Bok Choy

Welcome to the divided argument, an unscheduled unproductive all Supreme Court podcast.

I'm Will Bowed, and I'm Dan Epps. Will, we need to be quick. We have a hard stop in less than an hour. I am trying to squeeze in a recording session before office hours. We have, I think, three plus opinions to talk about. Can we do it?

“I think you should divide our students to join, but failing that.”

The opinions are short. I think we can do it. At least the majority opinions are short. Let me try to lead us through as quickly as possible. Okay, shadow, dockety order.

This is a, this is a cool one. This is the category of order. Non-merits order that we don't talk about much at all. Martinization. Okay.

Martinization is when the Supreme Court tells a paper, an informa, paparist, or IFP. Petitioner who has filed a number of previous petitions that have been deemed frivolous by the court after a certain number of those. I think my memory is that it's the numbers for.

They will tell the petitioner no more. If you want to file another petition in the future, you've got to pay the filing fee.

“And print the fancy briefs in booklet format, which is, you know,”

not a trivial call. As many of you have won it out of line, the booklet printing is really like swamped the filing fee. Yeah, I mean, booklets are more than a thousand dollars typically. So, you know, it's a, it's a non-trivial cost. Okay.

It's called martinization because the court first did this in the

Cerschurary context to a guy named Martin. And so now he has the indignity of having this procedure text. I mean, the organization also like a dry cleaning thing. They're like, dry cleaners. They're like, we martinize is not a.

That does sound vaguely familiar, but it's not something I've ever researched. And it's not something I recall ever having to have done. To have had done to my clothing. Do you have any sense of what it means? But just as a brief.

Just as Jackson's Justin has been in a rough talk about that actually Martin was not the first. He just went to name a Donald in like 89 for for extraordinary risk. And then to syndrome. And then Martin doesn't do it to their positions.

So it's sort of a coincidence that this is martinization rather than

McDonald'sization or civilization. But. But I'll take the way. Yeah, but I mean, I guess if it's if it's sort of specific, though, as I understand it. So we have one of these.

Pretty common. Yeah. And you know, my memory is when you're in the circle is a clerk. You write a lot of memos saying, deny. And sometimes you would say deny IP or sometimes you would say, you know, describe it as

frivolous in the memo. And after certain number of those, the recommendation would become, you know, frivolous, you know, deny and Martin. Kind of off. Yeah.

So we did that to Mr. Howell. Who is a prisoner in Indiana. And just this, everyone is okay with it. Apparently, or at least not objecting to it, other than just this. Jackson, who has a six page, six six and a half page.

Right. She says, this is probably a mistake. And it's going too far, at least applying it to incarcerated prisoners goes too far. Because like they could have all sorts of problems. And lots of ways we try to make sure that people who are in prison have access to legal prison.

And the administrative burden involved in reviewing repeated even for those petitions, followed by prisoners as minimal. It's hard for them to flood the system because it's hard for them to file things at all. So I would not apply the filing bar at the court and pose this for frequent frivolous filers to prisoners who like how seek to proceed at IP.

Yeah. And she's picking up a banner previously carried by just a thief. Yes, right.

“You know, who got out was a dissenter in Martin and always, I think my memories”

he would just routinely dissent from martization. Just this sequence had a perpetual dissent in every martinization order. It appeared on the orders list back before reading the orders list was cool. So just this sequence had by far more dissents return than anybody else in the court. And nobody ever counted it.

I have thought ever since just as Stephen's left the court that it was a shame that nobody else on the liberal wing of the court was going to pick up that banner. I'd unsuccessfully for several years to get just a subtle mayor to pick up the banner. How did you like that?

She doesn't know who I am.

You just, you just, you know, tried to censor. I just announced.

“You just announced you should do it over and over again.”

Yeah. And then we're just a Jackson join the court and started becoming a structure of Monsingware orders, which are sort of, I was like, maybe we're going to get there. So I'm going to say it now. I think this is just as Jackson's best opinion of all time.

Possibly going to be the best opinion of her career. Good for you. Just a Jackson. Is that faint phrase? Or is that just speaking to your enthusiasm?

People complain that they were too mean just a Jackson before. So you're picking this. No comment about that. Yeah, I mean, you know, I will say I think the point is fair that the court has maybe

arguably gotten too aggressive with these, right?

The petitioner here howl has apparently filed only six petitions. Whereas if you go back to Martin himself had apparently filed 54 petitions. And I just, I kind of wonder, you know, whether, you know, for someone who's filed six, even if they're frivolous. I mean, how much of a burden is that really imposing on the court?

You know, I mean, these are getting denied kind of a clerk writes a, you know, three line memo. And then it gets denied. I mean, I just not obvious to me that it, that it actually poses that much more burden on the court. And so it kind of seems like the reason to do this is like your mad at these prisoners for filing these frivolous things.

I mean, I will say, you know, we don't know the equilibrium in a world without martinization. Maybe somebody would start filing, you know, like multiple sedays or something on ashore. And the burden is not just the locklicks.

Right, the court has a whole staff that has to handle. I mean, even just the clerks keeping track of them, putting the doctor's system, putting them on the carts, wheeling them around everybody. Like, I mean, if you wish to point where there were hundreds and hundreds of frivolous

patients filed every day, you know, even if the clerks could just had a macro that said, like, frivolous die. Yeah. There would be a burden. Yeah.

Anyway. Yeah. Yeah. I mean, I think that, you know, she seems to want to have a blanket rule that we don't do this to prisoners, because, you know, she says,

look, there's cases where, you know, we've granted sir and F.P. Petitioners and they'd marriage rates claims, and that's certainly true. And, you know, the question is, would stuff slip through. I mean, it may be suggest to me that we might want to calibrate the rule a

little bit. Maybe you get 10. Yeah. So I'll say one of the things that she, I don't think she says this is you can also say the martinization rule made more sense when the court

was not a court of error correction, because you could say, look,

“even if there's some injustice or, you know, that's what the court”

appeals the districts are for. And this report is there to resolve, you know, issues of nationwide importance, which I personally like it could raise, but, like, losing, you know, losing access to a certain petition from the Speaker of the litigant is not a huge loss in the court's point of view.

And the court has become more and more and more a court of error correction on the interim document otherwise. Now, just a Jackson's intuition in some ways makes more sense. Yeah. Sorry, that's a surprising thing.

The court has become more and more of a court of error correction. You think it's, well, relative to win. I mean, certainly, it's less a court of error correction than it was, like, 15 years of error correction. In 2016, 2006, 1996.

You think on the merits document? Yeah, that's the case. Or just on the interim document. Well, the interim document is taken over the merits document. I think on the sum total of the documents.

If you take that, that's interesting instead of opinions.

“I think that's just become much more of an error correction focus.”

Could, could we get somebody to do some empirics on that, just to go through and code cases and you know, I wouldn't have been, I wouldn't say they've become less of one, but I don't know. I mean, we're seeing, I feel like we used to see more routines on my reversals.

Well, I think we did talk about the extent to which some of our resources have moved to the interim decade. And then a couple more back at the sum of reversal docket, this stall. But I just, in the general expectation, the general vibe that, like, if a lower court obviously wrongly says something with the constitution.

I think the expectation that the Supreme Court will intervene, and if the sum would doesn't intervene, it's because they're kind of okay with it. Has just, has it really gone? I guess, I feel like that claim is right. If, if it's a case involving the government, or it's

a case involving an executive branch policy, I don't know whether I would agree that it's right as a matter of course. If it's a case involving any politically charged issue. Okay. Yeah.

On speech. That's fair. Girls. Whatever. Okay.

That might be true.

It's always interesting to see one just as kind of going out on

their own kind of taste taking out a different unique position. Obviously, this isn't persuading the rest of the court.

But, you know, I think it's good for people to be thinking about the court's

“procedures and be like, is this the right way to do it?”

I think it was, it's good even if it doesn't persuade anybody. I think it was good. Yeah. It just a Stevens was there. Just even as the Martinization Press is on forward, flagging, like,

I'm not sure I'm okay with this or I'm not okay with this. Yeah. That was good. I think this is good. No shade.

Kudos to justice Jackson. Great. Okay. Down. We've got in theory.

We've got three majority opinions to talk about. Can we do it? Should we start with Connie Island? Because we talked about that one before. Ben and it is.

I showed it. Connie Island before. This is the case. We talked about it. The Wilkinson, Steckloff live show about what the time limit is under

real 60C1 to get relief under 60B for something. A judgment. You think it was under that restriction? What is a reasonable time? Well, no, no, no.

Where there has to be done within a real time? Whether it has to be done within reasonable time. Which is seemingly what the rule says. Like if you read it, it just says. It is what the lower court said it says.

It's not what any other court of appeals had said it says, but it is what the lower court had a great opinion by John Marston said it says. It is what Lisa Blatt said it says to the Supreme Court. It is what the Supreme Court unanimously agrees that it says. It is not what the not very good first time advocate.

Maybe the surface client might keep in the case. Are you? Yeah. Yep. Yeah, and I, you know, I guess one question that we sort of toyed with.

“I mean, I think when we talked about the argument, we felt pretty confident that the court”

was going to say the reasonable time requirement applies. It's going to side with the Lisa Blatt position. And, you know, one question I toyed with was, you know, could a different advocate have made a difference. Maybe maybe could have kind of threaded the needle in a certain way.

Try to get the court. You know, here the court says, you know, this has to be this this reasonable time requirement does apply. Contra the argument. Other responded that it just doesn't apply.

Basically that you can always challenge a void judgment.

Maybe better advocate could have gotten the court to say more about like. The breadth of a reasonable time requirement. Yeah, so I like nothing more helpful on re-man like yes it applies, but like 100 years is reasonable. If it's a void judgment or you know, something like that.

I mean, they wouldn't say that. We're putting on five. So I think the way the case was framed was pretty simple. And I, in a blog post at some point after the argument, I tried to flag some of the three questions that were arguably outside of frame,

which are is this time load on constitutional. Is there another way to attack boy judgments? And what is reasonable time? Which are all kind of bigger questions. The court resolved the first question.

The work gets into the constitutional question. Yes. Well, yes. And they say, and that just this sort of my R, right separately to say,

I don't even think we need to resolve the constitutional question. The majority says, well, look, we got to resolve something. The only possible basis for this argument is a constitutional argument. So even though the decision didn't really raise it.

Because they something. And doesn't resolve what is a reasonable time? Or are there other ways to attack or disregard avoid judgment outside of this process?

“What did I think is actually the most important question?”

And in foot on five, the court reserves that, and just says rule 60D preserves party's ability to obtain relief from judgment in limited ways, other than through rule 60D motion. We expressed no view regarding the limits of applicable

to obtaining relief through one of those methods. Nor does the court actually say what they are. So that, I think, is the, you know, that's the biggest area where, you know, they'll be left to litigate later.

And that if you were counsel for Coney Island Autoparts, I think you might have tried to put more emphasis. You might have said, look, you know, even if I can't, you know, get relief under 60C. I should, or under, you know,

even if I can't get relief under the rules, I can in some way, you know, not comply with it or clearly attack it or do it whatever, all of which is sort of left for another case. Top, yeah.

Now, I mean, you said, you know, you're right just to set a mirror, says, let's not resolve the depressed this issue. I mean, I, I felt like reading, this is on page four, reading the majority opinion.

The court was like basically deciding it,

but like not 100% said, giving a party a reasonable time to secretly from an allegedly void judgment may well be all the due process to me out. Right?

Doesn't that suggest it's at least possible that due process demands more? (laughs) It is hard to accept the proposition that due process, uh, requires such a regime,

and it says that after pointing to some other examples, you know, sort of saying, look, if you, if this were right, you know, there would be no time limits for appealing a void judgment and no time limits for seeking served.

requires such a regime.

So I don't know, we cannot divine any principle,

requiring courts to keep their doors for pressure to open. I mean, I guess you're technically right, although can you imagine trying to write the opinion that says, in 2026, we said we couldn't divine any principle, and it was hard to accept this proposition.

We now accept it. We now divine accept it. (laughs) Well, maybe that argument wasn't sufficiently argued and that's true.

And with the benefit of further research. That's true. I mean, that's true. I mean, they certainly look. I mean, it's, I would not, you know, feel great

if I was an advocate of the due process position. I just, you know, I thought the court was a little bit cautious. And the reason to be a little bit cautious is also the answer to that question actually has to turn on

“what is a reasonable time and what are the other things available?”

Yeah.

It's, it's not that in the abstract, which we're...

In the abstract, a reasonable time seems hard to be unconstitutional. Unless reasonable is understood in some fairly strict way, it's not include things that are kind of reasonable. And/or there's no other alternative,

and so suddenly you're, you know, having a void judgment and forced against you without adequate opportunity to fight them. So maybe it has to written that way. And maybe it's just written that way to make clear that they're not inviting the exact replay of this case,

the slightly better advocate who actually squarely raises the constitutional dose. Yeah. Yeah. I mean, if there's a, you know, due process concern,

you might interpret reasonable to be very generous in this one context. I also don't think it totally follows that if the petitioner is right, that, you know, that would mean you can't have

time limits for filing appeals.

I don't know. That didn't strike me as such a gotcha argument as the court thought it was. Why? Well, I mean, you might say, like, you know,

due process requires there be some avenue to attack a void judgment, you know, forever, it doesn't have to be the direct appeal. I have a majority to hear that. They'd say, yeah, that's where we'll foot on five as four.

It just doesn't have to be the right to be alive in there. It doesn't have to be the rule. Uh, what maybe it does. Maybe that's the only avenue. Maybe.

But the court, I mean, that's, that's where back to the,

“then it'd be the same issue as the appeal, I think.”

Yeah. It might be appeals the only option for your. Yeah. Yeah. But I mean, normally, I guess the normal understanding is, you know,

the appeals happen shortly after a judgment, and whereas there is this opportunity later to come back and kind of challenge the judgment. And that's normally what we would, I guess that's if you would ask me exactly like when is the time to go kind of get a judgment,

you know, that was entered improperly. Fixed. Like, you know, some kind of, you know, later motion. But it's not even clear it's a motion under rule 60B. For instance, it could be a motion with the new enforcing court.

Where you say, yeah. So I think the point that unites us for the majority is it might be true that there has to be some way to challenge a voyage judgment. It does not follow that the procedure that has sitting in front of you has to be the way with no time limits.

And that's true of the appeal example and it's true of the 60B example. Yeah. So. But so we don't know what's reasonable. Reason will could be a very long time in this context, you know,

“in reasonable could, for example, incorporate like concerns about notice, right?”

Maybe it's a really long delay is reasonable if the defendant of the judgment does not have notice of the judgment, does not have notice of the action. Maybe that would entitle you to have a long delay. And then file as soon as you become aware that could be valid. Yeah.

I mean, the court even suggests so one point that it's maybe by now. I'll just tell you that she latches, you know, maybe 11 years is fine. If there's a reason you waited so long to challenge it. Yeah. Yeah.

Okay. One down brings Lisa Blance record to what like 991 or something. She's lost, I think, three or four of that. 994. Pretty, pretty, pretty good record.

Okay. That one's out. You get to pick which of the next two we talk about. Ellen Berg or Burke versus true. Okay.

Keep wanting to call that one. I, of course, pick the eerie case. Burke versus Troy. You do because you, you initially said, you know, you didn't want to talk about this one. I had to, I had to lean on you a little bit.

I just, I didn't want to try to get you to talk about it. What? I was, I was working when Shady Grove was decided. I, I wasn't, I wasn't, you know, one of the quirks on the case, but I was, it was, you know, It's just not finding that traumatic.

No, it was interesting. It was true. It's true. Majority opinion. It is made, conflict of laws.

Pesses is a little procedure for us. It was cursed the court's name for a decade.

Okay. Burke versus Troy presents the question of whether or not a state rule about medical practice claims applies to state claims filed in diversity. Basically, to file a medical practice claim, you have to have an affidavit saying the claim is not bogus. And that has to be under state law, like attached to dock at the complaint.

And never in federal court, which in, as was to apply, state substantive law and federal

procedural law. The federal rules of the procedure ish, but state, tort law. And so the question is, really, is this kind of rule, substance or procedure? And the court says, and just be clear, like you said, to dock it. So like you have to have this basically at the same time in state.

If you're in state court, you don't file your complaint and then file this later on. It's like, you've got to do this. Right. It's like a time. Well, acquired part of your complaint, effectively.

Or acquired attachment. Well, yeah, it's not part of the complaint. Exactly.

“It's like, I think you have to be filed physically separately.”

Right.

Right. But and the standard way, this is often conceptualized.

What I just said of like, is this procedure or is this substance? And that's famously impossible to answer because obviously it's both. Right. It's a procedure effect. Because a procedural rule has purposes to make the claim substantively harder to

bring and you can think of all sorts of rules a little bit like this. And the court last confronted this general problem in the shady grave case. I mentioned where it was unable to muster five just as bind one playout opinion. And now in a very short opinion, which which was about whether a state law that said this kind of claim cannot be brought as a class action, whether that was a procedural rule that, you know,

or a state or a substance rule that would override the federal rules of civil procedure, Rule 23, allowing grass. I think it was no statutory damages in class actions. And so class actions are a procedural question. But what are the damages is a substance of question.

And so no substance, none of this kind of substance in this kind of procedure is both a procedure. In a pretty short opinion by just as Barrett, the court says this law doesn't apply in federal court.

“The court says, I think sort of implicitly adopts this plurality opinion,”

the school you've been in a shady grave as good law, and also kind of glosses it in a pretty simple and pro federal rules of civil procedure way.

Or basically says, look, if there's a rule of federal civil procedure on point,

that's pretty much the end of the inquiry because the rules of decision act authorizes the rules of civil procedure. And so you can't even if a valid rule of civil procedure displaces contrary state law, even if the state law would qualify a substantive under your arrest. But it's quite a kind of already said.

But I think just the court says a lot of this with much more of a, so you'd have to, in that situation, I guess, you'd have to make a strong showing that the rules of enabling act in that application was on custody. Yes, I guess so. And I take out the court's not, just including that possibility.

And I think it could have a rule of civil procedure. There could be a thing labeled a rule of civil procedure. That's not actually a rule of civil procedure. All of us in a civil procedure have to be approved by the Supreme Court. It's hard to imagine how one would be approved that,

like, like, it would be invalid under their rules and regulations. Not unconstitutional under the rules enabled. Like, if I propose a rule of civil procedure that said any time will both files the claim, he gets all the money he wants from whoever. And then, and then I bribe somebody on the committed to push it through.

“Isn't Steve Sachs, like, or in the committee, I think that's the appellary.”

Okay, okay, we're safe then. No, he's too principled to do that. But I think if I were, if I were on the committee who knows who knows what I do. So I take it, that could still be invalid and probably wouldn't be promulgated. But the court must have read them, too.

But I'm not planning a bribe or conspiracy to clear. So that's pretty straightforward. Do you think, I mean, and one thing that's really great with this opinion, like the opinion we just talked about, but even more important for this opinion is how short it is. Like, it's so short that you could almost just put it in a case book on edited.

Yeah, not quite as short. It's 11 pages. Yeah. But pretty short. We've got three short majority opinions today.

Let's bring back short opinions. Yeah, so, but I almost wanted its intentional. I almost wonder if could imagine just a spirit who has taught law school classes, actually thinking like, let's write an opinion that could just go in the Swift Row and Fitcourt case books.

Lay it out. Give me the rules. Maybe not the one else. But it's nice. It is a little odd in two respects.

So one is, I don't know that states have fully thought this through. Like when states enact these areas kinds of tore from laws,

My guess is they have not thought through that the laws would be more effective.

If they were rewritten or at least it's like a sidecar law. Think it's all this law. And then I'm like a sidecar, self-centive law that was clearly non-percedural. Because you could amend your tort law.

“What's the motorcycle and the laws, the motorcycle?”

What's the sidecar? What's the sidecar? It would be an extra-- a new version of this statute that says, "In addition to the affidavit of merit and separate from any requirement that you file an affidavit of merit, no claim can--

as a matter of law, no claim can succeed on the merits. If it's not accompanied by an affidavit of merit or something." At the other side. But I think you just say that as a-- Or do you just describe it as a merits rule as a matter of law,

then rule eight would pick it up and enforce it as a rule of sense? And I think several people fight this too. A lot of states have these kinds of laws for-- or what are called anti-slap laws. Slap stands for strategic lawsuit against public participation.

They're various kinds of like libel than other libely claims against people

like size and their first amendment rights that try to not put the speaker

through the burden of litigation and give you a way to dismiss the claim very quickly. It's the outset. It's going to give you attorneys fees. You know, so you can like leave nasty up reviews

and not have to worry that the Kabab store will file for soliciting against you. And a lot of them may fail this test too. Do we don't have-- We don't have a Supreme Court case.

Now, there's famously a split on this.

“And I think the standard assumption is that,”

this case may resolve the split. Against against the anti-slap laws. Although, you know, each again, each law is written a little bit differently. Some do have a little bit more of a sidecar aspect. We try to say, like, you try to have a substantive rule

and a procedural rule, so that the substantive rule could still be enforced in federal court. So, I assume that there are smart, to reform people at like the LIC or whatever thing tank it is that helps get these things passed.

They're thinking about a draft, a model, malpractice, a reform law, a model and a slap law that still complies with the Haniversas Plumber and Burke versus Troy. But it's just like a trickier problem that I'd seen. And so, there is unanimity on the court

that this is a procedural rule. There's a difference of the opinion between the majority and just this Jackson. So, we have another one where eight justices, you know, if you're to be on one side

and just as Jackson is on the other side, about which rule of federal procedure this state rule would conflict with, which seems like, you know, maybe not the most consequential question. For the majority, it seems to largely turn on rule eight,

which contains the basic pleading requirements for federal claims. And for Justice Jackson, she says, it's actually not rule eight because these things, these affidivates, are not pleading, rule eight is, you know, really regulating the content of pleading.

It's in fact the federal rule of civil procedure three, which says, a civil action is commenced by filing a complaint with the court. Okay, whereas in Delaware, you can't commenced the action, you can't even get it darkened unless you file this extra.

Yeah.

“So, if a state says you have to file both a complaint”

and a shum plaint, and the shum plaint has to contain some extra stuff, should we read that as violating rule eight's requirement, but as to be in the complaint,

because they're basically requiring extra stuff to be in the complaint,

or should read it as violating the rule three requirement, or should read it as a complaint? Do you understand what is the stake in this disagreement? I'm not sure anything. There is a separate thing that's about which there's disagreement

that maybe there is something about it. Think what would be at stake is suppose a state said, you can file even dark at a claim with just a complaint, but then it can be dismissed unless it also contains an affidivate. I think that would satisfy just this Jackson,

because it's knowing about it's rule three, but it would not satisfy. Sorry, we'd say it's correct. We can file a dark at a suit with just a complaint. It will be dismissed upon a motion to dismiss

if it's not also accompanied by an affidivate of merit. I think that that version of the statute would satisfy just as Jackson's test, because I wouldn't bear rule three, because it's not conflicting with rule eight. It's just an extra thing.

What's that?

because you don't have the suit.

Exactly.

“And then at that point, she'd be more generous about rule eight,”

and she'd say, well, rule eight just says, this is how you can dismiss a suit, or fill a state claim, but it's not exhaustive. It leaves open the possible. There are other ways to dismiss the suit,

like Felix and Dana, Affidivate. I guess? I guess. Yeah. Okay, something maybe slightly more substantive.

This is Footnote 1 in her concurrence in the judgment, which kind of gets at the kind of mood of analysis in these kinds of cases, where she says to the extent that the court suggests that the federal rules plain text is all that matters when answering the, you know, your requestion.

That is not what our precedent's hold, and she cites, in case called Gas Brainy, and the descent in Shady Grove, and just as Steven's is concurrence in the judgment in Shady Grove, that sort of said,

“no, you should interpret the federal rules in context.”

So you kind of are bringing a sort of a more of a Lucy Goosey interpreter framework that is sensitive to important state interest and regulatory policies. Yeah. I don't totally know what that means. Like, constitutional avoidance, or rules enabled act avoidance

has led by to the rules, right? Yeah. So I mean, that suggests that you would interpret federal rules narrowly to be less likely to conflict with state rules. And I think she's right that there is tension between the approach taken in Shady Grove

and now Berk versus Troy, and the approach taken in Gas Brainy. Which apparently H. Us, this is agree with now, this kind of plain text. No, which is interesting, because you could imagine, you know, let's say, some of the other justices. I mean, it doesn't even necessarily have to be a left-right issue, right?

If you're a really pro federalism, yeah. Just as you might want to say, we should really strive to minimize these kinds of conflicts. So can I ask one of their substantive questions? Is this approach right?

Are both of them wrong? Yeah, and as maybe, so the rules enabling Act says 208 USC 207 2, says such rules shall not abridge in large or modify any substantive right. And John Harryly argued, as I understand it,

“that he was the law clerk on Hanover's supporting side, right?”

He argued that what was the substantive right was probably a question of state law. So the, well, it's true that, like, the A question is this a rule of practice or procedure, just asks whether the rule is a rule of procedure. He's argued that at B, if the, if a federal rule of procedure takes away a state rule of substance, then that's a B problem, that the rule is now abridging a large amount of violence in the right.

And he thought there were a lot more such cases. Like that in a way, I think he would say, "I have a state law substantive right, not to have frivolous medical, medical malpractice claims filed against me, where frivolous includes any claim that isn't accompanied by an affidivative merit."

That's like a substantive right of doctors. We left in peace to do there for conjobs, but the state believes in. And now we are using a federal rule of procedure, rule 8 to modify and abridge. The doctor is substantive right to be left alone, do his job.

Now, Steve Sachs tells me a wrong about this.

So, probably, Steve Sachs versus John Hartley always has to go to Steve Sachs.

Well, he's quite, Steve's a lot. He's just, John Hartley, John Hartley is the genius and Steve is a super genius. And super geniuses are better than geniuses. I'm probably out of my skis, but you can describe everything as a state substantive right that way. Don't you have a state substantive right, not to be sued in a class section,

for saturated images. Yes. Because I still feel like whether it's a substantive right, I still would want to say, okay, but it doesn't make sense to say you have a substantive right not to be sued unless this procedure is followed. That sounds more like a procedural right.

Even though, look, procedure is value right. So, I don't know where the substance procedure line is. That's where we started. That's a sort of impossible or very hard line to draw. But the majority seems to say there is no second step.

That the majority says, if it really is a rule of procedure, and it's covered by the rules of procedure, then we don't care what state law displaces. The inquiry is only about the proceduralness of the federal law that does the displacing.

And never about the substance of this state law that gets displaced.

Maybe there's a little bit of wiggle in there for extraordinary cases, right. But yeah, maybe not, maybe this is it. And I guess I mean, look, I'm glad I don't have a lot of clean up. I don't teach a civil procedure. So I'm sure this is right for reasons that are too hard for me to understand.

Well, we should go to the show.

Okay. Well, hopefully. If no, we've got a problem. Okay. I was going to ask you the kind of pre-eerie world.

Was there any, would they ever have followed state procedural rules? In the pre-eerie pre-rules enabling act world. I was a pre-eerie. There were federal statutes that conformity laws that live show required than to follow state procedural rules and use the state forms of action.

So there was tons of state law. That was both pre-eerie and pre-federales of procedure. And the federales of procedure in part are designed to produce uniform rules of practice and federal court. You know, so you used to be in the pre-1930s world.

If you were an expert in Illinois law or Illinois procedure, you could file an Illinois state court in Illinois federal court and they were too much the same. But you couldn't really be a federal practitioner because the rules of federal practice in every state

were different depending on the conformity laws of the state. Post rules of procedure. That sounds incredibly confusing. Well, I mean, it's just as confusing now for people who practice law in Illinois state courts

and suddenly have to go into federal court. Is there a question of, you know,

“if your federal judge would you have to do multiple states,”

procedures are ready to just be based on where your court was? I think it was based on where your court was. All of the public court after I figure out. You know, okay. Yeah.

And now we just think the uniformity of being able to have, you know, fancy appellate lawyers and fancy travel techniques or on the country doing federal practice in every court is the more relevant kind of confusing. Which is fine.

I mean, it's a different kind of uniformity. All right. Next case. Last case. Bellingberg versus United States. This is a crummy one that I knew through it.

I mean, do I have to? I'm happy to do it. This one is even shorter. This is we've got a five-pager, five-page majority opinion by Justice Cavanaugh.

This is a about a statute called the mandatory victims Restitution Act of 1996, which says, you know, defendants convicted of certain crimes have to pay monetary restitution to victims. This is a very, you know, common part of, you know,

judgments against criminal defendants. Actually, they've been convicted. Defendant here was sentenced in 1996. That's when the law given a force and was ordered to pay restitution in amount of about $7,500.

It has not paid it. I guess 30 years later. And his argument is he didn't have to do this because actually he committed the relevant crime prior to April 24th, 1996, when the act became law,

“which makes this an exposed fact of punishment, right?”

We have a principle in a constitutional law that you can't punish people for crimes under laws that were not in place when the action occurred, when the crime occurred. Very, very long-standing principle, you know,

has a lot of, you know, kind of, considering like a basic principle of legality. But it doesn't apply to like laws generally, right? It's been understood to apply to criminal laws, since the 1790s.

Yeah. And so I think somewhat routinely, there are kind of like exposed fact of civil laws, right, for better force. Right.

You see all these billionaires trying to flee California before the enactment exposed fact of wealth tax, right? Yep. Okay.

And so question is, this law, basically is it's civil or criminal, right?

Because if it's civil, we don't need to worry about this retroactivity, exposed fact of thing. If it's criminal, if it's punishment, then it can't apply. Answer. Yes, it is criminal.

In fact, it is plainly criminal for purposes of the exposed fact of class. We have just this cabinet opinion that, you know, as he sometimes does, kind of doesn't give us, you know, a distilled down, you know, simple rule.

Instead he says, look, here are some factors. Right. This reminded me a little bit, was it, United States versus Texas. That one where he was like, here's five reasons why there's nothing other than

United States versus Texas or Biden versus Texas. But yes. Yeah, I forget what, yeah, I forget what the caption of that one. I mean, you know what I'm talking about though. Yes.

And he was like, five reasons why Texas can't join the immigration authority. Yeah.

“So I agree, although I think there isn't overarching theme here,”

which is just that the, the hard cases under the exposed fact of class are where the government says this is civil, but we're worried it's kind of de facto criminal. As the test is like, oh, we mostly differ to the government says, but we got to kind of make sure, you know,

but here as I understand it, he's like, look,

the government basically says it's criminal,

but the statute basically admits it's criminal. So, well, and also like the United States here has confessed here, right?

Yes, it's wrong. Sorry. And so they had to appoint John Bash to come in and, you know, argue as an amicus and support of the judgment below.

I mean, in an earlier age, with this case have never risen,

they just would have done a little GVR in light of the confession of error.

“Maybe, although I think there are other circuits that it said this too, right?”

Or was it a circuit feeling the only one? Yeah, I mean, I wonder whether, you know, even, you mean, like you feel like you couldn't do that if there's a circuit split, whereas opposed to a case where there's just a one-off. I mean, because you want the circuits to correct those two.

But although it's interesting, I mean, this is an issue of kind of really diminishing importance, right? I mean, how many people are there who still like haven't satisfied their restitution judgments that were entered like more than 30 years ago? Probably, it's probably a non-trivial amount, but, you know,

fewer, no, no, that is a closed class, right? No new defendants are falling into this class, because the statute is no enforce. Similar issues could happen. Similar issues to the rise, because what if you, I mean, what if somebody tried to, you know, what if the penalties change,

or just a different inflation, they've been asking you to plot them

retroactively, or what if you, I don't know. But this exact question, yeah, although is going to apply to fewer and fewer people every year, which is often the reason that, you know, one of the reasons that the court denies her, right? Did diminishing importance?

“You could easily have denied certain that's in the grounds that, again,”

this is just the error correction point on the grounds that while this is obviously wrong, it doesn't really matter. Yeah. The court did not slice her. Okay. So, you have, can I just, the features of the MBRA,

that tell us that it's plainly criminal? It's labeled a penalty for an offense, court may order a restitution, only with respect to a criminal defendant, only after a conviction, it's imposed during sentencing, it's imposed with other criminal punishments, like imprisonment,

and fines, it's placed in Title 18, crimes in criminal procedure, lots and lots of clues. Now, there is this other, you know, he eludes in the footnote to what you were talking about, that maybe their situations where Congress didn't intend criminal punishment,

but the statute may still be deemed criminal or penal if the party challenging the statute provides the clearest proof that the statutory scheme is so punitive, either of purpose or effect, has to negate the government's intention to deal civil. So, you know, I don't, I don't totally know

what that would look like, but it's pretty garland.

“So, I think in the Civil War, Congress imposed sort of pre-section”

three, like loyalty of the requirement, you couldn't be a member, good nearer the bar, unless you could take an oath

saying you'd never support the Confederacy.

Which was described as just a civil rule, and the Supreme Court said it's actually, that's actually a defacto criminal rule, and therefore, because it's like designed to punish people for a kind of prison. Yeah, yeah.

Okay. So, short, yeah. So, only here's not going to talk about this case, was the current opinion, but just as Thomas, I'm just a squarish, which, first of all, doubles down on something just as Thomas had written before,

which is his questioning whether this court's 1798 decision and call their versus bull is fairly decided. Call their versus bull is where the court said. The defacto clause only applied to punishment for a crime. You know, it has been two hundred and twenty eight years,

and it's still on the table of opinions, just as Thomas is willing to reconsider, which is, I think, a record for Justice Thomas. This is also an opinion that the great loyal men's low crosskey, who I've been writing about thought was wrong,

and produced opinions just as Thomas has cited crossies analysis, the lead, unfortunately, does not get cited here. But then, just as Thomas now has a new move, which is like, "Well, even if I get a return call, I'll have a return call every single one of those.

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