We follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions—Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright). And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!
We follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions—Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright).
And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!
[Divided Argument Theme]
Dan: We're back again. Will, We've got a couple new opinions to talk about. The court hasn't done a ton. It's getting a little late in the year, right. It’s May. Dare I say mid-May. And they haven't given us a ton so far this term. Is that fair?
Will: It's May 14th. I don't think it's mid-May until tomorrow or the day after.
Dan: What? That doesn't make any sense. Certainly, May 14th isn't mid-May. You don't think the range between May 14th and May 16th counts as mid-May? That has to be right.
Will: All right, fine. Mid-May is a zone. I'm just saying, we're in the first half of the May.
Dan: And I think there are 41 opinions left to go.
Will: Yeah.
Dan: Is that right?
Will: I mean, it sounds plausible.
Dan: It's a lot.
Will: They decided 20 cases so far, counting everything.
Dan: Yeah.
Will: Counting two per curiams. So, that sounds about right.
Dan: Okay. It's going to be a busy month and a half for the court. And I guess for us, we're now in that stretch of the year where it starts to get a little bit easier, at least for me, to record more frequently, and hopefully that will work for you too. Before we talk about the opinions, let's talk about some other odds and ends that have surfaced recently. So, here's a little fun one that might be a good premise for a little bit of a conversation, maybe dare I say, a debate.
Which is, there was this case granted recently, Medical Marijuana v. Horn. It's a RICO case. But the thing that's interesting about it is not the content of the case, the legal issues in the case, but a lawyering issue. This is one of those cases where a petition was filed, and the petition was filed by Lisa Blatt, one of the leading Supreme Court practitioners. It was a very compelling-looking petition, obviously, as you might imagine, given that it was granted and that it was filed by Lisa Blatt and a brief in opposition, a bio, as they say at the court, or an opp, as they say in the solicitor general's office, was filed. The counsel on it was just a lawyer from a very small firm called the Lyndon Law Group. Filed a brief in opposition but the brief in opposition was really written as if it was written by a real, seasoned Supreme Court pro.
And so, Sean Marotta, who's a partner at Hogan Lovells, works with Neal Katyal, tweeted a couple weeks ago about this. He says, “There are arguments on both sides for ghostwritten briefs in opposition. But does anyone think that the Justices are fooled into thinking that a New York consumer fraud attorney in a two-person law firm wrote this?”, and tweeting out the TOC of the brief. And that made a lot of people mad on Twitter, because the suggestion that a New York consumer fraud attorney in a two-person law firm can't write compelling brief in opposition that reads as if it was written by someone who has years of experience in the office of the Solicitor General. This is snobbiness, elitism, blah, blah, blah, blah.
I looked at it, and I thought one thing that I tweeted out that was funny about it is that the metadata of the PDF itself said it written by Tom Goldstein, [Will laughs] whose firm I think does a fair bit of ghostwriting, anecdotally, is my sense. Although people immediately tweeted back, “Well, it wasn't written by him because he's retired. Somebody else must have used the template.”
And here's what we know now, is that it appears that, lo and behold, [unintelligible 00:04:01] of the cases granted, the respondent who was not successful in opposing certiorari is now represented by Easha Anand who I believe is at the Stanford Law Supreme Court Litigation Clinic, which is a clinic that at least previously was partially run by Tom Goldstein. So, there's a little bit. My thesis that the metadata was revealing, it was probative perhaps was correct. Okay.
But this spurs this larger question that surfaces every few years about this idea of ghostwriting briefs in opposition. So, basically, as I understand, the practice, which I witnessed, is that lawyers sometimes are hired to write the brief in opposition to cert, but they don't want to signal that the case is actually important enough to have serious Supreme Court counsel. So, they don't put their names on it, and they make it look like it was just signed by whoever the attorney was at the court of appeals stage in the hopes that this will conceal the fact that this is a serious, possibly cert-worthy case. Is that a fair description of the practice?
Will: Sure. Sounds a little unfair, but I'm willing to--
Dan: What's unfair about that?
Will: “Conceal that it's a possibly cert-worthy case”? I mean, I assume they're making arguments. I think they genuinely believe that the case should not be granted and they're making honest arguments about why. But it's true, they--
Dan: Presumably, the reason that you do this, the reason that anybody would do this is because they believe that, they acknowledge, that a serious, experienced practitioner has become involved in the case would be probative to its cert worthiness. That's the only reason why you would do this.
Will: You think people will make an inference from the fact that we have brought in Supreme Court counsel that the case is cert-worthy and we don't want them to make that inference. Now, maybe- [crosswalk]
Dan: Presumably, that inference is correct, right?
Will: Well, no, maybe it really is not cert-worthy, but we're worried the court will mistakenly think it is cert-worthy. So, we need the best-- I guess I think of this the same way as suppose you are under investigation by a US attorney's office for some criminal matter. You might well hire a high-priced criminal defense counsel, and you probably wouldn't want to telegraph that to the US attorney's office necessarily. There are times you would, but there are times you wouldn't. It's not necessarily because you're guilty. You might hire a high-priced criminal counsel even though you're innocent, but you're just concerned about being found guilty. But it's right that you think that'll make you look worse to the attorney's office.
Dan: Yes. But it also is true that, let's say, the Stanford Supreme Court Litigation Clinic is going to be more likely to get involved at the brief in opposition stage in cases that they think have a pretty good shot of getting granted.
Will: Yes. So, assuming that this is a pro bono ghostwriting, I do agree in some sense even more potentially probative. Whereas I think there are some great lawyers who will happily ghostwrite briefs in opposition, even for cases that have no chance of being granted because it's good money--
Dan: Yeah.
Will: --you're not going to turn you away and say you don't need me.
Dan: Yeah. I mean, maybe there's cases where an experienced lawyer wants to ghostwrite them just because they don't want to be associated with the case or something like that. But at least, there does seem to be some undercurrent of practice where people are doing this. The cases have a good shot at being granted. They're doing everything they can to try to downplay that. And people have asked, “What are the ethical implications of this?” Because this is a situation where at least it does seem the lawyer is choosing to admit a piece of information, that the reason that you care about this is because it actually might be material to the court's decision making. And so, in some sense, there's an attempt to deceive the court. There's a way you could describe it that way.
Will: You could describe it that way.
Dan: And I don't think it's crazy to describe it that way. And having described it that way, is there something about this that should make us uncomfortable?
Will: All right, and you say yes.
Dan: Well, maybe you think no, you don't care.
Will: Well, I want to differentiate two different questions, because I'm more of a positivist about this. I think the court does not currently require every lawyer who worked on a petition or a filing to put their name on it. There's an important way in which it's not deceptive to fail to disclose things that you have no duty to disclose. And we see this in the law all the time. Wasn't there just a securities case about this two weeks ago that was too boring for us to even talk about? Omitting a fact that you have no duty to disclose is not deception in the eyes of the law.
So, now, if you told me the court was thinking of proposing a rule requiring the disclosure of everybody who worked on a bio, that wouldn't shock me, and it wouldn't strike me as totally inappropriate for the court to change the rule. But I do think there's an important sense in which what people are doing right now is consistent with the rules. And at the same time, I see the sense of it in that the court might think it's wrong for us to care who the lawyers are. It's true that we would care who the lawyers are, but there's something also unseemly about making inferences about your arguments based on who you are.
So, the court might actually think it's important not to say we need to know whether you hire Tom Goldstein or whether you're getting help from Easha Anand.
Dan: Yeah. Although in general, let's say, in the law of fraud, it can be considered a fraud to fail to-- omit a piece of information that would be material. It also has this potentially self-defeating factor, which I do think in a case like this, the Justices could look at it and say, “Gosh, this seems obviously ghostwritten. And the fact that they're doing that is all the more reason why we're not persuaded by this, and we think we should grant the case for that reason, or at least you're trying to pull a fast one on us.”
Will: So, I have two other factors in this. One, how many Justices do we think actually lay eyes upon the cover of the brief in opposition? I assume that if you are a Justice who relies on cert pool memos, that in an ordinary case, you'd make a grant decision without ever having seen the brief in opposition. Now, maybe we think the clerk who writes a pool memo is going to say, or not say, “Oh, this is ghostwritten.” I don't know, it seems weird.
Dan: If I had noticed that when I was clerking, and I don't think I was aware of the practice, and maybe it hadn't emerged as much when I was clerking and I became aware of it later, I think I would have said something about that in my memo. Certainly, when discussing vehicle issues, it’s not unusual for a clerk's memo to talk about lawyering.
Will: I question whether that's appropriate but I agree with you that it's probably been done.
Dan: Why? Why is that inappropriate?
Will: I don’t know.
Dan: If the court is looking for vehicles to resolve larger legal issues and let's say one of the parties seems to be represented by grossly incompetent counsel who are not going to be able to make a compelling argument, that seems like that should be relevant.
Will: I think, at the respondent's side, that's a huge mistake. You wouldn't want to create an explicit incentive that you should try to hire grossly incompetent counsel to write your bio with the hope with the court will, what? Not think that you would get more competent counsel [laughs] after the case was granted? I think you should just assume that all respondents will be well lawyered. Maybe if somebody wrote a really terrible cert petition that didn't frame the case in the correct way, maybe then you'd think, “Well, this is just not framed the correct way,” or something. But that doesn't make any sense to me for respondents.
It's like when the Fifth Circuit does something so crazy that it's not even really a split, because nobody has ever considered whether or not there's a constitutional rule against the federal regulation of ducks or whatever. It seems weird to say, “Well, the split is illusory because this decision is just so wrong, and therefore, we should deny.” You can't reward gross error by saying it's just so far outside the mainstream that we should ignore it.
Dan: Okay, well, I do think that, nonetheless, you do see those considerations in memos.
Will: Can I ask you a different ethical angle on this that I only thought of recently? I've heard of examples where a lawyer did work on a filing with a prominent Supreme Court litigator. But then, was unhappy with the direction the filing took and didn't want to put their name on it.
Dan: Yeah.
Will: I mean, suppose I write a first draft of cert petition for the client, but I'm not the ultimate decision maker. They then take my draft, put in, I don't know, some frivolous arguments. Will: Surely, I have to be allowed to say, don't put my name on it.
Dan: I think that's reasonable. And there's certainly situations where that's going to be true. I was actually thinking about doing one of those letters to the Chief Justice proposing a rules change.
Will: Yeah.
Dan: Steve Sachs has done that once or twice with some success. I was going to think about trying to draft like a rule to cover the situation. And I think that a rule that says any lawyer who works on it has to be in the brief is way overbroad.
Will: Okay.
Dan: What about a rule with some mens rea standard? Basically, like you can’t not put your name on the brief if the reason that you wouldn’t do so is to deceive the court.
Will: You just say “deceive the court,” it's too questions begging what counts as deception? I think you'd have to say-- This is what I'm wondering- suppose that somebody does draft the brief in opposition and then says, “Here it is. I don't have time to edit it for you or to sign off on it, but I'm not comfortable with you filing stuff with my name on it that I haven't signed off on. So, you have to leave my name off of it.” Now, I guess that would pass the mens rea test if that was the reason you did it, which means if you want to be a professional ghostwriter, you could then just adopt that practice.
Dan: Yeah. Yeah.
Will: And then, I don’t know that it really solves the problem.
Dan: Well, I’ m going to keep thinking about it just because I don’t love it. I just find it annoying. I find it kind of cheesy.
Will: Yeah. No. I would not be shocked if the court agreed with you. I do think you should think about doing this, because I would not be shocked if the court thought there was something unseemly about this and was interested in addressing it. You could just say it could be a special rule for briefs in opposition.
Dan: Yeah, I know. I think I would say it should be the rule for briefs in opposition, because I think this is less of an issue in other situations. That's maybe one of the only situations where, to our knowledge, the identity of the lawyer is potentially quite relevant to the court and perhaps even properly relevant to the court.
Will: Yeah. And do you think this would run into First Amendment problems?
Dan: No.
Will: Because the court has said you have a right to conceal from the government the fact that you donate money to the Koch Brothers or whatever.
Dan: It cannot be the case that the First Amendment protects your right to anonymously lawyer for the Supreme Court of the United States.
Will: Well, in a specific case, what you want is to be left alone. The court is threatening to exercise power over you by calling you into court on certiorari, and you just want to be left alone. And so, you hire a lawyer, in your own best interests, to just keep you out of trouble. And now the court is saying, “You can't even do that without telling us what you're up to, which just gives us further ways to mess with you.”
Dan: Sorry, who is you in this hypo?
Will: The respondent. The poor, helpless – [crosstalk]
Dan: The respondent has to do all sorts of things. I mean, the respondent is the one being messed; the duty is on the lawyer.
Will: Do you think the court could require disclosure of all conversations that the respondent had with his lawyers? Any internal memoranda you have with cert-worthiness of the case have to be attached as an appendix to the briefing in opposition. That's all concealment. Surely, there's lots of memos where you're like, “Wow, the court's going to grant this case, and we're going to do our best to tell them that it's-“
Dan: I think probably not.
Will: -all previous drafts of the bio.”
Dan: I think probably not. I mean, do you think that it's unconstitutional for the court to require that the council of record identify who they are in the brief? Could someone just say, “As a member of the Supreme Court bar, I should be allowed to file briefs anonymously”?
Will: Okay, no. The First Amendment part was a little facetious just because I thought the decision in AFP v. Bonta was a little silly and I wanted to try to make a move with it, but I'll retract that. I do think there is something unseemly.
Dan: Well, your hypo is interesting. Disclose all private communications. That seems like probably not okay.
Will: Yeah.
Will: I don't know if that's a First Amendment problem or if that's something like it's not justified by the inherent power of the court to regulate its-- I don't know.
Will: I guess it goes in part to these privilege questions. Is the fact that you hired a lawyer who has not entered an appearance on your behalf, I guess that fact alone is not privileged, is that the-
Dan: That fact probably is privileged, although there's other situations-- I don't remember the details, but I think there's situations where stuff like this comes up in the tax context. There's situations where there are tax lawyers who want to make some representation to the government but not disclose who their client is. Do you know these cases? I'm trying to remember. I think that the bottom line of those cases is the government can make them disclose. But I actually don't remember now. I don't even remember why I'm aware of these cases.
Will: I think I worked on this once but-
Dan: Wait, really? Then, you should know.
Will: Well, a lot of things I should know.
Dan: Many of them you do know. Okay, well, let's continue thinking about that one.
Will: I encourage you to make this a cause. I'm not sure that I agree with it, but I think it's a good cause for you.
Dan: Next one, something that we have seen over and over, Orin Kerr has mentioned a bunch of times in the last few years, is how the court just seems totally uninterested in hearing Fourth Amendment cases all of a sudden.
Will: Yeah. It's been like years since I heard one. Right?
Dan: Yeah. My memory used to be like there'd be a couple New Fourth Amendment fact patterns every year. It'd be like, “What if they use binoculars to look inside your bathroom while they're flying on a helicopter?”, and every bazaar factual variation would come up eventually and they'd have to come up with some Fourth Amendment rule for this precise situation. And then, that just totally dried up. It's been years since they've heard one. And Alex Satanovsky, who is an assistant federal public defender and listener of the show, wrote in to ask us about this and flagged a case that I hadn't spent a lot of time with, but I noted and actually had used as an inspiration for my criminal procedure exam this semester, which is Bembury v. Kentucky. Did you hear this one?
This one was denied, again. Another Fourth Amendment case denied. But it's an interesting question. You know some Fourth Amendment stuff. It's like your fifth area of specialization, would you say?
Will: I wrote an article about the Fourth Amendment once.
Dan: Yeah, I know. It's a big article. I'm just saying, where would you put it in your, I would say, con law, fed courts, conflicts. Where else?
Will: Fourth Amendment is part of con law. So, if the buckets are that big, it can be in the top three.
Dan: It's a separate class. It's a separate-
Will: Yeah. I don't know. Yeah.
Dan: Okay.
Will: It's up there.
Dan: Okay, Fourth Amendment law says that when police arrest someone, they have an automatic entitlement to search without warrant or any further probable cause beyond what's needed for the arrest, the arrestee's person and stuff that's in their immediate grabbing area.
Will: Right. Because the idea is, “We're securing you. We just arrested you, and so we're making sure you don't have a poison pill in your pocket you'll use to commit suicide,” or something.
Dan: Yeah. I think the traditional rationales are less suicide and more destruction of evidence and safety officers, but yeah, the spy with the secret cyanide tooth or something.
Will: That would be destruction of evidence.
Dan: You are the evidence.
Will: Yeah, or your thoughts. Yeah.
Dan: And then for a while, the courts had interpreted this to apply the automobile context where we arrest you, we get to search the passenger department of the car automatically. And so, what police started doing is they would arrest people and then put them in the back of the squad car and then go do fun, little exploratory search of the car. And then in a case, Arizona v. Gant, a bit more than a decade ago, I don't know, 15 years ago.
Will: It was decided at the term I clerked.
Dan: Okay, so 15 years. And the court said, “No, you can't do that. You don't have this automatic entitlement to search a car just anytime someone is arrested in or near a car. You can search the passenger compartment while the arrestee is still unsecured. So, while you're arresting the person and you search the area that they could grab, basically, in the passenger department or if there is reason to believe evidence of the crime of arrest might be found in the vehicle.”
Will: What's the purpose of that second one? Why would we add that?
Dan: That was a compromise between Justice Stevens and Justice Scalia. Both of them ruled in favor of the defendant, Gant. Justice Stevens' rule was the first thing, which is you can do a search incident to arrest when the person is unsecured. Justice Scalia thought that was kind of stupid, thought it created bad incentives. But his view generally is Fourth Amendment is just about reasonableness. And it's reasonable to let police search a vehicle if they have reason to believe that evidence related to the crime and arrest will be there. He just thought that's reasonable. And so, the compromise was both of those roles are the law that Justice Scalia and Justice Stevens went along with that. And so, two kind of like twin holdings, two different ways under search incident to arrest, you can get into a car.
I spent a lot of time thinking about this because I teach it and students have a lot of questions about it. So, I think the reason to believe standard is less than probable cause, which is why it's important, but that's where it landed. Do you have a different view on any of this based on your experience working?
Will: No. No. Again, that's a weird compromise, but okay.
Dan: Yeah. And then the question, this case is basically like Gant for luggage.
Will: [laughs]This is why nobody wants to take Fourth Amendment cases.
Dan: No, this is interesting. This is interesting--
Will: Go ahead, go ahead.
Dan: It is like a split, which is they arrest someone, so search incident to arrest. Once they secure the person, put them in handcuffs, get them in the back of the station car, can they then go ahead and search the luggage that they had with them when they were arrested?
Will: Okay.
Dan: Even if the- [crosstalk]
Will: [crosstalk] the car.
Dan: Yeah.
Will: For thecar, the answer would be no, right?
Dan: Yes, post Gant.
Will: Right. The car, you need to have reasonable suspicion that evidence of the crime of arrest was in there.
Dan: Yep.
Will: Okay. But if it were not a car, if I was just arrested sitting on a park bench, then they would presumably be able to search the park bench. Is that the idea?
Dan: Well. It’s your backpack, your briefcase.
Will: Right. Why would they be able to search? I guess I’m trying to figure out what the case for searching bucket.
Dan: Well, a normal search incident to arrest where they can search you, they can search what's on your body and they can search stuff that's in your grabbing area.
Will: Was the luggage in my grabbing area or my-
Dan: Yeah, that's the problem. It wasn't. And so, the petitioner here is making the quite reasonable argument that the Gant analogy should apply to luggage just as much as it applies to cars, that once the piece of luggage, the bag is no longer in the grabbing area, the person is secured, it's separated from the person, the rationales of the search incident or arrest doctrine do not apply, and it cannot be search incident to arrest.
But there's a circuit split on this. So, this does seem like it's actually an issue that comes up with some regularity. It seems like the kind of case that they would have granted with some regularity before, but now no go. It does seem like it's been long enough that this is maybe a pattern. It's been years. I don't think they've granted one with this current configuration of the court.
Will: I think you're right.
Dan: Justice Barrett?
Will: Like a post, or a post Jackson?
Dan: What about post Barrett? What was the last one--? When was Vega v. Tekoh? It was a while ago.
Will: Vegais 2022. But isn't that a Miranda case?
Dan: Yeah, sorry. No, sorry. I meant, when is Torres v. Madrid? It's a little longer ago.
Will: Yeah. Torres v. Madrid is 2021. Okay, so that should have Barrett, but it was argued pre-Barrett.
Dan: Okay.
Will: So, it was decided post Barrett, but argued pre-Barrett. So, yeah, it's interesting.
Dan: That might be the most recent one.
Will: Is she the independent variable? Justice Barrett arrives and declares an end of the Fourth Amendment?
Dan: That doesn't seem plausible, but maybe she's less interested than other people. I mean, I can imagine a world where the liberal Justices are just voting no on all crim pro cases because they're worried about what the Justices will do with them, the majority will do with them.
Will: Sure. So, I don't know. I remember Orin Kerr makes this a constant observation, so I do think it's been going on for a while. Of course, the court is just taking fewer cases generally. But I think there's something about the thing that the doctrine of the Fourth Amendment cases are about that I think is out of step with the thing that the majority of the court feels constitutional law should be like. Fourth Amendment cases have a very common law feel. I mean, to the point that you can say, the question is Gant for luggage, does the rule for cars [unintelligible [00:25:29], it's this common law, if you're a certain kind of formalist, can feel a little rootless.
I feel like when I was learning the Fourth Amendment, there was this whole thing about the boxes. The Fourth Amendment is basically about three different kinds of boxes. There are big boxes where you need a warrant to go in the house, and there are little boxes that you also often need a warrant to go into. But then, there are medium-sized boxes, cars, where the rules are suspended, you don't need a warrant. But then, if you put a little box inside a medium box, sometimes it becomes the medium box, because automobile exception applies. If you have the medium box inside a big box, the big box rules apply. It has the feel of a shell game or a logic puzzle more than a rule of constitutional law.
Dan: Yeah, although I don't really know what the alternative would look like. I mean, there are going to be specific rules. There's going to be rules for arrest, and then there's going to be rules about what can you search when you arrest someone. Some of it maybe feels more made up than other stuff. I mean, maybe the car stuff, fair enough. But what's the alternative?
Will: Well, so one alternative is to try to do more hardcore originalism, like what would the rules of this arrest have been at the founding? But of course, as everybody points out, that's hard, because so many pieces of context have changed and policing has changed. And it may be that there's clearly not five votes to just replace the Fourth Amendment with the work of Thomas Davies.
Another alternative is to replace it with sort of a general reasonableness test, like get rid of the presumptions that you-- Currently, there's a bunch of different presumptions that have some supposed historical roots, but some of them really do and some don't. So, you could go Akhil Amar method, the Telford Taylor method, and replace them all with a generalized reasonableness test. That would also be potentially destabilizing and maybe hard if the Justices don't have strong intuitions or agreement of what's reasonable, and then maybe also feel weirdly fact bound.
Ironically, if you thought the Fourth Amendment was just a generic fact unreasonableness test, it'd be hard to really make any useful law in a lot of cases. Even if there's a circuit split about luggage, you might read the cases and think, “Well, it's really about reasonableness,” even the luggage cases might not all be the same. Is all luggage created equal? I do think at the level of vibes, there's something about the Fourth Amendment doctrine and the things the current court likes to do that seem out of step with one another.
Dan: Yeah. Although many of the Justices have happily played that game in the past. Certainly, Chief Justice Roberts, Alito, Thomas, Gorsuch, Kagan, and Sotomayor have all participated in traditional Fourth Amendment cases. Fewer for Kavanaugh, Barrett, Jackson. But I don't know.
Will: Yeah, no, it's interesting. I really don't know.
Dan: And as we will see in a minute, the court is perfectly willing to decide all sorts of cases on underlying premises it might not actually agree with. So, to the extent that we're going to continue doing Fourth Amendment law that's going to look pretty similar to what it's looked like for decades, does seem like in the meantime, maybe they should at least clear up some of these circuit splits.
Will: Yeah. And what about the exclusionary rule? Is that part of the explanation of what's going on here?
Dan: Yeah. That was a question that Alex flagged, which is how many of them actually just don't believe in the exclusionary rule? Maybe that's why they don't care about some of these cases, because most Fourth Amendment issues come up in the context of exclusionary rule litigation within criminal cases. Some of them-- Justice Scalia was a huge Fourth Amendment defender, but then when the rubber hit the road on remedies, it's not clear what he really thought the remedy should be. He didn't seem to like the exclusionary rule. It was a weird disconnect between fairly robust defense of the substance of the Fourth Amendment with no real commitment to providing remedies for violation of the Fourth Amendment.
Will: Yeah, this was going to be my topic paper.
Dan: Yeah. Yeah. I wish that you had written that.
Will: Me too.
Dan: I mean, you wrote other stuff that was good, as it turned out. The Original Remedies in the Fourth Amendment, is that what it was going to be called?
Will: Yeah. Yeah, I was thinking about this, so, I think it's in 2018 that Justice Thomas finally officially announces the case against the exclusionary rule in a concurrence in Collins v. Virginia, maybe. And depending on what the Justices think about the second-best problem, like, in a case where the defendant should not get relief because there is no exclusionary rule, but nobody's raising the exclusionary rule, do you bracket that or not? As we'll talk about, sometimes, the court is probably willing to bracket those things, but sometimes some of the Justices are not. Sometimes, some of the Justices say, “I'm just no longer willing to vote to exclude evidence impermissibly,” or something.
So, if you ended up with one or two Justices who really either had a firm view on that or even were sufficiently unsure about that, you could just imagine that the court is not well positioned to decide these Fourth Amendment cases if everyone is going to have Justice Thomas and Justice Gorsuch insisting on worrying about something else.
Dan: Yeah. Although I guess it depends on whether they think the substance still matters. I mean, because you could believe that there shouldn't be an exclusionary rule, but still think that the substance matters a lot, and then you would still want to decide the cases just to make the substance clear. In almost every Fourth Amendment Supreme Court case the court hears, the defendant, him or herself, is actually probably pretty unlikely to get any benefit of a ruling in their favor because of this case actually argued by Orin Kerr, Davis v. United States. Remember this one?
Will: Oh, yeah.
Dan: Super interesting case where he was arguing that the good faith-- It didn't make sense. A lot of courts had been applying the good faith exclusionary rule to situations where precedent had suggested that the government would win. And then, the court hears a case and actually says, “No, government is wrong.” Defendant wins. But when the law changed that, courts were continuing to apply the good faith exclusionary rule. So, the police were relying on precedent that was binding at the time. And the Kerr position which he had laid out, I think, in some scholarship as well, which is that, “Look, if that's the rule, it's going to create these really big problems because then, is this going to ossify Fourth Amendment Doctrine? Because anyone who's in a position to argue for the doctrine to be changed won't actually get any benefit of that.”
Will: Mm-hmm. Yeah. Actually, maybe this is right. So, if you take this really seriously, if you could think that all these Fourth Amendment cases are effectively advisory opinions because under Davis, nothing hangs in them, and once you know that, there's a way which the court might feel like it almost lacks Article III power to resolve them.
Dan: Yeah, I don't think-- that's probably not right, because the court has power to decide an ancillary issue, even a later issue in the case might make that irrelevant. Right?
Will: Well, I guess there's this way in which the court has just decided that the advisory opinions ban doesn't apply to cert. It's just allowed to pick a question, decide to answer the question without proof that question is going to be outcome determinative. This is the version of the Ben Johnson critique about certiorari. The court has just decided it doesn't care about that. But if someone--[crosstalk]
Dan: It cares about it to some degree. It won't hear a moot case.
Will: Right. And it usually won't hear a case-- If the lower court has already reached an alternative holding, the lower court already says in advance, you lose. And by the way, the good faith exception applies. The court won't take it. If the lower court just says you lose and we all know that on remand, they will say the good-faith exception applies, but they haven't said it yet, the court sometimes will say, well, that's for them to figure out, which is not, I think, in keeping with the standards that the court applies in standing. I'll just say that.
Dan: Yeah. Yeah, that's fair.
Will: Anyway.
Dan: Now, the court's response is, “Well, defendants can still argue that precedent can be distinguished and that it actually did govern the situation.” And then, the court left open this idea, “Well, maybe in rare cases, we might need to create an exception for one-- the person who changes the law, that person should get a retroactive application of the rule, but not everybody else.”
Will: And that would create standing.
Dan: For sure.
Will: All right, well, my wish is that sometime in the next year, when the court denies cert in Fourth Amendment cases, somebody on the court writes a statement respecting the denial, where they give us some hints for why they don't want to take these cases.
Dan: That would be helpful.
Will: I won't go so far as to they'll actually take one. I don't have a strong view about that, but I'm hoping for some intel on why they're not taking them.
Dan: Yeah, that would be helpful. And it kind of feels like the court left us on this cliffhanger because in, gosh, was it 2019? 2018? Must have been 2018, the court decided Carpenter v. United States, huge Fourth Amendment case about whether acquisition of cell site location information is a search and Justice Gorsuch has this concurrence. And he's like, “I want to do a totally different thing in the Fourth Amendment. It’s positive law,” he cites your article. An article Danielle and I wrote is response to that dissent. And then, we've had no further follow up. We've had no further opportunity for him and other Justices to really be like, “Okay, now let's lay out this different approach.” I'm waiting on that.
Will: Yeah, no, that was a sufficiently bad experience for them, apparently, that they don't have it anymore.
Dan: Yeah. Okay, what else we got? We got a fed courts question. Can I tee up a fed courts question for you from the listeners?
Will: Sure.
Dan: Okay. Michael Rosman, who's the general counsel of The Center for Individual Rights and says, “On DeVillier, I wish you would explain why the 11th Amendment as interpreted by Pennhurst was inapplicable. Is Pennhurst only applicable when a state official or state is sued for injunctive relief? Or, is it because the Texas statute incorporated [audio distorted] a decision or in Texas, waive the defense?
Will: I believe the answer is, Texas’ sovereign immunity is waived by invoking removal jurisdiction. I think there's a case called Lapides versus something that holds, that when the state invokes federal jurisdiction through removal, it's waiving sovereign immunity.
Dan: Forall purposes? Like--
Will: For purposes of that litigation by asking the court to resolve the case. Now, I would like to flag that's not technically 11th Amendment immunity because it's a case between Texas and citizens of the same state. The court has held that the Eleventh Amendment is equally waivable but Steve Sachs and I have an article arguing that's not true. And if it were a true 11th Amendment case, maybe it wouldn't be waivable. But I think since this is a sovereign immunity case, that is 11th amendment adjacent, and the current doctrine is you waive by removing. I think that's why Texas doesn't have any sovereign immunity.
Now, it's also the case that section 1983 doesn't apply to the state of Texas apart from the sovereign immunity issue, because there's a clear statement rule. It's a clear statement rule that was developed right before the sovereign immunity rules were hardened to say states are only included if there's a clear statement attempting to waive their sovereign immunity. And so, even though actually Congress could, if it wants to, strip state sovereign immunity in takings cases, because Congress has not expressly said that section 1983 applies to state defendants.
Dan: All right, well, there is your answer. Any other pieces of follow up? Got one shadow docket thing to discuss.
Will: Is it worth flagging this cert petition?
Dan: Oh, yeah. Yeah. This is a good one that I think has a pretty good chance. I think that we have talked about this case already maybe some months ago, which is this case, Landor v. Louisiana Department of Corrections and Public Safety.
Will: Okay. It's a Fifth Circuit prison case, right?
Dan: Yes. And it's the one where there was a prisoner who was a Rastafarian and who actually had a precedent that said, “Prison officials, you are not allowed to cut my hair when you bring me into custody.” And actually, the Fifth Circuit had previously ruled that. And he was carrying a copy of the Fifth Circuit decision that said, under the RLUPA, Religious Land Use and Institutionalized Persons Act of 2000, you can't do this. And the prison officials threw the copy of the opinion away and strapped him down and shaved him bald. These are really pretty sympathetic facts for him. But the legal question here is not, was that okay, but is there an individual damages remedy created by that statute known as RLUPA, I think, to those in the biz.
Will: I always called it R-LUPA.
Dan: R-LUPA. I don't know. I have no idea.
Will: I'm voting yes.
Dan: That there is such a cause of action.
Will: Yeah.
Dan: And I guess just a few years ago, Tanzin v. Tanvir, the court said there is such a cause of action to sue government officials for damages for violations of the Religious Freedom Restoration Act, a highly related statute, for reasons that we don't have to get into now. And the language here is the same. So, it seems like there's a lot of stuff going in petitioner's direction here.
Will: And I think this also came up. I think that one reason it might be different, why would RLUPA be different from RFRA is that RLUPA is in a prison context, the spending clause statute. And there have been these questions in the past, whether the spending power maybe has these limits. The more the spending power is contract like, then can you end up the contracting party is the state accepting in the funds, then can you really impose liability on third parties? The petition points out there's an important case in the Supreme Court about the spending power called Sabri that says you can send people to jail under the spending clause power. [laughs] Then, when Congress enacts bribery statutes that are necessary and proper to implement the spending clause, it can say it's a crime to misappropriate those funds. So, that's a fair point.
Dan: Yeah, that seems like a pretty compelling response.
Will: Yeah. So, I like Mr. Landor's chances for at least a grant, if not a summary reversal.
Dan: Probably not a summary reversal. Don't you feel like you need a case exactly on point for that specific statute to get that?
Will: Probably. And I do think the lower courts maybe-- I think this is a split-less case because the lower courts all agree that our RLUPA does not create individual damages, is my memory. So, hard to summarily reverse when it's not just one circuit or something.
Dan: Yeah. But it does seem like this is a court that does care a lot about religious liberty. I think they are happy to have cases where they can reaffirm religious liberty but also be ruling for the little guy, for the minority religion.
Will: The facts are amazing. I will say if they don't grant cert, the dissent from denial by Justice Gorsuch is going to be lit.
Dan: I think that is quite plausible. So, I could see this having a lot of support. So, pretty good chance, and hopefully that will turn into grant. And the council of record is friend of the show, Zach Tripp, formerly of the solicitor general's office, now Weil, Gotshal. So, let's keep our eyes on that one. Anything else?
Will: We’ve got some cases to talk about.
Dan: Okay. Yeah. Did you want to say anything about this shadow docket order dissent from denial by Justice Jackson in the Sandoval case? Did that intrigue you?
Will: Uh--
Dan: Sounds like not.
Will: I confess my reaction was, “Ah, another dissent from denial on a criminal procedure issued by Justice Jackson. I feel like she's had a string of these which are not wrong, or I don't know if they're right or wrong, but they raise important issues. But I don't know if there's anything.
Dan: Yeah, this one is about criminal defendants’ right to be present at critical stages of a trial. And in this case, I guess, Texas has been using this procedure where they have this first stage of voir dire. Sometimes, voir dire is handled at a general level. It's general voir dire, not for any specific case. This is just when the court is just seeing who's eligible to be a juror generally, and then they'll shunt them off to a specific final case. Voir dire is the initial stage where potential jurors’ eligibility is screened. Those are not part of an individual trial.
But they have been doing this other thing called a special venire, where they actually convene voir dire proceeding that's for specific capital case. They actually ask the jurors about that defendant in that case, but at that stage, they are not letting the defendant be present. It's just happening with the court, and there's no transcript of what's happening. The Texas grant criminal appeal said this doesn't implicate a constitutional right to be present at all stages of justice.
Jackson has a little six-page dissent joined by Justice Sotomayor saying it's wrong. Court should have granted this, this matters. So, this is one of many that I think we'll be continuing to see for a while.
Will: I will confess, I don't understand why it's okay to have the judge talk to a bunch of prospective jurors to disqualify them, and not have anybody know what the judge said or why they did it. That does seem like something that's not supposed to be part of our criminal process.
Dan: Because what? Because you're worried that they might be disqualifying people who are qualified in a way that would bias in favor of the government?
Will: Yeah. We have two levels of protection in criminal cases. We have substantive rules about bias and stuff, and then we do have these baseline rules of public trial and the defense presence, which I take it are more like prophylactic rules and legitimacy rules.
Dan: Yeah. They're also not super easy to identify in the constitutional text.
Will: Well, the public trial part's easier to identify than the right for the defendant to be present. So, I don't know. Often, these variety of proceedings also violate the public trial. If nobody was there and there's no recording or transcription, if it's the case that anybody who wanted to, could walk in and record these proceedings, then I'd be less troubled by it. But I take it the defendant, even if they wanted to, weren't allowed to attend. So, I'm not sure. And I think we require those things because we think it's an important piece of legitimacy that we don't have part of the trial happening in secret.
Dan: Yeah. Okay. But no interest among four Justices to take that one. Okay, so we've got cases.
Will: Yeah.
Dan: Let's do it.
Will: Okay. Should we talk about the forfeiture case?
Dan: Yeah, let's do this one. So, Culley v. Marshall. Do you want to set it up for us?
Will: Sure. This is about the phenomenon of civil forfeiture, which is when you are suspected of having been involved in a crime or your property is suspected of having been involved in the crime. The government can take the property. And the question is about the process that you get for that forfeiture, and in particular, whether there's some requirement that there be- You have a right to a hearing eventually, where you will try to prove, not the full criminal process, but with some process that the property was not involved in the crime. Maybe it was you or that you were an innocent owner in some places, that's a defense and so on, but you get some right to try to prove it shouldn't be forfeited.
But the question is, while you're waiting for that, which can be years, do you have a right to some other kind of process? Do you have a right to some preliminary hearing where you can try to put forward some case that this shouldn't be forfeited, which you can see in practical terms. A lot of these cases involve cars.
Dan: Yeah. So, a hearing on whether they're allowed to hold onto the thing while you're awaiting the big hearing.
Will: Yes, exactly. The police maybe have probable cause or something to seize the car in the first place, and then while we're waiting a year or two for you to say, “No, no, no. I'm the innocent owner of the car,” or whatever else the defense might be, while you're waiting for that, can you find some way to get your car back so you can get to work or whatever else as a matter of due process? And the court says no, your process is at some point, you get a forfeiture hearing. There is a backstop. The forfeiture hearing has to comply with the speedy trial clause, which employs a four-factor test to say, at some point you got to have this trial, in this case a hearing--
Dan: It has to comply with the test that we use for the speedy trial clause, right?
Will: Yes, exactly. It's not itself a trial, but it has to comply with the test for the speedy trial clause. But that's it. That's the remedy. And the court relies heavily-- in fact, it seems to try to deny responsibility a little bit for this holding. Acknowledges arguments about whether to do this or not and the opinion by Justice Kavanaugh says, page 6, “Ultimately, we need not reweigh the competing due process arguments advanced by the parties, because this court's decision in United States v. 8,850 Dollars and United States v. Von Neumann from 1983 and 1986 already resolved this issue. And the court voices language in those cases that seems to say, ‘Look, your remedy is getting a timely forfeiture hearing,’” and that's pretty much it.
Dan: Yeah. And like his opinions tend to do these days, I mean, it says that multiple times, just like hammers home the key point repetitively. Did you find that to be the case here?
Will: Do you remember a case called Alvarez v. Smith, a civil forfeiture case from like 15 years ago?
Dan: Yes, I think it was my term. Right?
Will: I think it was your term. I think it was dismissed as moot. I think it was granted my term. I think it presented the exact same question. And my dim memory of my view of the merits of that issue is exactly what Justice Kavanaugh wrote, that there are these precedents that seem to resolve the issue. What's interesting is that the lower courts had almost all gone the other way. The lower courts had almost all said, “Well, yes, there are these precedents that seem to say you don't really get any process, but those precedents don't deal with cases where the civil forfeiture is really unfair. [Dan laughs] Well, they weren't cases about innocent owners, so have in that sense, a more plausible claim that they're being screwed here, and their interests aren't getting adequately weighed.”
I think there was a footnote in a more recent case that you could arguably read to distinguish those. I think the leading lower court case that had tried to distinguish those was a case called Krimstock v. Kelly in the Second Circuit, which I think maybe Justice Sotomayor had written. I do think this is one of those cases where if you're just applying the precedents without really thinking about them, it's a pretty easy case. But, of course, we know that's not always the mode the court is in. It's published by Adam Unikowsky, who we, I think, frequently quote on this show, who had a post about the case whose post is called In Praise of Robotic Judging, the court mindlessly and correctly decides Culley v. Marshall.
It's just like, well, this is a case where the precedents are controlling, and it's not obvious they're right, but there's no reason to distinguish them or try to overthink it. And I do, even though I'm not normally a robotic application of precedent guy, I confess that was certainly the first place my mind went. You want to tell me I'm being too much of a robot?
Dan: No. I mean, I do think that the more-- I guess I am not as interested in this question of whether precedent clearly resolved this or not. That's what the dissent by Justice Sotomayor really focuses on. But it does seem like this more important and more interesting question is, why should they be allowed to do this at all? Just take property of an innocent person just because someone happened to be driving the car while carrying drugs.
And this is what we see in a concurring opinion by Justice Gorsuch, which is pretty fascinating. So, Justice Gorsuch is in the 6-3 majority and is like, “Look, I agree that under precedent, there's nothing that says they have to have the preliminary hearing exactly like the one the petitioners here want. But the larger problem is whether this forfeiture is constitutional at all,” and at least to the extent that the procedures by which it takes place.
And he goes through a lot of stuff and talks about how typically the requirement of due process requires that the government not take your stuff without a trial. There's this historical exception for forfeiture, but he suggests that historically it was limited to situations that are narrower than the way in which forfeiture is typically used today.
It was like you were smuggling stuff on a boat and the question-
Will: It is true a lot of the cases involve boats.
Dan: Yeah. There's reasons the boat would get forfeited and there was no other way to hold anyone responsible or you're smuggling stuff into the country and the stuff itself gets forfeited, and that makes a ton of sense. But not necessarily situations where just something happens to be incidentally used in the commission of a crime and that thing becomes forfeited. Someone commits a crime in a house, someone commits crime in a car and so forth. I haven't done a deep dive on the history myself, but that critique has always seemed plausible to me, that this practice has gone way beyond historical support, and that it creates some very serious due process concerns from.
Will: Yeah. I mean, so I'm very much against civil forfeiture as a practice.
Dan: Categorically.
Will: Well, no, maybe. I don't know my exact policy views, but I have the standard libertarian concerns, the standard due process concerns, and the standard corrupted government incentives concerns about all these. And I appreciate Justice Gorsuch flagging the problems and sort of charting out how you might make an argument against it. But I don't think he exactly lands firmly on one argument. And I think that part's a little hard. I've wondered how much work the excessive fines clause can be asked to do here.
I think the court used the excessive fines clause in one forfeiture case, United States v. Bajakajian, where somebody was carrying a ton of cash and didn't declare the cash when they went through customs, and then all the cash was forfeited. And the court said, “Well--” It was his cash. It was not criminal cash. It was just that the cash had not been declared, and the court said it's an excessive fine to take all the cash just because it wasn't reported.
One reason I like bringing excessive fines clause is, my understanding is its purpose is related to one of the concerns Justice Gorsuch's flags, the part of the concern about the excessive fines clause was that the government, in its capacity as revenue raiser, might not be making public-minded choices about what the fines should be because they try to get the money. And I take it that's part of the concern here in civil forfeiture cases.
But I also wonder, think about just the average criminal defendant. Justice Gorsuch is concerned that you have to lose your property for years before it's been proven to be forfeited. People sit in jail for years before they get a chance to prove their innocence all the time. Pretrial detention pending criminal conviction. So, if that's okay, why is the property that much worse?
Dan: Yeah. Although they do get a fairly prompt bail hearing, typically.
Will: Do they? You get like a Fourth Amendment hearing under Gerstein. Does the due process clause- One of the things-- the court makes this point, Justice Kavanaugh makes this point in the majority opinion, is that he doesn't think you should give property more processed than people, page 9 to 10.
Dan: Yeah. You don't get necessarily a trial right away, but it's not the same thing as the 48-hour hearing which is about determining whether there's probable cause to justify an arrest and detention. But that's the first thing you get. Typically, you would get a bail hearing in a relatively short amount of time after that. You don't wait years to get your bail hearing to determine whether you're eligible for bail. The bail hearing would be the first thing after that.
Will: And so, you think really, in some ways, what the defendants want here or what the property owners want here is a civil forfeiture equivalent of a bail hearing. While I'm waiting trial, can you just bail out my car?
Dan: Yeah, I think that's right.
Will: Okay. So, yeah, maybe that's the right way to think about it. I guess the part I was thinking about is my sense is that we don't take the speedy trial clause very seriously. We allow very long delays that do not seem very speedy to me. And so, I would also be very open to the view that we ought to require the government to do these things-- just have the real hearing much faster. Maybe the four-factor test is just not doing the work it's supposed to do.
Dan: Yeah. Although it's hard because often when these things happen, there can be complicated set of reasons that something gets delayed, and sometimes the defendant is demanding the delays. It's hard to say you have to have a trial within six months or else the defendant is acquitted.
Will: Would it be that? I understand when the defendant wants to delay is fine, but why would it be so hard to say to the government? You can bring the indictment later or whatever. There's a statute of limitations. It's not like there'd be a six-month statute of limitations for all forfeiture. But if you're sufficiently sure that the car is guilty, that you want to ground the car, especially if the defendant is guilty, that you want to put the defendant in jail.
Dan: If it's speedy trial, the remedy would be dismissal with prejudice. If it's a constitutional speedy trial violation, that's what the Supreme Court has said. Because basically a lesser remedy doesn't mitigate the right. That's the only way to effectively protect the remedy. If it's a violation of the federal speedy trial act, dismissal without prejudice can be permissible under some circumstances.
Will: Right. But I'm saying you should file the indictment or whatever only once you're ready to go to trial.
Dan: Although sometimes you're limited by the statute of limitations as to when you have to file the indictment.
Will: Yeah, well, you should. [laughs]
Dan: Yeah. I just think that current doctrine recognizes that these things are complicated and that having a very clear, bright line timing rule isn't always going to be appropriate. I'm not saying the way we do it is optimal, but I do think it's complicated.
Will: Right. No, they clearly are complicated. And I guess part of the question here is to what extent should the fact the law is really complicated or the procedure is really complicated, to what extent should the people, should the defendants, rather than the government be forced to bear the cost of that? That reminds me, do you see Justice Gorsuch has a new book coming out?
Dan: I saw that he does. Yeah.
Will: Over Ruled: The Human Toll of Too Much Law. So, I take it he'd be agreeing things are really complicated, and that's part of the problem.
Dan: Does he want to get rid of law?
Will: I don't know. I haven't read the book but I bet he wants there to be less law. I bet he wants-- “Too much law can place our lives and freedoms at risk and even undermine respect for law itself. And often those who feel the cost most acutely are those without wealth, power and status.
Dan: Okay, well, I’m going to withhold judgment of that one.
Will: So, that was interesting. One little thing Justice Gorsuch slipped in here. I don’t know if you saw this on the first page of his concurrence and maybe you’re going to tell me this is obvious. He mentions the Mathews v. Eldridge test, which is like the balancing test for procedural due process. He says, “I agree that no legal authority presented to us indicates a prompt hearing that must necessarily take the form as Ms. Culley and Ms. Sutton proposed. I agree, too, that Mathews v. Eldridge does not teach otherwise. Under Mathews v. Eldridge, judges balance the government's interests against the benefits.” It's a famous cost-benefit test. And then, he just says without citation, “That test does not control in cases like this one where the government seeks to deprive an individual of her private property.” Is that obviously true?
He seems to be saying that the Mathews v. Eldridge balancing test applies to government benefits instead of like-
Dan: Yes, that's clearly not true or at least not obvious. Because hasn't the court or at least controlling plurality of the court, applied that test to deprivations of liberty [crosstalk]
Will: A plurality applied it in Hamdi. Maybe it's not a controlling plurality depending on what you think about the Marks rule. But I will say I have an article a couple years ago, my Adjudication Outside Article III article, where I think I argue that it shouldn't apply, that the Mathews v. Eldridge test should only apply to new property and not to real property. But I think when I said that, I thought I was getting out pretty far over my skis. So maybe not. [laughs]
Dan: Yeah. But I can see that being a view is that's a case that should be cabined to the new property government benefits and that the originalists would want to apply the law of the land procedural due process test, which I have in my mind because I just taught procedural due process using your case book, your conceitedly very good case book.
Will: [laughs] Thank you for conceiting it.
Dan: Yeah. I hate giving you those concessions, but sometimes you’ve got to do it.
Will: Yeah. Anyway, maybe Justice Gorsuch said that before. Maybe he's going to build on it more later. But I thought it was a slightly wild thing to just slip in there in the first paragraph. I like it.
Dan: Yeah. What do you think? Do you think? He's got Justice Thomas joining him in this opinion. Do you think that-- You put this together with the liberal Justices, would you have a majority to significantly dial back civil forfeiture in some future case?
Will: Well, maybe. I think so. I don't know significantly. I think you've certainly got a majority to make some inroad, and you have to decide what the right doctrinal inroad to pitch will be. Of those five, Justice Kagan is sometimes the stare decisis police. So, in this case, where she thought the current precedents were distinguishable and didn't really control and so on, you could have her vote. But if you had to-- depending on what you want to do, if you want to overrule, it was the case of Bennis v. Michigan, that's about one of these innocent owner questions that's vulnerable. But if you had to explicitly take on some current precedent, would it suddenly become harder to get Justice Kagan's vote?
Dan: I do think it might be hard if you didn't have all three of the liberal Justices.
Will: If you pick a case where there's not controlling precedent either way and the situation is sufficiently sympathetic, then maybe Justice Kavanaugh and Justice Roberts would come along, I'm not sure. I'm positive that the Institute for Justice and other folks like that are teeing these cases up. They may already be in the courts below, frankly. So, I wouldn't be surprised if we see some good cert petitions trying to carve that issue off soon.
Dan: I was just at the Institute for Justice headquarters in Arlington, Virginia, last week.
Will: What?
Dan: It was a conference about the Fourth Amendment and the open fields doctrine.
Will: Ah.
Dan: It was sort of about you because your coauthor, James Stern, was there, and we had a back and forth about different positive law models of the Fourth Amendment.
Will: Yeah, I've always hated the open fields doctrine.
Dan: Well, this conference persuaded me that it's actually maybe a bigger issue than I realized. There's a lot of situations where there's a bunch of various people who just have their houses and they have big properties and game wardens just dressed in camo come just invade their fields next to their house. There's one case where this guy has a camera and the game wardens just come onto his property and seize his camera and search the SD card, [Will laughs] which I think is clearly not allowed even during current precedent. So, I was persuaded-- this conference was meant to draw attention to this issue, and I think it succeeded in persuading me that there is an issue there.
I don't know what I think about the Fourth Amendment question. The text of the Fourth Amendment doesn't clearly apply to open fields, persons, houses, papers and effects. It was interesting. That's an organization that does a lot of impressive work. They're very good at picking sympathetic facts, and they have a good media operation too. So, I think it's a really impressive organization.
Will: So, yeah. Wait, the camera would be in effect though, right?
Dan: Yeah, no, the camera would be in effect. I think that's just a situation where police are clearly abusing [unintelligible 01:03:52]. I think that wouldn't be within the scope of open field's doctorate, but apparently police just think they that as long as they're going to feel, they can do it or basically whatever they want, which is ridiculous.
Will: I worked at the Institute for Justice.
Dan: Oh, yeah, yeah. Your summer gig, right?
Will: Yeah, when I was in law school, and I thought seriously about going there after I finished clerking.
Dan: It seems like among nonprofits, it's a pretty cool one in terms of the seriousness of the work that they do. And they're a well-funded operation. I think that some of the donors that support them, Fed Soc and Cato and stuff like that also give them some money. So, they clearly are a well-funded operation, but I think they're doing some good stuff in a lot of cases.
Will: Yeah, they're great.
Dan: I don't agree with everything they do, but agree with some chunk of it.
Will: What do you not agree with?
Dan: I think they're doing a lot of anti-administrative state stuff too, right?
Will: Federal administrative state?
Dan: I think so.
Will: I don't think they do much of that.
Dan: I think they're doing a little bit of that.
Will: I think they do a little bit, but I don't think they do a lot.
Dan: That's one of their things these days. Maybe not as much.
Will: I got the newsletter. I haven't noticed that. The New Civil Liberties Alliance, they live to destroy the administrative state.
Dan: Yeah, I think that they're doing some stuff involving the SEC, things like that.
Will: Okay, maybe.
Dan: I don't know. But for the most part, I like what they do. Let me make it clear. I don't want to go in the record now saying I like everything that they do without systematically thinking about everything that they do.
Will: That's fine. I won't put you on the spot. I think they may be defending the lab-grown meat. They had some cases about that in the past. I think there were some states that banned that said you couldn't call oat milk, milk.
Dan: Oh, yeah. I think that's ridiculous.
Will: [laughs]Of course, it's ridiculous.
Dan: Yeah, it's absurd. Okay, we'll see what they manage to do with that set of issues. All right, I'm running short on time, so can we quickly talk about our other case?
Will: Sure. You want to tell us about it?
Dan: This is Warner Chappell Music, Inc. v. Nealy, and this is a copyright case. Under the Copyright Act, it says that the plaintiff has to file suit within three years after the claim accrued. Okay, so within three years after the court claim accrued. It doesn't say when the claim accrues. It just says you have to do it within three years of when the claim accrues. And I guess the lower courts have all decided that initially or the default answer is that it accrues when the violation happens. So, an act of copyright infringement. But they've applied this discovery rule which says that if you're the potential plaintiff and you don't know about the violation, it won't accrue until you discover the infringement. Does that make sense to you?
Will: I understand the distinction.
Dan: Yeah. So, the court granted this case, which is a little confusing, but basically, if that rule is correct, the question is okay, let's say that's the case and then you sue, are you allowed to get damages for infringement that happened more than three years ago? And the court says yes, basically rejecting this idea that some lower courts had settled on. It's a little confusing even to explain what they were doing. The plaintiff could still sue when the claim didn't accrue till they discovered the rule. But nonetheless, there was a limitation on damages that couldn't be sought for stuff that happened more than three years ago.
Will: Right. It's a little weird to say you can get damages for things that happened before your claim accrued.
Dan: I thought accrued just means like the moment at when all the pieces come together and then you can sue.
Will: Normally, the time when the pieces come together is also when the violation occurs. [laughs] So, normally, you don't get damages for things that happened before your claim accrued. If a claim has four elements and you have a bunch of damages for what happened when three of the elements were in place, but the fourth element wasn't in place yet, we might say, “Well, nothing the law hadn't violated yet because the fourth element hadn't clicked into place.” So, I see the intuition that there's something odd about letting you get damages from before your claim occurs.
But I take it that's just an oddity created by the discovery rule. If we're going to have the discovery rule, which says there are violations of the law, they just haven't accrued yet, then once they do accrue, suddenly the whole stock of violations all accrue at once, and then you get this massive damages payoff.
Dan: Yeah. And so, the petition was filed by a friend of the show, Kannon Shanmugam. “The petitions question presented when it was first filed said the question was as follows. Whether the Copyright Act's statute of limitations for civil actions precludes retrospective relief for acts that occurred more than three years before the filing of a lawsuit? The court grants, but in granting, it says the petition is granted, limited to the following question: Whether under the discovery accrual rule applied by the circuit courts, and the Copyrights act statute of limitations for civil actions, a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit.”
And I guess what the court is going to tell us is, yes, the plaintiff can recover, basically-- if the discovery rule applies to a claim, there's no separate additional three-year limitation on damages for that claim. But weirdly, by framing the question presented that way, the court really didn't want to make any decision about whether this rule actually is a thing. The court just wanted to decide this case as if the discovery accrual rule was the correct rule without actually telling us that is the correct rule.
Will: Right. This is the advisory opinions thing we were just talking about.
Dan: Yeah, it's weird. It's not really an advisory opinion because, here that the rule is conceded to apply. And so-
Will: Well, but in the larger sense, it might be right. The question is assuming that the law is x, an assumption that the court is not willing to put its name to, it's not when it tells the assumption's true.
Dan: But I'm saying for the parties in this case, the law is x because of the concession.
Will: Okay.
Dan: Right. I mean, so clearly there's no standing Article III issue to say that, having made this concession, because of this, you win or you lose.
Will: But doesn't the petitioner question the discovery rule? Isn't that part of the--
Dan: So, I thought that the issue was conceded below, but either way, put that aside. I mean, it's weird, it's weird what the court did here.
Will: Yes. I mean, rewriting the question presented is weird. I understand why the court does it because these things are complicated, and they want to carve off something that they can. There's a circuit split one question. There's not a circuit split on the premise question. So, they'd like to just resolve the split and not worry with the other thing. But if the other thing is entwined with the thing they want to talk about, I don't know, can't they just figure it out?
Dan: Yeah, it's weird. Why do you think they did this?
Will: Well, they're 6-3 already. [laughs] So, there must be people who are not at all sure there should be a discovery rule, but who recognize that getting into that at the same time you get into this question is going to be messy, and so they don't have to get into it. They already take 40 cases a year or whatever it is, and they wouldn't want to have to take one more question.
Dan: Yeah, it's just like a weird exercise to go through. Under this thing that the court of appeals may have made up, here's how it should work. And so, for that reason, we have a dissent by Justice Gorsuch, joined by Justices Thomas and Alito, who say this is a weird thing to answer, rather than actually answering the question of whether the discovery rule exists. It's a very short opinion but making a case that this rule is made up. It shouldn't exist.
Will: Yes. Although Justice Gorsuch ends up also saying maybe he would dismiss the case as improperly granted.
Dan: Yeah, like waiting-- He says, “I would have dismissed as improperly granted and waited another case squarely presenting the question within the Copyright Act [audio distorted] the discovery rule.
Will: I mean, look, I get why the court sometimes wants to be specific about answering only the question presented and gets annoyed when the parties want the court to answer something that's adjacent to the question the court wants to answer. And the court's in charge and they get to set all the rules and so on. But I do feel, especially when the court isn't taking a ton of cases, just trying to figure it out and tell us the answer rather than trying to find ways to slice the case so they don't have to tell us how the law actually works, is maybe not the best use of the court's authority.
Dan: Yeah. And the court seems kind of annoyed at petitioner here. Footnote 1 in the opinion, “Disregarding the limit in the reformulated question, Warner Chappell’s briefing in this court focuses almost entirely on discovery rules. So, that choice is especially surprising given that Warner Chapell's own petition for certiorari raised the broader discovery rule issue only in a footnote, which acknowledged that the issue was not raised below. It's not the subject of the circuit split.” Kind of snippy.
Will: Yeah. Look, I take it that the court is trying to send a message that when they rewrite the question presented, it's because there are things they don't want to talk about. [laughs] And so, it's a little funny to simultaneously complain, “We rewrote the question presented, so they should have known not to talk about this issue,” and also, “Their petition didn't really talk about this issue, that's a funny combo.
Dan: Aren’t they saying that there's an inconsistency between the petition and what they filed on the merits?
Will: Yes. But if that were really true.
Dan: What's inconsistency?
Will: They wouldn't have needed to reformulate the QP. If the petition clearly focused only on this issue, they wouldn't have bothered to rewrite the QP because they would have just said, “Oh, yeah, this is only about this issue.” They only reformulated the QP because they recognized this issue was pertinent there.
Dan: Yeah. Based on the point, the phrasing, at least.
Will: Yeah. Or maybe based on the footnote.
Dan: Yeah. Yeah. Although I will say that the way the court rewrote the question presented, I thought was not itself a model of clarity. [Will laughs] If I read it, I would say, I wouldn't feel comfortable just filing a brief treating that issue, the existence of the rule as conceded fact. I would probably not have made it the main focus of the brief, but it could have been clearer, I thought.
Will: And the court could be clearer. I take it, again, the point of the footnote is to try to send a clearer message in the future that when they rewrite the QP, they're really doing it on purpose, and you should be careful. But at the same time, I think this is a funny way-- it's a funny way for the court to try to communicate what it wants here. I'm not convinced that the petitioners did anything wrong here.
Dan: Yeah. I looked at the brief. I thought that they made a reasonable set of arguments, but sometimes the court gets annoyed.
Will: That's life.
Dan: Yeah, that just comes with the territory. All right, well, anything else to say about that one? Should we close it out?
Will: Let's close it out. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Email us, pod@dividedargument.com with questions, feedback, other commentary. Please be sure to rate and review on the iTunes store or wherever you found the show.
Dan: And leave us a voicemail, 314-649-3790. For our merchandise, store.dividedargument.com. And if there's a long delay between this and our next episode, it's because our recording equipment has been seized and the government is not giving us a hearing to contest that seizure.
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