Advisory Opinions - Justice, Justice Thou Shalt Pursue

Episode Date: July 18, 2023

Amanda Tyler, the Shannon C. Turner Professor of Law at Berkeley, joins Sarah and David for post-SCOTUS term talk. They finally give Mallory v. Norfolk Southern Railway Co. some love, and also: -General jurisdiction and interstate commerce -Graphics in opinions -Habeas Corpus: Is Lincoln the good guy or the bad guy? -Justice Ruth Bader Ginsburg -Advisory Opinions spinoff? -Amanda Tyler's profile at Berkeley This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining the FIRE Update. Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details's five seconds. Ah. Doo. Da da dee da. Doo da doo doo. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and boy are we in for a treat today. I've been waiting for this, so excited, because we left one Supreme Court case just totally on the table because we knew that we couldn't do it without an actual professor to help us walk through the Mallory case. And we got the best one.

Amanda Tyler is the Shannon Turner Professor of Law at Berkeley. She is also the author of two different books that we're definitely going to get to as well. Justice, Justice Thou Shalt Pursue, A Life's Work Fighting for a More Perfect Union that she wrote with Ruth Bader Ginsburg, the justice that she clerked for, and Habeas Corpus in Wartime, From the Tower of London to Guantanamo Bay. This is going to get lit.

But before we do either of those, again, Mallory versus Norfolk Southern Railroad Company arguably was the biggest case of the term, again, depending on how you define biggest. And you and I have gone over that a thousand times, David. But it's really big. We didn't talk about it once. We were saving it. We pocketed it.

Thank you, Professor Tyler, for being here to teach us all some FedCourts. We're going to do some international shoe, some Pennsylvania fire. I sort of requested an eerie primer at one point. I mean, this is, it's going to get real. Thanks for being here. It's great to be here. It's going to give me flashbacks, Sarah, to, Professor, I had a FedCourts exam, Flashback, Sarah, to, Professor, I had a FedCourts exam, my 30-year-old year of law school, where I literally lost my outline the night before the exam. And it was one of these open book exams where you could bring in your outline, and I lost it on my computer. And so scrawled an outline by hand quickly before my exam.

It was not my favorite, not my favorite day, but it was one of my favorite courses. Not my favorite day, but one of my favorite courses. Well, she's going to have to explain what Fed Courts mean. We're starting way at the end of the line here. I know, I know. I'm sorry. I'm sorry. The class is called Federal Courts, and I, for one, was like, that sounds pretty easy.

Isn't that what we've been doing this whole time in law school? No, is the answer. No, it hasn't been. Well, Federal Courts is whatever the professor says it is, if I'm being honest. One of my great professors, Dick Fallon, wrote a paper on this and he said, you know, it really is a combination of a bunch of topics that aren't necessarily otherwise connected. of interpretive authority between the state and the federal courts, the role, the supervisory role of the Supreme Court over both lower courts, lower federal courts and state courts, etc. I could go on. They're all connected to this basic question, which is, what is the role of the federal courts in the system and how do they interconnect with the other branches and the state courts? and how do they interconnect with the other branches and the state courts. And as you can imagine, if you define it that broadly, there are, to come back to my first point, quite a few topics that fall under that umbrella. And for me, that's one of the things that makes it really fun to teach the course, because

you can really put your own stamp on it and spend time on a whole range of different subjects, and particularly the subjects that you think are the most interesting and the most fun and most likely to engage the students. Well, perhaps it's meaningful then that I also had Professor Fallon for FedCourts. And so did I. That he was... I love it. We have three generations of Fallon FedCourts graduates here.

Well, I actually had Dan Meltzer for Federal Courts, but I had Fallon for First Amendment. And then I got to work with him as an editor of Hart and Wexler. So I have infused the Fallon listening to this, you have, I don't want to get your title wrong when it comes to Hart and Wexler, but basically the grand poobah of Hart and Wexler here on this podcast. So if you're heading in to FedCourts next year, your textbook will be Hart and Wexler, and you should probably listen pretty closely to all of this. All right. Should we just start at Mallory? Will you explain the case to us? Why it's so important? Start at the very beginning. Yeah. So I think the tagline is it's very important, depending on how states and parties react. Now work backward. It's very important because it is a major personal jurisdiction case in which the Supreme Court seems to have put the brakes on decades of jurisprudence that were going in a particular direction. Okay, now let's go way back. We have

an individual who worked for Norfolk Southern, who did not work for Norfolk Southern in Pennsylvania, did not live in Pennsylvania. Norfolk Southern is not based in Pennsylvania. At the time of the relevant events, it's headquartered, I believe, and incorporated in Virginia. So nothing between this employee and Norfolk Southern takes place in Pennsylvania. Notwithstanding that fact, years after employment, this individual gets sick, Mr. Mallory, and he sues Norfolk Southern in Pennsylvania. Now, why he did this is presumably why any plaintiff chooses a particular forum. The law was probably the most favorable to him there. In addition, Pennsylvania law provides that when a company registers to do business in the state through a pair of statutes,

they are effectively agreeing that they can be sued for any activities anywhere in Pennsylvania courts. Now, about 100 years ago, the Supreme Court upheld a similar scheme. There are some differences, and the opinions really get into the weeds about those differences. The scheme that was upheld in a case called Pennsylvania Fire involved the actual formal appointment of a person to represent the company within the state as part of the registration process. Whether that's a significant difference or not, we'll let the justices spar it out. That's pretty far into the weeds. The point is, under both schemes, this old Missouri scheme at issue in Pennsylvania Fire and the current Pennsylvania scheme at issue in Mallory, the company effectively is saying, you can sue us for anything.

And the state is saying, you have to agree to that as a condition to do business within our borders. Well, that's a pretty dramatic condition, as you can imagine. It opens the company up to being sued for really virtually anything. under either a registration statute or, as we may get into it, doctrines of general jurisdiction, it means that if Amazon has an employee in Seattle and Amazon, let's say, is headquartered in Seattle and is located there and the employee could effectively sue for employment discrimination in Pennsylvania under such a scheme. And normally you would scratch your head and say, this doesn't make sense. But ultimately the Supreme Court upholds the scheme. And what's, I mean, there's so many

interesting facets to the court's decision. There's the breakdown of the justices. There's the primary driver of the court's decision, which is we're going to lean hard and heavy on the precedent of Pennsylvania fire. So that in and of itself, I think, is worth spending some time on because you have a Supreme Court opinion that is heavily driven by an antiquated precedent that, if you go back and look at it, is only five paragraphs long and doesn't really have any reasoning in it. Justice Holmes wrote it, yes, but there's just really not a lot of thought and explanation in the opinion. And it's because it comes from a period that is pre-international shoe, when the court thought about these questions in an entirely different way. So it was all about, you know, pre-international shoe, the question of the territorial power and jurisdiction of courts, and particularly state courts, was all about this fiction of presence. about this fiction of presence. And so when they particularly thought about corporate presence,

courts looked at the level of business companies were doing within borders. And International Shoe comes along well after Pennsylvania Fire and says, no, no, no, no, that's not the right way to be thinking about it. Because when we thought about presences driving everything, that's what led to these kinds of statutes. That's what led to states. There's a famous case called Hess versus Polowski that goes to the Supreme Court out of Massachusetts. It's a perfect example of what I call sort of this in-between phase, where you have the state of Massachusetts saying, hey, people from Connecticut are coming into our state and they're causing accidents, and then they're going home and we can't sue them because they're out of state, or our home residents who are injured can't sue them in our courts because they've gone back to Connecticut.

So we're going to pass a law that says, if you drive on our roads, you are effectively appointing the head of the DMV as your agent for service of process inside the state. He is inside. He is present in the state. And so, OK, that's going to work. That's going to comply with this concept of presence. International shoe comes along and is a reaction to this and says this is absurd. This is a crazy way to build fiction on fiction in order to define the territorial jurisdiction of the courts, state courts in particular. So instead, what we're going to do is we're going to look and we're going to ask, is there a connection between the dispute

and the relevant state's courts, or the relevant state, I should say. We can go further into this, but the bottom line is international shoe was, and for decades after it was reaffirmed as having really upended the whole prior structure. Fast forward to Mallory and all of a sudden the court is saying, no, presence matters in that old fictional sense because there's this statute. It's the only statute still in effect like this in the country, but because that's how we used to do it, that's good enough.

You know, this was, of all the cases, this outcome was honestly the most surprising to me. I had not paid close attention to it in part because I thought I knew how this was coming out. And so my question to you, and just as a bit of background on this as to why this is consequential, just a little bit of biographical background, as I was talking to Professor Tyler before we started, early in my career, I actually had a lot of personal jurisdiction cases. And one of the reasons is I was working in a big firm in the South. And if you go back to the 90s and early 2000s, and you're talking about what you might call the pre-tort reform South, that was where a plaintiff's lawyer wanted to sue a company.

And so whether you are in a rural town in Mississippi or in Eastern Kentucky or in Tennessee, you wanted to haul as many companies as you possibly could into that courtroom. And so I was typically tended to be on the defense side and we are frantically trying to get our clients out of the court. And the argument usually was personal jurisdiction. There's just not enough connection here. And International Shoe was one of my more cited cases early in my legal career in these kinds of disputes. And it was a really important consequential thing for sort of commerce and business and liability in this country. for sort of commerce and business and liability in this country. Post-tort reform South, it became a little bit less urgent to get everyone out of these courtrooms. But it was a big deal.

The argument that these little state courts could pull in as many major companies as possible for local justice. And it was a very big deal, particularly in these states, about how much do we want to be known sort of as a place where there's going to be justice for plaintiffs versus this is a place that's open for business. And it was a big policy argument at the same time in the South as well. So, Professor, were you surprised by this outcome or were we the only one surprised? I was very surprised. I was very surprised. Interesting. The court has been in the last few decades in a parallel line of cases that are under the SHU framework, scaling back the scope of general jurisdiction, to which I referred earlier. And general jurisdiction, those who don't know,

I know you two do, but general jurisdiction is the idea that you can sue a corporation in a particular state for anything related to state activities or not, in-state activities or not. The court has really been scaling that back. And actually, a couple of the most recent leading opinions were written by Justice Ginsburg. And so, you know, I mean, it's not that this is, that has been particularly a conservative movement to scale back general jurisdiction. The idea was that if there's no connection to the state, you need to be able to make an argument that the company is, quote, at home or essentially at home within the state.

And so an open question after those cases has been, does that go anywhere beyond simply the state of incorporation and the state of headquarters for a company? And a lot of people think not, or maybe only in truly, truly exceptional cases where there's just a massive amount of business being done by a company and they've got a big plant there, et cetera. But that wasn't the case, for example, for Goodyear in one of the cases I mentioned. So when you look at the fact that the court has been scaling that back, that you've seen international shoe and its focus on, to the extent we're not in the realm of general jurisdiction, which we weren't here, no argument was made to

that effect, at least to the court, the Supreme Court, that is, then shoe has really, in some respects, expanded personal jurisdiction, but also put the brakes on these fiction frameworks, like Hess versus Polowski, the example I gave. And this one is even more extreme than Hess, because the Pennsylvania scheme says, related or not, it's not a scheme that says, oh, if you run a train over our tracks and you hit one of our residents, you can't hide behind the fact that you're not headquartered here. That's what Hess versus Polowski was addressing. You can be sued for anything you did anywhere. And that just really, the idea that the court would uphold that, again, just really goes against the tide of decades of jurisprudence.

And for me, particularly the fact that there's so much emphasis in the majority opinion on the singular antiquated precedent, it really stood out to me when you look at the broader swath of decisions from last term and this term, where stare decisis has very little foothold in some very prominent areas and also in some areas that I see as a federal court scholar, but are a little bit under the scenes, you know, not in the front page of the papers, but habeas cases and other places. I've seen them sort of revisit or suggest they're going to revisit perhaps Miranda. There are lots of different areas where the court is really not wedded to precedent. And so that strikes me as significant as part of

the story here. But then the big question, David, as your introduction highlights, or your comments highlight, is what will the states do in response to this? Because you can imagine arguments and their policy arguments, as you say, going both directions. Maybe we want our courts to hear more cases, or maybe we don't. Maybe we want to prioritize cases that actually have a connection to our forum. And so that's really the big question in the wake of this is how will states respond? Because if you see more statutes like this, corporations doing business across state lines and small businesses doing business across state lines are going to have to really think through their business model.

All right. A couple of things here. One, the lineup of this case that you hinted at is really interesting to me in particular. So you've got Gorsuch writing, and then you've got a Thomas Alito Sotomayor Jackson joining various parts of it that don't matter for our purposes. In dissent, you've got Barrett writing Chief Justice Kagan Kavanaugh. So it's a 5-4. But what's interesting about this 5-4, and not to embarrass myself in front of one of the preeminent law professors in the country. Go for it, Sarah. There's no shame here. No, there's a little shame. Okay. So Ray, one of my theories has been that it's

not realistic to think of the court only along an ideological axis. It doesn't explain the vast majority of decisions. Otherwise, you just end up with 6-3 over and over and over again, and you don't. You don't even have liberals voting together. There's only three of them, and they only vote together 24% of the time this term. So instead, you have this other axis clearly that's going on. Maybe we can disagree on what that axis actually represents. My description of it has been something like an institutionalism axis, you know, when it comes to precedent or when it comes to looking at the effects of a case outside the four corners of the briefs themselves. Anyway, all to say, if I were to chart the justices along just

that second institutionalism axis, the most institutionalist judges setting aside the ideological axis would absolutely be these four, the Chief Justice, Kavanaugh, Kagan, and Barrett. and Barrett. And so I'm curious what you thought of this 5-4 lineup. And I mean, we have, this is a 5-4 where they're just not even in the same ballpark of talking to each other about what this case is even about. And I do feel like the five are saying, eh, basically contract's a contract. You signed this up with the state, you consented. What are we supposed to do? And the four are like, are you out of your mind? Do you know what this actually will do? And those are totally different considerations. I think that's a great description of the two camps.

What stood out to me right away when I looked at the lineup is where are the two former procedure professors? They're together in dissent. This is how I think about the world. There are procedure professors and non-procedure professors. So Elena Gagan and Amy Barrett taught civil procedure and there they are together in dissent because they've lived with these cases. They've taught them. We spend so long, arguably too long in most courses on personal jurisdiction, walking through the evolution of this law. And so if you've done that year in and year out, you know how dramatically shoe changed the landscape. And so that's the biggest thing that stood out to me. But I do think the undercurrent that you highlight of an awareness and a care about the ramifications of a decision clearly are also driving those in dissent and don't seem especially relevant

to those in the majority. And that, you know, again, we'll see what the ramifications are, how states respond, but it does open the door to literally every single state passing a similar scheme, putting a similar scheme in place. And that would mean that any business that registers in any state can be sued in any of the states for any activities that occur anywhere else. in any of the states for any activities that occur anywhere else. And then it sort of becomes a race to make your state the friendliest plaintiff side state, because you're going to get all this business, your law firms will get this business. I mean, we saw this, like David, what you were referring to, sort of this plaintiff side state legislative race. And then of course, the reaction had a counter reaction to have tort reform in all of these states but you know you can have sort of a quasi-regulatory capture by tort plaintiff side law firms um that then are like awesome let's do this and mallory sort of like a start your engines

um you know flare into the sky yeah i mean we see there. It's expensive to run court system. And so I don't think every state will necessarily jump on this. It's it's really hard for me to predict what what will happen. And yet what I would say to any people I know who are general counsels of major companies is you better be watching this stuff and see what, how, how the states do react. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time.

I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com.

Use code ADVISORY at checkout to save. Terms and conditions apply. You know, can I draw a through line with another case that I think is really interesting? And the only reason I'm drawing this through line is because of the Alito concurrence where he talks about the dormant commerce clause. Yeah. This case has everything for everyone. It's like, what's that old SNL skit? The coolest case this term is Mallory. It's got dormant commerce clause. It's got international shoe.

It's got Civ Pro professors. But pork producers. So that's the Gorsuch case that really kind of shoves aside dormant commerce clause. Here you have, so both of these two cases, both Gorsuch opinions with interesting lineups, really enhance state regulatory authority sort of over and above kind of a more federal framework. And I, you know, I do wonder if that might be a through line between these cases. And it didn't really occur to me until I saw the Alito-Durham at Commerce Clause comment.

And then I looked at Gorsuch in the majority. It's like, oh, maybe there's a connection here. I mean, do you see it through that prism at all, that sort of state sovereignty kind of prism? I mean, I think that's definitely a big part of both majority opinions in both cases. My first reaction when I saw Alito's concurrence was, hey, when I went to law school, dormant commerce clause was like a swear word for conservatives. What happened? Right? So, I mean, I'm sorry to be snarky about it, but one of my good friends who I share with Sarah actually wrote his 3L note about the Dormant Commerce Clause being made up. So it's kind of interesting to see how now just Salido,, I agree that under the due process analysis, because of Pennsylvania fire, the statutory scheme is fine. But as a matter of dormant commerce clause, I think it's highly suspicious. And yet,

pork producers is a really big dormant commerce clause case, as you say, that seems to be walking it back. The doctrine is a limitation on what states can do in terms of interposing regulations that have effects on out-of-state producers. And so I don't know that Alito's theory of attacking this particular scheme could get five votes. Maybe we'll find out. Maybe that's the next chapter in this story. But it is of a piece. Mallory is of peace with pork producers, as you say, David, in terms of elevating this idea of state sovereignty and particularly the state's power to regulate anything that comes within their borders. So there's a big sort of territorial aspect of both decisions. And yet these decisions are not in a vacuum. The ramifications spill very dramatically

over state lines. All right. I want to leave Mallory for a little bit. And we didn't talk about Burnham though. We've got to talk about Burnham. We don't have to talk about Burnham, though. We've got to talk about Burnham. We don't have to talk about Burnham. No, please. Oh, I just, this is my pet peeve. No, let's do it. So the majority opinion puts a lot of stock in this more recent precedent called Burnham, which involves this couple that are dissolving their marriage.

The marriage and everything was in New Jersey. The wife and children wind up in California. The father, they apparently, I think, had agreed they were going to have their divorce proceedings in New Jersey. I don't remember whether that's actually true. But in any event, the father takes this ill-fated business trip to California and adds on a short visit to his kids, during which time his soon-to-be ex-wife serves him with divorce papers issued by a California court where the law is more favorable to her. And the court upholds this under a so-called tag jurisdiction. And so Mallory and the majority puts a lot of emphasis on this. But there are parts in the majority opinion where they cite to the reasoning of Justice Scalia's plurality

opinion in Burnham, emphasis on the word plurality, as though it is the opinion for the court. And it is not. Burnham is a sort of three to four, one, four opinion. And you've got an opinion by Scalia that says tag jurisdiction's always been constitutional. So we've always done it this way. It's fine. It's sort of fiddler on the roof tradition. You know, I sing that when I'm teaching the case. Then you've got Brennan, who agrees that jurisdiction should be up healthier, but he does so under the shoe test. He insists that shoe has to apply. And then you've got a fifth vote from John Paul Stevens, where he basically says, as I summarize it for my students, this is a really easy case, but I'm not going to tell you why.

In other words, he does not explain his vote. And the majority opinion relies very heavily on Burnham and particularly the tradition Scalia opinion in Burnham. But it's not the opinion for the court. opinion in Burnham, but it's not the opinion for the court. And it overlooks the fact that four votes only get there by applying shoe and insisting that shoe governs here. And then the fifth vote is, you know, who knows? It's a law professor's dream teaching that case because you come up with a million hypotheticals for exams. And the students, there's no obvious answer because of the Stevens opinion. And so in any event, that's just a particular thing I have to complain about because I don't think the

majority fairly treats Burnham. I think it overplays it as precedent to support their sort of a shooing of international shoe. Okay, I'm done. I feel like Burnham is the, uh, beware of Greeks bearing gifts, like beware of ex-wives offering too good to be true time with your kids at Disney world, like Disneyland, whichever one's in California, like Disneyland. Yeah. Yeah. Yikes. So I have one last thing on it. Um, this continues one of my favorite trends, which is pictures in opinions. Yes. So there's this really interesting point

where there's this interesting moment where Gorsuch says, next Norfolk Southern appeals to the spirit of our age, which is kind of funny. After International Shoe, it says the primary concern of the personal jurisdiction analysis is treating defendants fairly.

And then here comes Gorsuch. But if fairness is what Norfolk Southern seeks, pause for a moment to measure this suit against that standard. And then it pops up a graphic, apparently produced by Norfolk Southern, that's called Norfolk Southern in Pennsylvania. And it talks about, and it's this graphic

that includes 2,402 miles of track, 1,468 bridges, 2,280 grade crossings, 4,650 employees, including, well, also including 2,685 railroad retirement recipients. So these guys, I think that Gorsuch was just sort of throwing out there that Norfolk Southern in other contexts really brags about being in Pennsylvania, which was an interesting inclusion in the opinion. But sure, then decide the case under other, you know, then say it's, you know, you could still then make that an international shoe argument of sorts.

Yeah, I thought that was really interesting throwing in that graphic. And I wanted to get your thoughts on it, Professor. I don't think it's relevant. Yeah. I don't think any of that is relevant unless this is a general jurisdiction argument, as Sarah alludes to. relevant unless this is a general jurisdiction argument, as Sarah alludes to. I also thought that Barrett's dissent points out that that was pulled from the internet,

not the record. And that shows, that shows again, I mean, this is something that I've, I've noticed in a lot of their opinions, there's just this sort of back and forth, that's just not healthy. If that's true, it's borderline improper. It's unfortunate that the dissent feels obliged to point it out. It's just a little bit awkward. The relationships among the justices that are spilling out on the pages of the U.S. reporter aren't great. And that's a Gorsuch Barrett sniping. Yeah.

Yeah. Oh, no, it's definitely happening. Not just across quote unquote party lines. You saw that in some of the emergency orders this term. Yeah. But this back and forth actually reminded me a little bit of the Kennedy and Bremerton case where they were going back and forth about the facts relating to the praying football coach. So, but you know, the bottom line is I don't think that graphic is relevant at all. It certainly wouldn't be relevant to shoe unless we were talking about whether this was a general jurisdiction case. And the court, as I said, had been scaling back that doctrine pretty dramatically. So this, it gets that backdrop. This, this case really is quite

a shock that the court came out this way. But just to be clear, from my standpoint, you're not denigrating graphics and opinions. Just make them relevant. Oh no. Okay. No, no, no. Just make them relevant. I love graphics and opinions. Hey. Did you like the Andy Warhol opinion? The graphic? Yes. Yeah. Oh, for sure. A hundred percent. That was awesome. That was pretty fun. Um, okay. So I feel like I'm reliving my law school career, but like in really fast succession. So last week we had the summer associates. So that summer of my two L year, uh, things have now, there was a while where poor summer associates, it actually had gotten worse for them since our time. Now, uh, Amanda, I don't know if you know this,

but it's so much better even than the boondoggle that we had as summer associates. They are off on like a whole difference in kind boondoggle with their summer. Good for them. But now I want to fast forward into going into your 3L year. You pick up Hart and Wexler. And first of all, going into your 3L year, you pick up Hart and Wexler. And first of all, when I say Wexler, I was today years old when I realized that it's not spelled with an X. I own the book. It's right behind me. And I'm not sure I ever read the front cover. It's W-E-C-H-S-L-E-R. And I thought that Fed courts should be really straightforward. And then it wasn't. And I would like you to help me with another railroad case. Since I've got you, you're a railroad expert, obviously, based on everything we just talked about. Can you teach us all Erie

again for some of us for the first time, those of uh you know the 2Ls heading into fed courts this fall just try your best do Erie well how long have you got not very long I realize that that's the challenge weeks we spent on it yeah that's the challenge I mean Erie is a case about federalism and the question is really how broadly the powers of the federal courts sweep and how they are constrained by the Constitution's provision for federal lawmaking. for federal lawmakers. So Erie comes against the backdrop of the Swift regime when you have federal courts in diversity cases increasingly choosing the rules of decisions. Diversity meaning you've got people from different states. People from different states. And today, post-Erie, we say unquestionably, if one of those cases comes into federal court, which the Constitution allows, they are governed by state law.

Say your standard contract case that would be governed under state law. But pre-Erie, under the Swift regime, which was sort of kicked off by Justice Story, you would have the law of merchant, which was sort of this common law being applied by the federal courts in diversity cases instead of local law or state law. And Erie puts the brakes on that. And it puts the brakes on that based on a reasoning, as I understand it, as I read it, that says federal courts do not have a sort of all-encompassing lawmaking power. To the extent that we announce a rule of decision in a case, it must be anchored in some fashion to a federal source, whether that is a statute or the Constitution. Because the Constitution provides that federal law beyond the Constitution itself is going to be made through the Article I process, through the legislature.

And so if a federal court can't point to a provision in the Constitution or a statute, a federal statute, as the basis for its rule of decision, then it follows from that that the federal courts cannot go any further. And state law or local law fills the void. That's how I read Erie. It's hard to get that directly from Erie because of the way that it's written. But Erie is clearly saying we have been acting lawlessly in these cases and we have been infringing on the prerogative of the states. So that's, it's all about that balance. Marbury versus Madison is so early on in the court's tenure that it wasn't, it almost wasn't much of a revolution because it's at the beginning. It's more setting the rules of the game. Erie is a revolution in how courts were deciding, how federal courts were deciding cases

at that point. It's a total change from the hundred years before it. Yes. Marbury is not a big deal. And people who play it up as this revolutionary thing, they're wrong about that. The judicial review was widely accepted. The concept of judicial review, it's repeatedly referred to in the constitutional conventions. It's not a big deal. The big part about Marbury is the officer suit idea. The idea that a federal court could issue a writ of mandamus to the secretary of state. That's a big deal. But the rest of it, no. But when you get to Erie, yes, because Justice Story launches the swift regime and it just grows and grows and grows. And you have federal courts creating whole bodies of law that are not

supreme law. They're not binding on the states. And so, and they're doing it in all these diversity cases. And parties are choosing to go to either federal court or state court depending on whether the law is going to be better or worse for them. So there's massive form shopping. All of that is cut out in Erie. And again, to come back to the basic court concept, Erie's basic holding is we don't have federal law that is anything other than supreme and binding on everybody. That's what the Supremacy Clause says. And so this quasi-federal law that isn't supreme is unconstitutional. Oh, that was really good. I tried to do it as efficiently as possible. I hope I did okay. That's fantastic.

That was amazing. I think since we're in the 19th century, we should do some habeas. You've literally written a book on it. I know David is super teed up to do some habeas in the 19th century, we should do some habeas. You've literally written a book on it. I know David is super teed up to do some habeas in the civil war. Uh, you love the civil war. Oh, that's a phrase that can be misunderstood. Yes, it could. Actually, habeas doesn't feel like a natural fit for my CivPro slash FedCourts professor. How do you get there? And why was this such a pet project? You know, it's interesting. I practiced law before I became a professor and after clerking, and I had the privilege toward the end of my tenure practicing of doing pro bono mooting of a man named Frank Dunham,

who was a federal public defender who represented Yasser Hamdi in Hamdi versus Rumsfeld. And so I got to moot him before he argued that case before the Supreme Court. And I went and watched the case be argued at the Supreme Court. And that case was about whether the United States during the war on terrorism could hold a natural born American citizen as a so-called enemy combatant on American soil without any criminal charges for an indefinite period of time, as long as the war on terrorism was going forward. And, of course, we didn't suspend habeas after 9-11. It was floated as an idea, but didn't gain any traction. And so the question is, can the country do this? Can the government do this? And the Supreme Court in that case winds up saying, yes, yes, they can. Another fractured opinion,

plurality opinion by Justice O'Connor. She says, there is no bar to this nation holding one of its own citizens as an enemy combatant. And I remember sitting in the oral argument, watching this discussion unfold with absolutely no historical reference. An hour long, nobody's talking about prior wars, history, the American Revolution, very little discussion of history. And I just thought to myself, this is ridiculous. There's no way this question hasn't come up repeatedly over time. And so then I became a professor and I decided I would start investigating the question. And years and years later, I finished that book. And what the book does is it goes back and it starts way back in English legal tradition it traces my mother says painstakingly slowly the

history of English the English legal developments leading up to the very important English habeas corpus Act And it takes the story forward across the Atlantic to American shores, putting a lot of emphasis on how the law functioned on both sides during the American Revolution. And that was by far the most fun research I got to do. And then it carries it forward through, of course, the Civil War, and of course, World War II. And where I come out is to say very much in keeping with a dissent that was authored by Justice Scalia and joined by Justice Stevens and Hamdi.

And right there, your alarm bells should be going off. Those two alone agreeing on something that's significant. We need to look more closely at this. on something that's significant, we need to look more closely at this. I think they were right to say that all of Anglo-American legal history says you cannot do this. The whole point of the suspension clause was to give the government, Congress in particular, the power to suspend habeas, which is more than just a procedural remedy, and I can say more about that if you'd like, but was to give Congress the power in extreme situations, in cases of rebellion or invasion, as the Constitution provides, the power to hit the off switch,

and to give the executive the authority to hold suspicious persons during rebellions or invasions in order to restore order. But that procedure, that constitutional requirement of suspension was not in effect, even assuming a suspension could have been lawful. And that's an interesting open question. But that wasn't it. Can I jump in on behalf of some of our non-lawyer listeners? Just briefly describe what is habeas corpus? of our non-lawyer listeners, just briefly describe what is habeas corpus? Yeah, so that, I mean, that is the really interesting question that my work tries to underscore. It's not simply being able to go into court and say, and it is in some cases,

let me be clear, but at its core and its constitutional conception, habeas is not just the right to walk into court and point to some external body of law and say, the president or the king is holding me in prison unlawfully. Traditionally, as understood by the founding generation and constitutionalized in the suspension clause, it was something more. And this is the connection to the English Habeas Corpus Act. In the Habeas Corpus Act, Parliament takes the power to control detention away from the king and says, you can no longer just throw people in the Tower of London because you don't like them, because they won't lend you money. There's a very famous case about that, the case of the

Five Knights, because they're suspicious, because you think they're plotting your undoing, you must charge them with a crime and try them in due course within two terms, three to six months in the old English system, or they must be released. And that act also included penalties for judges. If they did not order release, the judges themselves could be fined. And so the English Habeas Corpus Act takes all control of the law of detention and control of the royal courts into Parliament's hands. It is a big component in the rise of parliamentary sovereignty. And that is the model that then is paired with the concept of suspension. So the first suspension comes when Parliament is asked to set aside the Habeas Corpus Act because the king needs to hold onto his throne, the Jacobites are plotting his undoing, and Parliament obliges by passing a statute that

says the English Habeas Corpus Act for a temporary period is not in effect, and the king may arrest on suspicion. That's the suspension model. That's what the founding generation adopted. You see the same model, the English Habeas Corpus Act, actually verbatim in many cases, being adopted in the early states. The early states, many of them on the front lines of the Revolutionary War, enact their own suspensions, specifically in some cases expressly suspending the Habeas Corpus Act. And you see early state constitutions embracing this concept. So the Georgia Constitution of 1777 constitutionalizes the principles of the English Habeas Corpus Act and appends the act to the first circulation of

its constitution. You see in the records behind the Massachusetts Constitution, this is the conception they had when they adopted in 1780. They're great records for that constitution because it was debated in all the towns and they all wrote up returns explaining their reactions and understandings of that constitution. So it's an amazing resource for research. And in all events, all of this, you know, adds to the story that we see play out in constitutional convention debates and the ratification debates. And all of it tells a story that says this was the primary purpose behind the suspension clause was to constitutionalize this framework, but actually make it even harder to suspend because it's such a threat to civil liberties.

We're going to say you can only suspend in cases of a rebellion or invasion, not any situation where Congress wants to, which had been the parliamentary law. I have two really important questions. One, you published this book five years ago, which means you probably put it to bed about six years ago. How do you still have all of this at your fingertips? Do you read it every month just to like stay up to date? I spent years of my life on this. So, uh, I feel like one of the qualities of a lawyer though, is that like things go in and then they immediately go out. Like that's how you do the bar exam. You almost pass through it. Um, so that's really impressive. Okay. But as a habeas expert is, is president

Lincoln, the good guy or the bad guy? President Lincoln is someone who struggles mightily with the constitution. He wants to work within the Constitution. I think he was very thoughtful and mindful in that regard. I do think he oversteps, but I give him credit for trying to explain and justify his decisions. But I do think at the end of the day, he is the principal party who sets in motion the demise of the suspension clause in our constitutional framework. And what I mean by that is by not waiting for Congress, by not prodding his Congress to suspend when they absolutely should have. I want to be clear. The Civil War could not have been a better example of why you have suspension in a constitution. And he said, in defending his

actions going ahead of Congress and suspending, he said, probably quite rightly, I would be told to release all of these Confederate leaders because I don't have enough evidence to prosecute them criminally. And that would be terrible for the war effort. But the answer the constitution gives is that's right. that's why Congress needs to suspend. But because Lincoln gets out ahead and starts proclaiming suspensions, eventually a nationwide suspension, all ahead of his Congress, it takes Congress two years of debate to do so. And when they do so, they couch their suspension in ambiguous terminology so as to not be obviously criticizing him having gotten out ahead of them, but clearly to empower him going forward.

But we couldn't wait two years. He couldn't wait two years. He couldn't wait two years, but he also delayed calling back Congress when things started. He then starts doing this and, you know, Congress has no incentive to act. He's already, it's a little like the problem we have now. If the executive is taking all these actions, why should Congress move? Why would Congress bother? And the only reason Congress does bother in during the civil war is because Lincoln finally through in his administration asks Congress to pass a suspension because the officials are all getting sued for wrongful arrest and wrongful imprisonment in tort suits. And they need a clear

defense and pointing to a statute as a good defense. Now, the reason why I say he sets in motion everything that follows and the demise of the suspension clause is that is effectively what FDR does during World War II. He doesn't say he's suspending habeas, but he issues 9022 ordering the detention of Japanese Americans during World War II. And for those who aren't intimately familiar with these statistics, over 70,000 of the over 100,000 Japanese Americans detained during World War II were natural born citizens, ripped from their homes and sent to far off camps. I'm currently writing a book on this. So this is a great passion of mine. Sent to far off camps, they lose everything. And the only reason the citizenship numbers aren't higher is because the law during World War II does not allow Asian immigrants to naturalize. So the numbers would have been far

higher of citizens. And you see a wave of naturalizations once the law is changed in the 1950s. In all events, the advisors to FDR during World War II, including his attorney, General Biddle, are telling him, you cannot just lock up American citizens without criminal process. That violates the suspension clause. We all look back on the mass incarceration of Japanese Americans and think about it through discrimination, which of course is a big driver, but it is independently violative of the suspension clause. And a lot of advisors were telling FDR that, but he didn't care. He listened to the War Department officials and he gave them, as one said, carte blanche to do whatever they wanted. And they were pushing for this. And the constitutional ramifications are disastrous. And that, to my mind, sets the

framework for Hamdi, where the Supreme Court says, hey, what's the big deal? It's just one guy. We've locked up 70,000 plus citizens during World War II. So when I hear you talk about habeas, three words come to mind that are particularly salient with the current court, text, history, tradition. So we've seen, for example, we and Sarah and I have talked a lot about the Bruin case where in the Second Amendment context, they didn't do levels of scrutiny. They did text, history, and tradition. And when you read some of these, when you read cases in the current court, you do see more of an emphasis on the historical analysis, or you see a great deal of emphasis on the historical analysis. Do you have hope that

Hamdi perhaps wouldn't fare as well? Or if there's ever a, if this current court gets a Hamdi style case before of it, before it, that it wouldn't fare as well with the current court with its text history and tradition emphasis? Or is it just too much determined by the exigent circumstances of the moment? That is a great question. And I think it's hard to know. I've written some about the court's decision-making during wartime, not just in the book, but I recently published an article in the Virginia Law Review about this. The court has been exceedingly deferential to the executive branch during wartime. You know, the one really stark counterexample

is the Steele's seizures case. But interestingly enough, as one of my brilliant students pointed out as I was teaching this line of cases, she said, that one's about property. When it comes to liberty, the court is never protective during wartime. And it's really true. And that's quite a stark assessment of the court's record. So that gives me pause. But yes, I think the court is much more attuned to caring about history than prior courts have been. There's a lot more scholarship on this.

My book is one example I'd like to think. And hopefully the court would look to that in a future case. And Hamdi is a split decision, so it's not a clean precedent. It's not one where you say, oh, this is decided for all time. And interestingly enough, I didn't put this in my book and I've always regretted it. In the announcement of Hamdi, this is quite significant. The votes that take the plurality over the hurdle to get to the holding are Souter and Ginsburg. And Souter writes a concurrence that doesn't say this in so many words, but when he delivers it orally, he says, to be clear, we are not signing on to any constitutional decision. So Hamdi is really not a great precedent. And I think it's one where you could convincingly say this is an open question. But another really interesting thing about Hamdi is that Clarence Thomas has an opinion, and he is the resident originalist, right? And his opinion is the most unoriginalist opinion I've ever read. And I don't mean to pick on him because he has subsequently cited my book favorably. So I love that. And even quoted from it, which is great. But that opinion, I have to believe he will rethink if he looks at the work that I've done, I hope. Because among other things, he says at the end of his opinion to your counter options, he says, this would be terrible if we didn't give the president this power. He would be weak.

terrible if we didn't give the president this power. He would be weak. Well, that's not relevant. That's a policy argument. That is, if you're an originalist, that is not an argument that factors in at all. And so I think he is someone who I would assume would revisit this, unless the tenor of the times is sufficiently stressful that there is this sort of classic desire to defer to the executive in wartime, which obviously we saw in World War II to the extreme. We saw a lot of it during the Civil War as well. It's really only when you point to the big decisions like Milligan, for example, they always come as the war is winding down and the threat isn't as strong. And so, you know, this all of this history is bound up with that trend. And so it's hard to predict what would happen.

All right. I want to make sure we leave some time for your other book, Justice, Justice Thou Shalt Pursuit, A Life's Work Fighting for a More Perfect Union with your justice, Justice Ruth Bader Ginsburg. That's a line from the Old Testament, which I've actually read some interesting stuff about through the years. I'm curious how much y'all did on just the title alone and the repetition of the word justice and whether that is sort of the, alone, um, and the repetition of the word justice and whether that is sort of the, uh, there's a tenderness argument because, um, in the old Testament, uh, God also refers to Abraham, Abraham, or Moses, Moses, and it's meant as almost a pet name. That's probably the wrong word when God is talking to you. Um, and so maybe justice, justice is that maybe, uh, you know, maybe it's just emphasis fine, but maybe it refers to two different types of justice,

a process justice and substantive justice. But also how cool is it to write a book with your justice? You were a pallbearer at her funeral as well. And I want to make sure I ask what it was like to watch the memification in real time of your justice from Justice Ginsburg, cool lady, in real time of your justice from Justice Ginsburg, cool lady, whatever, to the notorious RBG and all of the merch. I mean, there were literally signs in DC during COVID that said, you know, Justice Ginsburg only lives two miles from here. Make sure to wear your mask. Yeah. Well, let's start with the title. The title came from an embroidered piece of artwork that she had in her chambers of Justice, Justice Thou Shalt Pursue. And so it was something that was a central component to how she thought about her role as a Supreme Court justice, and so much so that there was a visual aid in chambers. And so in choosing a title,

it seemed only fitting to go with that as describing who she was and what she sought to do as a justice. Now we did the book. Was it like the Ted Lasso believe sign where every time you left Chambers, you like slapped it on the wall? I love that reference.

That is spot on. As a former college soccer player who's about to go to England and make a pilgrimage to Richmond to go have a pint at the pub where Ted and Coach Beard go, I love that reference. But yes, so it really was sort of, you know, that was the mantra of Chambers was that we are in the pursuit of justice. And I think for her, that double reference really was about both substance and procedure. Right. So we want to pursue just ends, but we're going to do it justly. She was a procedure professor.

Let's not forget. So procedural integrity was hugely important to her. And I saw that as her law clerk. There were times where she said, you know, the procedure just won't allow us to get where I want to go. But procedure is the backbone of our legal system. And so you don't cut corners there. And so that's why I really thought this was the perfect title for the book.

Working with her on it was a privilege. I can't even begin to explain how special it was. I had been her law clerk 20 years earlier. She came and did an interview with me, and we decided to turn it into a book. And then we spent a year compiling the book, and it was a series of conversations about, hey, boss, what was your favorite case you argued to the Supreme Court? What was your favorite opinion you wrote? What were your other favorite opinions you wrote? And that was a long, ongoing conversation. And it was really fun because I would throw out an opinion and she'd say, no, no, no, not that one. That's good. That's a good opinion. But no, that's not one of my

favorites. So we had a lot of fun with that and then picking out her final speeches to include, which are really reflective. She's battling cancer in the end. She knows her days are not long. Hopefully they're longer than they turned out to be, but she's very much in a reflective mode. And so you get a real window into her thinking about the most important life influences on her personally and professionally. You get a window into her talking about what it means to be the child of immigrants, lots of, and how that connects to her passion and love for the country and her life of service. So it's a really special window into who she was. And to get to be with her on that journey and work with her was really,

really special. But it was also a redo of the clerkship in some respects. So for example, when you clerked for her, she would mark up drafts so much you couldn't see the typescript underneath. And then she would go through line by line, word by word with you and explain and teach what she was doing. That never waned. So in the final weeks of her life, I sent her a draft of the introduction. And she's in the hospital. She's not well. And it comes back completely covered in ink. And not only that, I had sent the pages to her assistant who printed out, she liked to work on hard copy, and they printed out my cover email. And that came back with corrections. So this is someone who your email, my email, to be clear, this is somebody who literally right up until the end was going full blazes.

She was all in and never did anything halfway and was still teaching me about how to be a good writer in the final weeks of her life. And I tell that story because it's funny, but I just, I loved her so much. I admired her so much. And I feel so lucky that I was able to have this special additional experience with her. We turned the book in three weeks before she died. And then I had to write an afterward after she died and take it to the final stages. And it became really a labor of love.

I mean, it always was, but it really was at that point. And so it's just been a real honor to have been on that journey with her. Now, if you want to switch gears and get to the, get to the notorious RBG, I like to put myself in the camp. We sort of segregate ourselves to the pre-notorious and post-notorious clerks. So I'm on the older side of her clerk camp. post-notorious clerks. So I'm on the older side of her clerk camp. And if you had told me that she would become a notorious RBG when I clerked for her, I would have laughed at you. She was so shy, so reserved, and just not the sort of person who sought the limelight. And in fact, ran the other direction screaming. So when this took off, it was like, oh my God, are you kidding me? Of all the people you would pick.

But I think one of the reasons she embraced it is because she was wise enough to realize that the American public is doing this with an octogenarian woman. And when has that ever happened? That is a really cool bookend to a life's work, fighting for gender equality and women being held out as leaders and given these opportunities to be prominent and make a difference in society. And here she's being celebrated for that in her, you know, 80s. And that was kind of cool. So I think that was a big reason why eventually she sort of came around to accept it and even arguably embrace it. And she particularly, I think, liked that kids were learning about her career and her work. And

so, for example, when you went to her chambers, she had pictures that kids had sent in of themselves dressed up as her. I was going to say, it was like the number one Halloween costume for nerds. Yes. And, you know, someone could look at that and say, oh, well, that's self-centered. And I don't think that's what it was at all. Obviously, I was her clerk. I loved her. I'm biased. But I really don't.

I think that she thought this is amazing that kids are learning about the Supreme Court. They're learning about the importance of fighting for things you believe in. They're learning about speaking up and calling out injustice as you see it in real time. about speaking up and calling out injustice as you see it in real time, that's what she hopefully had left as her, as her legacy. And to have kids learning about that is a good thing. And so I think that's why she loved it. And, and it's why when I was polishing off the book, I added an image that she, it was beyond the images she and I had assembled. And it's of a little girl saluting her when she was lying in repose on the steps of the Supreme Court. And the girl's dressed in a Supergirl costume. And I just think that's Justice Ginsburg's legacy

in one image. Well, two things. First, thank you for joining us. This has been just a real treat. Really, really appreciate it. And the other thing is, what does the clerk, what is the Ginsburg, is the Ginsburg clerk community intentionally sort of trying to maintain community? Are you guys, how are you guys as her former clerk sort of continuing on? Yes. I mean, I think each of us in our own way is trying to honor her legacy through our own work. All of us were her mentees. She taught all of us so much. And it's a huge group, and they're all doing fabulously interesting and important and impactful things. But then we're also plotting and continuing to have reunions even after she has passed. And we will keep doing so because it's an extraordinary group. And I'm really proud to be a part of it. It's funny because one of the last clerk reunions we had, of course, COVID cut everything off

to where we couldn't have one. But one of the last ones we had, she made mugs and they said team RBG. And so I think about that a lot when I think about being a part of the community that I'm, I'm on team RBG. I would be remiss. I mean, it's such a treat to have you on here. And we talked a lot about that vertical access that I think Mallory was decided on. But I don't think this is going to shock anyone after our previous conversation. You're liberal, relatively so. What was the decision that, I don't know,

either surprised you, you most disliked, or most liked, or whatever, on that ideological axis? This term? Yeah. Oh, that's a big question. She's like, can we do another hour? Boy, I will say there, I was pleased to see they got Moore versus Harper right.

Yeah. That was big. That would have upended elections in a very significant way. I was also pleased with the Voting Rights Act case. I think at the end of the day, and Justice Ginsburg said this in her Shelby County dissent, the most important right that we have is the right to vote. and so decisions that work toward opening up access to the franchise and make it harder to have elections jerry-rigged are the most important decisions and we got two good ones from my perspective this term and I was very pleased to see that. Well, that's pretty great. Professor Amanda Tyler from Berkeley Law School, clerked for Ruth Bader Ginsburg. Thank you so much for coming on Advisory Opinions and explaining all of this to us.

And I feel like we could now have an Advisory Opinions spinoff that's just Advisory Opinions colon FedCourts, like it's a law and order spinoff. Love it. Love it. I'm all in. I would really want that and do that with all of my time because this is really the neat stuff. Done, done. But I also know that your first love is soccer, as you mentioned. I mean, you're like the sportiest law professor I've ever met. And it's an important week.

We have to work. If we have another 30 seconds, the U.S. women are about to launch their attempt to win yet another World Cup. And their first game is Friday. Everybody needs to don their gear and watch and support U.S. women's national team. I am going to the final rounds of the World Cup in Australia, and I cannot wait to root on U.S. Women. Oh, wonderful. My youngest daughter loves soccer,

and she's been begging us to go to the, Nashville has an MLS team, and Nashville Soccer Club, NSC. And so I, right before she went to camp, I said, okay, we're going to go. And I went and I had an absolute blast. So I'm, I'm all in now on NSC on, on Nashville soccer. So yeah, it was, have you been to these MLS stadiums that they, they had these custom made stadiums around the country and you walk in and it's just a totally different

sports experience. It's really a lot of fun. Yeah. They're great stadiums. They're great stadiums. No, like David, Amanda's really into this. You don't understand. We have a new women's team coming to the Bay area in Northern California and I cannot be more excited. Oh, that's fantastic. They're expanding the women's professional league. So it's a really exciting time for, for soccer in the U S messy just landed on, on American soil is about to start playing for Miami. The U S women are going to retain knock on wood, retain their title at the world cup. It is a great time to be an American soccer fan. I just really hope we've left listeners with the realization that, um, none of their professors are as cool as Amanda Tyler. Like if you ever get the chance to take a classroom or obviously you

should jump at it, but like, I do feel bad for all the law students going into whatever class and being like, Oh man, don't have professor Tyler. Um, the books, I just want to mention them one more time. more time justice justice thou shalt pursue a life's work fighting for a more perfect union and habeas corpus in wartime from the tower of london to guantanamo bay um and professor tyler thank you so much thank you so much for having me this was great fun and i look forward to our fed court spinoff. Well, David, that was a real treat. Incredible. Like we have to have her on so much more. So fantastic. Loved it. And she's so clear when she's explaining this, it's so clear. And that's one of the, one of the signs of an excellent teacher is making a complex, a complex concept clear without oversimplifying it. And I thought it was so well

done. And our next episode is also going to be a real treat. We have Judge Charles Eskridge from the Southern District of Texas joining us. I'm giggling because I don't know whether I want to spoil how hilariously fun that episode's going to be, but I'll spoil it a little. that episode's going to be. But let's, I'll spoil it a little. We're going to talk a lot about doors. Like literal doors. Not a legal doctrine called doors and not the old musical group, The Doors.

The things you use to shut places and open places. And it's not even Nerd August yet. That's right. So this is going to be huge. It will come out a day later than our normal schedule. So I know we've already been tossed up in the air because of SCOTUS, but we're now back on regular schedule, but then this one won't be. So sorry about that, but you'll be getting that a day late.

But I think it'll be fun. Bye.