, you don't necessarily have to have written the brief yourself, but come close to it in terms of the amount of research you've done and the kind of expertise you have. I think that's right. It's also nice because it's a great way to just get out of stuff. People are always begging me to do briefs and put on my name on stuff, and I'm just like, "No, I've got the Fallon rule."
Will: Yeah. Sometimes you say, "Look, I can't join a brief unless I write it." They're like, "Okay, do you want to write it?"
[laughter]
Dan: Well, then I say, "I don't have time."
Will: Yeah, fair enough. I have sometimes thought about just maintaining a little website, like a little tracker of all the cases where I've been asked to join amicus briefs and what position I take. Like, to the extent he wants my thumbs up, thumbs down, like, "Oh, yeah, I'm on this side. I don't have time to write a brief or tell you why or do any research," but if you're curious, like a little endorsement roster or something-- [crosstalk]
Dan: I don't think it would take judicial notice of that.
Will: Sure, if they cared, but I assume they don't, which is part of why I don't do it.
Dan: If you assume they don't, you wouldn't write your brief.
Will: They might care about the things said in the brief, although I don't really hold our breath about that either. Just thought it was important to say.
Dan: You were in authority with these folks, right?
Will: With?
Dan: The conservative Justices, right, do you think?
Will: I don't think so.
Dan: Really? You're, like, one of the leading conservative originalist legal scholars in the country. Like, why would you not be in authority?
Will: I assume they've had their views about things and they-- [crosstalk]
Dan: Well, I'm sure they have their views, but it doesn't mean and I'm not saying that they just do exactly what you say, because obviously, they don't, but like-- [crosstalk]
Will: They never do. Every single amicus brief I've ever filed has been on the losing side.
Dan: It doesn't mean they don't treat it as authoritative and think about it.
Will: They might think about, and I'm lucky they think about it.
Dan: If we wrote the same brief, and if it was coming from you, I think yours is going to get a closer look and more deeper thought from them than what I do will be.
Will: I don't know if that's true, but I'm just saying whether people look at you and whether they treat you with authority is very different.
Dan: Yeah, fair. But, I mean, you're a persuasive authority. That doesn't mean you persuade in every case, but you could be persuasive-- [crosstalk]
Will: Any cases? [chuckles]
Dan: You'll get there, you get cited. You've got some cites.
Will: Never on a majority opinion, I think.
Dan: Well, it means you're persuading somebody or at least intriguing somebody.
Will: Sure. No, look, I'm happy to have my work be relevant at all. I think that's more than I expected when I started this career, so I'm happy about that, but I don't feel very authoritative.
Dan: The shadow docket is your most cited thing?
Will: I think it's probably the qualified immunity article.
Dan: Really? Okay.
Will: Every brief, yeah, I think so.
Dan: I was going to ask how you feel about the shadow docket being, like, the most cited thing.
Will: The shadow docket is the thing I like the most known for the kids of random colleagues or some guy who can do some work on our house. Like, "Oh, you're the shadow docket guy, I heard about that on the radio." I do think that's going to be like, the thing I'm the most known for.
Dan: It's one of the things you've done that's kind of the least here's a new theory. Here's an idea. It's more just like, here's the thing that the court is doing.
Will: It's like, here's the thing people should pay attention to. Here's the thing is, if you make your claim modest, people should pay attention to the thing. It is possible to succeed because now people are paying attention to the thing.
Dan: Yeah. Even if they really disagree, it's too late. They've already paid attention.
Will: Right. If you say you should get rid of this 50-year doctrine that protects police officers from liability for their acts, it turns out that's a bigger ask. They don't want to do that.
Dan: Yeah. A lot of people want to do that. Justices don't want to do that.
Will: One justice wants to do that.
Dan: Someday. Okay.
Will: So, your prediction out of this case.
Dan: I do think that the Baude, Goldsmith, Bradley access is kind of a strong starting position for the bank. You think that, as we've talked about that textual argument is pretty strong, and there's a reason why the government I had to go pull up the statute and be like, "Wait, what's the text here?" I was like, "Oh, that's not great." I think that's going to be hard to get passed.
Will: Yeah, I thought you were going to push back much harder on that.
Dan: I read the statute before we had this conversation. Reading the government's brief, I could tell it's obvious that they're obfuscating. [crosstalk] I think that's going to be tough.
Will: Do you think of it as unanimous?
Dan: I mean, possibly on the result. I don't think on the reasoning. I think there's enough moving pieces here that I think that there could be. There's also, like, there's this thing that comes up briefly about whether the Second Circuit had appellate jurisdiction.
Will: Oh, that's kind of interesting. Yes, I agree.
Dan: Because this is an interlocutory decision denying a motion to dismiss. It goes up to the Second Circuit. Under this nerdy fed court doctrine, the collateral order doctrine basically says the rules are you're only allowed to appeal final judgments. Then there's this other rule that says, "Well, certain things that aren't final judgments are final judgments because we think they're really important and we want them to be." Maybe that's a little unfair, but where we've said, "Look, there's all this stuff that's really kind of a big deal." We're going to say that interlocutory ruling is final for purposes of something--[crosstalk]
Will: To be fair, it has to be sufficiently independent that there's a way in which it's final, in which it's, like, final as to the immunity part of the case.
Dan: Yeah, but every order is final as to something.
Will: Well, no. An ordinary motion to dismiss is not final as the case goes forward.
Dan: Yeah. Immunity ruling, you are resolving it at the beginning of the case, because if someone is immune from suit, they don't have to go through the litigation. If you're saying, "You have to go through the litigation and can have this appeal later, it's too late."
Will: If the judge suddenly holds you in contempt and locks you in prison, in the middle of the case for some totally random, unrelated reason, you should be able to appeal that right away rather than have to wait until the case is over. This is an independent issue, and the question is how many things are like that?
Dan: Yeah.
Will: I will say this collateral order doctrine has come under-- the court has suggested it's, like, not super textual, maybe we shouldn't expand it. I think when Justice Gorsuch was a lower court judge, he had some opposition to the doctrine and thought maybe there should be some reconsideration of it. I've got on my bucket list a formalist, is the collateral order doctrine unlawful type article that I haven't-- [crosstalk]
Dan: It's not going to be your most cited piece when it's all said and done, I'm just going to say.
Will: Yeah. Well, you got to give the people what they don't want. I feel this is not the case where that's going to suddenly catch fire. If it did, by the way, it could shut down a lot of the qualified immunity appeals so we could get some backdoor success in the qualified immunity issue that way, because qualified immunity is another classic collateral order. But, yeah, it's an interesting little-- [crosstalk]
Dan: You get multiple interlocutory appeals and qualified immunity, right?
Will: Yeah. You get one at the motion dismissed stage and one at the summary judgment stage.
Dan: Yeah. Make these things drag on for years and years. Okay, but is the answer here that assuming that we keep all that doctrine in place that there is jurisdiction for the second circuit to have ruled on this question?
Will: I think having already said that qualified immunity is a collateral order and that state sovereign immunity is a collateral order, I don't think anybody's going to suddenly blanket foreign sovereign immunity.
Dan: Agree.
Will: Yeah. So, I think probably you're right, unanimous as the result. I guess, like, unanimous as to the result with a textualist opinion from the majority and then a concurring opinion by two to three Justices saying, "Well, I also would consider-- it's not just the text, it's also some other stuff that seems right," but I bet the United States gets zero votes.
Dan: I think it's possible. Yeah.
Will: Zero votes for law enforcement.
Dan: Okay, so maybe it is a simple case after all.
Will: Well, but I think, as you say, how you get there, it's going to be complicated, in that sense it's kind of fun to watch. I don't know. Maybe we're both naive. And--[chuckles]
Dan: It used to be just you were naive, now I'm naive, too.
Will: I feel usually, I'm the one who says, "Well, it's really complicated arguments on both sides," but I just think this one, the briefs make it look really complicated, but it's not complicated.
Dan: I was talking to a friend about our show, and he was like, "The funny thing about the name of the podcast is that at the Supreme Court when you have a divided argument, both people are actually on the same side."
[laughter]
Dan: Which is true. It's usually, at least, close to true. Like, there's two-
Will: Yeah, that's correct.
Dan: -litigants arguing for, like, basically the same result, and they're trying to divide their argument. I was like, "Okay. Fair, still a good name of the show," but that's a good--
Will: I'll never think of the name the same way again. We might have to change it, Dan.
Dan: Okay. Any other things we should talk about that we missed out on in our holiday-related hiatus?
Will: I don't think so. Let's call it a show.
Dan: Yeah. I'll say to our listeners, we often talk about what's the thing we should talk about this episode. We often try to juke when you think we're going to go in one direction. As you see, we don't always go for the hot-button thing, but if there are things you are particularly interested in hearing us talk about that you think are in the core wheelhouse, shoot us an email. We'll take all that stuff into consideration and we will be talking about some other cases, previewing a case or two from February, I'm sure keep going. Once the opinions start coming down, I think we'll probably be more regular and grinding through those. But that's all I got. So you want to close this out?
[Divided Argument theme]
Will: Thanks for listening. Please don't stop reviewing, rating the show on iTunes or wherever you listen to the podcast. We're still-- it's been sort of a growth season for us. We're still trying to get the word out to more people who might enjoy the show, despite the lack of any predictable recording schedule. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: And please shoot us an email pod@dividedargument.com. Leave us a voicemail in song format or otherwise. 314-649-3790, go to store.dividedargument.com for merchandise. And if we don't record an episode for quite some time, it's because we have been subject to criminal prosecution in a foreign jurisdiction.
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