Strict Scrutiny - Criminally Petty
Episode Date: January 13, 2020Kate and Melissa preview the January sitting, including Bridge-gate, some fashion-y trademark cases, and whether they count as “older workers” for purposes of the ADEA. Plus, RBG and Sotomayor sig...htings in the wild. Follow us on Instagram, Twitter, Threads, and Bluesky
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Mr. Chief Justice, may it please the court.
It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.
She spoke, not elegantly, but with unmistakable clarity.
She said, I ask no favor for my sex.
All I ask of our brethren is that they take their feet off our necks.
Welcome back. This is Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm Melissa Murray.
I'm Kate Shaw.
And we are your co-hosts today. We are without Jamie and Leah, but fear not,
we are with a full slate of fantastic Supreme Court news and court culture. What do we have
on deck today, Kate?
Okay, so we're going to start with some breaking news, both inside and a little bit outside the court.
We will then preview the January sitting.
A few cases, there are a bunch on deck for January, so we're going to preview just a subset of them.
And we're going to end with some court culture, specifically justices in the wild.
Ooh, excitement.
So for breaking news, our first bit of breaking news is about an update to the Equal Rights Amendment.
So as many of you know, Virginia seems poised to become the 38th state to ratify the Equal Rights Amendment.
And if that's the case, it would be the last state needed to ratify the amendment.
So for those of you who aren't familiar, the Equal Rights Amendment had its real push in the 1970s.
And then it kind of faltered amidst a huge campaign propagated by American housewife Phyllis Schaefeli.
There's about to be a new movie with Cate Blanchett playing Schaefeli.
But in any event, the ERA had a clause in it that the legislatures of three-fourths of the several states would ratify the amendment within seven years from the date of its submission by the Congress.
And then they set that deadline as 1979.
In 1978, Congress extended the deadline by three years with support from President Jimmy Carter.
Carter was not constitutionally required to lend his support, but he did so as a symbolic matter.
Nevertheless, the ERA failed to get support from the requisite number of states to be ratified as an amendment.
But in recent years, that kind of interest in the ERA has been revived, and advocates have revived the effort to
ratify the amendment, saying that Congress could either retroactively cancel the deadline or that
the original deadline itself was invalid. However, here's the wrinkle, the DOJ has weighed in and it
disagrees. In a memo that was posted on January 8th, Assistant Attorney General Stephen Engel wrote that Congress is required that the ERA resolution be ratified within a fixed period.
And whether the effective deadline was in 1979 or 1982, that time has come and gone.
The memo takes the position that there is only one clearly legal way for the ERA to continue, to have Congress restart the process by reproposing the amendment to the states. It does consider the possibility that had been previously endorsed by the Office of Legal
Counsel in the 1980s that ratification could remain open if both the House and the Senate
approved a joint resolution removing the original deadline, but it also suggests that it is extremely
skeptical of that being a legal alternative. So with the Trump administration on one side and the state-level advocates on the other, we are shaping up for a pretty big fight
about whether the ERA can go forward. And there's a question. So the Office of Legal Counsel is
obviously not the final word on the permissibility of this route to ratification. So I think there
are questions. One, arguably it is Congress and not the Office of Legal Counsel that has the final
word as to the mechanism of ratification.
But it is also the case that you could imagine a court being asked to provide a definitive resolution.
And so there I think the question is how this dispute could get before a court in the first place, right?
Does the attorney general of a ratifying state bring a suit?
Which has happened in the past.
Sure.
Does a plaintiff who's been discriminated against file a claim under the 28th Amendment, which she claims has been properly ratified?
So the reason this is before the OLC is because the archivist of the United States has asked the OLC to weigh in because the archivist has this kind of ministerial role of certifying an amendment for inclusion in the Constitution once it's been ratified.
So I do think the archivist will abide by the ruling of OLC.
But as you suggested, this is a fight that this is not in any way the final word on.
Stay tuned.
OK, so other breaking news, some impeachment updates.
Wait, are there impeachment updates?
You know, so we're recording on Friday. We're going to drop this episode on Monday. So the landscape could have shifted.
I think it seems for the moment as though we are moving toward a trial in the Senate in the next week or two. So as folks
probably know, House Speaker Nancy Pelosi decided to tap the brakes a little bit after the full
House approved articles of impeachment. And it seemed as though she had done that hoping to get
some leverage in order to get Mitch McConnell to agree to some conditions for the trial, in particular, the appearance of witnesses. It doesn't seem as
though any such agreement is forthcoming, at least at this stage. Although John Bolton came out of
nowhere saying that he wouldn't mind testifying if he were subpoenaed. Right, by the Senate,
right, very specifically. He didn't, you know, sort of implicitly seem to suggest he would be
less receptive to such an invitation or subpoena from the House.
But it does in some ways vindicate Pelosi's slow walking effort.
If both additional facts emerge and potential additional witnesses come forward, it suggests that this delay has some value for her.
And yet I think that as the days drag on without any major further developments, her members seem to be getting a little restive, right?
It seems as though there is increasing pressure to simply send those articles over to the Senate so the trial can begin.
So I think that's likely to happen very soon.
What do they have to do besides sending over the articles?
What else does the House have to do?
So importantly, they need to appoint impeachment managers.
So those are like the prosecutors who actually try the case before the Senate, which sits as judges and jurors. And historically, that's been a group of House members. I think there were seven in the
Johnson impeachment and maybe 13 in the Clinton impeachment. Lindsey Graham was a manager.
So they were all drawn from the Judiciary Committee back in 99. I think very likely some
will come from Intel, at least Schiff seems like he's going to be in the mix. And then,
you know, it seemed as though at least in December, there was some talk of potentially Justin Amash, the only independent who joined the Democrats to approve the articles
of impeachment, whether including him on the team of managers might lend some sort of bipartisan
feel to the process. What's the over and under on Val Deming? So she had an incredibly impressive
showing in the impeachment debates and hearings, but she's not a lawyer.
It's typically lawyers, but that's certainly not required. So, and I imagine that the speaker is
going to want a diverse coalition and I think that she was impressive. So I don't know if she's
angling for it. You know, like I think this is a very political process behind the scenes and a
lot of members are appealing to Pelosi. So, you know, it depends on, and I think that there's benefits politically to some of them to this very high profile role. But I think that
some from swing districts probably have no interest in being sort of visible and present. So I think
it's a complicated decision. But in any event, she's likely to make that decision next week.
And the trial could start, you know, the next day. So who will be the president's lawyers?
That's a great question.
I mean, I think we know that White House counsel Pat Cipollone is going to play a major role.
And Jay Sekulow, longtime lawyer of the president, has suggested he too will be involved.
Will Rudy Giuliani also, a personal lawyer of the president, be involved?
That is a big question.
He has certainly suggested he's interested in playing some role.
I got to believe at the end of the day that Cipollone is going to prevail upon the president,
that it is not to his benefit to have Rudy Giuliani.
It would be such a reality TV show.
Right.
Which obviously is the president's sort of origins and he is, you know, he's a creature of reality TV.
So that is not necessarily a demerit in his estimation, I imagine.
And I'm sure he cares about the ratings of this thing.
And it is certainly true that Rudy Giuliani would get good ratings.
Stay tuned. Stay tuned.
I mean, I should say the one little historical tidbit I will offer is that Andrew Johnson,
the first president to be impeached and tried, had this just insane defense team. So he had a
former Supreme Court justice. He had two former attorneys general. He had two of the most esteemed
private lawyers in the country. I don't think we're looking at that caliber of legal team
representing the president in this trial.
Kate, with a little bit of shade, put your umbrella down, Kate.
Onward.
So there are also some updates and some pending cases before the court, specifically June
Medical Services v. G.
This is that abortion case from Louisiana that we've talked about in earlier episodes.
It has been set for a March 4th oral argument and briefs in support of Louisiana's admitting privileges law
are now in. We will do a deep dive on the case after oral argument. So let's just flag a couple
of things now. The Solicitor General's brief is in and it argues in support of Louisiana that the law should be upheld. Curiously, there is no federal law involved here.
So the SG really doesn't have to be in on this case, but it has filed a brief.
And that itself is not necessarily surprising.
The Obama Solicitor General's office filed a brief and argued on the side of Whole Women's Health,
the abortion clinic, in the predecessor case, Whole Women's Health versus Hellerstedt.
So in that brief, the Solicitor General, arguing on behalf of the Louisiana position, argues
that the doctors and the clinics that brought this case lack standing, that there can be
no third party standing in a case like this.
First, we have talked before about this third party standing question.
This is a really interesting development in this case.
The court itself added in this question about third-party standing.
Louisiana had not pressed it below.
The Solicitor General cites only one mention of the doctors having standing in – that was in the Fifth Circuit opinion.
It says the physician's plaintiffs have standing to assert the rights of their prospective plaintiffs, patients, excuse me. And it says that that's enough to raise this
question. I don't know, seems a little thin and sketchy. But again, the court was really keen
to present this issue and the Solicitor General's office looks like it's ready to dance. And again,
it goes to, I think, the merits of the question of whether these kinds
of regulations on abortion actually benefit the patients and whether doctors are part of that
calculus. The case itself is going to be focused on what the extant abortion precedents whole
women's health, Casey, mean. And the Solicitor General's brief goes right into that, arguing that
the Louisiana law at issue here is distinguishable from the Texas law that was struck down in Whole Women's Health.
They're very similar to each other, but the Solicitor General's position is that they are distinguishable.
And if the court concludes they are not distinguishable, the Solicitor General has argued that Whole Women's Health should be narrowed in its ruling or alternatively overruled entirely.
But it doesn't say anything that would urge the court to go further to also narrow or overrule
Casey or Roe. There is also an extremely testy, I think you'd call it, Kate brief from June Medical
Services suggesting that the state, Louisiana, is relying on extra record evidence
in its arguments and that it should be required to file a new brief redacting all of that additional
material. Yeah. And we should say, right, that's Louisiana's merits brief in this case
cites a lot of evidence from what it calls a supplemental brief and then drops a footnote
saying, at the same time as we're filing this brief, we're filing a request to lodge this supplemental appendix.
But it has included a lot of material from this appendix in its brief.
So that's now there before the justices.
That's very unorthodox.
Some of the things it offers as facts in this supplemental appendix are hotly contested.
And haven't been vetted.
Haven't been vetted. Haven't been vetted. The court does not sit to resolve in the first instance disputed facts.
And June Medical Services seems to be attempting to save the court from this unorthodox and excessive labor of resolving these disputed questions at the merit stage before the Supreme Court.
And so they're saying they should be required, Louisiana should, to file a new and redacted brief, or at the very least,
June Medical Services should get to file its own response to some of these hotly contested claims.
So it could get messy in the filings even before this case is before the court for oral
argument.
All right.
So that's a terrific bridge to the next point.
There's another brief in this case that should draw your attention.
And this is a brief from 207 members of Congress.
And they are represented, interestingly enough, by the group Americans United for Life, which interestingly helped to draft the law that is challenged here and indeed have drafted a lot of the laws.
All of these laws that look just like this.
Right.
So they draft a lot of these laws as model legislation that can then be enacted by various states. But they are representing these 207 members of Congress,
205 Republicans, plus Dan Lipinski of Illinois and Colin Peterson of Minnesota, who are sort of
blue dog Democrats. The Americans United for Life has also filed its own amicus brief. So I don't
know if this is technically double dipping, but they're
definitely all in here. But this brief from the 207 members of Congress says that Roe and Casey
should be reconsidered and overruled. So not as nuanced as the SG's brief, but very focused on
getting to what they see as the endgame, getting rid of these precedents entirely. And it's not necessarily the typical thing for Congress to weigh in on a Supreme Court case, although Sheldon Whitehouse
of Rhode Island and Mazie Hirono of Hawaii also joined together with some members of Congress to
file a brief in NYSERPA, the Second Circuit gun case that we talked about earlier this year. So
there is precedent for it, but it's typically not done.
I think it's increasingly done. You know, I'll be curious. This is a great maybe note topic.
This is a great note topic.
If someone's looking, because I do think that there have been these briefs periodically. It
seems to me as though there's been an uptick in frequency, but I haven't seen any actual
empirics on it.
So in Windsor, was there a brief of the congressman? Because like they were also
representing.
Well, there was this entity called BLAG, the Black Lives Matter Legal Advisory Group.
So they were parties to the case.
Was there a separate amicus brief that other members filed?
I don't remember either.
But certainly there have been plenty of cases in the last decade that have involved amicus briefs by members.
This would be a terrific note topic for a second-year law student.
So don't all jump to it at once.
But great topic.
Great. Okay. So another case that we thought we would flag is Texas versus United States,
which is the latest potential Obamacare case on its way, again, potentially to the Supreme Court.
So this is a case that involved a Fifth Circuit opinion issued in December. And actually,
maybe let me give a little bit of background here.
So back in 2017, the Republican-controlled Congress, lacking the votes to actually repeal Obam the chief justice saved Obamacare by declaring that the penalty for failing to comport with
the individual mandate was a tax, right?
So even though the law exceeded Congress's Commerce Clause power, the law could still
be saved as an exercise of Congress's power to tax.
So after the GOP-controlled Congress made the penalty zero, some enterprising red state attorneys general
filed a lawsuit arguing that because the whole thing had been upheld on this tax theory,
the fact that there was no longer a meaningful tax meant that the whole program was unconstitutional.
So these AGs were then joined by the Trump administration, one in the district court,
and then one in the Fifth Circuit, which agreed with the district court that the law was unconstitutional but remanded for the district court to decide whether some of it could be saved under a severability analysis.
So there are lots of problems with the Fifth Circuit opinion as there were with the district court opinion.
But we can tackle those in due course.
I think right now the big question is whether the Supreme Court might hear the case this term.
I assumed they would have no interest in doing so.
So some states with democratic AGs and also the House have intervened in the case and they filed a cert petition combined with a motion asking the court to expedite its consideration of the petition.
And I thought the court would just let this play out in sort of the ordinary course but in fact asked for a response by Friday, the day that we are recording.
So the justices have a conference today.
They won't be able to consider, I don't think, this case today but potentially a week from today when they have another conference.
That's on Friday the 17th. So I think at least in theory, if they wanted to, they could hear, because there
aren't enough big high-profile cases this term, another big challenge to Obamacare during the
2019 term. So in the next episode or the one after, we all know for sure what they're going
to do on that, but flagging that it's in the pipeline. Okay. So then I mentioned that they
are conferencing a bunch of, so they're considering taking a bunch of other cases today.
And two cases that actually are scheduled for today's conference are two post-Masterpiece Cakeshop cases on LGBT equality, religious objections, sort of these kind of collision of liberty and equality questions that the court largely sidestepped in Masterpiece Cakeshop.
Largely. Totally.
Sidestepped. Was able to sidestep. So one of these cases looks a lot like Masterpiece Cakeshop. Largely. Totally. Sidestepped. Was able to sidestep.
So one of these cases looks a lot like Masterpiece Cakeshop, right? Arlene's Flowers
versus Washington. This is another wedding vendor case, right? In Masterpiece Cakeshop,
we were talking about a baker. Here we're talking about a floral designer who argues that her First
Amendment rights to free exercise and free speech are undermined by a state requirement that she
take part in and custom create floral
arrangements celebrating same-sex weddings.
It's not a law about same-sex weddings.
It's a standard public accommodations law that requires anyone doing business in the
public to do business with all comers and not discriminate on the basis of race, sex,
religion, and sexual orientation.
Right.
And that's important.
It's a state public accommodations law.
So too is the law at issue in Colorado.
So these are not actually sort of constitutional principles in exact conflict, right?
It's not as though a constitutional right to these services is being asserted on the
part of the same-sex couples.
There's a state public accommodations law that requires, right, sort of all comers be
served equally.
The same-sex couple at issue in this case, as was the case in Masterpiece Cake Shop,
was denied service.
And the law – the lower courts in both cases found that the state law required service
to be provided on an equal basis.
And so these are First Amendment arguments against the enforcement of these laws, right,
against these vendors.
This case was actually before the court.
Once before, the court GVR'd, right, granted, vacated This case was actually before the court once before.
The court GVR'd, granted, vacated, remanded, sent back down to the Washington court.
In light of Masterpiece.
In light of Masterpiece Cake Shop.
Lo and behold, Washington adhered to its earlier determination.
I said what I said.
Exactly.
And cases back before the court.
You know, I don't know.
As we said, the court sidestepped the big questions in Masterpiece Cake Shop largely by identifying what it believed to be indications of anti-religious animus on the part of some Colorado administrators who had been involved in the sort of state level adjudication of these claims.
I don't know. There may be a sort of analogous off ramp in this case.
I'm not sure. I could see them taking it up and once again sort of avoiding the big questions.
Remember, Masterpiece Cake Shop 2 was a 7-2
and not a 5-4 decision.
It was a 7-2.
Kagan and Breyer wrote separately
but did join in the ultimate holding of the case.
I think the linchpin there was Justice Kennedy
who was at great pains to preserve the legacy
he created with Lawrence, Windsor, Obergefell, and did not want any part
of this because he also had written a number of decisions in favor of religious liberty. And he
relied on one of them, Church of Lukumi, extensively in Masterpiece Cakeshop. So I think the real
question here is what does the departure of Justice Kennedy mean for how the court is feeling
and its appetite for these kinds of cases?
Absolutely.
Well, so there's also another case in addition to Arlene's Flowers,
and this one involves a Catholic social services agency that places children for adoption,
and it had a contract with the city of Philadelphia,
and the city revoked its contract when it was determined that the social services agency was not placing children with same-sex couples as foster parents.
So, again, same kind of question about this collision of religious liberty and LGBTQ equality here.
And so these cases, I believe, are being considered in tandem.
They raise very similar questions.
And, again, we will see what happens.
Yeah, but considered in tandem is interesting. I mean, I hope that the court does not do
what it has seemed sort of oddly inclined to do this term, which is to combine cases that
raise broadly similar questions. But are actually quite different.
But are actually quite distinct and should not be considered together. And so,
you know, we've talked about this in the Title VII cases. That's the case with the three distinct
presidential tax request cases. And I hope the court does this in the Title VII cases. That's the case with the three distinct presidential tax request cases.
And I hope the court does not do the same thing here.
Well, I mean, there is an interest in judicial economy.
But these cases are broadly similar.
But again, something very different about the speech elements of a case involving what could be considered artistic expression and this case, which is about the placement of children in foster care.
Okay. So is that it on breaking constitutional news?
Well, there is some breaking news about an unwritten constitution that we could probably talk a little bit about.
What unwritten constitution are we talking about?
So across the pond, our friends in Britain are embroiled in what I think could rightly be described as a constitutional crisis.
The Duke and Duchess of Sussex, a.k.a. Meghan and Harry, have issued a statement saying that they are planning to step down or step back as senior royals in the royal family and seek a new role, one that will allow them to pursue financial independence of the British crown and to live transatlantically in North
America and in the UK.
And this has set off like a huge maelstrom of activity in Britain.
But I don't know why everyone is so surprised.
They have been signaling for quite a long time that they are ready to do something like
this.
It's no secret that they have been absolutely
dismayed by what has been, I think, the unfair and often quasi-racist, fully racist treatment of
the Duchess of Sussex by the British tabloid press. And they've signaled that very clearly.
They've spoken about it openly. They filed a lawsuit against the tabloids. And they've received no support from the royal family on these fronts.
And they seem to want to do their work.
They have found lots of open avenues and other places and welcoming arms.
Justin Trudeau wants them to hang out in Canada on a long-term basis.
It's not surprising that they would extract themselves from this institution
that really seems to be inhospitable and inhospitable in some really particularly awful
ways. So why this assumption that Canada is their likely? So they mentioned North America.
Why are they not? I mean, are they considering like, is New York City a possibility?
I mean, Megan, I'm saving a mat at Yogamoda for you.
Do you actually go to Yogamoda?
I have gone to Yogamoda.
I might go after we do this podcast.
You want to go?
I will go.
So I think they said North America.
They have lots of things they could do in North America.
Obviously, she's from L.A.
They could go to L.A.
I think Canada seems safest right now because it's still a Commonwealth country and it doesn't represent such a seismic break with the royal family.
And previous royals have gone to Canada.
So Princess Louise, who was a daughter of Queen Victoria, was the wife of the governor general of Canada.
Her husband was the Duke of Argyle and they went to North America and he was the governor.
The Duke of what?
Argyle.
Argyle. Argyle. And he was. Dear listeners, I should say,
this is literally only about one level deep
on Professor Murray's royals expertise.
Like it goes way deeper than this.
I am multi-talented.
I'm not just.
I know this, but I'm not sure all our listeners do.
And I'm glad you're giving them a little glimpse.
Well, I mean, the second podcast that we launch
is going to be full royals all the time.
You're going to have to find me a co-host for that one.
I mean, at least, I don't know.
I'm not going to speak for Lillian Jamie.
I'm going to be useless on that podcast.
But I think you should think about doing it.
Thinking.
All right.
So I think Sussexit, as it's called, is probably an interesting bit of unwritten constitutional law.
I love it.
I love it.
I think we found a totally legitimate jurisdictional hook for that segment.
Okay.
So we've got a big sitting coming
up in January. What are we looking at? So January is the hardest month. I hate January
because it's no longer the holidays. It's not the festive season. You're literally in the middle of
winter. It's just yawning before you. It's awful. And happily, SCOTUS feels your pain because it's slated a number of reasonably interesting cases for January.
I don't disagree.
There are some that are reasonably interesting.
It's not a blockbuster city.
And this term is so packed with huge cases.
And it also just feels like the world is on fire more broadly, right?
Like the impeachment trial is starting probably next week. Australia is on fire, literally. We're having a war. Or this
at least intense confrontation with Iran right now. The court is poised to decide the future of
the legal protection for abortion, the president's susceptibility to some sorts of legal process.
All of that is happening right now. And I actually find something comforting in the court hearing a series of relatively low-octane cases in the month of January.
This is a chamomile tea sitting.
Exactly.
It actually is.
Sleepy time sitting.
Okay.
So I want to preview a couple of cases that I think readers may gloss over because they are not really sexy, but they're fashion-y if you really dig into them. So I have been obviously preoccupied with whether Chief Justice Roberts is going to take a leaf out of Chief Justice Rehnquist's impeachment playbook
and go full-on SCOTUS version Billy Porter at the impeachment trial.
I don't know how this will wind up, but I think he's signaling something to us with slating these two cases for the January sitting.
So these two cases are about January sitting. So these two
cases are about the ins and outs of the fashion world. So the first case is Lucky Brand Dungarees
versus Marcel Fashion Group. And the second is called Romag Fasteners versus Fossil. And at first
blush, they present some very dry issues of law, but they have large implications for the world
of fashion. So let me go into Romag
Fasteners versus Fossil. It's a trademark infringement case. Romag Fasteners is this
family-owned business that has patented the magnetic fastener that you see used in many
purses and wallets and other accessories. Fossil, as you know, is a company that makes handbags,
watches, other accessories. They contracted with Romag to have
Fossil's Chinese manufacturer purchase these metal magnetic fasteners from Romag's Chinese licensee.
But interestingly, when the Romag folks did a casual stroll in a Macy's department store,
they came across some Fossil handbags with counterfeit magnetic fasteners.
So they sued Fossil for trademark infringement under the Lanham Act.
And they prevailed in a jury trial in which the jury recommended an award of about $90,000
of Fossil's profits under an unjust enrichment theory and an award of about, wait for it,
6.7 million of profits to deter future trademark infringement.
And so it then went to a bench trial to consider the jury's recommendations,
and the district court held that under extant precedent, an award of profits for a violation of Section 1125A of the Lanham Act
requires that the defendant acted willfully, and the U.S. Court of Appeals for the
Federal Circuit affirms. So the issue before the court here is really an issue of statutory
interpretation, whether the Lanham Act requires the defendant's willful infringement as a condition
for damages award under Section 1125A. And Romag argues that the express language of Section 1117 of the Act, which states that
profit awards are available subject in all cases to principles of equity for, among other
things, a violation under Section 1125 A or D of this title or a willful violation under
Section 1125 C of this title, explicitly makes clear that while there is a requirement of a willful violation for a profits
award under Section 1125C, there is no similar requirement under Section 1125A, which is its
claim. Contrast this with Fossil's argument, which focuses on the legislative history.
It argues that the cause of action for trademark infringement historically obligated infringers to disgorge profits only when the plaintiff proved that there had been willful conduct. And most
agree that the Lanham Act was enacted with that history in mind and that the references
to principles of equity require the courts to interpret the limited language of the act in
light of these pre-existing judicial understandings of responsibility. And Romag is arguing that it's not as cut and dried as all of that, but Fossil actually
has a very high-profile amicus on its side.
Stanford Law professor Mark Lemley has turned in a powerhouse amicus brief that weighs in
in favor of Fossil and lays out this very long and detailed history around the Lanham
Act. So
stay tuned if you care about how your purse closes and whether that magnetic fastener is
counterfeit or not. And I would say stay tuned for the argument because Lisa Blatt and Neil
Katyal are the lawyers who I think will be arguing the case and they're both excellent.
Who are they arguing for? Who's on what side?
So Lisa is Romag's lawyer and Neil Katotschel is arguing for Fossil.
So big guns on both sides.
Definitely.
Bet the company litigation.
There's also another fashion-ish case, Lucky Brand Dungarees versus Marcel Fashion Group.
And this caught my eye because I love Lucky Brand Dungarees.
Like they're the only jeans I've ever found to fit me.
And so we might think of this case as dueling shamrocks because Lucky Brand Dungarees
makes jeans and other clothing and on the fly of their jeans they have this cheeky Lucky You
tag that's sewn into the zipper placket. Marcel also makes apparel and like Lucky Brand it owns
a number of various trademarks related to the term Lucky. And so the litigation in this case
began between the two parties in 2001 when Marcel sued Lucky Brand
for infringing its Get Lucky trademark. And let me just stop here and say, if you are going to
risk the company and risk a trademark liability suit, it should be for using Get Lucky as your
tagline. Like, that's the only— It's worth a little risk. It's worth the risk. So props to you all.
So the litigation between the parties begins in 2001 when Marcel sues Lucky for infringing the Get Lucky trademark.
It ends in a settlement.
Then in 2005, there's a second lawsuit when Lucky sues Marcel based on a license Marcel
had issued for its use of the Get Lucky mark, Marcel counterclaims, a trademark infringement claim,
and asserts that Lucky had violated the prior settlement agreement from the 2001 suit.
Lucky moved to dismiss, arguing that, among other things, that there had been a release
covering these new counterclaims.
The district court denied the motion to dismiss as premature, and in its answer, Lucky raised
the release of those claims as an affirmative defense.
It did not raise the release defense again in the 2005 action.
The case went to trial.
The jury rendered a verdict in favor of Marcel on the counterclaim, and the court entered an injunction against Lucky.
Lucky never appealed that 2005 judgment.
Still with me. Now fast forward to 2011. Marcel again files a lawsuit,
the current lawsuit, which claims that Lucky's continued use of certain trademarks violates the
injunction that had been entered in the 2005 lawsuit. Lucky does not raise the release as a
defense in its answer to the 2011 complaint or in its initial summary judgment motion.
Instead, it moves for summary judgment
on the ground that Marcel's claims are
barred by claim preclusion, which
prevents the relitigation between two parties of claims
that were or could have been resolved in a prior lawsuit.
The district court agrees.
The Second Circuit reverses and then remands,
reasoning that the alleged infringement at issue
occurred after judgment in the 2005
action was entered.
And so Marcel couldn't have raised those claims earlier.
Still with me.
Now on remand, Marcel has amended its complaint.
Lucky has moved to dismiss.
And it's now arguing that Marcel's claims were barred by the release, the release that
it has not mentioned since its answer in the 2005 case. So the question here is
really a claim preclusion question, like a race judicata, a standard civil procedure question,
whether when a plaintiff asserts new claims, do federal preclusion principles bar the defendant
from raising defenses that were not actually litigated and resolved in any prior case between
the parties? So the justices have to decide whether the release defense satisfies the same claim requirement as the Second Circuit
concluded it did, precluding Luckey from raising these defenses in the 2011 suit. So super dry,
but also kind of fashion-y and fun. And RBG will love this. She will totally love this.
Exactly in her wheelhouse. If you did not know this, RBG is a total expert in civil procedure.
She spent a bunch of time in Sweden working on Swedish civil procedure.
Comparative civil procedure, like in her 20s.
She's all in on this.
And I bet she has some lucky jeans in her closet.
And she's obviously a fashion icon.
Obviously.
And so this is her moment.
I'm just here for the jeans.
Okay.
So let's talk about another case that's also
on deck for the January sitting, and that is Kelly versus United States.
So anyone who was living in the New York area in 2013, and I'm curious, Melissa, you weren't
living in the New York area in 2013, but I'm curious how national a story this was. It was
huge here. So basically the line, time for some traffic problems in Fort Lee, was like the most famous line of the year 2013.
So did this story penetrate like the West Coast?
It did, mostly because I think the Bay Area is like New York City and New Jersey, linked by bridges.
So bridge drama is something you all can relate to.
Well, can we?
Do we?
Our bridges are a total nightmare.
Okay.
Yes.
Yes. All right. So for folks who either sort of hazily remember this, I kind of had to get back up to speed, but then it sort of, it all came back to me.
Flooding back.
Or don't remember it at all. So the events at issue in this case involve the George Washington Bridge. So that is a bridge that looms over northern Manhattan. It connects New York City to New Jersey. It has 12 lanes of traffic. It is the busiest bridge in the world.
It's a beast.
And on the first day of school in September of 2013, with no advance warning, commuters from New Jersey to New York had a rude awakening.
So normally of the 12 lanes on the GW Bridge, nine feed from a bunch of different highways that run through New Jersey, including I-95.
And the other three of 12 feed to the bridge from the streets of a town called Fort Lee, New Jersey.
But on this lovely fall day, Fort Lee's usual three lanes were reduced to one lane.
So the other 11 were flowing from I-95 and these other interstates, just one lane from Fort Lee.
And this led to total gridlock in the streets of Fort Lee.
So kids were stranded on their way to the first day of school. Paramedics were getting out to walk to respond to emergency
calls. There was absolute chaos. Nothing had been seen like it since September 11th. And people were
confused and scared. And no one understood why this was happening.
So who directed this sort of reallocation of lanes and why. So an entity that is called the Port Authority
is central to this story. So the Port Authority is this odd bi-state agency that was created by
a congressionally approved interstate compact between New York and New Jersey. So it manages
the bridges and tunnels between New York and New Jersey. So the directive to change the lane
configuration had come from three people. David Wildstein, who is then New
Jersey Governor Chris Christie's chief of staff, Bridget Kelly, who is the deputy chief of staff,
and Bill Barone, who is the deputy executive director of the Port Authority and the most
senior New Jersey official. So again, it's this bi-state entity. The executive director comes
from New York. The deputy executive director comes from New Jersey. But the way the briefs
describe this configuration, they're essentially co-equal heads of the Port Authority, one from each state.
So these three told career officials at the Port Authority that they needed to change the lane
configuration in order to conduct a traffic study. And that is a story that they initially told
publicly. But a great deal of evidence quickly emerged suggesting, and the jury in these cases
presumably found, that the reason that they had implemented this change was that Fort Lee's mayor had declined to endorse Governor Chris Christie for reelection and members of Christie's inner circle wanted to punish him for that.
So wait, wait.
Time out.
Now we got to change the name of this case from Kelly versus United States to Petty versus United States because this is so petty.
It is so petty.
And that is actually like the briefs don't deny that, right? Petty,
insensitive, ill-advised, right? Like the lawyers for these two, Barone and Kelly,
seem to admit all of that. But the question is, was it also criminal, right?
We're totally petty. But are we in Orange Jumps?
Are we criminally petty, right? Like in some ways, that is the best distillation of the question at the heart of this case.
So as this scheme kind of comes to light, all of these three folks lie repeatedly and publicly, including to government officials, that this was all about a traffic study. And at the same time, they're engaging in lots of communications that later come out that make clear this was a cover, right?
So Barone testifies before the state assembly that two police officers requested this study. And they're doing this all
over email. Email, text messages. Yeah, no, definitely ill-advised. So eventually all three
of these officials are fired and they're subsequently criminally charged. So Wildstein
quickly takes a guilty plea. He cooperates in the prosecution of Kelly and Barone.
So they go to trial and both Kelly and Barone are – they're each convicted basically on wire fraud and fraud on federally funded programs and related conspiracy charges. They're sentenced to 18 months
and 24 months respectively. The Third Circuit affirms for the most part but they both remain
out pending the outcome of their appeals before the court. That's nice. Yeah, it is. I'm just
going to put that out there. So, okay. So what was the fraud exactly, right? So again, it's wire
fraud and then fraud on federally funded programs. But how do the prosecutors describe the content of
the fraud? The government basically argues that the fraud consisted of the lies they told about
a fake traffic study and then the attached hijacking of Port Authority resources.
So in particular, the labor of Port Authority employees were pressed into service to execute and conceal the scheme and then the actual material costs associated with doing it, right?
So they had to hire a different toll operator because of this reallocation. And they actually required Port Authority staff members to
try to drum up this kind of after-the-fact study to justify this thing, ex post.
It's never the crime. It's the cover-up.
It is. Yeah. I mean, here it is kind of both. And they argue, and they have very good lawyers,
and they filed very good briefs, that the cost, these labor costs of a couple of staff members
are so trivial. We're talking about $2,000 or $5,000 or $7,000 in the aggregate that, you know, it is grossly disproportionate to attach these kinds of federal criminal penalties to these acts and to sort of – to call that the kind of harm to the government.
Anyway, they actually did dispute some of these facts at trial.
But here, as I said, this kind of – Kelly's brief actually suggests this may all have been petty, insensitive, ill-advised.
But basically rests their argument on this very broad claim that the prosecution here represented the criminalization of ordinary politics.
That they may have been acting to punish a mayor for his refusal to offer political support.
But politicians act out of mixed motives or purely political motives all the time.
And you cannot criminalize that without criminalizing all of politics. That is the
argument they're making. And this is a case that has been kind of floating around impeachment
debates, including conversations that you and I have had on ABC, including with Chris Christie,
who obviously is a central player in this case. And was the one who raised McDonald when we talked
about it. There are a bunch of things that the governor in this Virginia case provided to this campaign donor, Johnny Williams, in exchange for cash gifts and loans.
And kind of meetings with Virginia government officials were kind of central to the official acts that he was charged with taking in violation of law and that the Supreme Court found were not sufficiently official to
justify liability under the criminal statutes. And so there's this exporting of that logic to
the impeachment context. And I think it got some traction. I do think it's part of the reason that
the House didn't formally charge bribery because it was the bribery statute that contained the
language official act that McDonnell was sort of vindicated through this narrow reading of the term official act.
And so it is all connected.
And so to go back to Kelly.
Back to Kelly.
Back to petty versus the United States.
Petty but not criminal.
Petty but not criminal.
And also criminal.
Or maybe.
And so, OK, so what else?
The lawyers also pull in cases like the census citizenship case and Trump versus Hawaii, the travel ban case.
The mixed motives. the official justification of protecting the Voting Rights Act was a pretext, but that he could have been prosecuted criminally for offering a pretextual justification to conceal his political
motives. It is interesting that despite the fact that the president's defenders have used similar
logic in defending the president's conduct in the Ukraine affair, it is the DOJ, the Trump
administration's Justice Department that is defending these prosecutions.
So they are arguing, no, these prosecutions, you know, there are lots of ways to cabin what happened here from the sort of range of conduct and maybe sometimes, you know, corrupt-ish political conduct that would not support, charges. But there is just something that is – I think it's very possible that there's so much McDonnell in this case. And McDonnell, remember, didn't just
win in the Supreme Court. He won unanimously in the Supreme Court. The Supreme Court unanimously
reversed his conviction or convictions. He'd been convicted, I think, a number of counts.
And I think it's possible that they could attract pretty broad support from the justices.
And I just think there is something that is the kind of vision of the way politics is done that
is contained within these briefs that is not just transactional, but self-dealing as an essential
feature of it, an essential feature that the law cannot touch. I find it so depressing and so
depressing that the Supreme Court might enshrine within the law these touch. I find it so depressing and so depressing that the Supreme Court might
enshrine within the law these kinds of assumptions about the kind of ordinary behavior of political
actors. It's just like so dispiriting and so cynical. And yet I think there's a decent chance
that the court buys it. Petty wins. I mean, you know, again, I'm happy we're not really making
predictions, but I feel like petty is going to have a real shot in this case.
All right.
Go, Petty.
All right.
Final case, Babb v. Wilkie.
I'm going to be pretty brief about this.
So this is a case that I think is interesting by itself but also because it is of a piece with a case we previewed earlier on an earlier episode, Comcast versus National Association of African
American Owned Media, also known as the Byron Allen case.
The Byron Allen case, if you recall, involved a provision of the Civil Rights Act of 1866.
And the question there was whether a plaintiff, in order to present a claim, had to prove
that racial discrimination was the but-for cause of the other party's refusal to contract, right?
So whether you just had to show that racial discrimination was part of the rationale or whether it was the but-for cause of the rejection.
Babb v. Wilkie concerns the Age Discrimination and Employment Act, which requires that federal agencies' personnel actions affecting their employment would have been different but for age discrimination
or whether the federal government is liable for age discrimination anytime it even considers an older worker's age.
And I should note, I absolutely resent the use of the term older worker for anyone over the age of 40.
So leaving that to the side.
And we should say you and I are the older workers
for this purpose. We are the older workers. We aren't. Oh, guys, someday you too will be.
They're millennials. So interestingly, it should be noted that this provision of the ADEA
focuses on public sector employees. There's also a private sector provision, but in an earlier case
from 2009, Gross versus FBL Financial Services, the court held that a private sector provision, but in an earlier case from 2009, Gross v. FBL Financial Services, the court held that the private sector provision of the ADEA requires that plaintiffs show but for causation.
And the VA is relying primarily on Gross as well as some other decisions, Nassar, Safeco v. Burr, for the proposition that in order to make out this claim, you must show that age
discrimination was the but-for cause of the decision. By contrast, Dr. Norris Babb, who is
the petitioner here, she's a clinical pharmacist working at the Department of Veterans Affairs,
claims that the fact that there are two separate provisions for federal employees and private
sector employees is actually meaningful. And she maintains that because the federal sector provision regulates how personnel decisions shall be made, that's the
language, the entire process of hiring federal employees should be free from any age discrimination.
So almost holding the federal government to a higher standard in terms of what it can do rather
than the standard that's offered for private employers. And so she argues that the fact of the two different provisions means that whether or
not the discrimination is determinative, she can present her cause of action.
And her reading of the statutory language is supported, she says, by the historical
context.
And she notes specifically that this federal sector provision of the act was modeled on
Title VII of the Civil Rights Act,
and that makes Title VII's meaning relevant. And with that in mind, Title VII's federal sector
provision was intended to embody constitutional equal protection guarantees, and plaintiffs
raising equal protection claims do not need to prove but for causation. So further, both of these
statues echo the language of broadly worded executive orders that at the same time were intended to eradicate discrimination in the workplace.
She's also relying on decisions of the EEOC and the Civil Service Commission, which previously had been responsible for enforcing both Title VII and the ADEA, and had long agreed that the federal government violates both statues anytime it considers a prohibited characteristic, not just when discrimination is the animating factor.
So she's taking a very interesting statutory interpretation position, one that really relies on context, legislative history.
We should just say like with executive orders, there is a long tradition when we're talking about discrimination in federal employment, of executive orders preceding
statutory codification of particular anti-discrimination principles. So the president
doesn't issue EOs regulating private employers, but has long issued EOs pertaining to federal
workers. And so they're relevant in this context. No, that's certainly true. And certainly the case.
It's also worth noting that Pricewaterhouse v. Hopkins gets another airing. It was first aired
out and taken for a walk in that trio of Title VII cases heard earlier in the term.
But the VA objects to Babb's account of the historical context of the ADEA,
and it focuses on Congress's response to the court's decision in Pricewaterhouse v. Hopkins.
In Pricewaterhouse, the court adopted this burden-shifting framework
for cases in which employers are motivated in part by impermissible considerations and part by
other reasons. Under that burden-shifting framework, plaintiffs have to first show that
the protected characteristic was a motivating factor in the adverse employment decision,
but then the burden shifts to the employer to show that they would have reached the same decision even without the discriminatory rationale.
Two years after Pricewaterhouse, Congress amended Title VII to clarify that employers
could be liable any time a plaintiff's protected trait was a motivating factor for any employment
practice.
And in gross, that 2009 case that the VA is relying on here, the court concluded that Congress's explicit inclusion of motivating factor liability in Title VII but not in the ADEA supports their view that the ADEA does require but for causation and that this reasoning should apply here too.
Right.
So I just want to point out that there are a lot of similarities between this
case and the Byron Allen case. They both concern federal anti-discrimination statutes. They both
sort of suggest this trend toward requiring plaintiffs to show but for causation in order
to even make out their claims, so even to get them before the court, which is a real ratcheting up of
the standard and perhaps limiting the opportunity for civil rights plaintiffs to get their claims into court.
And there are different statutes, obviously. And so it's not at all required they stand or
fall together. But I do think that if both of these plaintiffs lose, that does send a message
about the difficulty civil rights plaintiffs are going to have accessing courts and obtaining
redress. I think that's purposeful. I mean, it is – I mean, there are two different statutes, one from 1866, one from the 1960s and 70s.
They're both meant to – both of these cases are part of a narrowing of anti-discrimination.
Potentially.
But that's how you think they're coming out.
Well, I mean, I think –
The fact that they're being litigated at all suggests a change in mood.
Potentially, yeah.
I mean, one other thing I'll say about this case is that the plaintiffs invoke Chevron, right?
You mentioned that the EEOC has offered an interpretation that there is no requirement of but-for causation under the ADEA, at least the federal sector piece of it.
And the future of Chevron is not in any way directly implicated in this case, but I will be watching.
Or is it? I mean, any time at this moment that Chevron arises in the Supreme Court,
I think it's important to keep a close eye on the oral arguments and the opinions that
emanate from the court because obviously some members are gunning for Chevron.
And not in this case, but it's coming.
Dun, dun, dun.
Okay, so let's move on to court culture.
Wilding out on justice.
So a lot of things were happening and justices were seen in the wild. And
so the first thing I want to sort of bring up is, again, this may be navel-gazing for some of you
listeners out there, but for those of you who are interested in law school culture, one of the
biggest events of the year happens when the AALS, the American Association of Law Schools, holds
its annual meeting. There were a lot of fantastic panels.
Many of them focused on the court and court culture.
Kate and I were on a panel concerning reproductive rights and justice and law and politics.
Kate was later on a panel of nine people on the future of the second—
And I think we lost about two people, so it was going to be even bigger.
It was going to be the biggest panel ever on guns rights. And what was so surprising to me is that you actually had four women on a panel about gun rights.
One of them wasn't able to come, but there were a lot of women on that panel.
It's not typically a space where you see a lot of female scholars.
And I think to the credit of Daryl Miller and Joseph Blocher at Duke, they have really tried to encourage women to participate in this space, and I think they've been successful. So that was a terrific panel. Lots of stuff, lots of interesting things
surfaced. I will note that Randy Barnett at Georgetown Law, who's another big gun rights
scholar, complained that it all seemed a little slanted to the gun control side. Do you think
that's true? Probably. I think that that was in part due to some late-breaking absences on the panel.
And I do think that it wasn't a partisan – I mean you were at the panel. It did not seem at all partisan.
Now, were there sort of Second Amendment absolutists in the room or maybe in the room but not on the panel?
And I think that Randy had a point.
There were some Second Amendment absolutists I think who asked some really interesting questions that the panel responded to.
So, I mean, it's hard.
I mean, people's travel plans change.
These panels, like, I mean, we've talked about this.
Like, I had to drop out of a panel because I was double booked.
So things happen.
Also at the annual meeting was Justice Ginsburg, who was doing a kind of fireside chat with Vicki Jackson of Harvard. She told some stories that we've heard
before about the challenges she faced as a young law student raising her daughter while her husband
was receiving treatment for cancer. She also spoke about diversity in the professoriate,
so of a piece with our conversation. She mentioned my former colleague at Berkeley and her co-author
and dear friend, Herma Hill Kay. And she pronounced herself very well. And indeed, the Supreme Court recently released a statement
saying that she was cancer-free. I am not the only one who's into Justice Ginsburg stories.
People Magazine reported that Jennifer Lopez and Alex Rodriguez, known to us colloquially as J-Lo and A-Rod, asked RBG for marital advice.
I don't even – that conversation blows my mind.
Like, I'm just like –
Like, how they came to be in a conversation with her.
Like, all I could see is, like, Jennifer Lopez in Hustlers wearing, like, a huge fur coat and, like –
Can we just say she is glorious in that movie?
She's glorious in that movie.
I made my husband rewind it.
He was like, what's going on?
I'm like, let's just watch this.
Like, when she's dancing to Fiona Apple.
Wait, is that the first scene?
The first scene.
And she's like 50 years old.
I'm like, look at this.
She's amazing.
She's incredible.
But I just – what does that look like?
I'm just going to ask Justice Ginsburg.
Like what's your secret to a great marriage?
Like what does that look like?
And so Justice Ginsburg told them the secret to a great marriage is that it helps to be
a little bit deaf to your partner. This is a line that she uses and it's very good. It's a very good
line. I also got to see the justice on December 19th in Philly at her induction into the National
Museum of American Jewish History's Hall of Fame. And Irene Carmon and Shana Kisnik, who wrote The Notorious RBG, which we have talked about here, were there giving her a tour of The Notorious RBG exhibit that they curated and that will be touring the United States.
So now it is at Philadelphia at the National Museum of American Jewish History.
And it goes on to Chicago where it will be for the spring and summer and then back to New York for the fall.
And I also
told the Justice about strict scrutiny. Okay. So what was the conversation? Tell us everything.
I don't know that she knows a ton about podcasts or that she cares, but I told her that we often
talk about her, and I said I would send her a strict scrutiny sweatshirt, which I did.
Do we have any indication that it was received? I got a very nice note
saying that she was going to wear it to work out. Oh, my God. We obviously need pictures of this,
but I'm just not sure how we're going to make that happen. I don't know. I mean, send pics.
Pics or it didn't happen. Any RBG clerks listening? We would like a picture. Please,
please, we'll send you t-shirts too. Sweatshirts, mugs, whatever.
Any other news from the justices in the wild?
The only other thing we were going to flag was that Chesa Boudin was recently sworn in as the new district attorney of San Francisco.
He won this unlikely victory, right?
He's a progressive, former public defender, part of this wave of progressive defenders who have sought these top prosecutor jobs, and he won a sort of very close
but ultimately decisive win. So Justice Sotomayor recorded a video statement that was played at his
swearing-in ceremony. So in this video statement, she speaks about the challenges in her own life
growing up in a public housing project in the Bronx, going on to this quite improbable
career as the first Latina justice on the court. And she then related it to Boudin's own life and
challenges. And as some of you know, when Chesa Boudin was 14 months old, his parents were arrested
and imprisoned for their roles in the Weather Underground, and he was essentially raised by family friends.
So this is what she said at his inauguration.
Chesa, the difficulties you faced as a child, including that you did not read until age
nine, are common among children of prisoners.
You have lived the stigma of anger, shame, and guilt that so many such children in the
criminal justice system experience.
We are all safer when we
uplift victims, hold everyone accountable for their actions, and do so with empathy and compassion.
What do you think of that? So I have to say, I am not a fan of her having recorded and disseminated
this video. Congratulations. It feels like an error to me. I don't think it's a great error.
To everyone? Like the fact that every progressive prosecutor is going to want this kind of video statement?
I just think that her congratulating him in a one-on-one setting is fine.
Obviously, you congratulate anyone you want.
But he's going to be now – he's this law enforcement official.
He will have cases that could in some way end up before the court.
I think it's the case that in San Francisco, the city attorney is always representing the city before the Supreme Court.
But look, like one of the biggest cases on the docket this term is Vance versus Trump, right?
Like DAs sometimes are intimately involved in key disputes that end up before the Supreme Court.
It does not seem to me impossible that that could happen with Chesa.
And I think that his story is amazing and his campaign was amazing.
But I don't think she should have recorded this video.
So about like the fact of his particular role, I thought you were actually going to say that you thought – I mean it is kind of a mini statement about the collateral consequences of mass incarceration.
And I think that's perfectly appropriate actually for her to say.
I think she could have given a speech saying the same thing and I actually don't – I have no trouble with that dimension of it.
It's more sort of any perception of potential prejudgment in any case that –
Like going duck hunting with someone?
I mean look, I would not have recommended that Justice Scalia do that with any potential litigant.
And I mean I just – I'm trying to imagine Justice Kavanaugh recording some kind of congratulatory message.
For Bill Barr, yeah.
Right upon his confirmation.
Then obviously the United States is the most frequent litigant before the Supreme Court.
That is obviously different from the San Francisco district attorney.
Yeah.
And yet I think we would have been pretty troubled by that and I'm not sure why this is so different.
So more to come.
I think we just like fueled a recusal effort.
Whoops. I mean, again, it may not ever materialize and certainly there's no requirement that any justice recuse in any particular case.
But I think it's probably best to avoid this stuff.
Okay.
So that's all we've got time for today.
Thank you so much for joining us.
As always, we are so grateful to Melody Rowell, our wonderful producer, Eddie Cooper, who did our music, everyone who helps us get this out there and into your ear holes.
Many thanks to you, dear listeners, for all your feedback, the shout-outs that you send our way.
Oh, we gave out so many stickers at AALS. So thank you to all of you who came up to us and
asked for stickers. We are only too happy to offer them out. And usually when you see us in the wild,
like Melissa and I both give talks at law schools, and so do Leah and Jamie. And Jamie does, you
know, she's like a real lawyer. She's like out there in the world practicing law all the time. We all have stickers. We're
starting to carry them with us. So please be shameless and ask us for stickers. We're happy
to pass them out. And important announcement, we hope we will see you in person in all your
strict scrutiny gear when we take this show on the road for the first time. So we are going to be in
Ann Arbor on Friday, January 17th. Yes, we are coming for you, Ann Arbor.
We're coming.
All right.
So Leah convinced us all to come to Michigan in the middle of the winter.
In January.
We love you that much, Leah.
And the University of Michigan.
We're very excited to see the ACS chapter who put together this live event.
And join us if you can.
And if not, make sure to listen to the show when it's out.
Come see us in the wild.
Later.
All right.
See you next time.