We discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters.
We discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters.
[Divided Argument Theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, really enjoyed our episode last time, Will, art law. I don't know if we'll have topics that are quite as interesting for a while.
Will: I was tempted to end the season there, just go on a high note, like, "See you all in the fall."
Dan: I did not have time since we last recorded to read Nabokov’s Ada, your favorite novel. I think that was more of a long-term project. Offline though, I told you to go watch the Dave Chappelle's classic sketch about Prince. Did you see that?
Will: I did.
Dan: It's pretty amazing, right?
Will: I didn't really get it.
Dan: You didn't get it? Okay.
Will: No. Was it funny?
Dan: At all?
Will: It was supposed to be funny, right?
Dan: It is funny. For those who haven't seen it, it's a dramatization of a story told by Charlie Murphy, Eddie Murphy's brother, who had kind of a wild Hollywood life in 80s. He describes an event which he and his friends were invited over to Prince's house late night and then Prince challenged them to a basketball game, which he allegedly played in full Prince regalia and high heels. But it turned out Prince was an extremely good basketball player. Is that just because you're not able to enjoy stuff that regular folks enjoy? Is that why?
Will: I enjoy lots of things regular folks enjoy, but I just found it-- I didn't really understand it.
Dan: Don't you think it's funny that the idea that Prince would invite people over to his house, make them like French toast, and then challenge them to like a late-night basketball game which he would play in his full regalia and then be really good?
Will: When you say it, that sounds funny.
Dan: It is funny. I was hoping I was going to get somewhere with you in this.
Will: I'm not trying to be difficult. I kept waiting for the funny part and then it was over.
Dan: The punchline when he says, "Game, blouses," that was funny, right?
Will: That was the punchline.
Dan: I think so.
Will: Wow.
Dan: Listeners can google it, watch it, and make their own judgment.
Will: I'm sure it's funny.
Dan: Yeah, I mean–
Will: You tell me it’s funny.
Dan: The hoi polloi I think find it funny. It's a classic sketch comedy bit, but it's beneath your grandeur.
Will: They weren't like jokes. I thought there were going to be jokes.
Dan: The entire scenario is funny. That's the point. It’s a true story that actually has been verified by other witnesses. It is a true story that is absurd, and the absurdity is funny. But I will try to read your novel and then come back and explain to you why it's not funny. And then, we'll have like a three-hour episode where you explain to me why it is funny. Is it supposed to be funny?
Will: No. I mean, it has jokes, but they're mostly in Russian.
Dan: Okay, that's going to be a little tough.
Will: Well, they're translated in the footnotes, but the footnotes were also written by Nabokov. So then, those are--
Dan: Are those deliberately misleading as part of some elaborate-
Will: A few.
Dan: -literary ploy? Okay. So, we got some new opinions since last we recorded. I'd say nothing earth shattering. You know the court. I feel like we say this every year, like the court is behind and how are they going to do everything at the end. Is it getting worse every year? Or is it just like we feel that way every year?
Will: I'm doing this unburdened by numbers. I think they are behind since they have fewer opinions out, but they also take fewer and fewer opinions. So, one way, it is--
Dan: Is it 59 merits cases this year?
Will: So, one way to be less behind, if you think of them as having 80 cases, 20 of which they disposed of in the fall through a cert denial, then they're ahead.
Dan: Yeah. I haven't counted, but there's a lot left. A lot of stuff left that is interesting. Thought we might quickly pull up the SCOTUSblog statistics chart that shows you what's left. So, from the October sitting, we still have Milligan, which is potentially a hugely important Voting Rights Act case. And it looks like from that-- I'd say it looks like the Chief Justice is writing that because there were eight arguments that sitting. The only two who haven't written yet are Roberts and Thomas. And my sense is that it's unimaginable that the Chief would, in the first sitting of the term, not take an opinion. I think sometimes he would not take one, maybe later, but at the beginning, don't you think he would take one?
Will: I think that's right. Unless it's a situation where he's got like some major per curiam or something like that, which I don't think was true this year.
Dan: The chart suggests there's no per curiam at least at that time. So, I don't know. I don't exactly know how they're measuring per curiams per sitting.
Will: If he was in the middle of writing-- dealing with the SB-8, something like emergency docket case that wasn't technically come under his name, I think it's very likely that he would-- although it's a little weird for Thomas not to get one in the first sitting also.
Dan: Yeah, although he often has kind of idiosyncratic views that make it a little harder to give him something. He is the Senior Associate Justice, so you could imagine just sort of saying, “Look, there's not one for everybody, some of these cases are pretty dull. Why don't you get a break?”
Will: He could have given himself Warhol. He could have been given Sackett. He could have given himself National Pork Producers Council.
Dan: Yeah. And it's interesting to remember that whenever the chief is in dissent, he now has the assignment power.
Will: Yeah. Whenever the chief is in dissent without Thomas.
Dan: Yeah. When Thomas is in the majority. Can you believe he's been in the court for 32 years?
Will: Yeah.
Dan: That just kind of snuck up on me. That's really long.
Will: Well, [unintelligible 00:06:27] in the gap. He's been in the court for 32 years, and then the next most long-serving justice is the chief, who's been in the court for just 17-18 years. Because in between the Bush I administration, and the second half of the Bush II administration, the only appointments from Clinton, who appointed some of the older Justices, Breyer and Ginsburg, are now gone.
Dan: But at this point, he's really in a striking position to break the record, right?
Will: Is that right?
Dan: I think so. I mean he need--
Will: The record of longest serving?
Dan: Four more years. That's not that hard to imagine. [crosstalk] William O. Douglas served for 13,358 days as an Associate Justice from 1939 to 1975. So, he's got to be closing in. I'm looking at Wikipedia and it’s actually a very helpful chart that shows Justice Thomas is in 12th position, but very soon to break into the top 10, and then pretty quickly, we'll start climbing up the ranks.
Will: Yeah, I'm looking at the list now. It's quite a list. Douglas, Field, Stevens, Marshall, Black, Harlan, Brennan, Rehnquist, Story.
Dan: And then, there is a dud. James Moore Wayne. I'm sure you've heard of him. Have you ever heard of James Moore Wayne? Justice Wayne?
Will: I had heard of Justice Wayne.
Dan: 32 years, 172 days, and to my knowledge, as someone who's not deep into 19th century con law, no major contributions that continue to get cited. I think I've never heard his name.
Will: On the court for Dred Scott. So, anytime you have to try to do the chart of who was in which position of Dred Scott, because of all these issues and stuff, Wayne has to be in your chart.
Dan: Yeah. But you don't give everybody credit for being an influential Justice just for being on the court at that time.
Will: No, I'm just thinking of when you might have had to hear his name.
Dan: John McLean, served from 1829 to 1861.
Will: Yeah, he's kind of a big deal.
Dan: Give me some of his-- what's his greatest hits?
Will: You mean as a judge?
Dan: Yeah.
Will: He dissents in Prigg v. Pennsylvania. That's kind of a big deal.
Dan: That's legit. And then you keep going, continues to be a well-known list, you get sort of more into recent times. You've got Justice White at 13. You've got Justice Kennedy at number 15, Scalia at 17. Then, you had Holmes. Then, you had Taney. So, I do think it's fairly easy to have some influence just by virtue of sticking around.
Will: Yeah. Do you know about this old pair of articles, The Most Insignificant Justice?
Dan: I don't. Tell me about this one.
Will: So, David Currie, one of my predecessors who is in office, one of the great constitutional offices in Chicago, wrote an article, I don't know, in the 80s called the most--
Dan: He is the one in our theme music.
Will: Yeah, exactly. The Most Insignificant Justice: A Preliminary Inquiry. That's sort of mocking the empirical study of judicial behavior, but also kind of serious as an attempt to figure out who is the most insignificant justice in the court. And he wrestles with the sort of question of, is the most insignificant justice somebody who served for the least amount of time? No, that's not fair. You want the person who served for the most amount of time, and then you have some-- nobody has any idea who they are, and they've contributed nothing to the-- And so he concludes that it's Gabriel Duvall. [laughs]
Dan: Never heard that name. Never, ever.
Will: And then, Frank Easterbrook writes a reply that then sort of gets involved in the same thing. And I think Easterbrook concludes that it's [sighs] maybe Justice Todd. Anyway, it's a great-- and they go through all these Justices you've never heard of. It's a good illustration.
Dan: This actually provides a direct lead-in to something I meant to put on our list of things to talk about but forgot. Did you read Adam Unikowsky's legal newsletter this week?
Will: I always read it.
Dan: Okay. Yeah, you always read everything.
Will: [crosstalk] - Adam Unikowsky.
Dan: Adam Unikowsky is a partner at Jenner & Block, someone I was in law school with. Extremely knowledgeable and a very insightful commentator on what the court does, and I'm really glad he's writing this newsletter, but he wrote-- it's a very funny one this week called The Least Significant Cases of the Decade. He actually cites the Currie and Easterbrook things which I had glossed over, so thank you for bringing those to my attention. He goes back-- he doesn't go back 200 plus years, which I think would have been quite a lot, but he still does something pretty significant, which he goes back 10 years on the court. And I guess read every case or had them all in his head already.
Will: I assume that he had them all in his head already. I assume he's one of the people who reads every case when they come out.
Dan: He must just have a photographic memory, because I look at a lot of these cases when they come out and, I don't know, I don't remember them. You ever heard of Ritzen Group, Inc. v. Jackson Masonry, LLC?
Will: I will admit that it was not on the top of my head [crosstalk] decided in 2020.
Dan: Do you think you read it?
Will: I missed a lot in 2020, Dan.
Dan: What about Culbertson v. Berryhill?
Will: Yeah. I will admit for like a full third, maybe a half of the 10 cases he picked. I had this moment of like, is this a real case, or is he testing us to see how many of these-- is this going to turn out the ChatGPT is just making up Supreme Court cases? If I told you there was a case called National Association of Manufacturers v. Department of Defense in 2018, you'd be like, "Sure, that sounds like a case."
Dan: I certainly would say, "I don't remember that one." I was paying attention to the court at the time I thought it was.
Will: Anyway, I love this. So, he rated every case on whether it had interesting facts, interesting law, degree of difficulty, legal significance, practical significance, and kind of like discretionary category. And the case that scores the lowest on all those things is the most insignificant. It's not hard, it's not interesting.
Dan: Kloeckner v. Solis from 2012.
Will: I will say, when he picks Kloeckner, my first thought was, "I've heard of Kloeckner, it can't be that insignificant." Which, again, more than I could say for some of these. But the only reason I'd heard of Kloeckner is because, as he notes, there's a follow-on case called Perry v. Merit Systems Protection Board, which was early in Justice Gorsuch's tenure. It was one of the first cases for Justice Gorsuch really got on his high horse about separation of powers in the context of how you should appeal veterans' disputes. And so, I remember hearing about it a lot then. But it turns out that's the only thing interesting about the case.
Dan: I'm just going to read his argument for why this case wins. He says, "There is nothing redeeming about Kloeckner. The facts are not interesting. A federal employee was in a dispute with her employer. We were told almost nothing about this dispute. The case concerns the interpretation of some random corner of the Civil Service Reform Act. There are no interesting conceptual issues in Kloeckner. Kloeckner is an extremely easy case. The statute unambiguously sends plaintiffs to a federal district court. The government's contrary argument was some weird theory hinging on the phrase judicially reviewable action, meaning something different from an action that's judicially reviewable. And the stakes are remarkably low. All employees in Ms. Kloeckner's situation will eventually get to a federal appellate court. The sole question is whether they file first in federal district court before going to the federal appellate court." I was persuaded.
Will: He makes a good case. I am tempted to try to write an article about Kloeckner now and try to find the kernel of something interesting in this case.
Dan: No, you're not going to do that.
Will: Well, you know the way the Chief Justice makes fun of academics for writing about questions like the influence of Immanuel Kant on 18th century Bulgarian evidence law, and finally, Orin Kerr had the brilliance to actually research and write the answer to that question.
Dan: Turns out the answer was none.
Will: What's interesting is the answer is provably none. Kant was not translated into Bulgarian until very late 18th century. And also, the Bulgarian legal system did not use evidence law.
Dan: I think that was a legendary troll job by Orin.
Will: Everybody has articles they wish they had written. That is number one on the list.
Dan: Yeah, the Chief Justice just left him open for the dunk and he took it thunderously. So if you haven't not reading this newsletter, I recommend it. It's funny, it's very smart, you'll learn a lot. But just to close the loop on that, the reason that prompted this column was the court decided a patent case a couple of weeks ago, Amgen v. Sanofi, which Adams says, "It is completely inexplicable why they took this case. District court found there that the claims were invalid. Federal Circuit unanimously agreed. The Supreme Court called for the views of the Solicitor General, who also agreed that claims were invalid and said they should deny cert. And the court granted cert anyway and then just unanimously affirmed with reasoning that was the same as the reasoning of the court below." So, it accomplished nothing. So utterly mysterious why they granted this. Maybe this was some clerk made a bad recommendation and then everyone just had to go through the motions.
Will: Yeah, that is one of the ones that if it weren't too boring and insignificant for me to remember it 30 years from now. I would like to go back and check the Justice papers when we first get to find out what the cert [unintelligible [00:16:26] said in Amgen.
Dan: Someday. You will surely not remember though, but maybe one of our listeners when we come back to season 21 or 22 will remember for us.
Will: Yeah.
Dan: Okay. Should we do some substance?
Will: Sure.
Dan: Maybe start not this week, but last week. Tyler v. Hennepin County.
Will: Must be in Minnesota, right? I've heard of Hennepin County.
Dan: You know all the counties?
Will: No, but Hennepin County is like that-- that must be where some big city is or something. You hear Hennepin where Minneapolis is.
Dan: I mean, I knew it was in Minnesota because it's in the caption of the case. Tyler v. Hennepin County, Minnesota et all.
Will: Hennepin sounds like terrapin. Hear turtles, you think of Minnesota.
Dan: Terrapins, that's Maryland.
Will: But-- never mind.
Dan: Okay. Yeah. I don't know what you were going with that.
Will: We like to let our cases age a little before we talk about them. So, I'm glad--[crosstalk]
Dan: Yeah, in this case, it has produced no greater insights, but we will try.
Will: Can we just do the first paragraph first?
Dan: Yeah, this is the first paragraph that will resolve the case and then we can just stop.
Will: Exactly. This is like-- and we praised Justice Kagan's running style a lot last episode. So, this is Chief Justice Roberts' opinion, and the first paragraph is, "Hennepin County, Minnesota sold Geraldine Tyler's home for $40,000 to satisfy a $15,000 tax bill. Instead of returning the remaining $25,000, the county kept it for itself. The question presented is whether this constituted a taking of property without just compensation in violation of the Fifth Amendment." Gee, what do you think?
Dan: Well, when you put it that way, it's kind of hard to say no.
Will: Yeah. So, most insignificant case? Obvious case?
Dan: No. This is interesting. Right?
Will: I agree.
Dan: Yeah. The court reaches answer that seems intuitively like the right answer. Although there are arguments, I think, that might complicate it a bit. But the court's reasoning is kind of interesting. This is a unanimous opinion. We've got a concurrence by Justice Gorsuch, joined by Justice Jackson that we'll talk about a little bit later, but everybody agrees. And if you march through the reasoning, there's a brief section on standing, which is there's not really a good argument that there's no standing here. But as he goes through the reasoning, it starts to look pretty dicey for the county. I thought this really happened on page 6 when he says, "The principle that a government may not take more from a taxpayer than she owes can trace its origins at least as far back as Runnymede in 1215, where King John swore in Magna Carta that when his sheriff or bailiff came to collect any debts owed him from a dead man, they could remove property until the debt which is evident shall be fully paid to us. And the residue shall be left to the executors to fulfill the will of the deceased."
So, we've got nearly thousand years, rounding up a bit, of history and he just marches through and lots of historical examples going way back more than I would have expected. I guess this is a recurring issue. So, it's not great for the county.
Will: Right. So now, here's the other way to frame the case, is to say throughout taking this clause jurisprudence over and over again, we say that in general, property rights are defined by state law because property is a state law issue, not a federal law issue. And Minnesota property law quite clearly does not give any property rights to the person whose house is now seized by the government for nonpayment of taxes. They don't have a property interest in the remainder. A different way of putting it is, our takings cases say over and over again that we look to state law to decide whether or not there's property in the first place, Minnesota law is very clear that Ms. Tyler does not own property in the residual value of her house. Therefore, you might think clearly, she has no complaint when the state doesn't pay her for it because it's not hers.
Dan: Yeah. And it's not like this is like a rule that they just made up for her. This is sort of the way it works there, right?
Will: Well, okay, this is where this will get more complicated.
Dan: But it's not a rule that they just made up like yesterday. This was kind of on the books. This is the way it works.
Will: Right. A dozen other states do it this way. She did not pay her taxes for five years, accrued a lot of penalties. It is a little ironic. The $15,000 she owes, only some small portion of that is the actual taxes. And then, a bunch of that is like the penalties for not paying the taxes. And so, at some point, you don't pay your taxes, they come and take your house. Or I guess in this case, it's actually like a one-bedroom condo. And then, once they've gone to the trouble of taking your house to pay the bill, it's a little late to come in and say, "Can I have the change?" You might have thought.
Dan: That's the best argument.
Will: Yeah. So, that's what makes the opinion interesting. So, to get to the let's call it the just result, the intuitively correct result, the court has to figure out how to wiggle out of what you might have thought was the black letter law principle that property law is defined by state law.
Dan: Yeah. They do two moves here that are arguably kind of contradictory or maybe not. Maybe we can figure that out. And the first move is something. This is super interesting to us because this relates to two different articles that each of us has written about the Fourth Amendment, which is a different provision of the Constitution, but where there are arguments that you should look to some other source of law in figuring out what is protected. And I have an article with Danielle where we say you look to the general law, the broad principles of property and so forth that you can't pin down in any one jurisdiction but are just the traditional principles. You get them from history, but they can evolve. And then, you have an article with James Stern where you say you look at the positive law of the relevant jurisdiction.
Will: Exactly.
Dan: Is that fair?
Will: Takings law confronts this problem even more obviously, but Due Process Clause, the Fourth Amendment confronts it that there are all kinds of times when we have some general intuition about coming into my house that's mine. But then, you have cases about, "Well, where exactly does my house begin? What if you come to my porch? What do you come to my property line? What if your dog sticks its nose across the property line? What if you put a video camera on a bear. Is the bear into my property line?" or whatever. And that's the kind of detailed question that it's hard for constitutional law to just have answer by itself. So, we tend to outsource it to something. And then, what you and I have each sort of proposed are different ways to think of the body of law that we're outsourcing it to. Sort of general common law principles or the more specific positive law of a particular jurisdiction with a wrinkle.
Dan: And so here, the court has an opportunity to say in the takings context but one that could apply elsewhere, could apply by extension or analogy to the Fourth Amendment. Answer the question. What's the answer?
Will: Well, the court's first answer seems to be the Dan and Danielle general law approach. Court says state law is one important source, it's on page 5, but it can't be the only source because then the state could just sidestep the Takings Clause by getting rid of whatever property interests.
Dan: Yeah. You could just say ownership of a house means you own it unless the government wants it. That doesn’t seem right.
Will: Exactly. Nobody has a property interest in a house in a place where the government wants to build a road.
Dan: Yeah.
Will: So, we also look to traditional property law principles, plus historical practice and this court's precedents.
Dan: So there, we're not just looking to state law, we're looking to something else. What are traditional property law principles? Where would you get those?
Will: The Magna Carta.
Dan: Yeah, Magna Carta. The restatements maybe, historical examples from other jurisdictions. The kind of stuff that we suggest is within the realm of general law. You're not saying, "What is Minnesota property law?" You're like, "Well, what's property law generally? What do the other states do? What has been the traditional understanding of property law?", and so forth. I think that seems important here. That you need to have some backstop here to address this problem, something you can point to that isn't just the positive law definition to avoid this problem of letting the state just redefine stuff.
Will: Although it is interesting-- you might think the point of federalism is to let states differ on various questions. So, like, we have different law on if you own property that's in the water, how far does your property line go? And I think some jurisdictions say it's to the average high water line, and some say it's to the minimum line, and there are different-- and states deal differently with the question of like what if a storm comes and knocks some of the land away?
And so, if you do this approach really seriously, you might be saying for Takings Clause purposes, they're all required to follow the majority rule. Even if Indiana recognizes it differently? Well, maybe they couldn't, because then it would be a taking for them to deviate from the normal rule. And that's potentially quite an incursion to federalism. I seem to remember--
Dan: Yeah. That would require just having a fully constitutionalized definition of property if that were--
Will: You remember these cases in the Eighth Amendment context, like in the death penalty where the court was always going around saying, "Well, only X states have the death penalty for this kind offense or for this kind offender. And therefore, we're going to say that no state's allowed to do that because the national consensus is the other way." And I feel the conservative justices were always dissenting from those saying, "Just because Louisiana is the only state that wants to execute people for child rape, why should we stop them?" Or, "Just because Missouri is the only state that wants to execute people for crimes committed as juveniles," or whatever. And the standard sort of conservative formalist federalist answer was, "Sure, they're an outlier, but why do we stop them from doing that?" And I guess it doesn't apply to property.
Dan: Well, I think it doesn't for the problem we just talked about. If you take that all the way, what's left of the Takings Clause? So, we do need something there. Maybe put differently, the word "property" in the Constitution has to have some core meaning that makes that Takings Clause meaningful.
Will: Yes.
Dan: Give it some bite.
Will: I think that's right.
Dan: There's a nice quote from Judge Kethledge on the Sixth Circuit, "The Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take." I found that persuasive.
Will: I think that's right. So, that means that it's not that the court is just sort of reigning in outliers for its own sake. It's that the Constitution contains an operative rule that presupposes this institution of property and then the court has to wrestle with how to find a definition of that that doesn't let states just opt out of the rule entirely. And I think you see this in the Contract Clause. I guess that is a dead letter. This is in a way the same problem that we have in the Elections Clause, the Moore v. Harper question. Or do we just let the state define legislature however it wants to or not? So, it's an interesting move.
Then, the majority also has a different move. So, parts A through C seem to be well inspired by the Dan and Danielle general law approach. Part D then pivots to the Baude and Stern approach. So, the Baude and Stern approach, the positive law model of the Fourth Amendment says, "Just look to the specific law of this jurisdiction, but look to the law that applies to everybody, not just the law that applies to the government." So, if it's generally a trespass to go onto somebody's porch with a dog, then it's a trespass and the government does it even if there's a special statute saying, "Well, the government is allowed to go on your porch with the dog," because the positive law rule sort of sets the baseline. And the court notes that Minnesota--
Dan: Positive law rule for private parties.
Will: Yes, the generally applicable private positive law rule. Another way of putting it is that the government giving itself an exception from the positive law. That is the thing that the Due Process Clause, Takings Clause, and Fourth Amendment regulate. And now whether the exception comes in the form of a warrant or a statute or just the government doing it, that doesn't really matter. The point is the government is accepting itself from the otherwise applicable positive law. And that's what the court says, is the court notes that Minnesota law recognizes the property rights of a property owner to the surplus in excess of debt in other contexts. Like, if the bank forecloses on your home if you're not paying the mortgage, they don't get to keep the extra $25,000. The state now makes an exception only for itself and only for taxes on real property. But property rights cannot be so easily manipulated.
Minnesota may not extinguish a property interest that it recognizes everywhere else to avoid paying just compensation when it is the one doing the taking. So, that's exactly how I would describe the Fourth Amendment positive law principle as well.
Dan: Yeah. I was struck by how close it was to that, but I had some questions. The first part, perhaps unsurprisingly, makes intuitive sense to me.
Will: You mean the part where they're doing it your way?
Dan: Yeah, where they just say, "Look, this is property--" Maybe states have a role, must have some role in defining the contraries of property. But you can't just say that the thing the government wants isn't property. There has to be some core meaning there that isn't just totally jurisdiction dependent. But here, they seem to enact this nondiscrimination rule, that the state can't create property law in such a way that makes it better for the state in one context when it doesn't do that in other contexts because interestingly, they're looking at rules that govern private parties, like bank foreclosure, but they also look at rules that govern seizures of income tax. So, other rules governing the state. And so, would you describe this as a most favored nation rule that the state, they can't assert a right to take your property or to do something with your property that's worse than what it does in other contexts, or the way it would treat the same transaction involving private parties?
Will: I don't know if it goes that far. They are saying just this is an easy case where the rule in all the other contexts is the same, that you own the residual value, except here. So, they can't like-- is it almost like a lease termination rule? They can't create some special exception to the generally applicable law just for their takings claims because that really is clearly the Kethledge worry. If it we were more nuanced, if we were like, "Well, the rule for banks is one thing, but the rule for this is something else," it's less clear what they do.
But in the same way, if the state suddenly try to come along and say, "Oh, actually, we've decided that homeowners don't really own the strip of land between the sidewalk and the street, and we decided that's not really yours," I think we'd say that might be one thing if it's just going to be the general rule. I have no obligation to keep it up and anybody who wants to can go pitch a tent there and so on. But if you're just making that rule for the special purpose of the state being allowed to come in and take it and widen the street, then it's not really a property rule, it's just you saying you want to take it.
Dan: Where does that rule come from? Is it the Taking Clause saying you can't do that? The Taking Clause saying that when you make that redefinition because that's the taking? Because what if this had been the rule for 200 years? Is it still not okay? What is this based on?
Will: Well, I think it's based on the Takings Clause. Now, there are two ways to think of it. One is to say the law itself that redefines your property interest is a taking, and so it's itself a taking. I don't think the court puts it that way. It might raise weird statute limitations problems or whatever, but I think they're still saying the definition of property for purposes of the Takings Clause is not exactly the state law definition because we can't use the state law definition completely because that would allow you to find a way to write. So, it's more like an anti-circumvention rule. We often say, "Here's the rule," and then some clever lawyer comes up and says, "Okay, that's the rule, but what if I do these like seven clever things, when you put them together, are the same thing as the thing I'm not allowed to do?" And then, often we say, "Well, okay, you can't do that either because that's basically the same thing."
Dan: Yeah, it's interesting. What would you describe at this point as the constitutional law governing the definition of property for purposes of takings? What is the rule? [Will chuckles] You start with what the state law says. That's fair. You start with that. But then what? Then, you sort of say, "Well, is this fundamentally inconsistent with traditional general law type principles of property?"
Will: I think so. I think you only deviate from state law if it's going to help the landowner. [crosstalk]
Dan: It wouldn't come up otherwise, right? They wouldn't be demanding claiming there's a taking right, would they?
Will: No, but imagine Minnesota is the one state that does give you a property interest in this. Imagine all are something different. Minnesota recognizes some weird property interest in snails, and they come and take all your snails, and you bring a takings claim. They're like, "Well, I know we recognize the property interest in snails, but nobody else does. This is like a totally weird, made-up thing. So, your takings claim should fail." I think it doesn't work that way. You, as the landowner, get to pick.
Dan: This is a backstop.
Will: Yeah.
Dan: Okay, so you do that--
Will: And then, if we believe the state is potentially redefining property law in a way that violates the Takings Clause, you don't have to use state law, and we look to that by both looking to general law, historical principles, Supreme Court precedents, and the question of whether the state is giving itself a special privilege doesn't give other people. There's like three different factors we look to.
Dan: And the general law and special principles, do you think those are--? Because they do both here and they both cut in the same way. What if there's a conflict?
Will: I don't think we know. I mean, I think we know-- the ultimate question is, do we suspect this is the state circumventing the Takings Clause? Or I don't know that's suspecting intent here, but do we feel this is an end run and those three factors go to the end run question? And obviously this opinion is unanimous on this question, presumably because all these things point in the same direction.
Dan: And everybody joins the whole thing. You could imagine a world where different people are joining different parts, because they think this is the right approach, this isn't the right approach.
Will: I'll add two more things. So, it's also weird, this, I think, was not as much of a problem under the original Takings Clause, because the original Takings Clause only applied to takings by the federal government. That's Barron v. Baltimore. And so, you don't have the same end run problem because state law will be defining the taking. Federal law will be doing the taking. We're not as worried that your state is opportunistically redefining property law to enable somebody else to do the taking. So, it's an incorporation problem.
Dan: One of your first articles is about this though.
Will: One of my first articles is about questioning whether the federal government even has a takings power in the first place.
Dan: Yeah. I've read that one many years ago. What was the answer for why the Takings Clause exists if the federal government can't take stuff anyways? Was it just a mistake?
Will: It may have just been a pet project of James Madison. It is the only part of the Bill of Rights that nobody asked for or mentioned as a thing they wanted, and James Madison just kind of stuck it in there. To the extent it has a purpose, it's probably some mix of the territories in DC, and maybe takings of personal property, which might be permissible sometimes.
Dan: Snails.
Will: [crosstalk] Yeah. Snails, especially for wartime, if you're going to use the snails as weapons. But it's not really intended to do a lot.
Dan: Many people don't agree with that.
Will: Supreme Court didn't ever find the eminent domain power until 1875, which should make you suspicious. As you read the opinion, it's even more suspicious.
Dan: Was one of the most inconsequential Justices involved?
Will: No, it's Justice Strong, who's another one of those Justices if I told you-- if I asked you whether or not there was a Justice in the Supreme Court named Justice Strong, you might not know whether I was making that one up or not.
Dan: It's an impressive name.
Will: Yeah. He was a Pennsylvania Unionist who wrote the-- Pennsylvania, I think, had a big case about the constitutionality of the draft during the Civil War, and Strong wrote one of the leading pro-conscription opinions. And there's a real sort of national power exigency theme. I was just going to say, once you get to incorporation of the Bill of Rights, then there's a whole complicated literature on why to incorporate the Bill of Rights. Is that the Due Process Cause? The Privileges Immunities Clause? How is that supposed to work? I have another paper not yet out to the general public but coming eventually on--
Dan: Secret paper.
Will: Well, it's not a secret either, but on general law and the 14th Amendment suggesting that general law was supposed to be the background for the Privileges and Immunities Clause. So, I might actually have come around to your view of the Fourth Amendment as applied to the states. I think it's possible that the right approach to the Fourth Amendment as applied to the states might actually be general law.
Dan: Really?
Will: Maybe. I have to work through it. But because of--[crosstalk]
Dan: This is big. You haven't told me this.
Will: I haven't told James either.
[laughter]
Dan: Wow. Okay. This is huge.
Will: I said might. But I think general law is the backdrop of the entire Privileges and Immunities Clause, and even the backdrop of the way things are incorporated. So, it could be that general law is the right approach in the state context, in part for these reasons. You can't just let the state-- you need a baseline to measure state deprivations of rights.
Dan: So, how would it work for federal law enforcement?
Will: For federal law enforcement, they'd still be governed by the real Fourth Amendment.
Dan: What does the real Fourth Amendment mean? Does that mean for federal law enforcement that you look to positive state law, your theory? Or do they look to-- so if the FBI does something that would constitute a trespass in Virginia but not in Maryland, and they do it in Virginia-
Will: Then, you sue them--
Dan: [crosstalk] -as positive.
Will: Correct. And that's--
Dan: And the same way that if you had sued them in Virginia, you would have to sue them in Virginia court.
Will: At the founding, the way suits against federal officials worked is-- this was pre-Bivens. You sued them in Virginia state court for trespass on the case of the person or whatever ejectment. You'd sue them in Virginia state court, and you would follow the forms of state law.
Dan: Yes. Although then it leaves this question that we gesture at in our paper, which is what would those courts at that time have understood themselves to be doing?
Will: Well, yes. It might be that positive law and state law would often collapse because the state would choose to follow general law, but that would be up to the state to decide whether to do that.
Dan: Okay.
Will: I'm positive the reason the Chief wrote this opinion is because he listens to the podcast, read both of our articles, and wanted to weigh in with an opinion that would encourage us to stop fighting and realize that our approaches all point to the same direction
Dan: Without throwing us citations.
Will: He has a rule against citing me, Dan.
Dan: Does he?
Will: Well, he never has.
Dan: Okay. Probably someday. That seems unlikely.
Will: I bet he never. I bet he retires from the bench, never having cited--[crosstalk]
Dan: You think he doesn't like to cite clerks or he just doesn't like to cite you?
Will: I've never asked.
Dan: Well, if he's listening, he can write in and tell us. Okay, I have another one I want to talk about for about three minutes, which is United States ex rel. Schutte v. SuperValu Inc.
Will: Okay.
Dan: I'd say this one is not super interesting.
Will: Is it going to make the Adam Unikowsky list?
Dan: I don't think so because it at least has some significance in that it overturned a lower court decision that seemed pretty dumb.
Will: I was really disappointed to learn that this was not about Schutte, the Michigan Attorney General, who spelled Schutte with an E because he's got some important cases that like case about the Michigan affirmative action resolution. So, when I saw this, I was like, "Oh, is this going to be-- somehow it's involving." But it's not that Schutte, wrong Schutte.
Dan: No. Schutte is a False Claims Act relator, False Claims Act is cool. Somebody can come in and say, like, "I'm suing on behalf of the federal government because you have defrauded the federal government." It's a case about billing pharmacies billing Medicare and Medicaid. Okay, we don't need to talk about any of that.
Will: My eyes are glazing over already.
Dan: Yeah, it's not great. And so, in this case, we have a statute that imposes liability on those who knowingly present a false or fraudulent claim for payment or approval. Okay.
Will: Knowingly present a false or fraudulent claim.
Dan: Yeah. Stop there for one second. Just in terms of text, what would you think it would mean to knowingly present a false or fraudulent claim? How would we figure out whether it was knowingly?
Will: Well, you definitely have to know that you presented it. If you didn't mean to click send that wouldn't count. And then, we have to figure out whether we read the knowingly to false or fraudulent. Like, you have to also know that it's false. I think we usually do read the knowingly sort of all the way through. So, I guess you have to know that you're presenting it and know that it's not true.
Dan: So, if you believe that it's not true and it is in fact not true, you believe it's false, it's not false, you still submit it. [crosstalk]
Will: Wait, you believe it's false and it is false.
Dan: Those two things.
Will: Well, do we have a Gettier problem?
Dan: That's where I was going to go with it. It's a justified true belief. That's the leading philosophical definition of knowledge.
Will: No, that was until Gettier destroyed it in one of those famous two-page philosophy papers.
Dan: Okay, so where do we end up? Where do we end up on that?
Will: So, we used to think that knowledge was justified true belief. You believe something and you have a good reason for believing it. I guess it's true and you believe it and you have a good reason for believing it, you're not just guessing. But the problem is sometimes, your justification and the truth don't line up. So, the classic example is, I glance into a room, and I see an outline of a person in there. And so, I say, "Okay, I know there's somebody in that room." And indeed, there is somebody in that room, let's suppose. So, you might say, "Okay, I know there's somebody in that room." But what if the outline I saw that was actually just a statue or a cardboard cutout of Prince. And there was somebody in the room hiding in the corner but not the person I saw. So, it's like a double mistake. Mistakenly thought there was somebody in the room because I was duped with a cardboard cutout and then I mistakenly also missed the real person hiding in the room.
So even though I'm correct, there's a person in the room and I had a good reason for thinking there's a person in the room, I didn't know there was a person in the room because they didn't have a physical lineup.
Dan: So here, you might want some chain of causation.
Will: Yeah.
Dan: From the true fact to your knowledge of that fact. But let's make it easier, okay?
Will: Okay.
Dan: Because the statute is not only going to say that-- and also assume that we don't have a deviant causal chain, like a weird thing going on like this. The person is like, "Yeah." Specifically in this case it related to usual and customary prices and the person within the company sort of says, "Yeah, these are not the usual and customary prices and they are in fact not the usual customary prices and we're going to submit them anyways." Sounds like knowledge If you put aside philosophy.
But then, the statute also has a more specific definition of "knowingly" that actually goes beyond what I would think what In criminal law, we tend to think the word "knowingly" means. And so, it says, "Knowingly it can be three mental states. First, the person has actual knowledge of the information. Second, the person acts in deliberate ignorance of the truth or falsity of the information. And third, that the person acts in reckless disregard of the truth or falsity of the information."
Will: Okay.
Dan: Okay. Those are our definitions. So, you are going to submit a claim. You believe that it's false because you believe it's not consistent with the usual and customary practices which you're required to submit. You believe that. It is in fact true as a matter of law that it's false. Should it count under at least one of those? Reckless disregard the truth?
Will: I believe that it's true that it's false, sorry.
Dan: You believe that it's false?
Will: Okay. We have customary prices. And I think, let's just jack up the price. I just think I'm taking the customer price and adding $2.
Dan: Yeah. For example. That's not exactly what happened here, but something like that.
Will: And I am in fact doing that.
Dan: Yes.
Will: Okay. That sounds like it's--
Dan: You believe that's not what you're required to do under the law?
Will: Yeah. Okay.
Dan: Should that count as actual knowledge or at least deliberate ignorance of the truth or at least reckless disregard of the truth?
Will: I think so.
Dan: Yeah. And the court agrees with that, overturning--
Will: What will be the argument to the contrary?
Dan: I'm still struggling with that a little bit. But the Seventh Circuit said you have to figure out not just what the defendant knew. You have to look at whether the defendant's reading of the statute was objectively unreasonable. So, even if the defendant believes that it's false, and even if it is false, if someone, reasonable person somewhere could have read the statute to say, "No, it's not false," then defendant wins.
Will: Well, that's how we do it for qualified immunity.
Dan: Yes.
Will: Qualified immunity, we both ask, was the government officials conduct unconstitutional? And then sometimes, you have government officials where it's clear they believe their conduct was unconstitutional, but we say, "We really don't care about what you believed. We just want to know, was it obvious that it's unconstitutional? Do 99 out of 100 government officials believe this conduct is unconstitutional?" And it's like an objective test rather than a subjective test. So, is that Seventh Circuit kind of wanted qualified immunity for farmers for-- [crosstalk]
Dan: I guess so. I was looking at some other cases where the court has interpreted other mens rea terms in federal statutes, like particularly the word "willfully," which sometimes--
Will: But willfully is more than knowing.
Dan: Yeah. This is something that is kind of harder-- we don't really have time to get into, but where the court has interpreted that term in a way that is designed to protect against reasonable mistakes of law being the basis for the punishment. So, for example, in a well-known tax evasion case, Cheek, tax evasion statute has the word "willfully." And the court says you have to actually know, believe you're violating the tax laws. You have to not just know what you're doing, but you have to intend to break the law.
And I guess in a different case, they had looked to some kind of objective standard. Didn't really make sense here. The court agreed it didn't really make sense here. Everybody agrees it doesn't make sense here because basically what it would mean is even if you know you're submitting false claims, as long as you can get your lawyer to write something that sounds reasonable, saying that maybe they're not under some hypothetical reading of the law, you're good.
Will: Well, that's what the majority of reading means. As long as if I want to submit a bunch of false claims, I just have to make sure that I don't know they're false. And the way I make sure I don't know they're false is have some lawyer tell me they're fine.
Dan: That could still be in reckless disregard of the truth. I think what we're saying is, even if you under the Seventh Circuit rule, even if you actually know they're false, you still win if there's some plausible argument that they're not, even if you have full knowledge.
Will: Right, but now, under the majorities rule, take two people who are submitting claims that are in fact false but are plausibly true, they could plausibly argue that they're true. The person who gets high on their own supply, the person who believes their own kind of self-serving legal argument, that person now wins because they no longer subjectively believe the claim to be false [crosstalk] plausible.
Dan: [crosstalk] -reckless disregard?
Will: Well, as long as it's plausible, it's not reckless, but the person who could take a plausible position that this claim was true but isn't, is more honest and self-aware, that person now loses. So, you're punishing the kind of honest, careful people.
Dan: But just to be clear, the Seventh Circuit says you look both at the subjective and the objective. So, even if you first say, "Well, we have to figure out whether this is consistent with any objectively reasonable interpretation. If it is, you can't sue-- the person was breaking the law." And then if it wasn't, then we go to the defendant's actual subjective thought. So, it's a bigger barrier.
Will: Yeah, but this is the same-- I'm just saying in the qualified immunity context, this led courts to think, you have two cops who shoot somebody in edge case they shouldn't do so, and the cop who immediately afterward admits, "Oh, crap. I shouldn't have done that. I knew I shouldn't have done that," the court rejects a rule, that cop gets punished while the other cop doesn't because they just say subjective belief, "Correct awareness of the wrongness of your own actions is irrelevant." Now, I don't like the qualified immunity standard. I'm happy to see it not [chuckles] get purchased in other places.
Dan: Okay. I guess we should in the time remaining, let's talk about the last case, which I think is the biggest one of the day of the ones we're going to talk about today, which is Glacier Northwest v. Teamsters. So, it's a labor law case which is outside my wheelhouse. We tend to talk about a lot of stuff that's outside my wheelhouse, unfortunately.
Will: Well, so does the Supreme Court.
Dan: Yeah, fair. This one's interesting. Just look at the breakdown a little bit. So basically, it's a labor law case and it is employer versus union. There's more stuff going on than that. It's employer versus union. It's an 8-1 case with Barrett joined by everybody except for Jackson. And then, Jackson writing a very long-- it's Barrett, everyone but Jackson is with her on the bottom line. For her opinion, she only has Roberts, Sotomayor, Kagan, and Kavanaugh. And then, we have Thomas, Gorsuch, and Alito going in somewhat separate directions in concurrences in the judgment.
Will: Right. You can think of there as being a very conservative view, which is the Alito, Thomas, Gorsuch view. Very liberal view, which is the Jackson view. And then, the moderate view, which is the Sotomayor, Kagan, Barrett, Roberts, Kavanaugh view.
Dan: Yeah. I mean, that puts them in order, but it doesn't necessarily tell us the distances between the positions. And I think that the Barrett position is still a fairly conservative position, but I'm not sure.
Will: So, two things interesting with this case. Is it a labor case? This case starts as a tort law case in state court by an employer against the union about cement trucks. About basically the Teamsters union decides to-- the Teamsters Local Union No. 174 decides to strike. And they very cleverly time their strike for a very inconvenient time, which is after the cement trucks are full of wet cement. You fill the truck up with wet cement, you have a relatively small amount of time to deal with the cement before it hardens. And if it hardens at the truck, that's really a problem. And so, it's a maximally costly time to stage a strike and the employer has to deal with that in a somewhat costly way. And so, they sue saying that's a tort.
Dan: Under state law.
Will: Yeah. Under state law, you tried to break our trucks with wet cement. And so, you should have to pass. The union says this is not a question for the state law, for the state courts. A lot of state law torts between unions and employers are preempted by federal law, by the National Labor Relations Act. This should be preempted. The Washington Supreme Court agrees this is preempted. So, the Washington Supreme Court says, "We don't want to decide the state law tort. We think that the federal law takes this away from us." And then, the employer goes to the Supreme Court and wins 8-1. So, it's now the US Supreme Court telling the Washington Supreme Court, "You actually do have to decide this tort case." Now, I guess may well be the employer is going to lose the tort case because of the Washington Supreme Court--[crosstalk]
Dan: And there's other stuff going on. There's other stuff that might cause the state court action not to be able to proceed. We can talk about it in a second. I get super confused about what's going on here without knowing labor law, because the majority opinion is all about this thing called Garmon Preemption.
Will: Yes.
Dan: Tell me what that is.
Will: Basically, there's a special aggressive reading of the NLRA preemption that are-- it preempts tort law claims for conduct that is arguably protected by the NLRA. So clearly it protects claims for things that are preempted by the NLRA. So, unions have a right to strike. And so, you can't sue the union for striking under state law. Even if state law, as it used to, tried to say, "Striking, that sounds like a tortious interference with business activities," or whatever, "attempting to get people to breach their contract." There are a bunch of torts that used to be used against labor unions. And the NLRA definitely says, "Those are gone. That's now protected activity."
But, of course, there's a lot of ambiguity. Suppose the unions strike is just on the wrong side of the line for federal law purposes, does that mean that state law can come in and pick you off immediately? The answer is no. They create this buffer zone. So, any conduct that's arguably protected by the NLRA is preempted. And so, that lets the union say, "Look, even if this strike was over the line as a matter of labor law, that doesn't mean that it automatically falls into the place where we can be held liable for as a matter of state law." And the Supreme Court says, just applies the current doctrine, "This is so far over the line that it's not even arguably protected. Therefore, you could be sued."
Dan: And then, we get to Justice Jackson's dissent. And she describes Garmon Preemption totally differently than I understood it to be, based on reading the majority.
Will: How so?
Dan: She says, "Look, it doesn't make sense. We shouldn't really-- the majority calls this Garmon Preemption, but the term 'preemption' is something of a misnomer. This is really just kind of a rule about state courts kind of waiting."
Will: Yeah.
Dan: Taking a hiatus.
Will: So, she, I think, is connecting this up with-- I think this is innovative. She's connecting this up with this idea-- it's a lot like something that an administrative law sometimes called primary jurisdiction. There's just some other entity that's supposed to figure this out first, and we should let them do it. So, there is pending before the NLRB, a complaint, an unfair labor practices complaint, and let's just let them figure this out. So, it's not just a question of, we examine this claim and ask, "How far over the line are you?" But she wants to just let the whole thing go to the NLRB.
Dan: But then with the possibility of it coming back, the idea being, it's not preempted for all time if it's just arguably preempted.
Will: Yes, I think so. Now, as I understand it, and I think Justice Jackson's position goes beyond even what the union and maybe the government argued for in argument, and they disavowed this primary jurisdiction type argument although I think it used to be a much bigger thing in admin law. And my memory is Justice Breyer maybe used to also promote it as more orderly administrative state centric way of thinking about these kinds of things.
Now, she also thinks on the merits, that this conduct is not so far over the line. And she has some interesting examples about other kinds of perishable products or inconvenient times. I think a case involving milk and a case involving cheese, case involving chicken. And if sometimes you're allowed to do this, if you're allowed to walk off the job even though the milk will expire, what's the difference between milk and concrete? And there are some interesting questions there, but the primary jurisdiction spin or the NLRB forward spin is an interesting way to take it.
Dan: Yeah. And then, there's this question about what should happen now that the general counsel of the NLRB has issued a complaint, which happens after the State Supreme Court ruling. And Justice Jackson's view, I think that definitely should make the state court litigation stop. And then, interestingly, the majority doesn't tell us whether that's right. So, in footnote 3, the majority-- [crosstalk]
Will: Yes. I guess that’s the part of the argument that I think the parties had waived, I think.
Dan: Yeah. They say, "Lower courts haven't addressed this. The significance of the board's complaint with respect to Garmon Preemption, and we will not do so in the first instance."
Will: Yeah. And then, that's one of the things that prompts Justice Alito in his concurring opinion, joined by Justice Thomas and Justice Gorsuch, he drops a footnote saying, "The court wisely declines to address this argument that Justice Jackson is relying on. That argument represents a striking extension of Garmon Preemption, which, as the court notes, is already an unusual doctrine. If the state courts on remand dismiss this case on that ground, the decision, in my judgment, will be a good candidate for a quick return trip here."
Dan: He's got two other joiners on that concurrence. So, they've got three votes for cert against them if they do that in the state court.
Will: It's interesting because sometimes, this is what happens, is a separate opinion, a dissenter lays out an alternative legal theory, sometimes that's intended to be like, "Okay, here are lower courts, here's a way you could try to pick this up next time." So, this is an interesting counter move of, if you try to take that up, you've already got three people ready to "give away a quick return trip," aka a summary reversal, I think.
Dan: Yeah, I guess that's the quick.
Will: [chuckles]
Dan: And then in terms of his position more generally, you said his is the really conservative position because it seems to be basically you don't get Garmon Preemption for any claim that the union has despoiled the employer's property or seized and converted its goods or intentionally destroying their employer's property.
Will: Yes. And then, I guess it's interesting because then Justice Thomas and Justice Gorsuch have their own concurring opinion written by Justice Thomas, joined by Justice Gorsuch, but not Justice Alito, saying maybe we should reconsider this whole Garmon Preemption thing. It's sort of out of step with our other kinds of preemption, etc., etc. But the majority is happy to just apply the existing doctrine, at least here.
Dan: Yeah. And the Alito position is broader because it would reduce the space of preemption for various kinds of union activities.
Will: I think so. Actually, I find Justice Alito a little confusing.
Dan: Yeah.
Will: He's still concurring in the judgment. So, he doesn't join Barrett, but he doesn't join Thomas and wanted to rethink Garmon Preemption. I think that's right that he has more of a sort of categorical rule.
Dan: Yeah. Does he though? Because this is where I got confused, because the majority says, "The right to strike is limited by the requirement that workers take reasonable precautions to protect the employer's plant, equipment, or products from foreseeable imminent danger to sudden cessation of work." Unless I'm missing something, doesn't that actually sound like less favorable to the union than a rule that is about intentional destruction of property?
Will: By itself, yes. I think Justice Alito is saying essentially all property harms or all trespass claims survive Garmon Preemption.
Dan: Yeah. If that's what he's saying, then for sure.
Will: Acts of trespass against the employer's property.
Dan: Yeah.
Will: And I think the majority is putting a reasonableness requirement there as well.
Dan: But it's kind of like reasonable affirmative steps. Like, he's saying, "Well, did you just do a trespass?" And then, they're saying like, "Well, did you have to sort of affirmatively do things?" Which arguably seems broader, I don't know.
Will: Well, and to be fair to the union here, the problem is the way the majority and the employer wanted to pitch this, it's like, "It would have been one thing you guys just didn't show up for work today. That would have been annoying and costly, but we could deal with it. But to show up to work, trick us into mixing up the concrete, putting it in the trucks, and then walk away, that's more like an affirmative act." But as the majority also acknowledges, it's not like there's some rule that you can only strike at the beginning of the workday. You're allowed to strike in the middle of your shift. Of course, in the middle of your shift, stuff's happening. And so then, it's a little hard to figure out how to draw the line between affirmative steps versus just went on strike in the middle of the workday, and that's when the cement's mixed. So, I find that a little tricky too.
What do you think happens on remand? Again, I'd hate to be too legal realist about this, but the Washington Supreme Court started out trying to preempt the whole thing, and now they're told they can't preempt the whole thing. But I take it they could just say, as a matter of Washington tort law, this is fine.
Dan: Yeah, I guess that's true, unless there's some clever constitutional argument that would just end the case, because the Supreme Court wouldn't have power to reinterpret Washington state tort law.
Will: Now, maybe this is a little like Hennepin County. Maybe they have to apply the same tort law and cases against labor unions that they apply in other cases, unless they're willing to say that in general, it's not tortious to walk away from a truckful of wet cement, they can't it say here. But still, it's not obvious to me what happens on remand or how big a deal this is, practically.
Dan: Yeah. I was thinking Sotomayor and Kagan got a lot of criticism for joining the kind of pro-employer anti-union decision.
Will: From who?
Dan: From folks. Folks I know privately in the backchannel.
Will: Nobody I know.
Dan: No, I know some people you don't know. I'll tell you offline. But this may just be a super, super narrow decision. Like, basically, the court is saying on these exact facts, this doesn't get over the line.
Will: Yeah. I mean, I don't know about exact facts, but I think there are--
Dan: Facts that look like this.
Will: This is one of those cases that doesn't purport to change the existing legal rule. Existing legal rule is whether this was arguably protected, and this is not arguably protected at this stage of litigation.
Dan: And maybe it makes it easier to say things aren't arguably protected. One thing I did think was persuasive about Justice Jackson's dissent, which is, maybe this turns on more facts. The kind of facts that the NLRB could find rather than the court just deciding it on the basis of the pleadings.
Will: Although courts also have a way of finding facts. The point of the pleadings, normally if we think, "Well, you pled this case, but to know whether it succeeds, we need more facts," normally, that's where we let the case go forward so you can get more facts.
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Dan: Yeah. Thanks very much for listening. Rate and review on the Apple Podcast app or wherever else you get your podcast. We're continuing to slowly grow in listenership, but we would like to continue to grow. And we like it when people say nice things about us. So, do that as well.
Check out our website, dividedargument.com. We get transcripts of the episodes up relatively quickly after they air. store.dividedargument.com, we have some merchandise. We have an email address, pod@dividedargument.com, that you can write us at. We don't do, I'd say, a great job of responding to those but we do read them. We have a voicemail line, 314-649-3790, so leave us a message. We have played a couple of those particularly interesting ones on the show.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Now that we're into June, hopefully we'll have a lot more interesting stuff going on. Although, as usual, we will endeavor to record at the least predictable and convenient times possible.
Dan: Yeah. And if there's a long time that goes before next episode, it will be for the actual reason that we are going to be on vacation, unfortunately. So, we're going to do our best. I'm making Will take some recording equipment while he's traveling. We'll try to get you content, but it's not going to be perfect.
Will: I really thought you were going to make a cement joke, Dan. I'm very disappointed.
Dan: Yeah, I was struggling there. I can do it now.
Will: Okay.
Dan: If we don't come back for a long time, the reason is because we are stuck in a cement truck. Is that what you were hoping for?
Will: See, [laughs] that was funny, Dan.
Dan: You think that was funny, and you didn't like the Chappelle? [sighs]
Will: That was actually funny.
Dan: All right.
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