Divided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor, and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos.
Divided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor, and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, we are doing another live show. It had been a while since we had done one, and now we're really back in the saddle. We are in your home territory of Chicago, Illinois, at the Northwestern Pritzker School of Law. I'm told that if I don't say Pritzker, I get in trouble. [crosstalk] the Pritzkers.
Will: Well, I think If you don't say Pritzker often enough, eventually, Northwestern gets in trouble, so they have to give the money back.
Dan: Well, and also, is Pritzker also the governor, so he has power here?
Will: There are a lot of Pritzkers.
Dan: Okay. Fair enough.
Will: We have guests of the Northwestern Federalist Society. So, the people listening on the show can't see this, but there's a giant banner with James Madison's head in purple next to Dan. And then, I'm wearing my Federalist Society lapel pin over here just to make sure it feels-- [crosstalk]
Dan: I am not. And in fact, I do not own one. There is food here. It is strangely not Chick-fil-A. The Federal Society at my school only serves Chick-fil-A. So, maybe things are different, this part of the country. So, we have a number of things to talk about. Unfortunately, the court has not given us any new merits opinions, which are our bread and butter, and so we have to scrape a little bit. But as always, there's news, there's things that are relevant to listeners and we will do our best. So, where to begin, Will?
Will: Well, the question everybody keeps asking me, Dan, is: are we in the middle of a constitutional crisis?
Dan: Well, you tell me what a constitutional crisis is, because I think we have some vague sense of what that might mean. But if I was asked to define it, I'm not totally sure I know how.
Will: Yeah. Well, could a constitutional crisis be when a bunch of people are disobeying the Constitution?
Dan: Sure. It seems like not the only definition, but maybe it could also include situations where there's deep uncertainty about the Constitution, or there's the potential for massive constitutional change.
Will: Yeah. Also the problem, I think, if you're an originalist, a bunch of people disobeying the Constitution is also known as Tuesday. [Dan chuckles] So, I take it has to be something like disobedience of previously settled constitutional norms; deep contestation about constitutional norms that go to fundamental rule of law questions.
Dan: Challenges between different institutions. But if everyone just agreed that, we should do something different in terms of the Constitution, that wouldn't really be a crisis. There has to be someone butting heads, right?
Will: Must be a fight.Yeah, maybe. So, the Civil War is a constitutional crisis, right?
Dan: I'm willing to concede that.
Will: Okay. And then, have there been other constitutional crises?
Dan: Certainly, I think someone might point to the court-packing crisis. Is that possible? Maybe, certainly not anything on the order of the Civil War, but it's a situation where there was really deep contestation about norms, at least, if not about constitutional. Meaning, deep disagreement between the Supreme Court and the president about how to approach the Constitution in that sense-
Will: Sure.
Dan: -and a sense of real jeopardy.
Will: Yeah. Okay. And then, what about Nixon and Watergate? You might think that's a constitutional crisis? You might say, no, that's not a crisis because the system worked, the president, after a standoff, stepped down? What do you say?
Dan: Well, it certainly was a moment of constitutional peril. [Will chuckles] We don't want to define constitutional crisis in such a way that only events that actually conclusively break the Constitution constitute crisis, right?
Will: Right.
Dan: So, I'm not sure. What do you think?
Will: Yeah, I'm inclined to say it's not. I'm inclined to say that you want to capture something important about Watergate that that could have become a constitutional crisis: if Nixon had said, “I'm not obeying the Supreme Court's order to turn over the tapes,” even if it had ultimately led to the Constitution not breaking, or if Nixon had said, “I'm not resigning. It had gone to an impeachment trial and things have gotten messy.” I think somehow the messiness is captured. Maybe it's the constitutional peril, is what comes before a constitutional crisis. I'm not sure.
So, on that definition, I'd say, we're not yet at constitutional crisis level, right? There are questions about whether the Trump administration is going to… exactly which laws they're breaking or obeying, what the consequences will be. But we're not at a point where we could say the system is broken down. Am I being unfairly Pollyannaish as usual?
Dan: No, I think that's reasonable. I wondered does the debate really matter? Are we just having a terminological debate, or is there some heft to it? What flows from us deciding that the correct label is constitutional crisis?
Will: Yeah. Have I ever used the phrase metalinguistic negotiation before on this podcast?
Dan: [chuckles]Possibly, but I don't recall.
Will: Okay. So, this idea in philosophy and linguistics, what's called metalinguistic negotiation, which is a really technical philosopher's term for a semantic debate. But the idea, is that the semantic debate has some stakes, because there's some package of normative ideas that come with the term that we're debating about. I think that constitutional crisis triggers something, like, either the normal rules are suspended, like we, rule of law people, should get off our butts and do something, if we're in constitutional crisis mode or the obligation to respond or something.
Dan: What would we do?
Will: I don't know, there's a law professor letter I was just asked to sign. Have you been asked to sign this one?
Dan: Oh, the Trump administration must be shaking in its boots about that one. [Will laughs] The ultimate tool.
Will: Oh, well, don't worry. There's law school dean's letter going around.
Dan: Oh. Okay.
Will: That'll get them.
Dan: They're bringing out the heavy artillery.
Will: I don't know. Yeah.
Dan: I don't sign group letters.
Will: Ever?
Dan: Pretty much. Yeah, I think that's my rule.
Will: That's good.
Dan: Unless maybe if I write it. It's an easy rule. You don't have to apologize. You just say, “I don't do those.”
Will: Yeah.
Dan: Do you? You wrote a famous one, right, the Originalists Against Trump?
Will: Yes. Steve Sachs and I coauthored Originalists Against Trump. Got ourselves in a lot of trouble for that. I have signed a group letter or two. I've signed just enough that I can't honestly say I never signed them, but then I almost never signed them.
Dan: Do you have a decision rule?
Will: I have a principle against signing them. But Richard Epstein once said to me, “Sometimes you have to put aside your principles and do what's right.” [chuckles]
Dan: Okay. So, there is some meta principle, but you're not able to articulate it.
Will: Yeah.
Dan: Okay. So, yeah, there is this interesting article in the New York Times by friend of the show, Adam Liptak, from a couple days ago putting this question on the table, whether Trump's actions have created a constitutional crisis. I think not reaching a true conclusion on that. But what about J.D. Vance? He rebroadcast a tweet by Adrian Vermeule, who friend of mine, scholarly frenemy of you and the originalist crowd, perhaps. Vermeule said, “Judicial interference with legitimate acts of state, especially the internal functioning of a coequal branch, is a violation of the separation of powers.”
Vance retweeted that and then subsequently said the following, “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the Attorney General on how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power.” A bunch of people interpreted these things as Vice President Vance saying, “Let's disobey court orders.” I didn't really interpret it that way. What did you think about that exchange?
Will: Look, the exchange is not literally saying, you should disobey court orders, because the question of whether the judge has done something wrong and the question of whether you should obey them anyway are two different questions. But I do think it's helping set the mood for delegitimizing the courts.
Dan: Isn't it just disagreeing with a potential judicial decision?
Will: Yeah. It's helping set the mood, not necessarily in an incorrect way. It's true that judges are bound by the separation of powers, and there are limits on what they can do too. And those limits are important. If we didn't have them, it's not clear the courts could sustain their role in our system. That part's true.
The other things Vance said, are they true? Judges dismiss cases brought by prosecutors all the time. The Attorney General says, “Bring this prosecution, and then there's no evidence. The judge might dismiss it. And that's not illegal.”
Dan: Yeah. It's possible you could interpret what he was saying as the opposite, which is a court ordering the Attorney General to bring a prosecution, which, to the extent those claims have arisen, federal courts have always said that that would violate the separation of powers.
Will: Yeah. Although even then, when the prosecutor wants to dismiss a case, the criminal rules of procedure sometimes require them to get leave of court, depending on whether it'll cause prejudice to the- Those aren't granted, as a matter of automatic right under the Constitution.
Dan: Yeah. But I don't think there's precedent for a federal court requiring the executive to go through with a criminal prosecution that it doesn't want to bring.
Will: Okay. The President can always pardon somebody, so that would be the ultimate backstop. Similarly, mostly courts don't tell generals how to conduct military operations. But I'm old enough to remember when we were in law school, there was a ton of litigation about the global war on terror, which sometimes seemed to involve generals and courts.
Dan: Yeah. Doesn't the David Barron and Marty Lederman article, the Lowest Ebb, published in the Harvard Law Review doesn't it take the position that there actually is a fair amount of power there for Congress to potentially direct military operations and maybe those would be enforceable by courts even.
Will: Yeah, maybe. Again, it's true that the time that a judge enjoined the bombing of Cambodia back during the Vietnam War did not last long. It's generally held in our system as anti-precedent. Like, even the most activist judges have some sense that's probably not a thing they could get away with doing now. So, if that's all Vance is saying, “Sure”?
Dan: Well, so what do you think? Do you think there's a danger of this administration refusing to follow a court order now? There's lots of court orders flying around and presumably lots more that are going to be flying around in the next few weeks, because this administration is doing a lot of, I would say, adventurous things and there's a lot of litigation in the works.
Will: Yeah.
Dan: You did point my attention to President Trump saying in a press conference, when a reporter asked, “If a judge does block one of your policies, will you abide by that ruling?” He said, “I always abide by the court, but then I'll have to appeal it.”
Will: Right.
Dan: That's a very-- [crosstalk]
Will: That's conventional.
Dan: That's the right answer.
Will: That's the right answer. That’s good.
Dan: Were you surprised by that? I would have thought I might see a little bit more posturing from him, because-- That's a kind of move in the presidential arsenal to create the fear in the judiciary that the president might disobey a court order, which could cause the judiciary to back down in some circumstances.
Will: Yeah. I think that early Trump 1.0 line would have been more like, “Court orders are very important, but yeah, we're looking into them. We got to put them all under review. Some of them are very troubling” to cast the idea there might be some you wouldn't comply with. I take it this is a more disciplined playbook. I do think, even just as a tactical matter, if you want the courts to give you a fair hearing and to give you the victories you're entitled to, you've got to imply to them at least that you will trust them and you're willing to take your losses if you get them.
Dan: Well, maybe or maybe. Is it Ex parte Quirin, where President Roosevelt signaled through back channels that he would not comply with an ordering him to release one of the German saboteurs, and that arguably pushed the court in favor of upholding his action?
Will: Arguably. I think they were going to allow the execution of the saboteurs, either way. Yeah. Arguably. I do think there's orders and then there are orders also. So, part of what we see right now is a whole string of what are called temporary restraining orders, which seem to be injunctions that are issued very quickly.
Dan: Often just to preserve the status quo.
Will: Yeah, although even people disagree with the status quo. So, is the status quo the state of affairs right before the lawsuit was filed, or is it the state of affairs right before the president did the thing that people don't like when the lawsuit was filed? So, often, in that sense, reverse the status quo of what the president has done. Those might be in place temporarily while you then appeal it and even while you are asking them to stay it.
I wouldn't be shocked to learn that the administration's not always jumping to comply with those TROs the moment they happen. Sometimes I'm not even sure how you could tell. When the administration announces a freeze on spending and the judge says, “I'm freezing the freeze,” right, so you have to unfreeze. But does that mean that all money has to go out the door at exactly the rate it was before, or can you say, “Well, fine, the spending's not frozen, but we still are meeting about which money to spend or not”? I think there's a lot of ambiguity there.
Dan: Yeah. In general, this administration is very chaotic. It's hard to even figure out what's going on. Did you ever say, if that were to happen, would that be a constitutional crisis? Is one refusal to obey a court order by the president, a constitutional crisis?
Will: I think one refusal to obey a final judgment by a court that clearly has jurisdiction is a constitutional crisis.
Dan: Oh, because of your theory that--
Will: Well, because that's the most settled norm we have. Now, I think the more you take away pieces of that, the more the norm's a little less settled, so then the more we have to talk a little more. But I think one speech of John Roberts has made his ruling, “Let him try to enforce it,” I think would be enough to be a crisis.
Dan: Well, Justice Sotomayor said in public remarks, in a talk that she seemed to think, “Public officials would follow court orders.” She didn't specify who she was talking about. She made her comments very, very general. What did you make of that?
Will: I couldn't tell either from the reporting or I couldn't tell if this is just like her stock rule of law speech that she… which now takes on a new feel in light of the surrounding politics or whether she was actually trying to subtweet the administration. Chief Justice Roberts in his year-end judiciary report in December talked about attacks on the judiciary and the rule of law. One of his talking points was the importance of obeying judgments. Most people just rolled their eyes, were like, “Oh my God, more banal lecturing from the Chief.” So, I can't tell if she's just doing that or not. What do you think?
Dan: Yeah, it's very hard to tell because we usually don't get or at least it's not easy to get full transcripts of the remarks. The journalist will pick out two sentences. You'll get a whole new story that's about two sentences and we don't know the full context.
Will: Yeah.
Dan: So, we will see if anything happens that causes her to change her tune. Can I make a segue to something that maybe is relevant to the constitutional crisis decision, which is that we got a letter from Acting Solicitor General Sarah Harris to the Judiciary Committee noting that the SG's office plans to argue that Humphrey's Executor, which approved for cause removal restrictions for independent agencies is unconstitutional or at least argue that it doesn't apply to a number of agencies and failing that argument, argue that it should be overturned.
Will: Yeah. I think this is a very interesting letter. So, these are required by a federal statute, 28 U.S.C 530D that says that, “If the executive branch decided not to defend the constitutionality of a federal statute, they have to let Congress know, presumably so Congress can now decide whether to try to send some amici in there to defend the statute and stuff like that.” So, she's complying with that statute and saying, the removal restrictions on the FTC, the NLRB, which has current litigation pending and the Consumer Product Safety Commission are unconstitutional prepared to-- Here's our theory. I guess in a way this is obviously coming. I think on the prediction markets, the only real question is like, “Will Humphrey’s Executor be overruled in 2025, in 2026, or in 2027?”
Dan: Is there a prediction market for that?
Will: Manifold. Yeah.
Dan: Okay. Okay.
Will: Yeah.
Dan: Do I need crypto to get into that?
Will: No, manifolds just play money. So, it's the most fun. But that's all I do.
Dan: That's the least fund. Gambling? You don't like gambling?
Will: I like complying with the law is fun, for me.
[laughter]
Will: One or two things that the letter does not mention the statutory tenure protections for the Federal Reserve Board. There's always been this mystery of, if Humhrey’s Executors overruled, what happens to the Fed? Will the court say nothing about the Fed? Will the court say in a footnote, the Fed Who knows? Will the court say in advance the Fed is different Because Murph-- [crosstalk]
Dan: Is that because politically that would be the hardest independent agency, independent body and government to mess with because of what that might mean for monetary policy?
Will: Yeah. I think the thought is that it might even be bad for the economy for it to be on the table that they could be messed with. And so, it'd be important to in advance say, this is different. Constitutional crisis is one thing when it's the NLRB, but the Federal Reserve and the stock market is more powerful even than the Constitution.
Dan: Yeah. So, what do you see happening? Do you see the administration getting to successfully tee this issue up for the court, and do you see the court ultimately agreeing and saying, Humphrey's Executor is wrong and radically reshaping the entire administrative state?
Will: [laughs] Compound question.
Dan: Do you dispute parts of it?
Will: I'm not sure it'll radically reshape the administrative state.
Dan: Wouldn't it mean that the entire leadership of every independent-- There wouldn't be independent agencies anymore, but potentially the entire leadership would turn over every administration.
Will: So, what's at stake is whether or not the president needs cause to remove people from these independent agencies. But cause, there's not a lot of litigation about what that means. I think courts are pretty willing to find cause in things like disagreement between the president and the agency head of what the agency should be doing, which there's a lot of. So, I'm not sure how much it'll matter. It depends in part on how the underlying norms accompany it. Like, the presidents always could turn over the entire membership for cause pretty easily, but they don't. So, if this also heralds that, that'll be a big deal. But I'm not sure how much the decision's part of it.
Dan: Yeah. It does seem quite plausible, at least for this administration, it will herald firing all Democratic appointed commission members. But maybe not.
Will: Yeah. The new administration, when there's eventually a Democratic administration, might at least have a retaliatory firing of enough Republicans to bring it back to parity, then we're in some new equilibrium. I don't know. But I do think it seems likely to me that lower courts will not overrule Humphrey's Executor, because there's a thing that says, lower courts are not supposed to overrule Supreme Court cases. At least, some lower courts will agree with that, and then it seems likely to be the Supreme Court will take the case.
Dan: They could dodge it.
Will: Yeah. Well, I will say she has an argument which I think is not a bad argument, that they don't even need to overrule Humphrey's Executor. So, Humphreys Executor relied on this assumption that independent agencies are not real parts of the executive branch, that they're really quasi legislative and quasi adjudicative. In one of the court's recent removal cases, state of law, the court said, “I was probably wrong. The FTC is exercised as executive power.”
So, the letter leaves open this argument that I think some people will buy that's even under Humphrey’s Executor. Independent agencies are actually in the executor branch. Therefore, Humphrey’s Executor is still good law as to the hypothetical unicorn, the independent agency that does not excise executive power, but there being no unicorns, all these agencies don't work anymore.
Dan: So, do you think that's plausible that the court might find a way to dodge the issue?
Will: Yeah. And it’s plausible lower courts would. If you were a lower court that said, “Well, we can't officially overturn off his executor, but we recognize this law is unconstitutional,” that's how you would distinguish-- [crosstalk]
Dan: And there would not be binding precedent governing those agencies in particular in Supreme Court.
Will: Yeah, there might be circuit precedent that you would say. Exactly.
Dan: Okay. What else going on in the shadow docket type world?
Will: Yeah. Well, there's a several more SG turnover type things maybe aren't that interesting. The SG, as predicted, wrote a letter to the court in Skrmetti, the trans healthcare case, saying, “The United States brought this case and it's on the other side, but now, we're on Tennessee's side. But we hope you still decide the case and rule for Tennessee.” I think we anticipated that in a previous episode. The SG asked for a bunch more time in a bunch of cases to try to figure out what they're doing, and the court said “No.” [chuckles]
Dan: Why? Why do you think the court said that?
Will: I assume because they only have 50 cases a year and they can't afford to lose any. Or, at some point, it's hard to justify their salaries. So, I don't know.
Dan: You don't think that's a subtle signal that the court gets annoyed with all the switches in positions? It seemed like that happened at the beginning of the Biden administration.
Will: Yeah, that could be. It could be a sign of, “Look, you can switch positions if you want, but we're not going to normalize that and make that easier for you.”
Dan: Yeah.
Will: That's true.
Dan: That said, it might save the court some unnecessary work. I guess my inclination, if I were justice, would be to say, “Sure, let's get it sorted out and then let's see what you actually want to argue.”
Will: Yeah.
Dan: Well, do we expect any more things like this? Do you think that the SG's office has cleaned up places where there's outstanding disagreement with the prior administration?
Will: Oh, I think we're just getting started. Also, we only have the acting SG, if and when John Sauer is confirmed to be the SG, he may have a new set. And then, as cabinet heads come in, some of this is downstream as RFK Jr becomes the secretary of Health and Human Services and he decides what the department's view is on Medicaid policy, which I'm sure he's been studying very carefully, that could switch a bunch of litigation.
Dan: Well, that will be interesting to say the least. Okay, here's an interesting small ball shadow docket thing. As far as I can tell, this is a rare shadow docket activity that was not referred by one justice to the full court. I thought that at this point, normally some application for extraordinary relief goes to the Circuit Justice for the particular circuit, the region of the country from which the case comes. This one is coming out of the Second Circuit, so it went to Justice Sotomayor.
In the past, it seemed like everything that was remotely plausible or interesting other than routine motions for extensions of time these days gets referred to the whole court. Back in the old days, often that wasn't the case, because the Justices couldn't communicate very easily. You had to go find Justice Douglas up on a mountain in Washington. But this one was not. Just before we get into the details, is your impression the same as mine, that referral to the full court for any kind of application for extraordinary relief is really, really common?
Will: Yes. And of course, practically. So, if your application is denied by one Justice, I think you get to reapply to the Justice of your choice. And so, if it's at all controversial and there's some chance that when you reapply to somebody else, they're going to do something different, it's wasting everybody's time. So, I think you got this norm.
Dan: Some version of that is what happened when Justice Douglas to bring it back and joined the bombing of Cambodia. I think at that point the government went to Justice Marshall and got him to lift the injunction.
Will: Yeah, I think maybe the full court. But yeah, he-- [crosstalk].
Dan: Yeah, he may have referred it to the full court at that point.
Will: So, friend of the show, Steve Vladeck, in his book on The Shadow Docket traces-- It says, “This is one of the sources of the current shadow docket situation,” that when the justices were doing it on their own, they therefore felt a certain amount of humility because they knew they were just acting for themselves. It was clearly not an interim ruling. They're trying to guess what the court would like. But once you get the whole court together, then the normal dynamic takes over like, “Oh, we're the court. We can do whatever we want.” So, he misses that.
Dan: And may be make new law in a way that they wouldn't have felt comfortable.
Will: In a way that individual justice wouldn't say, “I am overruling Employment Division v. Smith, [laughs] because I can.
Dan: They used to have oral arguments in chambers. That seems like that would have been fun. You just go sit in one of the Justices chambers and have an argument with opposing counsel in front of one Justice sitting at their desk, I guess.
Will: I think the law clerks watch.
Dan: Yeah.
Will: Yeah.
Dan: Do you think the Justices wore their robes?
Will: Good question. Yes. No, I don't know.
Dan: Okay. Maybe Steve Vladeck knows. So, this one is interesting. This one is coming out of a case we talked about, I guess, a couple years ago at this point?
Will: Yeah.
Dan: Ciminelli or Ciminelli? Did we ever decide how we were going to talk about it? I think in Italy, it might have be Ciminelli, but-- [crosstalk]
Will: I'm going with Ciminelli.
Dan: Okay.
Will: It's one of these honest services fraud cases.
Dan: Yup. Without getting into the specifics of that case, basically, that case narrowed the scope of this criminal statute, and rejected a theory of the meaning of this criminal statute that the Second Circuit had been following.
Will: Yeah.
Dan: And so, the defendant there won. Case goes back down. He had previously made multiple objections. He had argued that the evidence was insufficient, which is what we call a Jackson claim. It's rooted in due process. He had argued that the jury instructions were erroneous. My understanding, although I'd never thought about this discrete issue, was that the government presents insufficient evidence, that evidence from which no rational finder of fact could find you guilty, you're acquitted, and that's it and you can't be retried.
He goes back down on remand. The Second Circuit says, “We don't need to resolve your sufficiency challenge based on this new understanding of the statute. The evidence was sufficient under our old understanding, and therefore that means you can be retried.”
Will: Yeah.
Dan: What would your intuition have been about that?
Will: I guess, I'm not sure it's right. I have the government's instinct, which is, that if the reason you think the evidence is insufficient is because the government failed to prove some element that the court told them was not an element, that's not really a sufficiency challenge. That's really a jury instruction challenge.
At the beginning, you have two theories of the case. The court says this is the correct theory of the case. And so, the government proves that theory of the case and doesn't prove some other theory of the case. It's weird to come in later and say, “The evidence was insufficient for the true theory of the case,” revealed only for the first time by the appellate court. That's my instinct. It seems like a waste of time to ask the government in the name of preservation, like, I guess the government would now be allowed to put on a second trial, like a backup trial, just in case maybe a proffer would be enough. It seems weird to do that. Now, maybe that's technically right.
Dan: Yeah. But it also seems weird to let the circuit's erroneous understanding of the law immunize the government's failure, that it would otherwise be required to present sufficient evidence at trial, right?
Will: Yes.
Dan: Basically, the idea being the government gets one shot to produce evidence that you actually committed a crime, just the minimal threshold of evidence. And if they don't, you're acquitted. So, I don't know, I guess my instinct was that that was wrong. This was an application filed by multiple defendants, including Ciminelli, filed by Paul Clement, one of the most successful Supreme Court litigators, arguing that this was wrong. Justice Sotomayor got a hold of it.
I guess, initially, it's a motion to stay the mandate. So, to prevent a new trial from going forward. And Justice Sotomayor temporarily granted a stay, government responded, and then she ended up dissolving the stay and is going to let this go forward without ever referring it to the court.
Will: Yeah.
Dan: Surprising.
Will: It's a little surprising. Surprising, there was enough there to make her grant a stay, and then something in the government's response made her think, “Oh, this is such a nothing burger. I don't even need to refer it to the full court.” I guess, if I had to guess the government's response, they debate this issue. It's related to an issue there's a circuit split on about sufficiency of evidence and jury instructions, challenges. But the government does say, “Look, there's no irreparable injury here. All the clients are out of jail, so they're not currently incarcerated, and this is what’s going on, there's no reason you can't deal with this later.”
If I had to guess, my guess would be maybe Justice Sotomayor found that persuasive and thought like, “All right. Maybe this is certain worthy, maybe it's not. We'll see. But there's no reason we have to stop the proceedings from going forward now.”
Dan: Yeah. Although, double jeopardy protections are about protecting you against a second trial, not just a second conviction.
Will: Sure. Technically.
[laughter]
Dan: And also, nontechnically and actually.
Will: [laughs]I feel like the thing that really matters is what happens at the second trial.
Dan: Okay. Well, see how you feel when you're tried twice for something. All right. Other odds and ends to talk about. Anything?
Will: No. Should we talk about a case?
Dan: I guess we have to. We have to do a rare case preview. We have no opinions to deal with, so we're actually going to have to preview a case which we haven't done in a while, huh?
Wil: Yeah. You don't like to do this, right?
Dan: Well, it's just harder. I can just read an opinion and I can give off the cuff reactions, where if we preview a case, I have to look at the briefs and all sorts of other stuff and actually decide what I think, rather than just being able to say that Justices got it wrong. But we're left with no choice. This live show was on the calendar, and so let's do it. So, let's do Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, which is a case about the Protection of Lawful Commerce in Arms Act, PLCAA.
Will: Yeah.
Dan: Is there like an abbreviation for that statute, PLCAA?
Will: I think people usually call it PLCAA.
Dan: PLCAA.
Will: Even though, there's no A--
Dan: They're moving the A around.
Will: Well, the A in lawful carries over it. Yeah, PLCAA.
Dan: PLCAA. Okay. This statute was passed by Congress to protect firearm companies that were starting to be targeted by enterprising plaintiff’s lawyers on various theories of civil liability, trying to hold them responsible for some of the harm that firearms unquestionably cause in this country.
And so, as relevant here, the statute protects firearm companies from suits seeking to hold them liable for harms resulting from the criminal or unlawful misuse of a firearm by a third party. But then, there's an exception which permits suits against companies that have knowingly violated a firearms statute, if the violation was a proximate cause of the harm for which relief is sought. Okay. That's the statutory background. What's happening in the case?
Will: All right. So, Mexico says that Smith & Wesson is responsible, has violated a federal law and is proximately the cause of the harm of guns flowing to the drug cartels in Mexico. Guns are basically almost impossible to purchase in Mexico. So, the Mexican guns mostly come from the United States. They come at some point from major arms manufacturers in the United States.
Mexico's theory is Smith & Wesson knows this. They're violating various regulatory requirements in basically knowingly giving lots of money to distributors who in turn distribute them to the cartels, including some distributors who are kind of, that's their thing is like letting guns go to the cartels. And so, Smith & Wesson is the proximate cause of these harms. They also describe the option of aiding and abetting. They could be seen as aiding and abetting the criminal activity in Mexico. So, I think it's a lawsuit under Mexican tort law filed in federal district court in the United States.
Dan: Okay. And so, just so we understand the legal theory. So, they have to be for this exception to be applicable and so for the manufacturer to be amenable to suit, have to have knowingly violated a firearms statute. And so, what's the knowing violation alleged?
Will: It could be a federal or state statute, right?
Dan: Okay. Yeah. So, it's not a violation of Mexican law. It has to be a violation of some domestic law.
Will: Yes. Correct.
Dan: That would be, I guess, the violation would be the gun dealers further down the distribution chain, selling to people that are not supposed to have it, selling to straw purchasers and so forth?
Will: Exactly.
Dan: Okay. And then, we also have this question of proximate cause. These two questions do seem to be analytically tied together, because it seems like the aiding and abetting question, which I guess goes to knowing violation, seems to look to some of the questions of foreseeability and so forth and knowledge, which are also relevant to proximate cause.
Will: Yeah. So, aiding and abetting and proximate cause are two 1L common law concepts, one from tort law, one from criminal law mostly?
Dan: We do proximate cause in criminal law too.
Will: Okay. Good. So, they're both from criminal law, but this is a tort suit. Both of them are carrying in here, and part of the question also is like, what is the content of these common law concepts, how does the statute interact with them and then does Mexico have enough?
Dan: Yeah. That question is one that interests me a lot. I've thought about it a lot more on the pure criminal side, but there is a wide range of federal statutes that use common law type language or understood to incorporate common law type concepts. It's never been totally clear to me exactly what the court thinks the right way to analyze those kind of statutes are because the court, when it, say, when it's trying to flesh out a concept like proximate cause, it doesn't necessarily look only at the tort law of the year in which the statute was written. It seems to look at a more comprehensive, evolving body of tort doctrine.
Likewise, on the criminal side, the court does somewhat strange things in fleshing out in theory, common law principles of things like aiding and abetting looks at things like the model penal code, which have never been enacted into positive law by Congress.
Will: Yeah, So, I was struck by that debate. I think that's actually part of how the parties are pitching the debate in some ways. And so, I was struck by the way Smith & Wesson frames this, in some ways is a fight between the Second Restatement of Torts and the Third Restatement of Torts. And the Third Restatement of Torts is sometimes seen as having been the triumph of the realists over the formalists, where they got all of tort law reduced to mushy proximate cause principles. This is how some Justices have sometimes described it. And so, Smith & Wesson says, “See, this is part of the realist academic plot to come in here and water down proximate cause rather than applying real strict rules of proximate cause.” I don't know. Did you find that persuasive or do you think the court will?
Dan: Well, I think it was well argued. This is one of those cases that I enjoy where you read the opening brief and you think, “Gosh, the petitioners have to win.” And then, you read the red brief and you think, “Well, maybe not. They make a really, really compelling response here. And so, very well lawyered we have Jones Day on the petitioner side, Noel Francisco, former Solicitor General, counsel of record, we have Hogan Lovells on the respondent side, Katherine Stetson, counsel of record.
I do think we must approach this case with the strong presumption that the court is going to reverse the First Circuit's conclusion that this suit could go forward. It's just stepping back, don't get into the statute, just stepping back. The idea that the court is going to say, it's okay for a foreign country to come in and hold liable our domestic gun manufacturers for gun sales. I think that's pretty unthinkable.
Will: No. Look, I agree. I think even if you think the lawsuit may have merit, I think when you just ask somebody, can the State of Mexico bring a common law tort action against Smith & Wesson about the cartels? I think even a lot of people go, “I don't know. That sounds weird.” maybe, but it doesn't jump off the page. And of course, the court usually reverses just in general. So, having taken this case, I think we have to think that's certainly on the table.
Dan: Yeah. Okay. One thing that I think we both noted is the absence of the Solicitor General in this case. Kind of interesting. So, no brief from the government. It's not the case that the government files briefs in every case involving a federal statute. Nonetheless, this one has pretty significant foreign policy implications. It's brought by a foreign sovereign.
Will: Yeah.
Dan: You would think that there would be some federal interest in this case.
Will: Yeah. And then, there's also a Second Amendment interest. So, the statute itself, PLCAA, in its findings, says, “Part of the purpose of this is to enforce Second Amendment rights and to make sure gun manufacturers can keep selling guns,” like James Madison intended. And so, the briefing schedule mostly clicks in before the inauguration. And so, the topside brief would have been due under the Biden SG.
Dan: Yeah.
Will: So, I'm wondering if, you're Elizabeth Prelogar on your way out and also busy fighting about TikTok, it's not obvious which side you're supposed to file on. Maybe she would have wanted to file a brief in supported neither party, although I think that time for that would be the new SG. So, if it was the case, the Biden administration would have wanted-- [crosstalk]
Dan: Neither party ones are due when the petitioner side are due.
Will: Oh, I guess she could have gotten that in. Yeah. So, fair enough. So, it could be that you don't quite know what you're going to say or-- Sometimes the court doesn't get involved in a case not because there aren't federal interests, but because there are conflicting federal interests about which they don't quite know what to say. That'd be my guess.
Dan: My assumption is that if the case were briefed two months later, the current administration would have filed a brief in support of Smith & Wesson.
Will: That would be my guess. That's actually one other interesting SG related thing to watch. So, in the flurry of executive orders, which I try to read, the White House has issued a Second Amendment executive order ordering all departments to make sure they're respecting Second Amendment rights and in particular ordering DOJ to reexamine all its litigating positions to make sure its litigating positions are adequately pro Second Amendment.
So, I think one question will be, in general, is the SG's office going to take a different view about the felony possession statute? Some of the federal criminal laws, in some way, say they're as applied challenges or something, and this would be a natural place where I assume, again, they got to work out what their stance is because they're not going to suddenly say all these gun crimes are not crimes.
Dan: Yeah. It's interesting, because this administration has also signaled it does want federal law enforcement to focus on violent street crime, and felony possession statutes are one of the significant tools in the arsenal. Maybe the administration would take an approach that would carve out some subset of those prosecutions.
Will: I got to imagine they're going to have some theory of what the line is between the Second Amendment and stopping violent crime. I imagine they're going to have to figure it out, and then they're going to have to assert it. This is the kind of case where they have to do that. So, maybe they're grateful. [chuckles] This is one where they're grateful to just have it off their desk for a little while.
Dan: Yeah.
Will: But I think it's also going to be the Supreme Court's first real interpretation of this statute, which has been around for 20 years. I remember when we were clerking, there was a raft of cert petitions the court didn't take about whether it was constitutional for PLCAA to cut off pending lawsuits, because there were a bunch of people who had accrued claims or pending in federal court that suddenly all got cut off. There were the standard due process retroactivity, client concerns about that. I think everybody thought that was fine.
And now, even if the court has a strong intuition that this lawsuit should not go forward, what they say about how to actually construe the statute is going to be the template for all the future lawsuits.
Dan: Yeah. Although, my understanding was that the statute had pretty much killed most lawsuits like this in their tracks, and there weren't really viable suits like this going forward.
Will: Well. Yeah.
Dan: Yeah. So, I guess I was going to ask you about the Second Amendment angle at some point, because I know you're now a Second Amendment scholar, you've been writing about the Second Amendment and thinking about it a bit more.
Will: Sure.
Dan: Do you want to talk about that up front or do you want to come back to that after we get through the statutory interpretation, common law principles aspect of the case?
Will: Let's talk about it now.
Dan: Okay. So, yeah, what do you think-- It's an interesting question, which is, basically, the analogy I would think of is, the gun manufacturers themselves don't have Second Amendment rights.
Will: Because they're not people who-- They're keeping arm-- Not a lot.
Dan: Yeah. I guess I would think that they are facilitating-- Their existence facilitates Second Amendment rights for individuals who want to bear arms. And so, I was trying to figure out what to analogize them to if this was a First Amendment context. And so, newspapers didn't seem quite right, because newspapers and newspaper publishers have First Amendment rights. But I was thinking about ink companies or something like that.
Will: Social media companies?
Dan: Yeah, maybe.
Will: Isn't that the whole--
Dan: It's still up in the air exactly what kind of rights they have, right?
Will: Sure.
Dan: So, first of all, do you think that corporations have Second Amendment rights?
Will: Again, technically, I think the underlying people have Second Amendment rights, although the court has just treated the corporations as they hold them. But I'm okay with this facilitating theory. So, imagine UPS or FedEx maybe. So, they carry a lot of speech and they carry a lot of press, especially like the FedEx envelopes. I don't want to do the post office, because that's got the government speaker in there. They're not speaking themselves. You write the documents-- [crosstalk]
Dan: They're carrying a bunch of defamatory material.
Will: Yeah. Right. And so, imagine a regime in which they are put on the hook for defamatory or other disapproved stuff in the envelopes. And then, there's a concern that that's going to practically hinder the freedom of speech in the press a lot, because nobody can get their stuff sent around.
Dan: Because it's going to make it harder for non-defamatory stuff to get sent through. But theory would be that they're aiding and abetting in this hypo, they're aiding and abetting the distribution of defamatory speech.
Will: Yeah. Or, even maybe email companies would be another example. Nobody thinks that Gmail is the speaker when I write to you. But if we had a new law, Gmail has to make sure that defamatory material never passes from me to you, and so, a bunch of my Gmail’s get canceled because Gmail worries they're too close to the line or they didn't pass their fact checking. That seems like a problem.
Dan: Okay. Well, so, what do you think? Do you think it would violate the Second Amendment for there to be successful civil litigation that basically limits, for example, the type of arms that a weapon manufacturer can sell because it's particularly dangerous?
Will: Look, if the civil litigation is the functional equivalent of a ban, then I don't see why it'd be any different.
Dan: So, your approach would be to say, look at the civil litigation and see what kind of government ban it would be equivalent to?
Will: Yeah. If the civil litigation boils down to anytime you sell a handgun, you're liable. And so, nobody sells handguns anymore. That's a handgun ban, even if it's done through courts engaging in common law lawmaking rather than the legislature.
Dan: And so, we'd have to just look at the very detailed specifics about what's being urged.
Will: I don't have a fully worked out theory of this. I'll say, I once tried to write an article about this in the first amendment context about when private law claims turn into free speech problems and copyright law versus property law versus libel law. I couldn't totally get a translation function, so I'll just say something like that.
Dan: So, that one is buried in your desk drawer?
Will: Yeah.
Dan: I feel like you have more articles like that than the rest of us have actually written. [Will laughs] Every time I come up with some interesting question, you're like, “Oh, I wrote 80 pages on that and then just couldn't solve the problem.” So, maybe you will crack it after this case. But it sounds like maybe you do share some-- The court isn't really having to resolve those. They're not really directly presented in the case. They're just maybe lurking in the distant background here. But you share some concerns there?
Will: Some. Although, again, I think here, since the premise of the statute is a violation of a federal or state gun law. I assume if you thought that law was actually unconstitutional, you could just challenge that. So, I assume everybody agrees there's no constitutional right to engage in straw purchasers or gun exports in Mexico, think of the two statutory categories. So, at that point, I don't think the Second Amendment concerns are very strong.
Dan: Well, that's not quite right, because there is also no constitutional right to engage in actually defamatory speech. But it could be that a theory of civil liability would have these spillover effects, that would make it illegal for FedEx to carry letters at all or something like that.
Will: Well, so that'd be the question. It's hard to imagine how a world where it's limited only to defamatory speech would turn into a rule where FedEx couldn't carry anything.
Dan: I guess it depends, right?
Will: Yeah.
Dan: It seems like it's not totally clear at this juncture exactly the full extent of what Mexico thinks would be necessary to remedy its injuries. Some of those things, like ensuring that the intermediaries that the gun manufacturers use don't sell to these red flag dealers that are known to distribute a lot of guns that end up in the hand of cartels. I don't think that would violate the Second Amendment, like if they were required to significantly change the types of products they sell, modify the products.
Will: I guess, if you imagine a strict liability regime, where you say every official at the gun manufacturer is subject to the full criminal penalties that anybody who uses one of their guns can commits. So, if anybody ever commits a murder with one of your guns, you all get the death penalty. That would violate the Eighth Amendment among other things, but I assume that would go too far.
Dan: Would it violate the Eighth Amendment under the originalist Eighth amendment?
Will: No, no, the court's Eighth Amendment.
Dan: Okay. Okay. [Will chuckles] Yeah, not the one you believe in. Okay. Well, maybe we should talk about the issues actually in the case and not just these hypothetical constitutional questions, although they are interesting. And so, I guess it does come down to this question that when I teach, when all criminal law does come up, which is like when can someone who is just selling goods in commerce be said to actually have aided and abetted the downstream purchasers’ illegal activities? And the answer is sometimes, right?
Will: Right.
Dan: There is this case that comes up in this case and that actually is in the criminal law casebook I used to use called direct sales, which does recognize there situations when a seller selling a totally legitimate product, a seller selling legal prescription drugs can nonetheless be complicit in illegal drug conspiracy, basically based on the quantity of the sales, based on what it knows about the purchaser and so forth.
Will: Yeah.
Dan: And so, the petitioners here seem to take, maybe overextend themselves a little bit. They seem to take the position or at least put themselves in a place where they can be painted as taking the position that you can't have any theory of indirect aiding and abetting from a seller of lawful products downstream. I think that probably does go too far.
Will: That goes too far for the common law. Is it clear that goes too far for the statute?
Dan: Yeah, I guess that's another question, which is, how much is it directly just incorporating these principles, or is there this further requirement in the statute that it has to be direct?
Will: Right. I'm a textualist more than a purposivist. But I think if I were a purposivist, I'd say the whole point of the statute is to cut off these common lawsuits. So, it seems implausible. The statute just says, “As long as you repeat this proximate cause phrase that courts have used before, then you can burn all these lawsuits.” The whole point-- [crosstalk]
Dan: It's not repeating a phrase. It's fitting it into common law principles of liability, right?
Will: Yeah.
Dan: The claim isn't that anytime you say these magic words, you can get around the statute.
Will: No. But the question is the point of this statute to largely keep the common law of liability in place and just stop state courts or federal courts from doing anything really weird or is the point to mostly cut off common law liability that would otherwise apply to prescription drugs and opiates and other things, because guns are specially protected and especially important for constitutional purposes. As a purpose of this, it seems like it's the second to me. It seems like the point of the statute is to give commerce in guns more protection than commerce in pills. I'm not sure as a textualist. Then there are findings in the statute with Second Amendment and the purposes and stuff like that, but I feel like that's the real question.
Dan: Yeah. Although I guess it depends a little bit about how you construe Mexico's suit. Is it one that just kind of sweeps incredibly widely, or is it one that is tied to more specific things that they allege the manufacturers have done? Again, the petitioners paint it in this broad way is basically a suit that's just aimed at stopping the legal manufacture of guns. And then, in the red brief, the respondents, that Mexico points out very specific things they're alleging, such as they claim that the gun manufacturers are designing weapons that are specifically designed to appeal to cartel buyers. I thought that wasn't great.
Will: Yeah. No, look, I think the problem with this case is the complaint is very well drafted [chuckles] to satisfy the statute. Normally, you are supposed to assume that the complaints allegations are true at this stage. So, I do think in an orthodox way, it's hard to articulate a clear reason the suit shouldn't go forward.
Dan: Yeah. One of the things that's at issue is this case from a few terms ago, Twitter v. Taamneh, which I don't think we talked about. I think it was one that maybe didn't bubble up to the top of our list, alas. But it was about lawsuits under a different federal statute, but basically, victims of terrorism were allowed to bring suits against people who had aided and abetted terrorist attacks. They were suing social media companies, and the court says, “No you can't do that, just by setting up the social media site and their algorithm and so forth.” The social media site is not aiding and abetting terrorism just because it lets ISIS post on Twitter and so forth.
Will: But imagine the social media site has special forms of end-to-end encryption that it knows will appeal to terrorists and other people breaking the law.
Dan: Yeah.
Will: Now, suddenly, they could be sued?
Dan: Yeah. The court there said that what you need is voluntary, conscious and culpable participation in the wrongful conduct to establish aiding and abetting.
Will: Yeah.
Dan: I don't know, at least some of the specific things that Mexico points to struck me as a little bit closer than what Twitter did.
Will: Yeah. Culpable though? Isn't that--
Dan: Culpable? It seems pretty culpable to intentionally sell a product that you know is designed for purchasers who are members of drug cartels. Why is that not culpable?
Will: Well, but maybe really, you think it's just something that a lot of users want. You know that drug cartel users are some of them, but that's not the reason you're doing it.
Dan: Well, that goes to whether they can prove the factual allegations, right?
Will: Yeah. Fair enough.
Dan: If, as alleged, these products are being designed for the cartel, right?
Will: Yeah. Is this too much to hope for--? It seems like maybe what the court should do is say, “Look, there's a narrow path here for this complaint to succeed.” Here's what the narrow path looks like. It's a motion to dismiss, so we're not sure that in practice it can walk that narrow path. They can draw the path as narrowly as they want to avoid tons of these lawsuits coming out. But technically, there is a path. Is that the right answer?
Dan: That struck me when I got to the end of the briefs as a plausible answer, but also one that struck me as also very implausible that the court would reach.
Will: [laughs] So, if they're not going to reach it, is that because they're going to take a more aggressive view of the law and say, “No matter what, American gun manufacturers are not responsible for what happens downstream,” or is that because they're going to reach a contestable view of the facts and say, “Under Twombly and Iqbal, we don't really read this complaint to allege that or that allegation's implausible, so we don't have to credit it.”
Dan: I think maybe something in between those two things. I don't think they necessarily have to say, American gun manufacturers can never be liable at all, because the statute clearly contemplates that they can, but basically say, it would have to be maybe something-- The allegation would have to be much more direct and go far beyond anything that was actually alleged in the complaint.
Will: Right.
Dan: The gun manufacturer maybe is directly giving guns to the cartel members.
Will: I take it though, if they alleged like a member of the cartel gave Smith & Wesson some money in a suitcase and said, “Please design me a cartel gun,” and the guy agreed, I think even Smith & Wesson agrees that would be liable.
Dan: One would hope that does seem plausible though. There is this interesting question that comes up more in criminal law. Here the statute just requires knowing violation in criminal law. Criminal statutes normally require intent. And so, there's this really interesting question about when does knowing facilitation rise to the level of intent? There's these two competing principles.
One, is we don't want to just say Home Depot is guilty of manufacturing methamphetamine, because people can go buy, rubber tubes and various pieces of equipment that you might use to manufacture methamphetamine. But on the other hand, we don't want people to basically knowingly profit have a business that is entirely designed to profit off of criminal activity and then be able to say, “Oh, I'm not responsible, because I'm not actually, directly doing the criminal activity.”
Will: Yeah. This is my last thought on this case. One complaint some might have about the court, is that it's just not very good at the common law stuff, because they don't have a common law docket. Their cases mostly don't look like this. It's been a long time since they're one all year. They don't have the facility with these concepts. I remember that was the complaint about the case we talked about in our last live show, Barnes v. Felix, where these issues of self-defense and things implicated. I remember scholars saying, “The court just-- it's been a long time since they've been in that world.” You think that's true here?
Dan: I think that's plausible. And if so, that's a shame, because one thing you do see-- This decision will not formally bind state courts doing all sorts of random state tort litigation about aiding and abetting in other contexts. But there is this kind of effect where you have Supreme Court decisions interpreting common law principles, which means they'll get cited in all sorts of cases involving aiding and abetting, involving proximate cause.
And to the extent that you believe the proposition that you just offered that the Justices are not great at this, that could be introducing a problem in screwing up common law doctrine. Is the implication that state high court judges are better at this? They're the common law experts?
Will: Yeah, I think so.
Dan: Should they appoint a special master of [Will laughs] the Kentucky Supreme Court? I don't know what's the best common law court. Any of your colleagues at Chicago done an empirical study of that?
Will: Oh. I don't know, it's a great question. Whoever is not doing what California is doing.
Dan: Yeah. California's a little wacky.
Will: Georgia is the one state court that's still-- [crosstalk]
Dan: They're like hyper formalist.
Will: They still believe law is found, not made.
Dan: Yeah.
Will: So, they still believe under Erie, the federal courts are supposed to defer to state courts. And the Georgia Supreme Courts have tried to reject that offer. They said, “To be clear, as a matter of Georgia law, it is not true that Georgia Supreme Court decisions are authoritative of the law. We're following the general law.” Now, as I understand, the Eleventh Circuit refuses to listen to that. They're like, “No, no, no, Erie requires us to defer to you, even if you don't like it.” Georgia's also one of the most traditional states on choice of law rules. So, I'm going with the Georgia Supreme Court as my common law court. Let's certify it. Or, Stephen Dillard is on Twitter. He's on the Georgia appeals court. So, maybe we could just bring him in.
Dan: What about just getting a good old fashioned torts scholar, a reporter?
Will: Who are the reporters in the Second Restatement, if they're still alive?
Dan: Second Restatement is a while back, right?
Will: Yeah.
Dan: Yeah. So, my guess is probably not still around.
Will: Yeah.
Dan: Yeah. But relying on these restatements does raise an interesting question. That's actually the name of an article by Shyam Balganesh at Columbia called Relying on Restatements, showing the ways in which courts often just try to treat restatements which are not the law and are not promulgated by any lawmaking institution. They're promulgated by the American Law Institute, which is just a private nonprofit that are often one person's somewhat idiosyncratic in conception of the law, how lower courts all over the country just treat them like statutes.
Will: Yeah. In defense of ALI, ALI has this elaborate process. So, one reporter has to propose this text, it then gets argued about at the ALI council where 60 people all fly specked, it gets voted on by the ALI membership. That's in part because when judges say stuff like this, they get like it's very bad for the ALIs brand and ultimately their bottom line. So, they're trying very hard to not be doing that.
Dan: When courts disagree with the current version of the Restatement.
Will: And say, “The Restatement's just of you have a law professor, this is not the real law. Back in the day when the first Restatement of Torts, that was really restating the law, but now it's just law professors making stuff up.” I think Justice Scalia said that about the Restatement of Property a few years ago. There was a whole ALI crisis about that. So, I think we may see some of that ALI concern around what happens here.
Dan: Okay. So, any predictions? My prediction was, win for the gun manufacturers, maybe not absolutely maximalist, but not super minimalist either.
Will: That seems right. But I'm going to put on the record the prediction for a unanimous narrow path ruling for the respondents-
Dan: Okay. Yeah, that seems quite plausible.
Will: -by Justice Kagan.
Dan: Oh, okay. Interesting. Don't you think one of the Second Amendment friendly Justices might want to get their hands on this one?
Will: Yeah.
Dan: Okay. Well, we'll see. This is one we're previewing before the argument even happens. So, we will maybe briefly revisit this one after the argument and see how our predictions might have changed.
Will: Sounds good.
Dan: All right. Do you want to lead us out?
Will: All right. Thanks for listening. Thanks to The Northwestern Pritzker School of Law and the Northwestern Federalists Society for having us out here for another live show. We'll be back in the studio soon and looking forward to more emails and voicemails, pod@dividedargument.com.
Dan: And please rate and review on the podcast app of your choice. Check out our website, dividedargument.com, where we have transcripts. store.dividedargument.com, where we have merchandise. Leave us a voicemail at 314-649-3790. And if there's a long delay between this and our next episode, it will be because the cartels have come for us, because we want to take away their guns.
Will: [laughs] Yeah.
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