The Based Direction

Summary

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Divided Argument – Episode: "The Based Direction"

Hosts: Will Baude & Dan Epps
Date: July 27, 2026
Theme: Analyzing the Supreme Court’s decision in TM v. University of Maryland Medical System Corporation and the future of the Rooker-Feldman doctrine, along with reflections on Supreme Court security, prediction markets, podcast art, and an AI transcript analysis.

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Episode Overview

This episode dives deep into the Supreme Court’s recent opinion in TM v. University of Maryland Medical System Corporation, focusing on the Rooker-Feldman doctrine—a technical but important principle in federal jurisdiction. Will and Dan dissect the doctrine’s origins, this case’s implications, and contrasting opinions among the justices, while also catching up on summer podcast projects and broader legal and pop culture issues. The episode maintains its typically witty, detail-oriented, and somewhat irreverent tone.

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Key Discussion Points

1. Summer Updates, Podcast Art, and Listener Feedback

• [00:20-03:21]
  • Dan returns from vacation, discusses catching up on episodes, and mentions working toward a season record.
  • Dan reveals he updated the podcast’s back-catalog art and encourages listener feedback—mentioning that most listeners approve of the AI-generated images.
  • Memorable Moment:
    “If the listeners would write in or tweet at us or whatever saying what their favorites are, I would be delighted.” — Dan Epps [02:42]

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2. AI Prediction Scorecard for the Podcast

• [03:37-07:04]
  • Dan shares an experiment using Anthropic’s Claude Fable AI: it combed through transcripts and scored Will and Dan’s episode predictions.
    • Dan: 82.4% correct; Will: 71.2% correct.
    • Dan’s high average comes from “hedged, low-variance calls”; Will’s “high-variance swings...produced some of the sharpest specific calls.”
  • They discuss betting, prediction markets (Kalshi, Manifold), and the regulation of gambling vs. information value.
  • Quote:
    “I like the idea of prediction markets, although I do think there are a set of integrity and manipulation issues that I’m not totally sold on.” — Will Baude [07:08]

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3. Supreme Court Security and Public Testimony

• [10:15-15:41]
  • Discussion of Justices Kagan & Barrett’s recent Congressional testimony regarding judicial security needs post-Dobbs.
    • Security concerns are up; justices’ ability to live as “ordinary citizens” is diminished.
    • Justice Kagan’s witty remembrance of Senator Lindsey Graham and how such interactions humanize the Court.
    • Calls for more regular and visible testimony from justices, citing positive public relations.
  • Quote:
    “But I mean, the best situation would be they can just go out without security comfortably, which we...may not live in that world at all anymore.” — Dan Epps [11:52]

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4. The Shadow (“Emergency”/“Interim”) Docket Evolution

• [13:47-15:32]
  • Justice Kagan comments that the term “shadow docket” is outdated as the Court now issues more explanations; she prefers “emergency docket.”
  • Kagan: improvements in transparency and reasoning on interim orders since "Trump 2."
  • Quote:
    “The shadow docket is not currently shadowy. That's interesting.” — Will Baude [15:32]

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5. Main Case Discussion: TM v. University of Maryland Medical System and the Rooker-Feldman Doctrine

Introduction & What’s at Stake

• [15:45-41:50]
  • Case addresses whether federal district courts can hear cases implicating state court decisions still under appeal and the foundations of the Rooker-Feldman doctrine.
  • Core issue: jurisdiction—when can federal courts revisit state court outcomes?
  • Background on the doctrine’s two titular cases: Rooker v. Fidelity Trust Co. (1923) and D.C. Court of Appeals v. Feldman (1983).
  • Exxon Mobil v. Saudi Basic Industries (2005) suggested the doctrine is extremely narrow or nearly defunct—“Rooker Feldman R.I.P.”

What is Rooker-Feldman?

• District courts (original jurisdiction) cannot serve as appellate courts reviewing state court decisions—only the Supreme Court can do that.
• Challenge: distinguishing between a prohibited “appeal” of a state court case, and an independent federal claim arising out of the same circumstances.
  • “The only federal court that has appellate jurisdiction over state courts is the U.S. Supreme Court.” — Will Baude [21:39]

Factual Setting in TM

• Plaintiff was involuntarily committed, signed a contested consent order for release, then challenged validity in both state and federal courts.

Competing Statutory/Theoretical Bases

• Is Rooker-Feldman a constitutional principle or a matter of statutory construction? Two main candidates:
  • 28 U.S.C. §1257: Supreme Court’s exclusive jurisdiction over final state court judgments on federal issues.
  • 28 U.S.C. §1331: District courts' original (not appellate) jurisdiction over federal questions.
• Discussion of practical application, and why underlying principles are debated.
  • “The question is just like, which lane are we in?” — Will Baude [39:19]

The Supreme Court’s Decision & Lineup

• [25:01-41:50]
  • By a 5-4 majority (Sotomayor, Thomas, Alito, Kavanaugh, Jackson):
    • The doctrine bars federal review even when state court decisions are on appeal—not just when they’re final.
    • Dissent (Barrett, joined by Roberts, Kagan, Gorsuch): Rooker-Feldman should be limited to final judgments; anything else encroaches on legitimate federal jurisdiction and duplicates other doctrines (claim preclusion, Full Faith and Credit Act).
  • Odd ideological split—liberals and conservatives on both sides; "the three smartest justices" (according to some commenters) dissenting.
  • Quote:
    “If I saw this without knowing anything else about the case, I might think this is probably a pretty reasonable outcome. But if we're going to be real technical about it, probably the dissent is going to have a better case in terms of the technicalities of the law.” — Dan Epps [26:51]

Doctrinal & Practical Critique

• Is the doctrine consistent with the Constitution, statutes, and prior Supreme Court interpretations?
• Dan and Will express sympathy with the dissent’s critique and worries about the consequences of confusing, overlapping, or “made up” jurisdictional bars.

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6. Opinions Breakdown (with Notable Quotes)

Majority Opinion — Justice Sotomayor

• Strict reading; doctrine still blocks federal review of state decisions even when not final.
• Credits both statutory and functional, “faithful to Rooker and Feldman” approach.

Concurrence — Justice Thomas

• [42:43-47:57]
  • Offers an originalist and somewhat constitutional defense of the doctrine:
    • Stresses the qualitative difference between original and appellate jurisdiction.
    • Suggests tradition (and possibly the text) forbids federal district courts from reviewing state judgments.
    • Raises potential constitutional questions about federal habeas review of state court judgments—“that federal habeas is unconstitutional on these grounds.” — Will Baude [31:18]; “I have my reservations about this development” — (referring to habeas practice) [45:36].
  • Intriguingly, Thomas focuses on Rooker, barely discussing Feldman.

Dissent — Justice Barrett (joined by Roberts, Kagan, Gorsuch)

• [48:13-50:18]
  • Argues for a limited, textually grounded version of Rooker-Feldman:
    • It should only block federal review of already-final state judgments, not those still pending.
    • Emphasizes the sufficiency of other doctrines (collateral estoppel, Full Faith and Credit Act).
    • Worries that expanding Rooker-Feldman “gets in the way of [other] things where we have law.”
    • Quote:
      “In the end, Ricker Feldman has been given an inch. It should not be allowed to take a mile.” — Barrett, as read by Dan Epps [51:45]

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7. Broader Impacts and Doctrinal Consequences

• [50:18-53:18]
  • Will and Dan agree the doctrine’s practical application is narrow, but expansion might encourage district courts to dismiss more cases sua sponte.
  • Discussion about future inclusion in federal courts casebooks:
    • Might need increased attention if lower courts now invoke the doctrine more regularly.

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Notable Quotes and Moments

• On Prediction Scorecard:
  “Dan’s edge comes mostly from hedged low variance calls. Will took more high variance swings, which cost him on hit rate, but produced some of the sharpest specific calls.” — Dan Epps, quoting AI [06:10]

• On Rooker-Feldman’s Origin:
  “The only federal court that has appellate jurisdiction over state courts is the U.S. supreme Court. All other federal courts, like federal district courts, only have original jurisdiction, so they can't hear appeals from state courts.” — Will Baude [21:39]

• On the Dissent’s Influence:
  “Sometimes when you have a dissent like this, it may make that outcome more likely because you might be so persuaded by her arguments that Rookke Feldman should be dead. Well, apparently that's not the law...” — Will Baude [51:45]

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Timestamps for Key Segments

• [00:20] – Summer updates, podcast art discussion
• [03:37] – AI prediction scorecard experiment
• [07:08] – Prediction markets, info value, gambling regulation
• [10:15] – Supreme Court security and testimony in Congress
• [13:47] – Kagan’s shadow/emergency docket comments
• [15:45] – Introduction of TM v. Univ. of Maryland Medical System case
• [25:01] – Detailed case analysis and doctrinal explanation
• [41:50] – Majority, concurrence, dissent breakdown
• [47:57] – Speculations on future of Rooker-Feldman in the courts
• [53:18] – Implications for legal education/casebook inclusion

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Tone and Structure

Will and Dan maintain their signature mix of friendly banter, explanatory depth, skepticism toward conventional wisdom, and inside-baseball Supreme Court humor. The episode is particularly valuable for law students, clerks, and practitioners seeking to understand federal jurisdiction's tricky corners—and for longtime listeners who appreciate the show’s self-referential jokes and transparency.

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For more:

• Full episode transcript: [dividedargument.com]
• Blog commentary: [blog.dividedargument.com]
• Merchandise: [store.dividedargument.com]
• Email/questions: [e-mail]
• Leave a voicemail: 314-649-3790

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Transcript

[Will Baude]

Oh, yay. Oh, yay. Oh, yay.

[Dan Epps]

The judicial power of the United States

[Will Baude]

shall be vested in one Supreme Court.

[Dan Epps]

Unless there's any more question, we'd be able to find an argument in this case.

[Will Baude]

All persons having business before the honorable the Supreme Court of the United States are admonished to give their attention.

[Dan Epps]

Welcome to Divided Argument, an unscheduled unpredictable Supreme Court podcast. I'm Dan Epps and I'm well bowed. So it's now the kind of thick of summer. I was on a little bit of a vacation. I am back and we're going to try to work our way through the extensive backlog. I think we can do it. We're not going to cover everything, but we're going to cover a lot. This is episode 26 of the season and looking back, I think to beat our all time record, we need to get to 29. I think we're going to get there.

[Will Baude]

I think I expressed doubt the last time you predicted we're going to get there and I have less doubt.

[Dan Epps]

Good, good.

[Will Baude]

Not no doubt, but less doubt. Yeah.

[Dan Epps]

I mean, things happen. We're unpredictable for a reason, but I think we're going to get there. Okay. So while I was on vacation, I did a little of substance, which was reading and catching up on more things. But I also, I went back and generated more of our delightful images for our back catalog. I don't know if Will, you've even gone and looked yet.

[Will Baude]

No, you haven't.

[Dan Epps]

I told you to. Oh, wow.

[Will Baude]

Some of these are really awesome, Dan. I'm looking at them now.

[Dan Epps]

Yeah. And they're really cool. They're really good ones.

[Will Baude]

Not everybody likes them, Dan.

[Dan Epps]

I think most people we've heard, it's like 90% of people we've heard from like them. I think we've gotten one negative comment, right.

[Will Baude]

There was a negative review.

[Dan Epps]

Yeah. That said, we've made so much money, we should hire an artist to do these. And first of all, we don't make money from the show other than a tiny amount over the years from merchandise, which our margins are not very high. And that's it. So you think we're gonna commission first commission an artist to do a painting for each episode. Also the episodes that would take a while. Right. We come up with the name for the episode and then release the episode like five minutes later.

[Will Baude]

If there were some awesome artists who loved the show, who wanted to at an unpredictable schedule at 11pm somehow brilliantly dash off cool custom art, that'd be great.

[Dan Epps]

For free. For free.

[Will Baude]

Yeah.

[Dan Epps]

That'd be great, but that's unlikely. But listeners, I haven't done the entire back catalog, but I've done quite a bit of it and there's some in there that I really like. And so if the listeners would write in or tweet at us or whatever saying what their favorites are, I would be delighted.

[Will Baude]

Proximity mines and the facilities. Really well done, Dan.

[Dan Epps]

I really like that one. Yeah, I'm not going to spoil it for people, but just as a reminder, that one is about the classic Nintendo 64 game Goldeneye. And that one I think came out very nicely.

[Will Baude]

If, you know, you know.

[Dan Epps]

Yeah. Okay, we're going to talk about one opinion. What other non substance stuff should we talk about? Luckily, because it's summer, not that much happens.

[Will Baude]

I got some especially strenuous criticism about some remarks I made, I guess a couple episodes ago now about continental philosophy, including Kant.

[Dan Epps]

Still a debate about whether which branch of philosophy claims him. Right, but. Okay, fair enough. Right.

[Will Baude]

Let's just say some of our most loyal listeners think that my stance on Kant and my lack of a deep engagement with Kant is sufficiently embarrassing that I need to recant and repair it soon before I irrevocably destroy my professional reputation.

[Dan Epps]

Well, I wasn't embarrassed for you. I was a little surprised because you're so generally open minded and read so widely and it's hard to get you to say something is bad. Right.

[Will Baude]

All sorts of things are bad.

[Dan Epps]

Well, I just feel like you always think arguments are reasonable, right? Like you're never like, I mean, not never, but you rarely say that's a really dumb argument. You say, oh, you know, like maybe there's.

[Will Baude]

Didn't I say that the birthright citizenship arguments adopted by three to four members of the court are not plausible?

[Dan Epps]

Yeah, okay, yeah, that's reasonable. This reminds me of something else that I did. So I've been having a lot of fun with, as our listeners know, with AI and one thing I did, in fact, it wasn't even my idea to do it, but Claude has this new model, Fable, and initially it looked like they were going to kind of throttle access to it after a certain date. So I sort of said to Fable, hey, what are some things while I still have access that we should do that would be kind of, would require a high end model? And its suggestion was a prediction scorecard. It was going to look at our entire back catalog of transcripts, identify the places where we made some kind of a prediction, and then make a running scorecard.

[Will Baude]

Scorecard like you versus me or the podcast as a whole, both

[Dan Epps]

and I have not audited this data, but this is the true frontier model.

[Will Baude]

I predict that you are way ahead of me.

[Dan Epps]

Okay, so let me tell you, I've got a little file here that has produced a TLDR at the beginning, and it says retrospective hit rates all episodes before July 6 graded after the fact from the back catalog sweep. Dan, 82.4%, Will, 71.2%. Correct.

[Will Baude]

Well, those are both a lot higher than I would have thought.

[Dan Epps]

Well, it says Dan's edge comes mostly from hedged low variance calls. Will took more high variance swings, which cost him on hit rate, but produced some of the sharpest specific calls.

[Will Baude]

Oh, okay. I actually got extra points for that.

[Dan Epps]

Yeah, no, I think that I'll go through and ask it to do a kind of sabermetrics type analysis that accounts for your slugging percentage. Yeah, I'm clearly just trying to get on base and not swinging at pitches.

[Will Baude]

And this is actually one of the important things about both the discipline of trying to do predictions and make bets and stuff like that in your life. I don't know if this is something you do, certainly. When I was in high school, my friends and I were strongly into trying to bet and forecast aspects of our personal life and debate. What were the odds?

[Dan Epps]

Did you put money on them or just bragging rights?

[Will Baude]

Sometimes money.

[Dan Epps]

You're not into Kalshi, are you?

[Will Baude]

No, I subscribe to the Manifold app, which is all play money. Although I go back and forth on how because of that, liquidity isn't great. I like the idea of prediction markets, although I do think there are a set of integrity and manipulation issues that I'm not totally sold on.

[Dan Epps]

They've basically just become gambling.

[Will Baude]

Right.

[Dan Epps]

Kalshi, as far as I can tell, is just a gambling site and probably should be regulated as such.

[Will Baude]

Well, I mean, should gambling be regulated essentially?

[Dan Epps]

Well, I said as such, you should just figure out how you feel about gambling. But the idea that this is somehow like a security, I think that's silly. The other thing that's interesting is I sort of had always thought one of the supposed benefits of prediction markets were that people with better information would participate and that they would give you a look at them. But now that's supposed to be illegal. They're starting to try to treat this as insider trading when people with private knowledge participate. I sort of thought that was like a feature.

[Will Baude]

Well, but those are not unrelated. So the University of Chicago position is that insider trading is good for exactly this reason, that it makes stock Markets, stock market more efficient. Now you do run into the problem.

[Dan Epps]

There's fiduciary duties issues there, I think is the.

[Will Baude]

Sometimes, although. And also you run to the problem. What if people actually make different decisions in the world in order to make the prediction markets come out differently? What if we invade Iran so as to help JD Vance's staff and Richard himself.

[Dan Epps]

That is problematic. And it's certainly problematic for CEOs to juice the numbers to benefit from insider trading. Right.

[Will Baude]

Also, I think to the extent you wanted a gambling prediction market distinction, you'd say the things on the other side of the line are things where either there's real hidden information that some people have and some people don't that you can get. And that was a little true in gambling because some people know that one of the star players is injured or whatever, but it's less true and that there's social value to that information unless

[Dan Epps]

the players themselves are gambling and they're going to throw the game or whatever.

[Will Baude]

That's the insider trading concern you have. That's exactly just insider trading problem.

[Dan Epps]

Yeah.

[Will Baude]

And then also is there value to the information? There are a bunch of things where you just might have good economic reasons for wanting to hedge and either to hedge or to get more information. If I knew if I'm in a petroleum selling company and then I know the Strait of Hormuz is or isn't going to be landmined, that's valuable information. That's maybe a spectrum. But there was a time when states regulated securities as gambling.

[Dan Epps]

Right.

[Will Baude]

There are these old public law cases where securities are illegal because they are gambling and they're not totally wrong to see those as the same thing. You just got to decide whether it's how to ratio the economically valuable generation of information against the need to regulate some of us from our vices.

[Dan Epps]

Okay. Well, any other non substantive things? I think you had reminded me about Justice Kagan and Barrett's testimony before Congress.

[Will Baude]

Yes. So they appeared, I think a week or two ago as we're doing this, in front of the Appropriations Committees, both the House and Senate, because the court wants more money for security. And the total level of the justice security details has been up post Dobbs, but not just Dobbs post a sort of range of threats.

[Dan Epps]

Do we think that they just drive around with security drivers all the time or do you think they live as civilians some of the time now? I don't really have a sense.

[Will Baude]

I did not listen to the entire testimony, although I. But it sounds like they have a lot of security I mean, it sounds

[Dan Epps]

like they have, I wouldn't say 247 or.

[Will Baude]

I'm not sure that it's 24 7, although I think it's. I mean. Yeah, I think it's a lot.

[Dan Epps]

Yeah. Yeah. And it's not. I mean, it's not unreasonable. I mean, it's unfortunate for many reasons, but one of which is, you know, it's going to make the justices, you know, kind of less, you know, kind of ordinary citizens who can relate to, you know, what ordinary citizens do, which I think is, you know, is a useful thing for a judge to have.

[Will Baude]

Yes. Although security might make it easier. So if you didn't have security, you might actually have even doing less ordinary citizen stuff.

[Dan Epps]

Yeah.

[Will Baude]

If your security detail can survey a restaurant and quietly be in the restaurant, that makes you feel more comfortable going out to dinner than if you can only eat at your country club or your house.

[Dan Epps]

But I mean, the best situation would be they can just go out without security comfortably, which we may just not. We just may not live in that world at all anymore.

[Will Baude]

Maybe we'll get back to that world. But. Yeah, so that was interesting. Also. There was just a lot of. I mean, a couple interesting things were. There's just various substantive exchanges while they were there. Justice Kagan, I think, stole the show by opening one of her remarks with a sort of remembrance of Lindsey Graham, who died recently, and about how grateful she was for his famous question of her at her confirmation hearing of what she was doing on Christmas where she got to say all Jews, I was at a Chinese restaurant and then explain the Jewish traditions of non Christmas celebrating. And as she said, I didn't know him very well, but many people said he was the funniest person in the Senate. And he did something even harder. He made me look funny. So that was a good moment. I think David Latt said in his newsletter that they had to do this more regularly and specifically that Justice Bier and Justice Kagan are a pretty good face for the court and that two of them do a good job of being substantive and disagreeing, but respectful. And there's a time when the justices used to go to Congress and testify more about appropriations and they should make this a, you know, this should be the new roadshow in the way that Justice Scalia and Justice Breyer or Kennedy used to be the kind of the classic roadshow.

[Dan Epps]

Yeah. And I think the most recent instance related to justice testimony was the chief justices declining to appear before the Judiciary Committee in that letter.

[Will Baude]

Yes.

[Dan Epps]

Which was interesting where he basically said As I recall, Chief justice doesn't really ever do this. We don't testify before the Judiciary Committee. And it would kind of raise separation of powers concerns and not be appropriate. And I'm not going to do it.

[Will Baude]

Yes. But with some idea that the Chief justice was distinctive in that sense. You know, it was more like the president and, you know, the president sends his Cabinet secretaries and the Chief justice sends his. Yeah, sends his associate justices, I guess. Not sure everybody shares that picture of the court. Anyway, Justice Kagan also gave some comments, was asked some questions and gave some comments about the shadow emergency interim docket, which I have already incorporated into the latest draft of my article. The interim docket, where she talked about the terminology, and she said several interesting things. She said, I don't like to call it the shadow docket. We call it the emergency docket. And then she paused and said, well, some of us call it the interim docket. And then she said, it's a terminology nightmare. I call it the emergency docket.

[Dan Epps]

Yeah.

[Will Baude]

And in fact, the court as a whole called it the interim docket in Trump v. Cook. I think the first time the court's taken opposition and she said specifically, the reason I think it's probably not appropriate, at least not now, to call it the shadow docket, and she has called it the shadow docket herself in writing before, is because we have now done a better job in the recent past of, where appropriate, explaining ourselves to at least a moderate degree. And she said even more concretely, this surprised me a little bit, that if you had asked me a year ago, I would have said that we were not doing a good enough job of giving an explanation of what lay behind our orbit order, but that's not so much a problem anymore. So she thinks that in the last year, during Trump 2, that there's been an intentional change about how much they're hearing argument, issuing opinions, giving explanations. That satisfies her. The shadow docket is not currently shadowy. That's interesting.

[Dan Epps]

That might be true. Yeah. I like that. It's good to hear that she thinks that. I don't know if the critics think that, but I like that. Yeah.

[Will Baude]

Okay, interesting.

[Dan Epps]

So on to substance.

[Will Baude]

Yeah.

[Dan Epps]

Okay. So we're going to talk about one case. I don't know if this is the case our listeners are most clamoring for, that we haven't touched yet. Probably not.

[Will Baude]

Oh, I think it's our best listeners are, Dan.

[Dan Epps]

We don't have best listeners. We love all of our listeners equally, except for the ones that give us bad reviews. On the podcast, Maybe you love all our listeners equally. Dan, this is going to be TM versus University of Maryland Medical System Corporation. This is a very fascinating federal courts case. The kind of issue that would really only come up in a Fed courts class at law school. And among those kind of issues, I think it's kind of a big one, would you say?

[Will Baude]

I'm actually not sure it's a big one, but I do think. Or at least it wasn't a big one until now.

[Dan Epps]

Until today, or. What do you mean?

[Will Baude]

Until this case?

[Dan Epps]

Until recording on it?

[Will Baude]

No, until.

[Dan Epps]

Oh, the issue. You're saying the issue. I meant the case. I meant the case. Is the case. A big one?

[Will Baude]

Well, the Worker Feldman doctrine.

[Dan Epps]

Yeah. Let's not get ahead of ourselves.

[Will Baude]

All right? This is a case about the worker Feldman doctrine, and if you know what that is, great. If you don't, you're probably like many other lawyers. The worker Feldman doctrine is a federal jurisdiction doctrine. Exactly what it is. As part of the debate that is in some way about federal courts not hearing cases that were already heard by state courts and has this great name, the Worker Feldman doctrine, that you say it and you sound like.

[Dan Epps]

Well, even the way you just explained it. Is that not accurate after today? After.

[Will Baude]

I think it's a case in some way about federal courts not hearing cases by state courts. And in what way does that.

[Dan Epps]

But you said something state courts have already said. Already decided, I think.

[Will Baude]

Already decided. There has been some kind of. Already deciding.

[Dan Epps]

Yep. Okay. Some kind. Okay.

[Will Baude]

And Worker and Feldman are two cases, Worker vs. Fidelity Trust and District of Columbia Court of Appeals vs. Feldman, that have together gotten married and produced this doctrine of this name.

[Dan Epps]

And to be clear, prior to this case, those were the only two cases in which this doctrine had been applied to bar a suit. Is that correct?

[Will Baude]

Well, I'm not sure.

[Dan Epps]

By the Supreme Court. These are relied on quite heavily in the lower courts.

[Will Baude]

Yeah. So what is the doctrine? Rooker is a case from 1923. Feldman is a case from 1983. When Feldman was decided in 1983, it obviously was not yet the Rooker Feldman doctrine, because there was no Feldman. There was a case in 1980 saying we should revive the Rooker doctrine. And there are some cases like Prentiss versus Atlantic Coastline, that some people believe were earlier applications of the Rooker doctrine. But once Rooker and Feldman are decided, there's an interesting question we can get into about when do they become the Rooker Feldman doctrine rather than just the Rooker doctrine? And why. But in 2000, 5, the Supreme Court

[Dan Epps]

decides a case called this is Exxon.

[Will Baude]

Yeah. ExxonMobil versus Saudi Basic Industries, in which it says, I think this is right, that the Rooker Feldman doctrine has never been applied outside of Rooker and Feldman, and hopefully it never will be again. Now, again, what you think the doctrine is may shape whether you think that's a correct characterization or not. But. And one of the big questions is, how does this doctrine relate to all the other doctrines about federal courts not hearing things that have been decided by state courts?

[Dan Epps]

Yeah.

[Will Baude]

But in 2005, the Supreme Court said that a law clerk for The Honorable Michael McConnell, the 10th Circuit, wrote a clever article in the green bag called Rooker Feldman R.I.P. that person's now my colleague Sam Bray. That was just written as the style of an obituary of Rooker Feldman because of Saudi Basic. Rooker Feldman, the legal personality, died yesterday at his home in Washington, D.C. he was 83. And goes on to describe the way the court had sort of quietly killed Rooker Feldman. Now, obviously, apparently, Rooker Feldman lives. So to talk about this case, I think we have to talk about kind of two different things. So one is, there's a specific question presented in the case. Does the Rooker Feldman doctrine apply to a state court decision that is still on appeal in the state court system? And then more generally, is the Ricker Feldman doctrine a thing? And what kind of thing is it?

[Dan Epps]

Okay. And so can you try to explain to people the core. Ricker Feldman, I think you gave a kind of plain English explanation, but let's maybe dig into the. Like, where does this come from? Or at least where did we think this came from before this case?

[Will Baude]

Okay. So it's easiest to start with Rooker. So the core of the Vir Feldman doctrine is you litigate some case in state court, you lose, you try to get cert from the Supreme Court, they say no because they think there's no good reason to grant cert. And at that point, you go to federal district court and try again to. And this is where already we get debated. But try to do what? So in Rooker, the plaintiff went to federal court to seek a bill in equity to have the judgment of the state court declared null and void because it was unconstitutional. So he said this decision violates the contracts clause. He lost in state court. The Supreme Court didn't grant cert. And now, like a federal habeas case, he went to federal court to say, look, this issue is unconstitutional. Set it aside.

[Dan Epps]

Yeah. The idea is, like that case, the court's going to Say you're functionally trying to appeal this judgment that you tried to bring here. Couldn't. You can't go take another shot by filing a new district court action.

[Will Baude]

Right. So the core maximum of rrqr, which is true, is the only federal court that has appellate jurisdiction over state courts is the U.S. supreme Court. All other federal courts, like federal district courts, only have original jurisdiction, so they can't hear appeals from state courts. And that's not a thing you can do. Now, what counts as an appeal and whether it's functional or not, that all gets more complicated. But a bill in equity seeking to have a state court decision set aside because it is unconstitutional, that is an example of, says Rooker, sort of an impermissible appeal. Therefore, federal district courts just don't have jurisdiction to do it. Feldman is similar. Feldman gets into a challenge to bar admissions rules, which have to go to state courts because they're also in their capacity as bar officers. But again, the idea is this is a thing. This is a state court decision to

[Dan Epps]

the extent the plaintiff is asking to reconsider their own determination by the state bar. Correct?

[Will Baude]

Yes.

[Dan Epps]

I thought it kept open the possibility that you could go say this entire scheme is unconstitutional or illegal.

[Will Baude]

Right. What you can't do is challenge a specific state court decision that you should have appealed.

[Dan Epps]

Yeah.

[Will Baude]

Or did appeal and didn't. So thus the two. I mean, it's kind of one of those things that makes a lot of sense. Right. And then the two natural questions it raises are, in a sense, the two QPs in this case are the two different questions in this case. So one is, well, what if it's something that you actually couldn't appeal to the Supreme Court for some reason? For instance, the Supreme Court's jurisdiction over state courts is only over final state court decisions. So if the whole theory is like, well, this is supposed to be a serve petition, it's a matter that it couldn't be a serve petition because it's still on appeal in the state courts or some other reason it couldn't be a cert petition. And then more generally, well, what if I am not explicitly trying to appeal the state court decision? I'm just trying to litigate something that has some overlap with the thing that's already been decided in state court. Does Ricker Feldman necessarily cover that? And one of the longstanding criticisms and confusion is that we have other doctrines for trying to litigate things that other courts have already decided, like collateral estoppel or issuing claim preclusion. The staples of first judicial Procedure are about not litigating things that have already been litigated in other courts. So is Rucker Feldman kind of a constitutionalized collateral estoppel doctrine or different or why do we need it? Is also going on.

[Dan Epps]

And there's an interesting thing that we're going to see in this case is you might look at this and say, oh, this is kind of this squishy made up doctrine. It's the kind of conservative textualist position is that it's not a thing, but we actually see a split on that. Right. We're going to see in a minute, Justice Thomas, arch formalist, say this is great. And we're going to see some other formalists in dissent for that reason. I was curious what your priors are. I assume you have a very well thought out view on this doctrine. What is it?

[Will Baude]

Oh, I have to spoil that.

[Dan Epps]

Okay, you want to save it?

[Will Baude]

No, it's fine.

[Dan Epps]

It's fine.

[Will Baude]

Well, how do you want to go through this now?

[Dan Epps]

Whatever you want. We could do the case here and then you could.

[Will Baude]

Well, you just raised this. Let's just say two things about what the court does. So first of all, the Court rules in favor of the Worker Feldman doctrine. So for the first time since Feldman,

[Dan Epps]

the Worker Feldman died in a very unusual configuration. Right, right.

[Will Baude]

And that's the second thing.

[Dan Epps]

Okay. Majority opinion by Justice Sotomayor. Five, four. She's got Thomas, Alito, Kavanaugh and Jackson. Okay. Indeed, Thomas concurrence and then dissent. We've got Barrett writing, joined by the Chief, Kagan and Gorsuch.

[Will Baude]

Yes. And how do you describe. People sometimes describe. Okay, that's the liberal versus conservative lineup. And occasionally you got the formal versus non formal. I don't know. What do these two groups have in common?

[Dan Epps]

I mean, I'm not going to take a position. I do think that there are people out there who would say you've got the three smartest justices in dissent.

[Will Baude]

Which of the four would they not put in that list? You did not want to say?

[Dan Epps]

Well, I don't think people would say Justice Gorsuch is dumb. I think Justice Gorsuch is very smart. I feel like people, people often say the Chief justice and Justice Kagan are the best writers. I think Justice Kagan by some people is considered maybe the top intellect on the court. Roberts too. And then I think you are a big Barrett fan and I think some of your friends are big Barrett fans. Is that fair?

[Will Baude]

Everyone's a big Barrett fan except for.

[Dan Epps]

Yeah, yeah.

[Will Baude]

Okay.

[Dan Epps]

Okay. Point demonstrated.

[Will Baude]

Yeah. No, it is an odd lineup.

[Dan Epps]

Yeah.

[Will Baude]

And it does not map. It splits Justice Kagan from Justice Sotomayor Jackson. It splits Justice Kavanaugh from Chief Justice Roberts. It splits Justice Thomas and Alito from Gorsuch and Barrett.

[Dan Epps]

So, I mean, if I saw this without knowing anything else about the case, I might think this is probably a pretty reasonable outcome. But if we're going to be real technical about it, probably the dissent is going to have a better case in terms of the technicalities of the law. That would be my prior, just if I looked at that lineup.

[Will Baude]

Yeah. Okay. And that might be close to my view. Okay. So one question is, does the Rooker Feldman doctrine apply if the decision is still under appeal and thus not a final judgment that could go to the Supreme Court on cert? Okay. And the court says, yes, the fulfillment doctrine still applies.

[Dan Epps]

Okay. And this is a case that arose because this woman was involuntarily committed, at least as alleged, it seems like, really unreasonably. And she's filed various actions about that, and there are some, as you said, the state thing going on. And now she's also in federal court trying to get some kind of relief.

[Will Baude]

It seems like part of the state thing was to get immediate release from custody. She and her parents signed a consent order, continuing to agree to a bunch of conditions, and then immediately after getting release appealed and said that was coerced and doesn't count, it was unconstitutional, and so on. And so you've got some sort of state adjudication, sort of through a consent order. And then you've also got lots of reasons to wonder about it and reasons to imagine it could have been coerced and so on. And so that's in the Maryland courts now. And the federal district court said, well, I probably shouldn't get involved in this because of Rick Feldman, because you're effectively saying, look, there's some sort of state court judgment, this consent order, that you think was unconstitutional. That's a lot like what Rooker was saying. Rooker was saying there's some sort of state court decision that he thought was unconstitutional, and there's no jurisdiction to go to a federal court and get relief against an unconstitutional state court decision.

[Dan Epps]

Yeah. And so can we talk about where this might come from? And maybe you have a view on this. I mean, I think that under the mainstream understanding, this is a statutory doctrine. Right. This is a necessary implication of. And we'll talk about which one in a second. But this is a necessary implication of the jurisdictional statutes and how jurisdiction is allocated between different kinds of federal courts. Is that fair?

[Will Baude]

I think that's the standard view. Although the Constitution does speak to the Supreme Court's appellate jurisdiction in ways that you could. You could think we're exclusive.

[Dan Epps]

It doesn't say that, though, right?

[Will Baude]

I don't think it says that.

[Dan Epps]

Yeah. What is your view about that? If the Congress were to say appeals from all on federal issues from all state high courts shall start out in the Northern District of Illinois.

[Will Baude]

Let's see.

[Dan Epps]

So I don't think it answers that question. I think it talks about what the court has jurisdiction over and what has to be original and what has to be appellate.

[Will Baude]

Right. And I think there'd be a question about what was assumed by supreme and inferior when they described digital powers vested in one Supreme Court. And in such inferior courts as the Congress may from time to time or didn't establish, we often think of their inferiority in relationship to the U.S. supreme Court. But it's possible that it was assumed or indeed understood as part of those words, that what it was to be an inferior federal court was to lack appellate jurisdiction outside. I'm not sure that's true. And the conventional view is something like this is an understanding of the statutory scheme, but with a federalism overlay.

[Dan Epps]

Yeah. So you could find a constitutional grounding for this, whether it's right or not. I'm not sure.

[Will Baude]

And to shore up your point, I think the conventional view is that something like federal habeas, where a federal habeas court reviews a state court criminal conviction and sets it aside, is an exception to this.

[Dan Epps]

Yeah. And basically is.

[Will Baude]

And Justice Thomas talks about this in his concurrence, which we'll get to in a second. So unless you think federal habeas is unconstitutional and not unconstitutional in the way that people sometimes complain that AEDPA suspends threat of habeas corpus, but constitutional in the. In the direction.

[Dan Epps]

Yeah.

[Will Baude]

Now, I will say I have had colleagues in various contexts who have argued to me exactly that that federal habeas is unconstitutional on these grounds.

[Dan Epps]

I think I know a friend of the show of yours who has taken that view. Yeah.

[Will Baude]

But that's obviously not the mainstream position.

[Dan Epps]

Okay, so let's say that's not the mainstream position. The mainstream position is that this comes from statutes somehow.

[Will Baude]

Yeah.

[Dan Epps]

I think there's two candidates of which it could be both, but at least two leading candidates in terms of which statute it would come from. Is that fair?

[Will Baude]

You tell me.

[Dan Epps]

Okay. First one would be Title 28, United States Code, Section 1257A.

[Will Baude]

Okay. One of my favorites.

[Dan Epps]

This is the statute giving the Supreme Court jurisdiction over final judgments or decrees rendered by the highest court of a state in which a decision could be had. Yes. Okay. That's the jurisdiction of the Supreme Court.

[Will Baude]

Yes. Okay.

[Dan Epps]

And so the idea there would be by giving the Supreme Court that jurisdiction and only the Supreme Court that jurisdiction that precludes the possibility that federal district courts can exercise that jurisdiction as well.

[Will Baude]

Right. It's an implicitly. It's exclusive jurisdiction.

[Dan Epps]

Yeah, yeah. Okay. That's candidate one. The other candidate would be title 28, section 1331, which is not about the jurisdiction of the Supreme Court. It's about the jurisdiction of the federal district courts, the trial level courts in the federal system, giving them original jurisdiction of all civil actions raising federal questions.

[Will Baude]

Right. And so then the idea would be when it says original jurisdiction, that implicitly forbids them from exercising appellate jurisdiction. Right?

[Dan Epps]

Yeah, yeah. I mean, when both of these have some plausibility to them. I mean, we haven't figured out what it means for a case to be an appeal, and I haven't figured out what it means for a case to be original and so forth. But I mean, yeah, I mean, certainly it is true that federal district courts don't have jurisdiction over something that is definitely an appeal. Right. If we think something is definitely appeal within the meaning of the statutes, the district courts can't have jurisdiction over it.

[Will Baude]

Right.

[Dan Epps]

And we also think that the district courts cannot have jurisdiction over things that are definitely appeals of state high court judgments. Right, we know that too. But then the fight is all about like, well, what is this. Is this thing that we're talking about, this kind of relief that a plaintiff is seeking, Is that actually an appeal in some sense?

[Will Baude]

Yes. And that's actually where now, okay, now that's the what is Ricker Feldman doctrine question. And it entangles with the supposed qp.

[Dan Epps]

And is it fair to say that going into this case, both of these threads were alive, but maybe we were more on the 1257 line that that seemed to be more where the center of gravity was. Yeah.

[Will Baude]

At least that's where the intellectual center of gravity was.

[Dan Epps]

Okay. That's where your center of gravity was. The intellectual.

[Will Baude]

Well, here's the problem. So the 13:31 point is obviously correct

[Dan Epps]

at some level of generality.

[Will Baude]

Right. The 5 Justice majority says, look, it can't just be about 1257. It has to also be about 1331. For starters, Feldman actually talks about this issue in a footnote and rejects the view that the Burger Feldman doctrine is limited to cases that can be reviewed by the Supreme Court on 1257. Now, their example in a footnote is what if the constitutional issue just wasn't even raised in state court? It's a jurisdictional requirement that the federal ground be raised. So the Supreme Court would lack federal jurisdiction over a constitutional challenge to the state court decision. But it can't be that you get more federal review of your state court decision by failing to raise it than you would by raising it. So they say it can't. I mean, they say in Feldman, it can't just be tethered to 1237. And again, if it were something called an appeal filed in the federal district court district of Maryland, a petition for writ of certiorari or writ of appeal from the following lower court, namely the court of Maryland, the court would correctly say, just not a thing. I only hear original jurisdiction. The problem is all Rooker Feldman cases are not things called appeals. Nobody goes into, I was going to say nobody, at least nobody who's not an incompetent pro se lawyer or would

[Dan Epps]

write on the front of the brief an appeal from this trial court or this state supreme court docket number X, Y or Z.

[Will Baude]

Right. The problem is people always file a thing they say is a complaint in the court's original jurisdiction, and then the court reads it and decides that given what's happened, given what you're asking for, you're wrong or you're lying. It's not really an original jurisdiction action, it's really an appeal. And appeals are forbidden.

[Dan Epps]

Yeah.

[Will Baude]

And that's the principle that's now more complicated.

[Dan Epps]

Yeah. And so I think in terms of, we can walk through it in more detail, but at a high level, I think what's motivating the majority here is a kind of functional consideration, which is if we're going to have Rooker Feldman and take it seriously, it doesn't make any sense to say as long as you file your federal action the day before the state supreme court rules, it's good to go. Whereas if you wait a day, you can't. That seems deeply implausible.

[Will Baude]

Right. And I mean, of course, we do have some weird timing issues in these federal state things, like we often have race to judgments. So it's not about filing, but if you file in federal court, in state court, whoever decides at first, their decision is binding. And we do have some areas, like younger abstention, where it's like, well, you can't try to challenge a pending criminal prosecution. Now there, this fully rebolstrates Your point? The court has moved. I think some people once thought the court should have a. Okay, if it's a rule of pending criminal prosecutions, if I file the day before my criminal prosecution, that should count. And then the Supreme Court, in a case called Hicks vs Miranda, said, well, even if the criminal prosecution isn't pending yet, if it's filed after the federal lawsuit, but before anything interesting happens in the federal lawsuit that's close enough to pending. So, yes, there's something to be said for the kind of functional approach. And again, I think there's something to be said for whatever you think of Rooker and Feldman. They don't seem to be. They don't say, this is all just a theory of 1257 exclusivity. And as to things that were actually appeals, it's not clear why it would be a theory of 1257 exclusivity. The problem is Rooker and Feldman are wrong and make no sense. And the 1257 rationale was the sort of standard received wisdom about how to pretend that they make sense and thus domesticate them so they wouldn't cause any damage.

[Dan Epps]

Okay. I think I'm receptive to that view. I've been going back and forth on this, but let's get that out on the table.

[Will Baude]

Okay?

[Dan Epps]

And because. And let me try to come up with the best argument. So, again, you totally agree that you can't go to a district court and say, I'm filing an appeal from the Supreme Court of Illinois.

[Will Baude]

Correct.

[Dan Epps]

Right. But you can. Your view is gonna be that you can do something else. And then how do we figure out what the line is? Is it literally just what, the caption on the front page of your brief, your PI Motion, or your maybe. Do you call it on the front page an appellate brief or something? Do you label yourself appellant versus plaintiff? Because that can't be the difference, right? That can't be the difference.

[Will Baude]

Well, it could be. So here's the other piece we need is collateral estoppel. What I would say is that it's important to remember that there is a doctrine called collateral estoppel, a real doctrine about not revisiting judgments that have already been litigated by you. The parties and appeals, of course, are not governed by collateral stoppel. The whole point of an appeal is you get to revisit it. So I just see it as there are two paths. When there has been a previous decision, you either are in appellate mode and there's no collateral stoppel, or you're in original Mode, and there is collateral stoppel. So as long as you say on the COVID this is original. So I understand the rules of collateral stoppel apply here, then Rick Reef Altman doesn't apply because collateral stoppel applies. And we just are on the collateral stoppel train.

[Dan Epps]

If it's an issue that you raised before, if it's not an issue that

[Will Baude]

you raised before, I mean, whatever it is, if there's a previous decision to deal with, we either deal with it in appellate mode or we deal with it in collateral stoppable mode. And now sometimes in collateral stoppable mode, it will or won't stop you based on various principles of law. But the question is just like, which lane are we in? And so the Rooker Feldman principle ought to just say, district courts are always in the original jurisdiction lane. They should never dismiss something on the grounds that you say you're in the original jurisdiction lane, but you're wrong. They should say, okay, you're in the original jurisdiction lane and you lose because of collateral stoppel, or you win for some reason.

[Dan Epps]

Okay. Do you want to say more about the majority or do you think that what we have said basically articulates the majority position? Maybe one more word on that.

[Will Baude]

Yeah, I think so. The best thing, again to say about the majority is they are faithful to Rooker and Feldman. They are right that if you took Rooker and Feldman seriously, they don't have the view I just described. They have the view that sometimes there are things that called original actions that are secretly appeals and should be blocked. And in Saudi Basic, the court tried to describe that category as narrowly as possible, but still, this is in the narrow category of like that.

[Dan Epps]

Yeah.

[Will Baude]

So if you take a hooker in

[Dan Epps]

Feldman seriously and the functional point I made a minute ago, which is like, come on, this seems like a silly way to draw the line to the extent this is actually a doctrine that a lot of lower courts do use to kind of clear their desk. That would coming out the other way in this would make it worse. Right. People would just be like, oh, I got to go to federal court sooner.

[Will Baude]

Well, although it depends on how you want to do it functionally, the meta. Functional point would be Rucker Feldman is not the only doctrine about this. It's just one of many doctrines and it's maybe not even a particularly good one. Okay.

[Dan Epps]

But it is jurisdictional, unlike collateral stoppel.

[Will Baude]

That's one of the things that might make it worse or might make it

[Dan Epps]

better from the district courts like it because they can get rid of stuff even if it's not raised, Right?

[Will Baude]

Yes. Although they might not like it because that means they have to raise it sua sponte, and they have to consider it at the outset before it's pleaded. And they might not always do it as well as they will when it's argued. But. Yeah. Right. So functionally, whether you like or don't like having a kind of made up jurisdictional doctrine that would be part of the functional calculus, expanding or reducing its footprint is also a of functional classroom. Okay. Should we talk about Justice Thomas?

[Dan Epps]

Okay. Yeah. And so this is interesting. Had he staked out a position on this in the Exxon Saudi case?

[Will Baude]

I don't remember him doing so. I think he does allude to it in Reid vs Goertz, one of these Dina Histon cases. He cites his opinion in Reid vs Goertz there. But I don't, I don't remember anything like this in the Thomas corpus before. And I definitely did not have a first principles defense of Rooker on my Justice Thomas scorecard until now.

[Dan Epps]

So he says he writes separately to explain why Rucker, properly understood, is correct as an original matter.

[Will Baude]

Yeah. And he talks a lot about sort of what is baked into the idea of original jurisdiction and appeal and about whether it's just a matter of technicalities and whether there's something, you know, a substantive core to that. I will say when I was reading Sims when it came out, I read the justice of my own opinion and I thought, okay, this is a little annoyingly wooden, but I see the point. And I read Justice Thomas and I thought, well, okay, actually maybe even I shouldn't be as against the Ricker Feldman doctrine as I always have been. And then I read the dissent and I thought, oh, this is sad. When you read a dissent, it's just like, exactly correct and not the law. And now it will be forever built in Theos reports that this exactly correct proposition is not the law. It always makes you sad. But reading Just a Time, I thought there was a lot to it. What was your reaction?

[Dan Epps]

His argument is more constitutional right

[Will Baude]

more. I mean, much of his argument is based on what is the what is the nature of appellate and original jurisdiction,

[Dan Epps]

to which he's looking at both pre and post founding sources.

[Will Baude]

Right. But then it says, and that's also the statutes reflect that and nothing's changed since then. He has this footnote footnote four, where he gets into the habeas issue, though. So footnote four, he says, now arguably modern federal habeas corpus practice has drifted in the direction of appellate review of stake or judgments. I have my reservations about this development, but at least it has the advantage of some grounding of statutory language, namely that ironically, AEDBA for the first time explicitly makes clear the federal courts can do this. So I couldn't tell from this footnote whether that means he's ultimately implying that it's more like a sort of presumption and Congress can deviate from it, or whether he's ultimately setting himself up to say EDPA's unconstitutional in the based direction, that actually you can't have a pillar if you stakeholder judgments. And it almost made me wonder if the whole reason he wrote this opinion was the habeas issue, like if this attracted his attention as a way to limit the.

[Dan Epps]

That's interesting. Kind of playing a long game, right?

[Will Baude]

Yeah.

[Dan Epps]

I mean, he could have said more about it though, right? He could have said more to plant that seed, which he normally would have no compunction about doing.

[Will Baude]

Justice Thomas is a subtle man. And even this version, even if it's not constitutionalized, if your story of habeas is there was no basis for federal habeas review of state court judgments until 1996, that's very different from the current doctrine of the standard story that the court got that jurisdiction either in the 1860s or in the 20th century interpretations of it. So that was a very interesting turn in terms of the role of the constitutional backdrop and about the kind of inherent roles of state courts. There's one other thing about this opinion that really puzzles me. So I don't know if you noticed this, but Justice Thomas's opinion is almost entirely about Rooker.

[Dan Epps]

Yeah, I was wondering about that.

[Will Baude]

Feldman is mentioned only twice, once in the second sentence where he refers to the so called Rooker Feldman doctrine and then cites Feldman. And then after that it's just about Rooker.

[Dan Epps]

Yeah.

[Will Baude]

And I kept expecting him to. And even he says the court's opinion properly rejects petitioner's quest to reimagine artificially cabin or overrule Rooker Feldman. I join it in full. I write separately to explain why Rooker properly understood is correct as an original manner. And I kept expecting there to be a part two, which is like, and now here's Feldman, which is also correct or maybe a little more questionable. It's just like. And this, I will confess, has sent me down quite the rabbit hole about Rooker and Feldman. And we talked a little bit like, when did the Rooker Feldman doctrine become not just the Rooker doctrine, but the Feldman doctrine? I'm on the Verge of a maybe turning this into a blog post because it's not obvious. I don't know if it's a worker doctrine. It's older, but it sounds less fancy. It might all be Paul Bator's fault. So I found that odd. And I wondered, is that because there's something about Feldman that actually doesn't buy.

[Dan Epps]

Yeah, I don't know. That would be useful to know.

[Will Baude]

Maybe we have to wait for the next worker Feldman case to get to part two. I write separately to explain why Feldman is wrong.

[Dan Epps]

Yeah. The next worker case. Yeah. Okay. And then the dissent, which I think you just said you found quite compelling. I think it was a very good dissent by Justice Barrett.

[Will Baude]

Yes. And she says, look, I thought that the whole point of Saudi Basic was to limit worker feltment to its facts, but apparently not.

[Dan Epps]

Yeah. And she seems to be saying that this was really Rucker feldman is really 1257 and that the court is now kind of retconning things by making it more 1331.

[Will Baude]

Yes. Or at least I think they're retconning against. I think, again, one of the questions is like, should be more faithful to Rooker and Feldman or to Exxon versus Saudi Basic's unfaithful reimagining of Rucker Feldman, which is like a classic in all various. It's a classic doctrinal thing. You get Miranda, then you get a bunch of decisions dishonestly restating Miranda in a more limited fashion. And then you had a case where it's like, well, what should we do? And sometimes some people say, well, look at Miranda. And we'll say, no, no, look at this other case that limited Miranda. And in a way, that's part of the dispute here. But she does also do a good job, I think, of just restating how much the Rooker Feldman doctrine is getting in the way of other things where we have law. So in addition to 1247, she also brings up several times the Full Force and Credit act, because there is a statute enacted by Congress that says federal courts should give the judgments of state courts the same effect that those state courts would give them. So it's not even like this collateral stoppel rule in the state federal context. It's just a matter of procedural common law or something. Like there is a statute that says what you should do with a judgment rendered by a state court in a federal court, namely apply the collateral estoppel rules of the forum. So why do we need another doctrine to say something, you know, if it says the same thing and Just calls it jurisdictional. Why would we do that? And if it says something different, why do we do that?

[Dan Epps]

So do you think this case ends up having much impact? Do you think this changes the behavior of litigants at all? Does this change the behavior of district courts? Or do you think most of the time it's kind of more unusual? I mean, obviously there was a circuit split, so these cases do happen, but it's more unusual for people to come in kind of in the middle of the state proceedings to go to federal court.

[Will Baude]

Yeah. The total set of Rooker Feldman relevant cases is not huge, although arson is messy. I think the question is, were there lower courts that previously had treated Rooker Feldman as largely dead that now will not either? Yeah. And just a spirit, and this is what I mean by just a spirit's dissent made me sad, is sometimes when you have a dissent like this, it may make that outcome more likely because you might be so persuaded by her arguments that Rookke Feldman should be dead. Well, apparently that's not the law she does try to end with. Still, the news is not all bad. Although the court expands Ricker Feldman beyond ex Hines line, it repeatedly emphasizes the doctrine is narrow. Courts should not lose sight of that message. In the end, Ricker Feldman has been given an inch. It should not be allowed to take a mile. And I think think it's just a question of whether that is how lower courts will treat it.

[Dan Epps]

Yeah.

[Will Baude]

And I don't know the answer to that.

[Dan Epps]

Okay, well, how much of this are you going to put in your Fed court supplement for your casebook?

[Will Baude]

Good. So there's a page or so in the supplement document which is like 60 some pages long. There's a page or so on this decision less opinionated than what it's described here because it's just the casebook. I think it does also set up the question of whether the next edition of Hart and Wexler needs to talk more about the Worker Feldman doctrine. In light of this. There's a whole chapter on these various doctrines of sort of parallel jurisdiction. So the third edition of Hart and Wexler, which came out after Feldman, was the first one to have a big section on this doctrine, although it called it the Rooker Doctrine, and then it called the Rooker doctrine, and then occasionally called it the Rucker Feldman doctrine. And then it's dwindled, especially since Exxon. And so I think there's a question of how much more airtime to give this doctrine. The next edition is not going to come out for a couple years. So maybe we'll have a little bit of time to reflect on that and figure it out.

[Dan Epps]

And maybe it will turn on developments in the lower courts.

[Will Baude]

Yeah, I mean, I don't know that the casebook is just based on the lower courts, but that would be like if it seems like it seems like the Worker Feldman doctrine is a much bigger part of the law again, or at least big set of questions are, then there would be a need for more coverage for sure.

[Dan Epps]

All right. Anything else to say about this one?

[Will Baude]

No?

[Dan Epps]

Okay. I think this has been an efficient episode.

[Will Baude]

Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[Dan Epps]

Please remember to rate and review the show wherever you get your podcasts. Website dividedargument.com for transcripts and to take a look at our back catalog of custom images for each episode. Blog.dividedargument.com commentary from the larger divided argument universe store.dividedargument.com for merchandise. Send us an email podividedargument.com you can leave us a voicemail at 314-649-3790 or a voice message on our website. If there's a long delay between this and our next episode, it will be because Will has been so shamed by Claude's scorecard and the failure of his projections.

[Will Baude]

I thought you were going to say I've been shamed for my ignorance of Kant again.

[Dan Epps]

No, we're past that. The case was submitted.