Watch Snobs

Summary

Divided Argument - "Watch Snobs"

Hosts: Will Baude & Dan Epps
Date: June 14, 2026

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Episode Overview

In this mid-June episode, Will and Dan discuss recent, non-blockbuster Supreme Court opinions, quirks in judicial estoppel and Article III venue doctrine, and reflect on various legal oddities including the so-called "zone of death" in Yellowstone. The tone is characteristically conversational and sometimes irreverent, with deep dives into both technical legal questions and lighter digressions (like watch brands and vacation podcasts). This summary highlights the legal analysis, memorable lines, and important takeaways, with timestamps for key moments.

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Quick Announcements & Listener Feedback

00:00–05:00

• The show opens with technical difficulties and a SCOTUSblog partnership plug.
• Will and Dan thank listeners for positive Apple Podcast reviews and encourage more.
• Fun feedback included a pun explanation (“foot fault”), a rare joke by Justice Thomas, and some sports knowledge ribbing.

Notable Quote:

"This is the funniest thing Justice Thomas has written in a long time. Yeah, he's not normally going for funny." — Will, [02:36]

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Justice Thomas, Scholarship, and the “Views of Sam Bray”

03:15–04:44

• Discussion of the 6th Circuit misapplying law review scholarship in Aldrich v. Regions Bank.
• Sam Bray had to clarify his own views by filing a corrective amicus brief.
• Some laughs about “CVSB” (call for the views of Sam Bray) as a new procedural acronym.

Notable Quote:

"If this happens too often, are we at risk of courts engaging in a more frequent CVSB—call for the views of Sam Bray?" — Will, [04:15]

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Alito Retirement Speculation & Clerk Hiring as Signals

05:10–08:37

• Ongoing rumors about whether Justice Alito’s limited clerk hiring foreshadows retirement.
• Jan Crawford’s reporting is discussed; consensus is he’s not retiring, but uncertainty lingers.
• Broader conversation on the strategic timing of retirements, partisan optics, and nomination processes.

Notable Quotes:

"I, notwithstanding all this, still thought it's reasonably likely he might still decide to retire on the last day of the term and just hasn't told anybody yet." — Dan, [05:43]

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Conditional Resignations and the Logic of Judicial Vacancies

08:38–12:14

• Exploring scenarios of justices conditioning their retirement on successor confirmation.
• Citing Vasan Kesavan’s work on “pre-packaged” nominations and Marbury v. Madison’s commissioning logic.
• Musings on whether resignations are irrevocable or just expressions of future intent.

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Filing Quirks and Unusual SCOTUS Motions

14:04–16:53

• Dan flags a delayed ruling on a supplemental authority motion in the Wolford (Hawaii firearms) case.
• Speculation on why SCOTUS “grants” supplemental filings with little explanation.

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Podcast Logistics, Episode Counting, and Listeners’ Patience

17:10–20:55

• Both hosts will be on separate vacations, missing at least one opinion day.
• Brief reflection on episode scheduling, trying to break their own records, and the rhythm of the podcast “season”.

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Case One: Keith Lee v. Buddy Ayers Construction, Inc. (Judicial Estoppel in Bankruptcy)

29:51–52:05

Case Overview

A debtor in bankruptcy failed to disclose a personal injury claim from a car accident to the bankruptcy court. Later, when he sued the construction company, the company argued (and the 5th Circuit held) that he was “judicially estopped” from bringing the tort claim due to nondisclosure in bankruptcy.

Key Issue:

• When and how should judicial estoppel bar a claim in these circumstances?

Main Arguments & Reactions

• Judicial Estoppel Defined: Lower courts apply it to stop parties from contradicting representations to courts, sometimes harshly and even when the opposing party never relied on the inconsistency. Will and Dan both find aspects of the doctrine odd, especially when used as a windfall for an unrelated litigant.
• Fifth Circuit’s Rule: Only exempts “inadvertence” if the plaintiff didn’t know the claim’s facts or had no motive to hide it—viewed as overly rigid.
• Supreme Court (Justice Jackson, majority):
  • Delivers a 9-page opinion overturning the 5th Circuit’s rigid test; equity demands a holistic, flexible approach.
  • Expressly leaves open whether the doctrine applies at all in bankruptcy, or should have an exception for inadvertence/mistake.

Notable Quotes:

"Basically, you say something to a court...and even if this other party is not involved...they get to come in later and be like, oh, well, you said something inconsistent, like five years ago in some other case, therefore I win." — Dan, [33:12]

"It's the creditors who should say, well, you had these claims at the construction company that money should go to satisfy your debts." — Will, [35:39]

Concurrence by Justice Thomas (with Gorsuch)

• Calls out the doctrine as lacking historical pedigree, originating only in 19th-century Tennessee case law and spreading more recently.
• Skeptical about “judicial estoppel” outside of specific, historically-grounded doctrines (contrasts it to “equitable estoppel”, which requires reliance and prejudice to the asserting party).

Memorable Moment:

"This is what I love about the law...there could be a thing called judicial estoppel that we’ve all heard of...And then somebody says, ‘oh, actually it was invented by the Tennessee Supreme Court in 1857.’" — Will, [41:16]

Concurrence by Justice Sotomayor

• Argues estoppel never makes sense while the bankruptcy is still pending; the right remedy is for the bankruptcy trustee/court to address the debtor’s omission.
• Reflects on how rigid “judicial estoppel” can hurt the wrong parties (creditors), emphasizes equitable, circumstance-specific decision-making.

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Case Two: Abu Amo v. United States (Criminal Venue Under Article III)

52:05–74:40

Case Overview

The case involves a former Twitter employee (Abu Amo) prosecuted for document falsification and obstruction, convicted in the Northern District of California even though his alleged false document creation/act happened in Seattle.

Key Issue:

• Under Article III and the Sixth Amendment, in what state must a federal criminal trial be held?

Discussion Highlights

• Constitutional Background:
  • Article III venue clause and Sixth Amendment vicinage clause ensure trial in the state and district where the crime was committed.
  • Light banter about the “zone of death” in Yellowstone (where, due to population and district lines, it may be impossible to seat a jury), referencing legal scholarship and novels.
• Case Facts:
  • Abu Amo made a fake invoice (during an FBI visit) to cover up payments from Saudi sources; did this in Seattle while the investigation was based in San Francisco.
  • He was charged in California, leading to the venue challenge.

"He creates a fake invoice, but he does it while the FBI agents are still in his house. He goes upstairs for nearly half an hour while the agents are downstairs...He comes back down and he's like, I just emailed it to you. You've got it now." — Dan, [61:38]

• Majority Opinion (Justice Kagan):
  • Venue is proper only where the criminal conduct occurs—even if the investigation/effects are elsewhere.
  • The government can't pick its preferred forum for simple obstruction/statutes; it must file where the defendant actually acted.
  • Conduct, not mere intent, determines criminal venue.
• Comparisons:
  • Will points out that personal jurisdiction doctrine is more flexible than Article III venue—states can often “reach” defendants based on intent/effects, while criminal venue is stricter.
• Statutory Venue Rules (FN 3):
  • Discussion of whether statutes that create broader venue rules may go beyond what the Constitution allows and could be challenged as unconstitutional in some cases.

Notable Quotes:

"Simple crimes are nice for the government because they don't have to prove very much, but in exchange, they don't get a lot of options about where to prove it." — Dan, paraphrasing Justice Kagan, [66:00]
"If he got time served on this charge, he gets it thrown out. But if they did charge him again, he might not get time served on the second charge. He might actually do a few months." — Will, [73:16]

Digression: Watch Snobbery

59:53–61:19

• Tangent about Hublot watches (received as a bribe in the case) vs. more respected brands.
• Gentle podcast self-mockery about earnings and a "Divided Argument" branded watch.

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Other Case Mentions and Quick Notes

22:05–29:49

• F.S. Credit v. Saba Capital Master Fund: Longest opinion of the day, concerning private rights of action under the Investment Company Act—covered only in passing.
• Landor v. Louisiana DPCS: Still pending; could be a rare plaintiff win or a voluminous, split opinion; stakes for private rights under RLUIPA discussed.
• Batson/Ineffective Assistance Cert Denial: Sotomayor’s statement respecting denial briefly mentioned; impossibility of proving prejudice when Batson discrimination isn’t preserved by counsel.

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Final Thoughts, Recommendations, and Legal Curiosities

74:40–end

• Hosts muse on their favorite criminal procedure rights and constitutional clauses.
• Will plugs the grand jury clause (not incorporated), Dan prefers double jeopardy and the confrontation clause.
• Closing joke: If the next episode is delayed even further, it’s because one or both hosts died in the “zone of death”—and “no one can be held to account for that crime in any venue.” [76:18]

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KEY TIMESTAMPS

• Listener Feedback, Judicial Humor: 02:09–03:18
• Alito Retirement & Clerk Rumor Analysis: 05:10–08:37
• Conditional Resignations & “Scholarly” Judicial Administration: 08:38–12:14
• Wolford Case and the Motions Process at SCOTUS: 14:04–16:53
• Judicial Estoppel/Keith Lee v. Buddy Ayers: 29:51–52:05
• Venue Doctrine/Abu Amo v. US Story Begins: 52:05–74:22
• Yellowstone “Zone of Death” Discussion: 55:08–58:02
• Watch Brands & Hobbyist Tangents: 59:53–61:19
• Venue Technicalities and Policy: 63:05–69:29

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For More:

• Show notes, transcripts, and blog posts can be found at dividedargument.com
• Email: [e-mail]
• Merchandise: store.dividedargument.com
• Voice messages: 314-649-3790

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TL;DR

This episode offers expert but accessible insights into the Court's use of (and skepticism toward) judge-made doctrines like judicial estoppel, as well as technical but fundamental procedural protections like venue and vicinage. Along the way, Will & Dan’s banter covers both legal oddities (like the Yellowstone “zone of death”) and a dose of legal academia gossip—making the podcast a unique blend of Supreme Court nerdery and plainspoken legal commentary.

Transcript

[A]

Oh, yay.

[B]

Oh, yay. Oh, yay.

[A]

The judicial power of the United States shall be vested in one Supreme Court. Unless there's any more question, we'll be able to find an argument in this case. All persons having business before the honorable

[B]

the Supreme Court of the United States are admonished to give their attention. Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode.

[A]

And I'm Dan Epps. So we are getting going after some technical snafus. I thought we were going to have to abandon this recording session, but it's working. So let's everybody keep your fingers crossed. If you're listening to this episode, I think it must have worked well enough for us to get far enough into the episode, so we'll see.

[B]

Well, if it's a 17 minute file, you know why.

[A]

Yeah, it's throwing me off. Got to get back into the. Back into the headspace of podcasting, but I think we can do it. This should be a relatively efficient episode because we've got some quite efficient opinions to talk about and not a ton of other stuff that has happened, but a couple other quick notes before we dive into substance. One, just a reminder that we are in partnership with SCOTUS Blog and hopefully SCOTUS Blog will send some more listeners our way towards the end of the term, which is when Scotus Blogs readership really starts to peak. So if you're discovering us from SCOTUS Blog, welcome. Last time we also made a pitch for more reviews on the Apple podcast app and a number of you have delivered. We've gotten a bunch of reviews and they actually are positive since the last episode. So thank you to those that already have. If you haven't, this would be a great moment to do that. Okay, some other feedback. Footfalled.

[B]

Yes.

[A]

So Tim Talent listener wrote in and said this was meant as a double entendre because the DNA in question was found in the accused's boot. I think he's clearly right. Right? It must be. It must be.

[B]

This is amazing. Yes, this was the Justice Thomas dissent from the Sum Rev about looking at extra evidence. And yes, he called the foot fault. That's really funny.

[A]

Yeah. And also more not the kind of move you normally see in a Justice Thomas opinion, which are just known for being very straightforward and kind of spare. Not a lot of rhetorical flourishes.

[B]

Yeah, this is the funniest thing Justice Thomas has written in a long time. Yeah, he's not normally going for funny.

[A]

No, no, he's not. I mean, I think his writing is effective and clear. It's just. He's not going for quotable, necessarily. That doesn't seem to be his mode. He just wants to be kind of straightforward. Okay, so some other people just hassled me about not knowing enough about sports and tennis and I guess, volleyball. It's apparently a thing. But this one, I don't feel bad about that. I do feel bad about not catching this one.

[B]

Yes, I agree. Reflects badly on both of our senses of humor.

[A]

So it goes some other things. What else have we got? Do you know about this one? Louis Levesque. Hopefully I'm pronouncing that correctly. He was a listener. And a recent PEN log rad wrote in. In response to our discussion about Justice Thomas reading and citing several Sam Bray articles in the disgorgement case and sort of joking about whether he might have gotten that wrong. Apparently, that happened in this case. Aldrich versus Regions Bank. You must be aware of this, right?

[B]

I am aware of this, and I was just talking about it with Sam and my office before we recorded. Yes.

[A]

So the 6th Circuit cited multiple of his articles to hold that a surcharge remedy is not available under erisa. And then Sam had to come in and write a search stage amicus brief explaining that the 6th Circuit got it wrong. Apparently got its scholarship wrong.

[B]

Yes. The question is, if this happens too often, are we at risk of courts engaging in a more frequent CVSB call for the views of Sam Bray?

[A]

I mean, that would be good for our blog, I think, where he's a frequent contributor.

[B]

This certification, by the way, has been CVSG'd by the court in April.

[A]

Okay, well, that suggests that there was some persuasive effect of that amicus brief.

[B]

Yeah, they did not cvsb, because, again, Sam had already filed a certain stage amicus brief, so his views were known.

[A]

Okay. Some other things. One thing that's kind of interesting, it is now early to mid June. We're recording on June 11th. This will probably be released a couple days after that. And we still are not aware of whether Justice Alito has hired more than one clerk.

[B]

Multiple people have told me with confidence that he has.

[A]

Okay, all right. I've heard some rumors to that effect, but it is sometimes in the past, we've seen these situations where the justice hires only one clerk, and then that's a signal of impending retirement because retired justices get to hire one clerk. This happened with Justice Stevens is my memory. Yes, but it's also been sort of authoritatively reported by Jan Crawford, who usually has very Good sources that he is not retiring. So I guess he's a little secretive and he asks his hired clerks to

[B]

be a little secretive right now. I, notwithstanding all this, still thought it's reasonably likely he might still decide to retire on the last day of the term and just hasn't told anybody yet. But again, several people told me with confidence he would never burn Jan Crawford, assuming she is his source. It's just not conceivable that he would burn her.

[A]

I mean, even if he changed his mind. I mean, people can make their own life decisions.

[B]

Yeah. I don't know.

[A]

As long as he gave her the scoop before sending the letter. I mean, I think that would be fine.

[B]

I guess that's true. He'd have to unburn her.

[A]

Yeah. Okay. Well, that will be interesting. I believe Justice Thomas has hired more than one. So it's also been reported he's not planning on retiring.

[B]

Yeah. I assume he is going to become the longest serving justice in the court. He's not far from that record. And it seems like it'd be hard to stop now for Justice Alito. Have we talked about this? It does seem like this summer is perfectly positioned for the nomination of an Alito placement. Who is the most like Justice Alito in the sense of being a conservative jurist who's not Judge Judy or Judge

[A]

Jeanine or, or whatever because of heading into the midterms.

[B]

Well, Republicans still hold the Senate, but several of the people they hold the Senate with are people who have been primaried by President Trump and are probably not going to vote to confirm anybody they don't actually like.

[A]

Yeah.

[B]

So between Cassidy and Cornyn and McConnell's going out and you have Susan Collins who's under fire already for confirming, for voting to confirm Kavanaugh, that block of people would surely vote to confirm an Oldham or a BO mate and surely would not vote to confirm Donald Trump Jr. Or something like that. Now, where exactly a Beauvais or Eileen Cannon or something falls on that spectrum, we could debate. And I'm not saying that Justice Alito is watching the whip count,

[A]

but I mean, I think Justices are aware of this. I mean, there's a reason Justice Breyer retired when he did.

[B]

What's the reason?

[A]

Well, I mean, that Biden was president.

[B]

Yeah, okay.

[A]

Right. I mean, they're at least aware at that level. I mean, the thing that I've always wondered about is what happens if a president loses the Senate kind of at the midterm. Would a justice consider submitting their letter of resignation on November 8th to give that president an opportunity to fill the seat before the Senate turns over.

[B]

Oh, I see. Like the lame duck confirmation, maybe. The other question is just now that we're.

[A]

That would be seen as pretty partisan, though, right?

[B]

I think so, yeah. Or at least that would be seen as not just partisan, but also as sort of provoking a certain kind of political chaos.

[A]

Yeah.

[B]

Now, again, we have seen allegations of the court being willing to provoke political chaos in the election cases, but I think we see it's different. The one question is whether now that we've innovated the conditional resignation, I resign, but I reserve the right to keep my seat thing. It hasn't yet come up that somebody has not been confirmed for a sufficiently

[A]

long period of time that we, I know we have resignations pending confirmation of the successor. Are there resignations pending? Like me not changing my mind? Is that a thing?

[B]

Well, I think there's a question about the resignation pending confirmation of the successor, whether that's a revocable or irrevocable commitment. Because assuming that the person has not actually resigned, or at least. Yeah, if it's an actual resignation, it's not clear it could be conditional. And if it's not an actual resignation, but really just a statement about future intent to resign, then than presumably it's revocable. So if Justice Alito were this summer to resign pending confirmation of my successor, if his successor were not to be confirmed, Democrats would take the Senate in the midterm. And then it was clear we're talking at least two more years.

[A]

So I was recalling an episode from, I guess this was in 2018, when Judge Michael is it Kaney had said he was going to go senior and had wanted his seat filled by a former clerk. But then that was going to happen and then it wasn't going to happen. And then he un. Retired and stayed on the bench for several years until he died, which I thought was interesting. Wasn't totally sure if that was proper or not, but I guess maybe he had just said I planned to go senior and hadn't formally filed the paperwork.

[B]

I have a meaning to dig in to that sequence of events.

[A]

Have you really been meaning to dig into that sequence of events? Is that on your actual list of things you wanted to do?

[B]

Yes.

[A]

Okay, we'll see whether you get there.

[B]

He's a 7th Circuit judge, I think, as I recall, the former clerk of his who was supposed to replace him was Tom Fisher, the Solar General of Indiana, who's a good guy. And then he just held out. But I've always Been a little confused by the metaphysics about, again, take senior status and then untake it. That can't be right. I guess he must announce his intent to take senior status.

[A]

Yeah, I mean, if you just say it out loud and don't do anything formal to convey the election to senior status, I mean, that seems like it should be okay, right?

[B]

Yeah. Although there's an article about this by Vasan Kesavan, who's a fellow, will be on the market soon and has written a bunch of interesting formalist articles, several with Michael six Paulson, which kind of goes to the question of when does a vacancy, if it's just an intent to resign, then does that mean there's no vacancy yet? Does that mean how can you be nominated?

[A]

How can the Senate confirm you to a vacancy?

[B]

Doesn't exist. So what Keslovan argues is you actually can be nominated and confirmed to a vacancy that doesn't exist. You just can't be commissioned to it. And so as long as the way the whole thing works is that you have a conditional resignation that takes place in the confirmation of your successor, and then upon the resignation, you're then commissioned to the office which has now nearly become vacant, that's fine. And this actually means you could have a sort of stock of nominated and confirmed people just sort of like waiting in the wings with their commissions ready to go.

[A]

What if a Democratic president just did that for nine justices before?

[B]

As I understand the argument, and Vasan can correct me if I'm wrong, those commissions would be kind of locked and loaded now if a future Republican president didn't want to appoint those people, they don't have to commission them.

[A]

That's kind of a Marbury versus Madison move.

[B]

Exactly. Yes. It's related to when does a commissioned vest and the key to the act of commissioning.

[A]

Couldn't you go get Mandamus as long as you didn't file it in original jurisdiction of the Supreme Court?

[B]

Well, maybe. Although in the case of Marbury, his commission was signed and sealed and just not delivered. And so I think the conclusion in Marbury was that the president had made the final revocable decision to commission him. And the delivery, which is not key to the vesting of a commission, is all that had not happened.

[A]

Interesting. So there is still some discretionary authority,

[B]

I think, in Marbury. I think if the outgoing Secretary of State, Chief Justice Marshall, had decided not to even try to deliver the commissions, I said, no, actually, I don't like these guys. I just ripped up the commissions rather than sending them out for delivery, then there would have been no case for retirimidimus.

[A]

That's interesting. Although it does seem like the Constitution doesn't necessarily say there's this extra step there. Right?

[B]

It does. It says the president shall commission all officers in the United States.

[A]

Okay. Shall, shall.

[B]

But it's unclear whether the shall is a duty or a condition. Precedent. Is the point that you can be an officer only after being commissioned, or is the point that the president just must do the commissioning, but the long standing view is that it's stating a sort of condition or the third step.

[A]

Yeah.

[B]

Okay.

[A]

Well, we won't resolve that. One other little thing I spotted. Did you see this? So in the Wolford case, which we discussed a while ago, this is the Hawaii case about Hawaii's attempt to kind of change the trespass law so that you have to have permission to bring a firearm onto private property.

[B]

Yeah.

[A]

In late May, the challengers to the law filed a motion for leave to file a supplemental brief sort of thing. Like, hey, there's a couple recent cases that have come out in the lower courts in the fourth Circuit and the second Circuit that have gone the other way than from the ninth Circuit. It's sort of like what in the court of Appeals, we call a 28J letter, which is not a motion. You just kind of file a letter and you say, hey, it's notice of supplemental authority. This other thing happened. But they filed this on May 22, and it's a short brief. The motion was granted on June 8th.

[B]

Huh.

[A]

So I don't know if you might have thought that that would suggest they would grant it in the run up to the decision coming out. And so maybe it would have come out on Thursday the 11th, but that didn't happen. Sometimes when there's a bunch of motions like that pending, you kind of just deal with them all when the opinion comes down. So it's a little weird to me. Why more than two weeks later, why is that motion granted?

[B]

Yeah. With no further action from the docket. Also, the first version was not accepted,

[A]

and then there was a. I think it was just a filing error, but

[B]

the corrected one took four days to come in.

[A]

Yeah. It still leaves a lot of time.

[B]

Yeah. I'm actually surprised it was granted.

[A]

Some way to just submit supplemental authority without emotion, because I'm just so used to the court of appeals practice in my day. I've sent a number of those letters.

[B]

Well, I think there is. I mean, I think. Yeah, people just like, lodge stuff at the court all the time.

[A]

Yeah. I Mean, there are letters that people just file, that parties file, that. I don't. Okay. So I don't know if you. I was hoping you might have some thought on what that might mean.

[B]

No, I'm a little surprised the court cares what the court appeals thinks, to be honest.

[A]

Well, I mean, maybe they don't. Maybe they just wanted to say, you can file the brief and we'll ignore it, but you are allowed to file it. All right.

[B]

I don't know.

[A]

It is relevant. I mean, they care at the cert stage to know what the other courts of appeals have done. And so it might be helpful.

[B]

Right. It affects certworthiness. But I thought once you got to the merits, who cares?

[A]

Yeah. I mean, you might care that this happened just because it informs. Maybe there's going to be future petitions that come in or there's going to be a. I don't know. It is useful for them to know,

[B]

and I guess it's useful for them to the extent they wanted to reverse the 9th Circuit and somebody's going to complain that they're out there reversing the 9th Circuit and even though there were no kids on their side now, the more friends they can have, the better.

[A]

Yeah. Okay. Well, I don't know what to make of that. Okay. One other thing to note before we get into substance. I thought we should note it now rather than at the end when people might not be listening, which is that you and I are about to go on a little vacation. I think I mentioned this. Sorry. You didn't go on separate vacations. We're not vacationing together as much as I would enjoy that. We could commission one of those celebrity cruises where people go on a cruise with their favorite comedy comedian or musician or something. I don't think we would get any takers, but that would be fun. No, we're going on separate vacations for roughly the same time period. And so we are not going to be recording the week of June 15th at all. I offered to bring my equipment and you were like, oh, we're both going to be on vacation. Let's not bother. Yep.

[B]

We're going to miss an opinion day, at least one.

[A]

Yeah. And so whatever comes down. And we are starting to get into the zone where bigger cases are going to be coming down. We didn't get any last week. I think it's fair to say that none of the ones we got that are big, we, you know, didn't get any this week. So maybe something big will come down next week and so you will have to wait roughly a week for us to circle back to it. So apologies, but we're then back after that. I'm back for a couple weeks. And so we will do our best to catch up on the big things that happen. And then I'm gone for a little bit. And so we may have some catch up sessions later in July and into August. I was looking at our episode list so far and this is going to be our 19th episode of the season. And I think we set our previous record last season with 28 episodes. And so just as a reminder that the season doesn't turn over until the first Monday in October. So what do you think? Do you think we will break that record this season?

[B]

No, but I would like to.

[A]

You don't think so? You don't think we can do 10 more?

[B]

Oh, we can. I'm just not sure we will.

[A]

Yeah, well, I mean, let's say we do three. Three before end of July. Three or four. Then we just need to hit like five or six between mid July and early October. It's doable. Maybe we'll try.

[B]

I think last year we had these long pauses and gaps and that filled us with pent up energy and guilt that had us coming out of the gate with a ton of episodes after that. And I just think now we're at a more even keel, just predictably. But Dan, you want to do 20 episodes between now and the first Monday of October?

[A]

I'm there. Yeah, you probably are. You've got a pretty good appetite for podcasting. Yeah. But when was our really long break where people thought the podcast had been canceled? Was that this past fall? Was that this season?

[B]

No.

[A]

Or was that the prior season?

[B]

I think that was last year.

[A]

Okay. Yeah, I think that's right. That was a little unfortunate. Well, I'm looking at our episode list. Yeah, we went. Yeah, we went July 28, August 9, August 29, September. And then, you know, you know, we kind of kept it even, I'd say, with a reasonably large break around the holidays. Okay, so we'll see what happens. So apologies in advance. So we had three merits decisions that came down today. The day we're recording, Thursday, June 11th, I think it's fair to say none of the three is a blockbuster.

[B]

I live for the venue clause, Dan.

[A]

I mean, they've given us enough that we're going to get an episode out of it. But we have three. Two of them we're going to talk about one of them. We are not going to talk about that one is FS Credit opportunities Corporation versus Saba Capital Master Fund Limited. That one is actually the longest of the three. I don't know if that's the reason we're not talking about it, but it doesn't help. That one is about the SEC and the Investment Company act and whether there is an implied private right of action for rescission of a contract that violates the Investment Company Act.

[B]

The answer is no, as always, is no. This is the case I've gotten the most emails about. I'm on multiple different law professor email threads about these cases. One sort of from the more corporate law investment law side and one from the more Fed court side.

[A]

You were in a corporate law email group?

[B]

Well, no, it's just like some people started emailing.

[A]

Okay. Just random people or friends of yours? Friends and colleagues who want your insight. These are corporate law professors that want your insight.

[B]

There's some corporate law professors and some court professors in this one and the other one.

[A]

I don't have any email groups like this. I got to get some of these going.

[B]

You can join any of my email groups you want. Dan. It is interesting. It has some textualism versus legislative history stuff in here. The Majority by Justice Barrett cites Frank Easterbrook. Statutes, domains and Congress is a they not an it. But the whole opinion feels very 90s, very early 2000s. Right. Implied causes of action, legislative intent and committee reports versus text.

[A]

Well, speaking of that, do you know what opinion has been the longest outstanding at the court this term as of now?

[B]

Well, it was Calais, but it's not anymore.

[A]

So now it's Landor vs. Louisiana Department of Corrections and Public Safety, which is a big case about whether there is a private right of action for damages created by the Religious Land Use and Institutionalized Persons Act. And this is one we've talked about once or twice, I think, being litigated by a friend of mine, a friend of the show, Zach Tripp. And I think it was. I was very happy to see that he got it granted. And it's a case that has such horrible facts that it was kind of hard to imagine that having made the decision to grant that, you could rule against the petitioner, who is the Rastafarian who had his head shaved despite literally having in his hand a copy of a 5th Circuit opinion saying the prison officials couldn't do that and they still

[B]

did throw the trash.

[A]

Yeah. But then after the argument, the kind of common wisdom was, oh, maybe this guy's not going to win. The court is not enthusiastic about recognizing a private right of action here.

[B]

Right. Because the Problem is our lupa, which is the statute suing under, is a spending clause statute. And based on things the court has said previously and ways of thinking about spending clause, it's not obvious that a state's decision to accept money can then create federal courses of action against third parties who aren't the people who accept the money.

[A]

Yeah, yeah.

[B]

The conventional wisdom had been that the plaintiff is going to lose.

[A]

Yeah.

[B]

I guess the longer it takes. Right. The more, I mean, well, some case has to be last, so it's not like always has to be explained. But this case being last makes me think maybe it's a flip. Yeah, it could go either way, but it could well be a flip.

[A]

We're going on more than seven months now. Right. This was argued November 10th.

[B]

Right. Or maybe it's just one of these cases that's going to get us like a 87 page theory of our LUPA

[A]

from Justice Thomas or just severely spirited dissent.

[B]

Yeah. Or I wonder, I mean, this is probably too much. Maybe somebody, one of the conservatives in the court, is going to finally realize they need to reconsider Bernie.

[A]

Hmm. Is that the case to do it in?

[B]

Well, I mean, sure, you don't need the Spending clause. If Bernie was wrong and RFRA was

[A]

right, it's because RFRA has never been taken off the statute books.

[B]

Well, RFRA has been taken off the statute of books, but the congressional theory underlying you can support a statute on any congressional power, even the one that's not the one Congress anticipated.

[A]

Oh, I see. I see.

[B]

So you could say, well, upholding our LUPA not just as a spending clause statute, but actually as 145 legislation, has

[A]

RFRA been taken off the statute books? Because there's still provisions of it that I thought apply to the federal government that have never been.

[B]

The provision that applies to the federal government has been. When last I looked into this, which is in response to something Jonathan Mitchell wrote somewhere, I think when our LIPA was passed or when our LUPA was amended as part of one of the cleanups, they did, they did take parts of RFRA off the statute books in the way they changed the definitions of state and government. They changed various definitions in a way that I don't remember how much they took off the books, but I believe they did sort of conform. But again, I'm calling it.

[A]

Yeah, that would be interesting. That would be interesting to have a kind of split majority where the three liberal justices say there is a private right of action, there's a spending clause, and then two justices say we would uphold it on Congress's power to enforce it.

[B]

Right. But it could even just be. It's still five justices or six justices saying it's unconstitutional, but then an 87 page concurring event by Justice Thomas saying, in a future case, I would reconsider Bernie v. Flores. Like going in the way he does.

[A]

Yeah. Yeah, that could be. Okay, well, keep an eye out on that one. So I guess if I was the petitioner there, if I was Zach, I haven't talked to him about it, but maybe I would start to be getting a little optimistic again. Even if you felt like the. I don't know if he thought the common wisdom was right about the argument, but to the extent that was the common wisdom was right, then maybe it starts tilting the other way. I don't know. Or maybe there's just the longer the

[B]

jury is out, the more optimistic the criminal defense lawyers get.

[A]

Yeah, that seems right.

[B]

I mean, not always.

[A]

Okay, so that's all we're going to say before we get to the actual cases we are talking about. So do you have a preference as to which one we do. I was also going to quickly note, I guess there was an interesting dissent from denial. Sorry, Interesting statement respecting denial from cert. By Justice Sotomayor earlier this week in an effective assistance of counsel case that was about the right, basically prejudice or harmlessness standard for an ineffective assistance claim, where the claim is that the attorney didn't properly preserve a Batson claim. Kind of interesting. We don't need to get into it, but it might be, if you're interested in those issues, worth taking a look at. Because it sounds like sort of like

[B]

what you've written about, right?

[A]

Yeah, yeah. It's one I'm interested in. The question of harmless error. When do you reverse a conviction? What does the defendant need to prove to show that conviction, the error was harmless or not? And basically she's making the argument that, I guess Mississippi has this rule that to prevail in that context, to show that you received ineffective assistance of counsel by failure to raise what would otherwise be a meritorious Batson claim, you need to show that you would have been acquitted otherwise. Which is impossible. Which is impossible. How are you going to prove that? I show that this black juror would have persuaded all the other jurors to vote in my favor.

[B]

Is it enough to show you that they would have gotten a hung jury otherwise, or is that it?

[A]

I don't know. Even so, I don't know how you would prove that. As she described it, it says would require a different Substantive outcome that a defendant would have been acquitted rather than convicted. But yeah, I have no idea how you would do that. That seems impossible. So that seemed like she might be right. But we will have to wait for another year to get an answer to that. If she can persuade others to want to decide that. Okay, so of the two, which ones do you want to talk about first? Which one do you want to talk about first?

[B]

Let's do Buddy Ayers first.

[A]

Okay. This is Keith Lee vs Buddy Ayers Construction Incorporated. And this is sort of bankruptcy adjacent, but sort of not. It's got enough bankruptcy in it to kind of make me a little nervous when I was trying to figure out how much to dig into it.

[B]

But you're the one married to a bankruptcy lawyer.

[A]

Yeah, I know, I know. And I figured that's her department. I don't need to worry about that stuff. But I'd say it's light bankruptcy. It's like the bankruptcy stuff is collateral to it. And so let me try to describe how this works. So you declare bankruptcy. I don't know if you've seen the famous Michael Scott I declare bankruptcy episode of the Office. But so somebody declares bankruptcy, and then you're supposed to disclose all your assets to the bankruptcy court, and that includes claims you have. I have a legal claim against this other person that might get me money because that has value. That's something that is relevant to your assets and how much you can pay creditors and so forth. Okay, so we have a debtor here who filed a Chapter 13. He and his wife filed a Chapter 13 bankruptcy petition, and the bankruptcy court approved a repayment plan after that point. But while the bankruptcy proceeding was still open, I guess he was in a car accident with a driver. The other driver was somebody who worked for the other party in the case, Buddy Ayers Construction Incorporated. So then he has a claim, and he gets a personal injury lawyer. He tells his bankruptcy lawyer about this, but then nobody goes and tells the bankruptcy court that this happened, which is meaningful because it affects his assets. Right. Okay. Then what happens?

[B]

Then the fifth Circuit says, well, your claim against.

[A]

You're skipping way ahead. Then that lawsuit happens. Right.

[B]

Okay, fine.

[A]

Then the lawsuit against the Buddy Ayres Construction company happens.

[B]

Yes.

[A]

Right. And it's in that case that ultimately the Fifth Circuit is going to say, Mr. Keith Lee cannot sue. Cannot sue the construction company. Right.

[B]

Because he already took a position earlier that he didn't have a claim. And so having said he had no claims against the construction company, he must have no claims against the Construction company. Right, that's the theory.

[A]

Okay. And just to be clear, the construction company relied on that in some way, right?

[B]

No.

[A]

So, yeah, this is the thing that makes no sense to me about the way this doctrine works here. The way this doctrine works is the doctrine of judicial estoppel, at least as it's been going in the lower courts. And we'll talk about whether that's legitimate in a second. Basically, you say something to a court about something, and even if this other party is not involved in that court proceeding at all, they get to come in later and be like, oh, well, you said something inconsistent, like five years ago in some other case, therefore I win.

[B]

Yes. Well, this makes no sense. Right. So opportunism and changing your mind is something we worry about. And again, it could be that you could rely and can't show that you rely. It could be that you notice that in various cases, you know, the government has been taking the position. I mean, think of this version, right? So, like, President Trump maybe did or didn't create a weaponization fund to pay $1.776 billion to various people. And then somebody sues him to get a TRO against the weaponization fund. And he tells Judge Leon, oh, there is no weaponization fund. It doesn't exist. And so Judge Leon denies the tro. And then like a month later, he starts paying people out under the weaponization fund. And so some other person sues and says, wait a minute, you said there was no weaponization fund in court to your own advantage. You can't then just go around breaking your word.

[A]

I thought the government can't be estopped.

[B]

Well, the government can't be collaterally estopped. Is judicial estoppel subject to the Mendoza rule? I'm not sure. I actually think the government. I mean, the government regularly is a stopped in the sense that the court makes the SG say things to the court and then says, the SG promised us they'd bring the birthright citizenship case back, or the SG promised us they'd comply with this judgment. And everybody seems to think, I don't

[A]

know if that's legally binding, though, in

[B]

the way that it doesn't come right. Everybody seems to think it's such a big deal that the estoppel is so powerful that it never has to be enforced.

[A]

Yeah, I just find this kind of ridiculous, which is this construction company, the driver caused this accident. They somehow. I don't even know how they figured this out. They looked into this guy, figured out he had bankruptcy pending. They were like, oh, he didn't disclose this to the bankruptcy court. Therefore, we win this completely unrelated personal injury suit. Credit to the construction company's lawyer for figuring this one out. Right.

[B]

Okay. So the court thinks this is ridiculous, too. And maybe we should talk about that in a minute. I take it part of the reason, though, to think it's ridiculous is it's not that it's okay to hide the fact that you have a major lawsuit from your creditors and then try to bring it anyway. It's that the construction company shouldn't be the beneficiary.

[A]

That's at least my strong instinct.

[B]

It's the creditors who should say, well, you had these claims at the construction company that money should go to satisfy your debts. Yeah, yeah, okay.

[A]

Okay. But just to be clear, I don't think that there is clear evidence that this guy was concealing anything or acting with ill intent. I mean, he told his lawyer. I mean, we can debate the facts there, but I mean, I do think it would be bad if this guy had fraudulently submitted documents or something. I don't think that's what happened here. Okay, but so the court, 5th Circuit said he was estopped. He had tried to argue that that shouldn't apply because it was inadvertent. And the 5th Circuit said no, because we have a kind of narrow rule for inadvertence, which is basically we will only consider inadvertence as a ground for avoiding judicial estoppel where the debtor did not know the facts underlying the claim or there was no potential motive to conceal the claim. Like, that's a two part. You know, you have to show one of those to be able to wiggle your way out of judicial estoppel for inadvertent mistakes. And the court is going to say, no, that's not the rule. This is an equitable rule. And so it's a holistic approach, can kind of take a bunch of things into consideration. There's not these flat, strict rules about what you can consider. This is kind of a. Do you know if you remember, Michael Koonin has a paper called Rules against Rulification, which is sometimes the court comes in and says, look, lower court, you tried to turn this fuzzy thing into a rule. You can't do that. You have to keep it fuzzy.

[B]

Reasonable doubt. You can't put a number on it. Yep, right. Yeah. So obviously if you take these terms inadvertence and mistake literally, then the fifth Circuit can't be right. Obviously you could do something inadvertently where you knew the underlying facts but just didn't think about it, didn't realize they were relevant. And while sure, you could have had a motive to do it for personal gain, you didn't. You just did it inadvertently. Right. Similarly, of course, you can have a mistake where you knew some things and then didn't say the way you're supposed to. That's what made it a mistake. Right.

[A]

That's what makes it inadvertent rather than advertent.

[B]

Well. Or that's what makes it inadvertent rather than just outside of your knowledge entirely.

[A]

Yeah.

[B]

Again, if you think this estoppel doctrine is valuable because courts have such a limited window into what's going on and really rely on lawyers doing a lot of work to make sure they've run to ground everything relevant and told the court everything relevant. And. And if they screw it up, they get in trouble later, then you could justify having a harsher rule on that kind of incentives grounds. But apparently we don't.

[A]

Okay, so the actual majority opinion, and this is one by Justice Jackson, is quite short, nine pages. There are a lot of things that the court doesn't decide in this, and let's try to make sure we get them all. So first, the court does not clearly say judicial estoppel is a thing. Right.

[B]

I think they say it's a thing. Judicial estoppel is an equitable doctrine intended to protect the integrity of the judicial process.

[A]

Okay. So they do not say it is a thing in bankruptcy. They say we assume without deciding.

[B]

They say we've never applied to Schula SOPO in the bankruptcy context, but let's assume it does.

[A]

Okay. And we also are going to assume without deciding that there is an exception of inadvertence or mistake.

[B]

Yes.

[A]

Okay. So both of those could be wrong,

[B]

assuming this doctrine applies and assuming this doctrine has an exception. The Fifth Circuit was wrong about the hypothetical exception of the hypothetical doctrine.

[A]

Yeah. And I guess the court has once relied on this doctrine in this New Hampshire case. This is a case in the court's original jurisdiction, which I had not known about.

[B]

Yeah.

[A]

And so there is one thing you can cite, but if you were trying to rely on this as authority for more judicial estoppel, it's pretty thin.

[B]

It certainly is not about bankruptcy. Right. It's about the location of the Piscataw River.

[A]

Okay. So a lot of questions unanswered, but let's talk about the separate opinions. So one by Justice Thomas, joined by Justice Gorsuch, doing what he often does, is to kind of say, like, here's the thing that everybody's been doing and the court seems to be doing and actually is wrong. It has no basis. And I thought this one was reasonably persuasive where he just says, look, judicial stop is kind of a new thing. You certainly can't trace it back to old English law. I guess it first started popping up in this 1857 decision of the Tennessee Supreme Court, but didn't get widely adopted at that point outside of Tennessee, and only really became a thing in the last few decades, at least in federal courts.

[B]

This is what I love about the law, is there could be a thing called judicial estoppel that we've all heard of. And you know what estoppel is, and you know what judicial is. It makes sense. Sounds like a thing that's been around for a long time, time. And then somebody says, oh, actually it was invented by the Tennessee Supreme Court in 1857. And as of 1956, the 10th Circuit said, oh, this is a weird thing that's encountered outside the state of Tennessee. The idea that something that seems so natural and you don't really think where it comes from. It's just like some weird, like, disgorgement. Tennessee export. Yeah, disgorgement.

[A]

Kind of new entrapment. You know, that one. That one is really new, I think. I sort of, before studying it, I was like, oh, that must be one of these ancient criminal law defenses. And no, actually something that was made up in recent decades in Tennessee. I don't know whether it originates in Tennessee. I don't believe that to be the case.

[B]

People are always saying you can't make fetch happen. And I guess this is just.

[A]

Yeah, if you just keep saying something,

[B]

it's just proof that you can, or at least Tennessee can.

[A]

Is there a general law of judicial estoppel?

[B]

Now? It's an interesting question.

[A]

Maybe, like, if every court starts saying it's a thing. Right. Doesn't that make it a thing?

[B]

I mean, courts saying it's a thing is one major factor in it being general law now, what first principles it derives from and why courts say it's a thing. And it's a more complicated story. And if the last couple of decades of the way it's crept in have been through inadvertence or mistake, so to speak, then maybe not. Yeah, so Justice Thomas says, even though, despite the widespread modern adoption of Schultz foundation remains questionable. Where does it come from? What authority does it have? There is a little bit of interesting general law energy to it. He notes that the court has applied it in this New Hampshire versus Maine and he says, ah, that's different. It's an original jurisdiction case where I think what he says is general law still applies in original jurisdiction cases. He says in an original jurisdiction case, the court understood itself to have greater flexibility flexibility in adjudicating the dispute than lower courts have in ordinary diversity actions. Cf. Massachusetts vs Missouri, explaining even after Erie, that controversies between states are decided based on the accepted principles of the common law or equity systems of jurisprudence. This is just straight out of Steve Sachs constitutional backdrops. And finding law is that, of course, in original jurisdiction cases where you couldn't just defer to state law. Nor does it seem like the Supreme Court should make those up. You still do general law. So maybe there is a general law of jishal estoppel, but only applies in

[A]

original cases that they can make up. I mean, there's another really interesting, eerie question here too, which is footnote three. I don't know if you were going to get to that.

[B]

Go ahead.

[A]

Which is a question about whether in a diversity action, which this was in federal court, whether judicial estoppel is a matter of state substantive law or federal procedural law. Because if it's state substantive law, you'd have to go to state law to figure out whether to apply it and see whether the state had adopted it, or if it's federal procedural law. There's some common law of judicial stubble that applies in all federal courts, I guess.

[B]

Right. And it is kind of interesting to then really try to ask the 5th Circuit, why does this cause of action fail? Why does the fact that I made a mistake in bankruptcy. Are you saying that federal bankruptcy law, you could have an estoppel doctrine that comes from the federal bankruptcy proceeding. That's like if you don't state your claims in the federal bankruptcy proceeding, then they cease to exist. So it's almost like federal bankruptcy preemption. Or you could say, no, it's a matter of state law, or whatever he's basically suing the company for to just say one element of your tort claim is that you have not previously denied the existence of your tort claim. Which is weird. Which is weird. But then also the footnote contains the most interesting and confusing thing ever, where he then says one of these approaches would at least cohere with the treatment of the related but distinct doctrine of equitable estoppel, which is treated as a substantive question governed by state law under Erie. So, but I take this to mean despite Justice Thomas's broadside against judicial estoppel, he's still okay with equitable estoppel.

[A]

Yes.

[B]

And what's the difference between an equitable estoppel and judicial estoppel?

[A]

I think the difference is that it has a longer history.

[B]

Right. But what even is the difference? What is an equitable estoppel claim that's different from a traditional estoppel claim?

[A]

I think you have to show reliance there, right?

[B]

Yeah, I think that's right.

[A]

Yeah. I mean, I think so. On page two, he says it requires the party invoking the doctrine to prove that it was itself the object of a previous representation, that it relied on the previous representation and that it was prejudiced by the change in positions. That seems totally reasonable to me.

[B]

Me too. That's what I think makes this opinion so convincing, actually. Is that part of the reason maybe judicial estoppel takes off? We don't think about it that much. Is it rhymes with this other thing that Google stoppel. That is a long standing principle that you can't bait and switch people and tell them take one position in court and then suddenly flip your position.

[A]

If there was some previous lawsuit involving Keith Lee and the Buddy Ayers construction company and he had been like, oh, don't worry, I'm never going to sue you for that. And then the next day. And they rely on that in some way and the next day he files a suit. I mean, okay, fair.

[B]

Right, right.

[A]

But here it's just this total windfall.

[B]

Yes. Or similarly, if in the. Again, maybe equitable software doesn't apply to the government either. I think it does. But if when the president denies that there's an anti weaponization fund to stop it from being enjoined and then a few weeks later you try to enjoin it again or something. You might say, if you're somebody who's relied on that, I dropped my lawsuit with prejudice because I was told there was no fund and then it starts up again, then maybe the. Yeah, so that makes sense to me. And equitable estoppel is also sort of related to unclean hands and these other longstanding equitable doctrines that you can't sort of do shenanigans as a way to screw the other party.

[A]

Yeah.

[B]

But judicial estoppel used as just a way to make people who are inconsistent or liars lose their cases is maybe not a thing.

[A]

Yeah. It just seems like a weird way to sort of. You're sort of like turning litigants into private attorneys general to protect the integrity of unrelated court proceedings or something like that. It's basically like you are litigant if you can go, you should go out and look at everything this person has done, your opponent has done in court ever. And if they've ever said anything consistent, we're going to. You're going to get the benefit of winning your case to protect the integrity of that other judicial proceeding. That seems weird to me, right?

[B]

Well, it's not totally weird from a judge's point of view. It's like judges really don't like it when litigants don't tell them stuff that they wanted to know. And so if one of the sanctions for that is you're forever at risk of your statements being used against you, then you'll be more careful.

[A]

But I don't know. I found somewhat persuasive the argument. This is a little bit on shaky ground. There's also a separate opinion by Justice Sotomayor, who I think captures some of my intuitions as well. She's coming at it from a different angle, but she says a couple things. She says I write to address why it may not ever make sense to apply judicial estoppel when bankruptcy proceedings are pending and why in any context judicial estoppel should always turn on the totality of the circumstances. So the first one I think I found also persuasive, which is basically she's like, look, in this situation, the bankruptcy is still going on. And to the extent that there's a problem here, the problem isn't with the personal injury suit. The problem is that inadequate disclosure in the bankruptcy proceeding. And so the solution is make sure the guy goes and tells the bankruptcy court about it and then the bankruptcy trustee and the bankruptcy court can figure out what to do about it.

[B]

Right. Whereas this remedy, whose only Justice Stoppel one remedy is dismissal of the tort

[A]

claim, it might actually hurt the creditors. Right.

[B]

For sure.

[A]

Like they're not going to get there's money that they could get that they're not going to get. So this is just as a matter of distributive justice. This one makes no sense.

[B]

I love that justice. Little mare is looking out for the little guy. The four creditors.

[A]

Yeah, okay, so that was persuasive. And then with respect to the totality of the circumstances, I mean, what she said is basically just equity. Look at everything seems reasonable. What do you think about that?

[B]

I mean, it's always hard to argue with totality of the circumstances. But it's not as obvious to me if this were a real doctrine. It's not as obvious to me that it's bad to

[A]

cabinet in some way. Yeah, right.

[B]

Or to structure what counts as what you're looking for. Now going to.

[A]

I mean, I think I might want to make more rules on the front end to be like judicial estoppel applies only when X, Y and Z. There's an act of misrepresentation rather than a mistake.

[B]

I guess I do think there's a little bit of a potential category confusion. Like. Like totality of the circumstances is a rule of evidence. You should look at everything, but look at everything to decide what. So you could say inadvertence or mistake is the only exception. And then we look at a talented circumstances to decide if it's inadvertence or mistake. And you just have to decide what counts as inadvertence. And again, either it does or doesn't count as inadvertence when you knew you were hit by a truck, but you didn't know you weren't thinking in the front of your mind, you weren't seeing them. So anyway, I don't disagree with that part exactly, but I'm just not sure it's totally helpful. But I think all these opinions are great. I like all of them. I like the majority. I like the Thomas concurrence. I like the sole American Currents.

[A]

Yeah, nice tight package. Interesting stuff. Different directions bringing together a lot of different areas of law. This is a good one.

[B]

I feel like the intersection of bankruptcy and tort law and the application of hypothetical substance and hypothetical doctrines in those areas is like the Supreme Court's sweet spot. We need more of this.

[A]

Yeah, it's not ideological in the same way. Okay, well, that one's down. Last one to talk about is Abu Amo versus United States. And this is a case that somewhat rare, occasionally litigated question of Article 3 venue in criminal cases. This is an interesting. So the original unamended body of the Constitution does not have a ton of individual rights, but the ones it has tend to relate to criminal prosecution. And one of them, which is in Article 3, has a rule about where a criminal prosecution has to take place. And specifically it says the trial of all crimes, except in cases of impeachment shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed.

[B]

Yes. And then the sixth Amendment adds that again, and then also adds the right to a jury of the state and district wherein the crime shall have been committed. So both clarifies that in holding it in that state, the jury has to be from that state and supplies a district requirement, which is interesting because it presupposes the existence of districts.

[A]

Yeah, of judicial districts. It's interesting because typically that part of the sixth amendment is not called venue, it's called vecinage. Because what it's really specifying is that you have to have a trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. And so I've never looked into this, but I don't know whether the sixth amendment would then provide any protection for a bench trial for something that doesn't rise to the level of the jury trial requirements, Something where you're imprisonment of six months or less, whether that could be tried anywhere in the US For a federal citation.

[B]

Well, doesn't the same issue come from Article 3? Because the Article 3 requirement also says the trial of all crimes shall be by jury and held in the state where the crime has been committed.

[A]

Yeah, I guess if you read it as the trial of all crimes and then crimes are defined as, for purposes of that provision, things that require a jury, then yeah, then fair enough. Right.

[B]

Because I think the theory by which a jury is not required for petty offenses is that they are not crimes.

[A]

Yeah. I mean, although they obviously are. Right. They're not crimes for purposes of those provisions, I guess.

[B]

Well, there's some, like Blackstone, there's some sources that use crime as distinct from misdemeanor. I mean, like the impeachment clause. High crime.

[A]

Yep, yep.

[B]

Anyway, the facts of this case are a criminal prosecution under 18 USC 1519.

[A]

Can I say one other thing about venue and the sixth Amendment first?

[B]

Okay, go ahead.

[A]

Are you going to Yellowstone on your vacation?

[B]

No. But are you going to talk about the perfect crime?

[A]

Yes. AKA the zone of death, which is there's this one part of Yellowstone national park which basically because of the vecinage clause, makes it impossible to convict the person of a crime.

[B]

Yes. Because Yellowstone is one of the only places where the district lines don't run along state lines. So the district of Yellowstone is all one district, even though pieces of it spill over outside of Wyoming into Idaho and Montana.

[A]

So. Yes. So if you commit a crime within the area of Idaho, that is within. In the part of the park that's in Idaho, but that's still within the district of Wyoming. You would have to find jurors who lived in Idaho in the district, and there's nobody who lives there. Right.

[B]

Or at least there are not 12 people. There was some point where I thought maybe one or two people lived there, but not enough to form a jury.

[A]

Yeah, right.

[B]

Because There are enough people who live in the district of Wyoming and the state of Wyoming that in the Wyoming part you can easily do it. Yeah, but in the overlap in the 50 square mile swath of Idaho, you can't feel the jury. This is an article by Brian Calt called the perfect crime. 2005 Georgetown Lajernel. Great article.

[A]

As well as the subject of a novel called Free Fire. I read the description of that novel, the kind of back cover of that novel to my Krimpro students. When I talk about this.

[B]

Oh, is it good? Is the novel good?

[A]

I haven't read the novel. I just read the description on the back. It does not sound good at all.

[B]

It sounds amazing.

[A]

I mean it sounds like a cool premise.

[B]

I'm going to order it as soon as we're off the show. I'm going to take it on vacation.

[A]

Are you?

[B]

Yeah, totally.

[A]

Why don't I read you the description and see if you still agree with that. Joe Pickett's been hired to investigate one of the most cold blooded mass killings in Wyoming history. Attorney Clay McCann admitted to slaughtering four campers in a backcountry corner of Yellowstone National Park, a free fire zone with no residents or jurisdiction. In this remote 50 square mile stretch, a man can literally get away with murder. Now McCann's a free man and Pickett's about to discover his motive. One buried in Yellowstone's rugged terrain and as dangerous as the man who wants to keep it hidden. Compelling.

[B]

But that means he's read the article. This is about this legal loophole, right?

[A]

Yes, yes, that's my understanding. Again, I haven't read it, but that is my understanding. And that is what Wikipedia says. Okay, well, you're going to read it. It's 432 pages. You're going to report back on our next post vacation episode. I'm going to take that. You were stopped from doing otherwise, Dan.

[B]

I've already ordered it. It should arrive tomorrow on my birthday.

[A]

You literally just ordered it.

[B]

Yeah, I've been reading. Jim Comey writes mystery thrillers.

[A]

Now, I did not know that. I read his memoir, but I have not.

[B]

That was boring. But I've read his first three. There are four. I've read the first three. I enjoyed them.

[A]

Do you think they're ghostwritten or do you think that's actually just what he's doing?

[B]

I'm very naive, Dan. But they don't feel ghostwritten. They feel like they're written by Jim Comey.

[A]

So they feel like they're written by someone who has not spent their professional life developing the skills to be a strong fiction writer.

[B]

They feel like they have. I enjoy them, but they have a. They have an amateur feel, and they have a feel of somebody who has specific points he wants to make about the practice of law and was willing to make them at the expense of some narrative conventions. Okay, I like them.

[A]

I don't totally know why you're picking those. I mean, there's a lot of books to read in the world, but. Okay, so let's get to the facts of this case, which are actually kind of interesting. And I'm kind of surprised I didn't learn about the facts of this case, like, back when it was happening. I mean, this must have been in the media, but I seem to have just missed it.

[B]

Yeah. I had no idea this is happening.

[A]

Yeah.

[B]

All right, so there's a federal statute, 18 USC 1519, that makes it a crime to knowingly falsify a document with the intent to obstruct a federal investigation. Mr. Abuamo was a Twitter employee who I guess leaked some kind of information to the Saudis in exchange for hundreds of thousands of dollars.

[A]

Yeah, $300,000 and a Hublot watch, which is a very.

[B]

What watch is that?

[A]

It is a fancy, expensive watch company. It's Swiss, but it's kind of like it's kind of looked down upon by the watch snobs because they tried to really kind of embrace bling culture.

[B]

Huh.

[A]

And they don't have great resale value for that reason. They are quite expensive, and some of them are nice. So apparently, according to the government's brief, he attempted to sell it for $42,000. I don't know what happened with that attempted sale.

[B]

How does Hublot compare to Patek Philippe or Rolex?

[A]

Nowhere near Patek, which is one of the holy trinity of watch brands, along with Vacheron, Constantin and Audemars Piguet. And then nowhere near the demand in terms of Rolex, which is considered a little bit more mass market. They make many, many 10 or 100 times as many watches as the Holy Trinity, but they're very, very much in demand, but still respected for the quality of the watches that they make.

[B]

And so Hublot, somehow my social media feeds have decided that I want to see a lot of Rolex content, and so I constantly get pictures of Varis.

[A]

It might be time. It might be time with all your podcast profits. Yeah, we haven't turned any podcast profits. I guess we've made a few dollars from T shirts here and there.

[B]

Yeah, we could sell A branded watch. Okay, so then there was an investigation after Mr. Abu Amel had relocated to Seattle, in the course of which he created a fake invoice, sent it to the FBI agents, throw them off the trail.

[A]

I feel like you're glossing over what makes this so fun.

[B]

Okay, go.

[A]

Is the FBI starts investigating this and they come see him and they're like, you got all this money, why? And so, as you said, he creates a fake invoice, but he does it while the FBI agents are still in his house. He goes upstairs for nearly half an hour while the agents are downstairs. I don't know what he tells them he's doing. He's like, oh, yeah, I've got the invoicing.

[B]

He's like, I don't know if he's

[A]

getting Apple Pages or something, is doing some graphic design up there for half an hour, and then he comes back down and he's like, I just emailed it to you. You've got it now.

[B]

I feel like this is a task for Claude.

[A]

Well, this was pre Claude. This was a few years ago. You're really kind of handing it to the agents on a silver platter. What is this guy doing upstairs? And so they get it and they immediately look at the file metadata and it's like created yesterday. And so, I mean, this does not end up being the only thing this guy's convicted of. He's convicted of five other crimes, none of which are going to be at issue here. So this case, the outcome of this case actually makes no difference because he was sentenced to time served. But there still is an important principle at stake, which is Article 3 venue. So where do they try to charge him? So this all happens in Seattle. Right. He makes the fake invoice, he emails it to them.

[B]

Right. Although he's being investigated by the San Francisco based FBI. And this is all part of his

[A]

forced stuff that happened there.

[B]

His original misconduct is in San Francisco.

[A]

Yes, but that is not what he's being convicted of for this crime.

[B]

Right. And I think it's according to the facts of the case, they suggest that the agents didn't discover the documents metadata until they got back to San Francisco. But I'm not sure that's right. So they charge him in San Francisco, of course, where the San Francisco FBI is working out the crime. And so the question is, can they do that for this charge? Was this charge committed in the Northern District of San Francisco or the Northern District of California?

[A]

No.

[B]

And the answer is no. The answer is the crime is one element making A document. They're falsifying a document. The document was falsified in Seattle, so that's where you got to charge it.

[A]

Yeah. I mean, I think it's more than one element. Right. There's also a mens rea element.

[B]

There is a mens rea element, yes. But the court says the mens rea elements don't count. When you're thinking about sort of the elements for venue, it's the conduct.

[A]

Right. That's what we care about is where did the conduct happen?

[B]

Right. Although why is that? If the question is where was the crime committed and if the mens rea is part of the crime, then might we have to ask, where was the mens rea committed?

[A]

Yeah, it's interesting. I mean, I think that sort of like the mens rea typically attaches to conduct. Right. So you have to do the conduct with the mens rea. And so I think it would be rare. I'm sure we can come up with examples where, like, you have. You have the two elements and they happen at different times. Usually that doesn't work. If you completely accidentally and non negligently run over someone with your car, and then the next day you're like, gosh, I'm glad I killed that person. That doesn't retroactively turn it into murder.

[B]

No, but imagine that they had interviewed him in San Francisco, and he said, hold on, let me fly back to Seattle and get the invoice.

[A]

Yeah.

[B]

And so then while in San Francisco, he hashed the intent to falsify his document, and then he actually falsifies it in Seattle.

[A]

That's a harder case.

[B]

The majority seems to say we don't care about the mens rea.

[A]

Yeah, but maybe. Yeah. Unless you can somehow describe the conduct of traveling as part of a continuous course of conduct.

[B]

Well, so part of what the court says is there are lots of statutes that are more complicated and reach courses of conduct, like incoate offenses and conspiracy statutes, or have as an element that it actually does obstruct an investigation. And then you might have to ask, where does the obstruction occur? But simple crime. And they even say it's kind of a trade off.

[A]

Just.

[B]

Kagan says, look, simple crimes are nice for the government because they don't have to prove very much, but in exchange, they don't get a lot of options about where to prove it, which is interesting. So, I mean, I like all this. I like the. I like the formalism. I like the venue clause. Justice Kagan does also open with some Declaration of Independence stuff, which is nice since it's the 250th, and one of the grievances in the Declaration of Pendants was kind of a vicinage problem. But it is a little weird in that in, say, personal jurisdiction contexts, we do the opposite. In the personal jurisdiction context, we regularly say, even though you've never set foot in this state because you sort of intended at this state, you did something in your state, but with the intent to harm our state, our state has jurisdiction over you. They can get their hands on you. They can call you in.

[A]

Yeah. Although there are limits there. Right. Because of Walden vs Fiore, the case that I litigated back when I was in private practice, which is you can't just say you did something that has some effect somewhere else. Right. There's this idea of express aiming. You have to metaphorically fire the gun into the other state.

[B]

Right. But this kind of intent is exactly the kind of thing that would normally count if you did something in your state with the intent to frustrate an investigation. In my state, that's exactly the place where we'd say the doctrine even calls it purposeful availment or something. And we would let the. In other words, if there were a tort with exactly the same offenses, he could be sued in California and would be subject to California process for it. Right?

[A]

Yeah, probably.

[B]

So why do crimes happen in one place when torts happen somewhere else? Or does this mean our personal jurisdiction doctrines are actually insufficiently originalist and territorial and we should sort of. I mean, that's. Yeah.

[A]

Well, I mean, first of all, there's not a rule that says you can only be sued in a place where the crime happens.

[B]

Right.

[A]

Because a jurisdiction can have extraterritorial tort law. Right. I mean, there might be constitutional limits on whether it can apply its law extraterritorially, but, I mean, a state could say, yeah, the crime happened across the border, but the harm was felt here. And our state law says you can sue anybody who hurts you. Right. So there's not like. I mean, if there was an Article 3 personal injury lawsuit provision, maybe that would be different, but there's not. Right.

[B]

Right. Although we say the Due Process Clause enforces some sort of limits on legislative jurisdiction, but. Sure.

[A]

But I mean, it's pretty narrow. Right.

[B]

But also, it's like Nothing in Article 3 actually says you can't have extraterritorial crimes. It says you have a right to be tried in the state where the crime was committed, but it doesn't say that. You couldn't either say, all crimes against California are committed in California in some way, or.

[A]

Although to be clear, this is a provision that only applies to the federal government. This is in Article 3. And so this is a question about where, within the boundaries of one sovereign, the prosecution has to take place. And it strikes me as a pretty different question when you're saying, can this sovereign hail you into their courts at all?

[B]

Yeah. Since the Sixth Amendment, I think, largely duplicates this. I mean, even though the venue and vicinity are technically different. Yeah, I'm not sure they're different, but I mean, this is in conflict. This is one of the things I teach is it appears to be the case that we have a implied territoriality requirement for criminal law Sometimes.

[A]

Yeah.

[B]

Not always. And by the way, what do we do about extraterritorial federal criminal law? So there are federal criminal statutes that apply abroad, like murder on the high seas and piracy and those kinds of things. So those crimes are federal crimes that are not committed in a state.

[A]

Yeah.

[B]

Article 3 thought about piracy and says when the crime is not committed within any state, the trial should be at such place or places as the Congress may by law have directed.

[A]

So they thought of that one.

[B]

Okay, good.

[A]

Yeah. Okay.

[B]

I just have one last footnote to this which I thought was interesting and I couldn't tell what was new, which is footnote three. So the court says, note that there are a lot of other statutes, including other obsession of justice statutes, that have a statutory venue rule. And the court says, we're not deciding what to do with those statutory venue rules. On the one hand, the venue rule is constitutional and so Congress can't change it. But we have sometimes suggested that Congress's view of appropriate venue, even if not coincident with our conduct elements test, may make a difference to the analysis. We don't decide what to do with that here. That seems like it's a potentially important issue to tee up.

[A]

Yeah. This came up at a oral argument. The defendant's counsel said, looking at this other statute, Section 1512, that it might be unconstitutional in some situations.

[B]

Yeah. And I mean, the majority seems quite open to that, even quite trending in that direction, despite not endorsing it.

[A]

And there was an interesting exchange where the petitioner, the defendant's counsel, said, we think the government would also agree that in some situations, Section 1512 applying it would be unconstitutional. And then the government, Anthony Yang, was asked about that and kind of waffled a little bit about that, but said, no, no, we would defend it under any circumstances. But that kind of seem to acknowledge that there might be some harder arguments under some facts.

[B]

Yeah, so that seems. Anyway, I would think if you're a defense lawyer, even under the statutory venue provisions, there's probably a lot of interesting room to quibble with whether they are fully constitutional. And the court thinks they're important because they are important because they are part of the Declaration of Independence.

[A]

And then one other thing to note, that even if you do win one of these as a defendant, it's not a literal get out of jail free card. Because in a case that I think we talked about, Smith versus the United States. Do you remember this one? The court had previously said that a dismissal or overturning conviction on venue grounds does not bar re prosecution under the double jeopardy clause. So he could be subsequently tried for this crime in Washington. I think there's no reason for that to happen because he's convicted of other stuff, sentenced to time served. I don't think there's really any upside to the government. You can imagine a case where it mattered.

[B]

Right, right. Well, it's kind of funny. If he got time served on this charge, he gets it thrown out. But if they did charge him again, he might not get time served on the second charge. He might actually do a few months.

[A]

Yeah, that's possible.

[B]

I take it if they were to do that just to punish him for being annoying and challenging venue, that would be unconstitutional, right?

[A]

Yeah. I mean, it seems like in that instance, if it's the same crime, it seems like you should have to get credit for the time served on the reverse. It's weird, though. I mean, normally if your conviction gets reversed, it's in the same court system and then you would get credit. Yeah, it's weird.

[B]

Well, previously the conviction was sort of folded into his other convictions, so it's hard to. Yeah. Okay.

[A]

Anything else to say about that?

[B]

No. It's a great country.

[A]

I agree with that in large part. I don't know if this case makes that clearer to me. I mean, doesn't change my views.

[B]

But the venue clause doesn't make you feel patriotic.

[A]

I think it's fine. I think it's fine. I don't think it comes up all that much, but it's good to have probably not in my top five or six Crimpro provisions.

[B]

But what are your top five?

[A]

We don't spend a lot of time with it. I love the double jeopardy clause. It was a lot of fun. I like the Sixth Amendment, although I like the kind of jury trial component more than the visa niche part. I like due process, reasonable doubt is in there. Got a lot of stuff in there. Confrontation. That one's a lot of fun. Like teaching that one. I don't know. There's a lot of good stuff these days.

[B]

I'm really liking the grand jury clause.

[A]

Yeah, that's a good one. That's a good one.

[B]

Not incorporated, although Justice Harlan would have incorporated it.

[A]

Yeah, the first Justice Harlan, the great dissenter. The second Justice Harlan would not have. He was not a big incorporator.

[B]

No, but you get used to reading all these Harlan dissents and Plessy and civil rights cases and Lochner, and then you get to incorporation of the grand jury clause. It's like, there he is again, dissenting.

[A]

Okay. So thanks very much for listening. If you didn't rate and review in our last plea, please do that. Keep those reviews coming. Visit our website for transcripts. Dividedargument.com, blog. Dividedargument.com for commentary from the extended divided argument universe store. Dividedargument.com for merchandise. Send us an email podividedargument.com youm can leave us a voice message on our website. Or can you? Or you can call leave us a voicemail 314-649-3790 thanks to the Constitutional Law

[B]

Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your support.

[A]

And if there's a long delay between this and our next episode, it will be because we're on vacation. So we've already told you there will be a long delay. But if there's an even longer delay, it will because one or both of us ventured into the zone of death and were killed, and no one can be held to account for that crime in any venue.