Advisory Opinions - Will Baude Responds to Common Good Constitutionalism

Episode Date: August 30, 2022

David and Sarah are joined by Will Baude, professor of law at the University of Chicago Law School, to discuss his review of Adrian Vermeule's new book Common Good Constitutionalism. What is “common good constitutionalism” and can David and Will convince Sarah that it’s a thing? Is international law real? And does anyone have standing in any upcoming legal challenges to President Biden’s student loan debt relief plan?   Show Notes: -The American Prospect: What Common Good? -Reason: The "Common-Good" Manifesto -Ius & Iustitium: The Bourbons of Jurisprudence -Reason: The "Common-Good" Manifesto: Vermeule Responds Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And this is a hybrid, well, it's all legal, but it's also a nerd podcast, which, to be fair, is basically every one of our podcasts. So, but this is a special one. This is a special one. We have a repeat guest, Will Bode. We're going to have a more full introduction from Sarah, and we're going to talk about a rather interesting back and forth over post-liberal conservative legal philosophy, common good constitutionalism. And we're going to answer the question that Sarah has been asking for, what, two years now? Which is, are these guys for real? And so we're going to answer that question. But before we answer that question, Sarah,

why don't you more fully and properly introduce our guest? You bet. So Professor Bode has the distinct honor of being a two-time Advisory Opinions guest. I believe we only have one other two-time guest, Professor Bode. So we'll start making jackets once you hit three, but you're on your way and you're leading the pack. Professor Bode teaches at the University of Chicago, where he went for undergrad. You will find that Chicago people tend to stay close to home in that regard. Once you go, you can't fully leave the orbit or something, but you have a mathematics degree from undergrad, which is pretty cool. JD, you did venture out. You went all the way to Yale Law School, New Haven. We can talk about that. You clerked for Judge McConnell and then Chief Justice Roberts on the Supreme Court. You've also practiced law. You've dabbled

all around and you were on the Supreme Court Commission, which we've talked about on this podcast a lot. And I listened to all of the public hearings and found your contributions very insightful and really enjoyed listening to all of those. You want to talk about a nerd podcast. Supreme Court Commission hearings, all seven hours at a time of it, were fantastic fun for nerds. But you most recently reviewed Adrian Vermeule, professor at Harvard, his new book, Common Good Constitutionalism. Your piece, which we'll link to as well, is called The Common Good Manifesto. And he then responded and called you the Bourbons of legal jurisprudence. And for those who are about to really enjoy themselves, some professor...

Wait, Sarah, wait. Hold on. Bourbon. Is that what would be bourbons? No, bourbon's what you drink, David. Oh, see, okay. So when I grew up in Kentucky next to the town of Versailles, we drank bourbon. Okay, but you're referring to Bourbon, like the people. Versailles, yeah.

Oh, okay. All right. I grew up in Southern Indiana with a French name. Bode is French. So I had this simultaneously, both parts of my brain exploded when I saw that. I was like, you know, finally, right. Is it the French pronunciation or is he making an allusion to my drinking habits? But before, if you love this podcast and want to hear more Will Bode, Will has his own podcast with Dan Epps. And it is called Divided Argument because all of these legal podcasts have to have very punny titles. And it's fantastic. So Divided

Argument, we'll talk about it throughout and at the end again. But if you want to hear more, the podcast is called Divided Argument. Okay, professor. As you probably know, I've had a problem with the common good constitutionalism stuff because i thought it was a troll when it came out in the beginning of the pandemic sort of spring of 2020 when professor vermule published his big piece in the atlantic i was like actually this is a very good impression of jeremy bentham and I think he's making some really smart, sarcastic points about the legal right trying to simply have their preferred outcomes in this post-Bostock world. Remember, listeners, Bostock is the Supreme Court decision on the word sex in anti-discrimination laws encompassing sexual orientation or gender identity. It was written by Justice Gorsuch. And the legal right kind of had this moment where they were like, well, if originalism or textualism can justify this outcome, then we should just chuck originalism and textualism.

Senator Josh Hawley takes the floor in the Senate and says legal conservatism is dead if that's what our outcomes are. That aged well. If that's what we were fighting for, we weren't fighting for very much, he says. And so that's the backdrop where common good constitutionalism is proposed. I will have to admit that if this is a Jeremy Bentham-esque troll, it is so well done to be still doing it two plus years later. I feel like my hope for this being a troll, though, is fast diminishing as these debates continue, because you seem to be taking it actually on

its merit. So can you tell us a little bit, you know, summarize some of Vermeule's book for us? I do want to push back on some of your pushback. I want to steel man some of his arguments as well, but introduce us to the world of common good constitutionalism, the non-Jeremy Bentham trolling version. Yeah. Yeah. My bad news for you, Sarah, is this is serious. This is not a drill. I think that is bad news, by the way. No, I mean, I don't want to do the meta-debate stuff too much, but I will say when the Atlantic piece first came out, a lot

of people rushed to condemn it or to respond to it, and I didn't, in part because I thought it was a little hard to tell what he was really talking about just from the magazine piece. And in part because I thought, if it is what you say, it's a mistake to let

the trolls control our agenda. So I thought it didn't necessarily require a response. Then he went and spent two years writing the book, which is a serious attempt at a book. And most importantly, it's being taken seriously

by especially a lot of the young people today. I guess I'm officially old now. And I would talk to my students and learn they were interested in this. They were not necessarily convinced. They weren't sure, but they were interested enough and they wanted to know

what was the response. And so that made me think it was time to respond. It was too late to close our eyes and hope this would go away. Now, one other thing I have to say first that makes this especially tricky to talk about is I think there are at least three levels going on here. So there's like, like the highest level is like, is there something wrong with originalism as it is currently practiced by the Supreme Court? And or do we need more natural law in the law today? Like, is there something, you know, those are like big ideas

that are not trollish, that are not wrong. I mean, maybe I disagree with them sometimes in particular cases, and I don't think you should like, June is always the wrong time to panic and develop a new constitutional theory.

But those are like big questions, real questions. I don't mean to in any way like condemn or belittle somebody for being interested in those questions. Then there's the theory, common good constitutionalism, which is an attempt to answer those questions and capitalize on those,

which I think has some problems. I don't agree with it. And then there's the writings of Adrian Vermeule about common good constitutionalism, which he himself would say in the book are not the same thing as the theory. He would hope that the theory will outlive him, that there will be people writing, having whole symposia about

what common good constitutionalism is and what it means and disagreeing with him about its implications. I think he would welcome that. And the flaws in the second two, the flaws in common good constitutionalism and the theory, and especially in Vermeule's arguments

about common good constitutionalism, don't necessarily mean you're a dummy if you believe in natural law. Well, let's start with question one. What are the problems with originalism? And let's talk about what natural law is because natural law has been around for a long, the theory of natural law has been around, well, arguably forever, but in terms of us talking about it philosophically for a long time. And I think that the most simple way to put the critique of originalism is that it is a veneer on the preferred outcomes of the judges who practice it. They point to this authority of originalism as to why the case is coming out the way that it is. But for the most part, almost every time, the case happens to come out

in their preferred policy direction anyway, with some notable exceptions, but the exceptions just prove the rule that originalism is simply a method for getting conservative outcomes. I sometimes wonder, how many exceptions does it take until it no longer proves the rule, but actually just

proves that the critics are wrong? I mean, and maybe we just don't, part of the problem is we also, we imagine we know what the justice's preferences are, but there too, you know, we don't really have much to go on other than the opinions where they're doing originalism. So like, does Neil Gorsuch have, you know, a complicated set of like sort of chaotic,

good libertarian preferences in which, I can't even fully describe them like you know the supreme court's sentencing jurisprudence does the court just love kind of like messing with federal sentences and doing them over and over again like every five years and they create a new retroactive rule i i doubt it you could try to create a story in which they do uh but i doubt it and then in common good constitutionalism, part of what's refreshing about it as a critique is it's not the standard, like liberal legal realist critique

that they're just, you know, that the Supreme Court is just conservative politicians in robes calling it originalism to try to sneak one by us. Unclear in this theory who would sneak one by because the law professors always tell us that this is a charade and so does the press, but somebody is being fooled supposedly in this story.

The common good constitutionalist critique is the opposite, is that originalism, like, they're believing their own script, that they're not putting enough of the, like, right normative questions into it. So in a way, the common good constitutionalist, at the core of the common good constitutionalist critique, I think, is the idea that, like, no, no, the judges should start

doing the thing that everybody's been accusing them of doing all along. They should start thinking more about what is a sort of like just and well-ordered society and putting that at the center rather than textual analysis or what James Madison thought or things like that. things I found interesting about your review is you kind of go beginning in the beginning in the introduction to say, okay, here's what we're not doing. We're not doing a lot of the practical critiques. So, you know, whose vision of the common good, for example, you know, and there, there are a lot of, there, there've been a lot of sort of practical critiques of this sort of that are along the lines of wait, wait a minute so you're saying that judges should just impose their vision of the common good what gives them the the uh what gives what qualifies them to do that um if you give judges this kind of sweeping authority and sweeping power then

shouldn't you be sure that you're going to win all elections and nominate all judges? And you just really said, no, what we want to do is we want to dive into this theoretically. What do you mean by that? Well, so this is, Sarah mentioned this idea of steel manning, the opposite of straw manning argument. So partly this is just, people have made this critique already.

Like Bill Pryor has written an article calling common good constitutionalism living common goodism. You know, just living constitutionalism with a new name. And I didn't think we had much to add to that argument. But in a way it's also not, like, Vermeule has responses to that. So a huge

part of the book is not about judicial activism. It's not about judges just doing the common good and sort of making conservative living constitutionalism. A huge amount of the book is about how judges should instead be deferring to people, deferring to legislatures,

deferring to administrative agencies. He calls this the determination or the determinatio. The idea that part of what's at the center of the common good is that our legislative and executive institutions get to make decisions about the common good within reasonable bounds, within their proper boundaries of their jurisdiction, and so on. But they get to do stuff, and the common good is judges letting that happen and facilitating that happening. That doesn't sound crazy when you say it like that.

that. And so part of what we start with is like, yeah, let's see, coming up with the proper spheres of legislative and executive authority and letting them make the decisions that they are authorized to make and deferring to those and only restraining them when they go outside the bounds of the authority they were originally vested with. I think there's a theory that does that and it's called originalism, right? That's the core of originalism if you took that strand of the common good constitutionalism. So part of the biggest puzzle we started with is, if we took this really seriously, it seems a lot like originalism. I mean, maybe it has some differences in the margins in terms of what sources you look at and how much you care about James Madison versus Thomas Aquinas. But the central thing it would be doing would ask, you know, which institutions have invested with the power to decide the common good over particular things. That's what Justice Alito's

opinion of Dobbs looks like. That's what a lot of the court's modern jurisprudence looks like. So it's a puzzle that the book is so devoted to literally lighting originalism on fire, rather than explaining, you know, how natural law can make originalism better. And as we said, so he writes this book, you write a critique in Harvard Law Review, and then he writes a response to your critique of his book. Yeah. And so I want to read you a piece of his response, which I think is well taken on this point. He's basically saying you're not taking his point seriously enough. Here's what he writes. And by the way, I'm going

to miss, there's a, he does create a lot of Latin unnecessarily, I would argue. Create Latin unnecessarily. Yeah. Okay. So the word is I-U-S. I'll be pronouncing it E-U-S. Do you think that's what it is? I'm not sure or use all right go ahead we have many latin scholars who listen and they will correct us which is gonna be so frustrating i know nobody knows nobody knows how latin is pronounced uh so his point is uh more importantly however bode ands here read the whole role of ius entirely the wrong way, through a positivist lens that is foreign to the classical tradition.

His point, I'm going to skip ahead a little bit here, as common good constitutionalism put it, with reference to ius naturale, this sort of view yields only an ersatz form of respect for the natural law. One obeys the natural law only insofar as it happens to be picked up by an originalist command, a form of soft positivism, not because it has binding force as natural law in its own right, but it is intrinsic to the natural law that it should be followed for its own binding force, not merely because some incumbent ruler commanded that it be followed. The natural law isn't truly followed at all if it isn't followed as natural law.

Okay, so if you had problems following that as I read it out loud, I totally understand. I read it several times, so let me try to make it a little simpler. His point is that Will Bode here is saying that it's not very different than originalism because the outcomes may be similar because originalism incorporates

a lot of these natural law principles into it, by which I mean the Constitution itself, the First Amendment, the Second Amendment, to some extent the Third Amendment, probably. The most triumphant amendment. The most triumphant.. The most triumphant.

They all incorporate these natural law concepts. And natural law, to try to make that a short little lesson, is this idea that there are legal principles that are larger than any written text, that we sort of know morality that is inherent to being human, that we can all agree on, and that's the natural law.

It is passed down. It exists before the American Constitution. It exists simply as part of being human, kind of. And so Will keeps saying that there's natural law incorporated into the Constitution, therefore we look to the Constitution to decide what the natural law is, those things we all agree on that are part of human flourishing and morality. And his point is, no, that's not natural law. In order for natural law to exist at all, it has to exist outside of, before, and separate from the Constitution. Therefore, originalism cannot overlap entirely with natural law. So that sounds like a good critique of an argument that really isn't the one we made. So that's all fine, right?

I think you can do that. You can say we should read natural law into these various clauses. And I'm not a deeply committed natural law person, so that's the kind of thing I might actually believe. But that's not what Vermeule's doing, and we tried to take him at his word. So his idea is, you know, you start with the natural law, but that's not just chaos, that's not just sort of like utilitarianism, and it's not just judges decide. Natural law

fundamentally comes down to the society making determinations about how to order itself. That's his theory. And his example is one of the classic statutory interpretation cases, TVA versus Hill, where Congress passes the Native Spevitable Species Act, which on its face seems to require you to stop constructing a giant dam because it might hurt the snail darter. And the Supreme Court says, yeah, that's what the law requires, sorry. He says that's a good example of common good constitutionalism in action because it's like the legislature gets to decide.

The judges don't decide whether the dam is more important than the snail darter. The legislature gets to decide. And then don't decide whether the dam is more important than the snail dart or the legislature gets to decide. And then you follow the letter of the law. Okay, that all sounds fine. And our point is just, if you take that seriously as like a theory of constitutionalism, then it's not just, it's not that the First Amendment has a little bit of natural law and the Third Amendment does. It's that the whole darn Constitution is nothing but like our fundamental attempt at a basic determination about the structure of society. It's that the whole darn Constitution is nothing but our fundamental attempt at a basic determination about the structure of society.

It's the preamble, right? It's the preamble says, all right, we're going to try to serve these basic goods. How are we going to serve these basic goods? We're going to create third branches of government,

separate their powers, create some individual rights. You would think he would treat the Constitution with at least as much seriousness as the Endangered Species Act or some random administrative decree. But would treat the Constitution with at least as much seriousness as the Endangered Species Act or some random administrative decree. But instead, the Constitution quickly falls away

as if it were incapable of making any law. But this is the Dworkin, just to bring in on the left, the living constitutionalism, which he also takes very seriously. I'm going to read from, actually, a Prospect Magazine review of the book, which I think explains his view on this pretty well. So Ronald Dworkin, the most influential American legal

philosopher of the 20th century and a liberal critic of originalism, Dworkin argued that our legal system comprises much more than the Constitution, statutory, tax, administrative regulations, or executive orders. All those different types of law are created against the backdrop of often unwritten legal principles, what Vermeule, I think, would here call natural law, which are drawn from our best understanding of political morality. When judges interpret the law, they are always trying to explain its meaning in a way that is justified by those principles, even if they appeal to that authority of the Constitution. The only, you know, Vermeule thinks that Dworkin's

onto a lot of right stuff there. He just disagrees about which moral principles he would put into the understanding of that law, which I think gets to your point on the critique that people have most about this,

which is, okay, but this is just adrian vermeil wanting his preferred outcomes instead of dworkin's preferred outcomes yeah and that's why we have the constitution because everyone tried to get together and actually write down the agreed upon natural law principles for human flourishing etc so this is where we get into like the last level level of just the squirreliness of the book. So one option, I'm not afraid to go to jurisprudence. This is the thing that response makes fun of us for is attempting to engage in thought about jurisprudence.

Will you explain what jurisprudence actually is versus legal theory? Jurisprudence is the topic of what is law? How do we even figure out, what are we arguing about when we argue about what is law? How do we even figure out, like, what are we arguing about when we argue about what law is? And that's, you know, is law just sort of things that are set down by society, or is it sort of fundamentally

about moral principles? If it is things that are set down by society, you know, how much is it, you know, purely based on kind of practice or descriptive facts? That's Hart versus how much is it the kind of blend of description and morality that's Dworkin.

Dworkin and Hart are probably the two of the most famous jurisprudence scholars of the 20th century, but there are lots of other ones who are also good. And so one route we could go is say, this is going to be a fight about jurisprudence. We believe in Hart, he believes in Dworkin, then there's a whole bunch of standard critiques that Hart makes of Dworkin and Dworkin makes of Hart. And to follow this dispute, we should just go back to the Hart-Dworkin debate. And then if you do end up in Dworkin, we can talk about whether you should be a conservative Dworkin and Dworkin makes a heart, and to follow this dispute, we should just go back to the heart Dworkin debate, and then if you do end up in Dworkin, we can talk about whether you should be a conservative Dworkinian or a libertarian Dworkinian or what. But that's one route you could go. The book, you know, this is probably good as a matter of tactics, doesn't really want to go there. It probably would

not get nearly as much readership if that's, you know, where it was. And so he tries to say, like, he's not really using the full analytical framework of Dworkin. There are a bunch of well-known critiques of Dworkin that he doesn't want to have to respond to. So he says, I'm only using the good parts, not the bad parts, and not really going to go into detail what those are. And then even with the good parts, I'm going to swap out

all of, you know, the parts of Dworkin's theory that I disagree with and put in conservative morality. I'll just say, like, that's very complicated, probably doesn't work, but in a way, since he doesn't even really try to defend it, you know, I don't know how far we should go in that route. The other is to just take, like, once you get to the core idea of, you know, he wants law to be some mix of morality and non-morality. You say it's all morality, it sounds like you're a

conservative living constitutionalist letting judges do everything, and that's bad. If you say it's not morality at all, then you're a positivist, and who knows, you might be forced to decide Bostock or something.

That's bad. So he wants something in between. And what exactly it is in between shifts from page to page based on the needs of the moment. I have two questions. First, define for folks positivism. And the second question is,

I come at a lot of these debates not as a law professor, but as somebody who practiced law for a long time. So 21 years from 94 to 2015, a long time. So 21 years from 94 to 2015, I was litigating constitutional questions in federal courts. And one thing that I think a lot of people don't really realize is how much this is not a super new argument in these circles. So it's just playing out more publicly. I'll give you a good example, Professor. So I would argue first amendment cases involving christian uh usually christian but not always christian but religious student groups who are

being thrown off campus because they had a disagreement with the university over whether or not for example orthodox christians should lead their group or you know a lot of disputes over that really dove into, did the university want conservative Christians to organize and have a presence on campus? And I would make an argument that would sound, that would be based thoroughly on precedent and thoroughly on, A, primarily on precedent, and then secondarily going into what is the First Amendment supposed to do? What's the underlying intent behind the First Amendment? And they would come at me, I have their emails going back years saying, you know what you really need to do, David,

is argue about how gay sex violates the natural law. And I'm thinking, wait a minute, what would happen if I walk into court and I would say, time out on the precedent here, your honor. What we really need to do is get into some natural law about human sexuality and make precedent on that basis. And I just always thought it was so frivolous,

although it was absolutely something that people emailed about back and forth to sort of bolster that I'm the real social conservative credentials. So part one is what is positivism, which is not a super short answer. And part two is what is the practical, I know you dealt with theoretically, what is the practical ask of a constitutional litigator walking into court who says, I'm in, Professor Vermeule, on common good constitutionalism. I am in. So what's the ask? How am I going to walk into court as a litigator and say, this is how I'm going to manifest common good constitutionalism? Yeah. Okay. So try to keep this from becoming the jurisprudence podcast,

even though I know that's that kind of level of legal nerdery is on brand. Yeah, go as deep as you want. So the core of positivism is the idea that law is contingent, that a society can decide what kind of law it has. The law may be good or bad, like whether it's good or bad isn't necessarily contingent, but that we can have law that's different from Rome, and even that if there are Martians, they can have laws different from that. And that like sort of up top to bottom, that's a kind of a contingent question about that society. That's the core of positivism. And the core of natural law is that in some way, there's some fundamental truth about what the law is that's true everywhere. So that even if, you know, the natural law, law's favorite example is something like Nazi Germany. They'd say,

even if Nazi Germany allowed the Holocaust, the Holocaust was illegal. Now, again, the positivists and natural law people, they all agree the Holocaust was bad, right? Worse than bad. One of the worst human acts of inhumanity ever. But the question is, would we say it was against the law in Germany? And the positivist

is more willing to say they allowed people to do very bad things. And the natural lawyer would more willing to say they allowed people to do very bad things. And the natural lawyer would say no, no, no matter how much they tried to allow it, it was still illegal. This is the whole Nuremberg trial, by the way. The Nuremberg trial has to rely on natural law. It didn't have to, I will just

say. Because in addition to Germany, there is also a lot of other countries, and there's even a law of nations. And so you might say, a positivist might say... Oh, I don't believe in that. Germany, there are also a lot of other countries, and there's even a kind of a law of nations. And so you might say, a positivist might say... Oh, I don't believe in that. Yeah, okay. I know, Sarah doesn't believe in that.

International law doesn't exist. Please continue. Sarah, Sarah, Sarah. Longer conversation. Here we could really have a disagreement. And it's actually related. So an alternative thing the positivist could say is, no, it was legal in Germany, but it was illegal under international law, and that's what you're being punished under. And, you know, you can legalize whatever you want in Germany, but we don't care.

This does relate to a second definition of positivism that sometimes floats around and that actually gets confused in the book. Sometimes people think positivism is like written law only and no unwritten law. So the one version of positivism is like, it has to have been posited by the lawmaker. There has to be a document that was put forward by the legislature or the Constitutional Convention or something, and that stuff's the law. And these unwritten norms that people talk

about, like international law or common law, those are not real. Or common law is real only if you treat judges as lawmakers. That's another kind of thing people sometimes use positivism for which is not the positivism the jurisprudence sense um but but it's kind of uh it's kind of related all right can we let's talk to the lawyers for a second though uh because i think it's a great question um i'm not sure that the target audience of this book

is constitutional litigators um I agree, I agree, I agree, I agree. And I do share the sense that, and, you know, I know a lot of constitutional litigators, and I was one for a very, very short period of time, but I do share the sense that, in general, even armed with this book, right, nobody's

going to walk into court and say, look, judge, I read Vermeule, you read Vermeule, like, we all know what the common good serves here, so the text is ambiguous, please get there, right? Even those lawyers are going to, like, mostly need to engage in conventional legal argument. And much of the book is about how a lot of conventional legal argument is kind of consistent with his version of common good constitutionalism, just not all. I think the way to think about the book's target audience and what it's trying to do related to practice is this. I think notwithstanding, you know,

the way you would argue these cases, you probably still knew there were judges who were partly moved by their hatred for your clients or their sympathy for your clients. Those were like not irrelevant facts. And, you know, when you're thinking about whichever stage, maybe it's the discretionary sort of petition stage, you'd be thinking about how to pitch the case in a way that was appealing to the people whose votes

you needed and so on. And even if that was happening, even if that's not formally something that's supposed to be going on, right? Even if that's something maybe the judges are supposed to be fighting against, like the central principle of free speech laws you're always supposed to imagine, what if the person was saying the opposite thing? Would I still punish them, right?

I think comic constitutionalism would say actually judges should do that should like stop trying to resist that impulse they should they should do it on purpose they should uh give in to the dark side um rather than rather than try to resist it and i think it's aimed at law students especially who will form the legal culture 20 years from now uh and it's hoping that in the same way that textualism and originalism and the Federalist Society and whatever else

have formed legal culture now, that it can unform that or replace it with one in which judges give in to these impulses rather than viewing that as something kind of illegal and bad that they're supposed to put to one side. It's trying to destroy the rule of law,

in my view. You're right. Which isn't crazy. The Federalist Society started in 1982. It actually hasn't been that long that originalism has been inculcated into law school culture. I think in that sense,

it is brilliant. I think it's a brilliant book, a brilliant strategy. It seems to be gaining quite a bit of ground very quickly within Federalist Society student circles. Yeah. And while there aren't judges

on the bench right now, I can't point to any who are common good constitutionalists, it's kind of the point, isn't it? As you say, it's not for this, it's not to change people who are already on the bench, it's to create a bench of people who can go on the bench and be picked from who already believe this. Yeah, it's influencing from the clerks up in an interesting way. Yeah, no, I mean, this is the right way to write a book of legal theory. Like it's the right, I mean, other than the lack of merit and consistency.

It's the, like, it is designed to speak to something sort of fundamental, right, about like what is the enterprise and what are we trying to do here and what kinds of things should we be looking to in the hard cases? I do think it's very misguided, but I think it would be, again, this is serious. Can we talk about Nuremberg for just another second? Because Vermeule actually uses this example in his response to your law review article, criticizing his book. I know it's turtles all the way down. But his point is that basically,

if you want to be in favor of Nuremberg and the results of Nuremberg, you do kind of have to be a natural law person because the international law that you're speaking of would have really existed in 1945 and would have therefore needed to be applied retroactively to these German officers, which violates, you know, our sense of fair play and due process under a positive law framework. And so unless you're willing to acknowledge that there was some international law that existed in our hearts, that you have to kind of grapple with the Nuremberg trials, which, by the way, as someone who doesn't believe in international law, and I mean, like, don't believe in it in the, like, tooth fairy sense, not just disagree with it, I literally don't believe in it, that I'm willing...

I just did that. Okay. All right. That's a longer conversation. I was once as you are, Sarah. I'm willing to grapple with that maybe the nuremberg trials were wrong i'm like that is something i think is an interesting conversation when it comes to jurisprudence but do you think that that's not the conversation that you don't have to have retroactive international tooth fairy law all right so i'm tempted i, I'm going to resist the temptation, but I'm tempted to invoke Godwin's law that, you know, all arguments on the internet eventually trend toward Holocaust comparisons and he who invokes the Holocaust first loses. Right. I'm tempted to say like, if this is what it comes down to, you know, you know. The Nuremberg trials are

interesting though as a historical moment in human history. Right. But just to say, I'm not sure that it's the right data point from which to generate legal theory. But I'm happy to talk about it. So I think there are three options. Right. So you can address, you can treat the Nuremberg trials purely as a matter of kind of positive law, only including the kinds of positive law that Sarah believes in, in which case there's no international law. Now, we still might ask, does it have to violate German law or could it violate somebody

else's law? Like, we live in a world now where plenty of other countries report to exercise universal jurisdiction. I'm sure it violates the law of Spain to engage in the Holocaust. I think all of that is part of the very interesting, my version of the interesting Nuremberg debate. Okay. Right. So you can have that kind of positive fight. Then

the problem would be that we really need more choice of law scholars. So one of my other fields is- You have some due process problems, some choice of law problems. Great. But you're there. Right. We could do international law. And again, unlike you, I do believe in international law. Although I think it's maybe more like Tinkerbell. If we all stop believing in international law, then it will stop existing. And so the more you talk about this, the more it might become a self-fulfilling prophecy. It is inflation. Eric Posner already, you know,

has written that international law doesn't exist. That might eventually take hold. But I think right now it does exist. It certainly existed at the founding of the 19th century. I'm not sure it was gone by Nuremberg. But I'm also not sure we even need to ask that question, right? Like the fundamental question was, what should we do to the Nazi regime after winning World War II, right? And you don't have to make that a legal question. Like we're allowed to still just be human beings

and moral agents in the world. And you can decide, I mean, you know, there's a whole complicated questions of political morality. They don't have to be based in law to say, look, this was very, very bad. This was like the worst human atrocity ever. And we're going to punish you for it, even if it was legal. We won, you lost, we decide what happens. Right. That's part of why I think it's not necessarily the most fruitful example for natural law versus positivism. I think we could all agree that you should punish the Nazi regime. Yes. And in a way, how you get there is not that interesting. So can I just make a point about international law for a second? So there's a law of land warfare that has existed for a really long time that has been directly relevant to the major Western combatants for a very long time. And I'm

just reading this fantastic book called Ring of Steel about Germany and Austria-Hungary in World War I, which is the Austria-Hungarian part of the history is very understudied and underdeveloped, especially in the United States. But one thing that's really interesting about that is the competing understandings of who violated the law of land warfare first and who was the principal violator of the law of land warfare in the early days of the war in August and September of 1914. And the Western powers looked to German behavior in Belgium, which did violate the law of land warfare at the time. And the central powers were looking at Russian behavior in eastern Prussia and the eastern quarters of the Austro-Hungarian Empire that also did violate the law of land warfare at the time.

And that was a highly relevant aspect, especially of the early days of the war, especially also of the great powers powers understanding of who was bound by and not bound by the law of land warfare, had a real bearing on the way in which the war was conducted, both in World War I and World War II. There was a substantially different way in which, for example, Soviet prisoners of war were treated by the Nazi regime, and American and British prisoners of war were treated by the Nazi regime, based on, believe it or not, in many ways, a different viewpoint of who was bound by what under the law of war. And it seems to me the issue is not, does it exist? The issue really gets to the point of under what circumstances is it enforceable? How do we

enforce the law of land warfare? And that's where- Yes, because law doesn't exist if it's not enforceable. That's why international law doesn't exist because at the end of a war, the person who won gets to decide. No, that's like saying that criminal law doesn't exist if at the ultimate end of the day, we don't apply it to Donald Trump, right? Because Donald Trump has a form of victor's immunity,

but that doesn't mean that criminal law doesn't exist. Disagree. Professor Bode. I'm recording this from the south side of Chicago, right? So you might say a lot of law doesn't exist in the south side of Chicago because it's not adequately enforced. I think that's not the best way to see it for the reasons David says. Like, even when people violate sort of legal norms that everybody knows the police won't respond to, at least for a while, there's often still a sense that those are violations of legal norms. People kind of know that's what they're doing. They know that the police could intervene under certain circumstances. Now, I think at some point, as I said before, at some point it becomes sufficiently anarchic that then Sarah becomes right.

At some point, the law is so ill-enforced that nobody really takes it seriously anymore. And if you bring up the law of armed combatants, people are like, ha ha, that's just like consulting some irrelevant video game text or something. But there's a big spectrum in between. And I think we could all even kind of see it's a spectrum. There's some law that's always enforced with you know, the parking laws of Chicago. You know, good luck. Good luck avoiding those for even five minutes, right? But then there's a lot of law, you know.

Murder, on the other hand. You've got like an 80% shot. Yeah, or the law of presidential misappropriation of classified information. Maybe completely unenforced. Or now it's a little bit enforced because at least they take documents back. And the question is where things fall in between. And obviously when you don't have an international law Supreme Court with international law police

and international law U.S. Marshals and international law schools that create a whole sort of culture of people who think this kind of law is really important, you know, you're starting out with several cards against you in terms of this really working. But I think if you look not to like the international law of war,

which is sort of maybe the place where there's a lot of incentives not to comply, but you look at like the international law of borders, incredible amounts of compliance, right? Incredible understandings by two countries that even though they might sometimes fight about whether they like the border, they all kind of know where it is, right?

It's like, even though it's just an abstract thing on a map, it's, I mean, I don't know, you could say it's not real. It's like, even though it's just an abstract thing on a map, it's, I mean, I don't know, you could say it's not real. It's a way in which it's not real, but everybody treats it like it's real. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's auraframes.com. Use code advisory at checkout We will leave discussion of what international law feels like in Ukraine right now for another day because I want to now take our very philosophical conversation about common good constitutionalism and then jurisprudence and international law. I'm doing like the YMCA over here with my hands to show like big. I want to talk about the Biden administration's student loan forgiveness. And since we have a

law professor on, I was hoping you would give us a little lecture on standing. Are we going to just assume that the loan forgiveness is illegal? Well, I think that's what makes the standing conversation at least interesting is let's assume that someone does something that we know is unlawful or at least likely to be found unlawful in a challenge. That's not enough because someone has to be able to go in and sue. And so, yeah, for the purposes of this conversation, OLC, the Office of Legal Counsel, who I've described as the law professors of DOJ and the executive branch, they put out a

memo saying that they're relying on this 2003 law about emergency powers of the presidency post 9-11 that maybe allows them to suspend student loans. it is hard for me to think of a conservative-leaning judge who would possibly find that that power, what they have done, exists under the COVID emergency powers. I think it's very possible that it's hard to find really many judges in the country who would find that. So let's assume for our purposes that at least they've got a coin flips chance of getting a judge who on the merits would say they do not have the power to forgive student loans and change the student loan income plan, for instance, based think the OLC memo actually almost even says that. It does. It's just like, well, gee, if you only granted relief to people on the base to the extent that they were directly impacted by COVID and the relief in no way exceeded the harm caused by COVID, then I guess that would be legal. It's very hedged. Yeah.

And nobody has really caught on to that, how hedged that memorandum is. Yeah. Yeah. Yeah. Like, again, from the world of constitutional law, like, law actually practiced. You know, if you're the CEO and you get the memo from your general counsel saying, if you take the following 17 steps, you probably will be safe from prosecution. And you just, like, ignore the if. The memo's not worth a lot. And the 17 steps. Yeah.

All right. You know, one of the funny things that hopefully your listeners know, although many people don't know, is that federal courts are not just the, like, free-ranging guardians of the law or of the Constitution. You know, it's not just, like, somebody violates the Constitution, that immediately sends the bat signal up, and the courts just, like, rush in to put the Constitution to right. Right? Federal courts only get to ride in when somebody invokes their powers, somebody invokes their jurisdiction, and one of the crucial prerequisites to being able to invoke their jurisdiction is that you've got to have something at stake. It's actually sort of a

classical liberal sort of element of the system, is that the fact that you are offended by the violation of the rule of law, or even kind of indirectly impacted by the fact that the inflation or whatever else is coming from some offended by the violation of the rule of law or even kind of indirectly impacted by the you know fact that the inflation or whatever else is being is coming from some policy is not enough to give

you the right to invoke the constitution or to force the voter courts to ride in and stop it you've got to have some sort of a like classical injury a violation of your rights that allows you to ride in and so when the government violates the law in these ways that are common in the modern state, by like either not enforcing the law or by spending money it's not supposed to spend, those are the times that it's actually remarkably hard to get the courts in because, you know, nobody's injured. The person who's most directly affected by it

is probably happy to get their loans forgiven. And so they're not going to sue about it. And generally speaking, courts have said that taxpayers don't have a particularized injury. Yes. And that members of Congress also, it's pretty iffy,

depending on what the issue is. Like a member of Congress can't sue to say that taxpayers are injured, more or less. Yeah, right. So as a taxpayer, the problem is if the loan forgiveness program is struck down, my taxes don't change, right? I mean, it's true they're spending money that in some way I paid into the system, but they're going to spend the money on something

no matter what. So I'm not any better off just because I got to spend on one thing rather than another. And members of Congress are not like feudal lords who have some continuing interest in the laws they enacted. They enact the law, but the law, the government of law is not men. So their interest goes away. So then it's not so clear who can sue. We know there are Republican attorneys general, frantically, state attorneys general, frantically trying to figure out if they have standing. And that's one that's hard for me to see as well. So I wanted you to see if... Oh, I have some standing theories. They're not particularly good, but I don't think there are great ones. So instead, there's just maybe

ones. So the three best theories I know of, and maybe you have some better ones. Hopefully you have some better ones. So one is there is some sort of theory of state income tax somehow. If a state takes a position that the loan forgiveness is taxable income in some way that disagrees with the federal characterization, that may be enough to set up a fight about it.

I haven't seen a concrete version of this yet, and it might require some legislation, although I'm sure there are some states that could get some legislation. It's a little bit like what Virginia tried to do to challenge the Obamacare. They passed a special law giving everybody a right to not buy health insurance. Yeah. And then argued that that law... Conflict, yeah. The law that they had just passed in conflict with Obamacare was now their injury. And that ended up not being the best theory standing. But there's some sort of theory like that.

There is a theory that the student loan servicers, the people who currently make money in servicing the loans, who are now going to be out of business because the loans are forgiven, might have standing. It's a little awkward because it's not like they had a right to service the federal government's loan.

So if the federal government discharged the loans in a more normal way, they'd pretty clearly have no real complaint about that. But they are potentially out some money. And so one of the weird questions in standing is sometimes like, if you can show you're out some money, but it's not exactly like, you know, you didn't write the money, the money could have dried up anyway.

Yeah, it wasn't exactly vested either. So that's one though, if you imagine a really motivated judge, if you told me that a really motivated judge had found standing on that theory, I'd say, not crazy. The last possibility, which is not going to make anybody happy because it won't happen now, is if a new administration takes office and doesn't respect the previous determination on the grounds that it was lawless.

So a new administration takes office and says, look, I know that the Secretary of Treasury two years ago told you that they weren't collecting your loan balance because of this illegal statutory authority, and I'm not going to charge you any penalties because you made a reasonable reliance on that mistake for two years, but I'm just letting you

know, like, actually, you do still owe us the money. That would, I think, produce standing. This is national limitations questions. There's some other, you know, pretty standing. Oh, for sure. Oh, yeah, for sure. Substantial limitations questions, there's some other, you know, and so, and I'm sure Ron DeSantis' campaign already knows that.

Now, maybe it's not a good political issue to talk about. Vote for us and we'll come collect your student loans after all. But I do think that would be the last possibility.

You got a better one, Sarah? It's not better. So, yes, I thought through all of those. I think those all have the problems you've laid out. None are rifle shots into court for sure. There's something about a public university which had its own loan forgiveness program that if you went here and took a certain state job that we would forgive your loans. And now they don't have the people to do that because all the people who were under that loan forgiveness program just got their loans

forgiven by the federal government. Therefore, the public university, therefore the state, has an injury under their public service, state public service loan forgiveness program. their public service, state public service loan forgiveness program. Huh. That's as good an idea as any, but... Well, so it's like saying, like, suppose one of my, you know, somebody who worked in the DMV wins the lottery, and I want to complain that the lottery is illegal. So I'm like, well, if they hadn't won the lottery,

they'd still be working here. Therefore, I should get to sue to complain about the fact. It seems like a reach. It's a little like the interest loan people. Yeah. The loan people who would have gotten the fact. It seems like a reach. It's a little like the interest loan people. Yeah. The loan people who would have gotten the interest. Yeah, but if all the people had won the lottery, they weren't going to get the interest anyway.

They didn't have a right to the interest payment. Anyone could pay off their loan at any point. It's a similar problem. Yeah, exactly. But that's my best state standing argument. And this has to, in the end, as you say, your last one needs a different administration. The loan borrowers don't have a, maybe a great interest in suing if they

can figure out some other way to stay in business. So the people who want to sue the most are the states. So you've got to come up with a standing theory for the state. You know, it's a big, it's a real reminder that our constitutional structure is not exclusively safeguarded by judges. I mean, this is something that... Oh, let me add one thing to my public university. To your point about the DMV person, I think you could point to the money that they expended on creating this program, on facilitating it, so you would actually have that they are out money because of it. Think of the money we spent training this person. Indeed, it would be, yep, you're not wrong.

As I said, this isn't a great argument. It just exists. It's out there. It is out there because I put it out there. Like international law, it exists because I said it did. Well, to David's point, this is what things like the Office of Legal Counsel and Congress are supposed to be there for.

One idea is, and maybe we never live up to this, there are going to be lawyers in the administration who are sworn to take the law seriously, and they'll be partisan, they'll be on the president's side, but their job is to just give them an honest answer whether this is legal or not. And if they say it's not, then it won't happen um i'm not sure olc has ever

really played that role as much as we'd like but but maybe they're not playing that role as much they need to you could imagine in a less partisan world there'd be somebody in like congress who just takes you know congress's authority to decide what to spend money on really really seriously and if this happened would get mad at the president and create some sort of consequences. I don't think we live in that world anymore either. So, you know, we've sort of come to rely on courts as if they're the only ones who can take the law seriously,

which is really unfortunate. Agreed. Maybe not something we can, I don't know if we can live on that for much longer. Right. I mean, especially when, as we're seeing, standing rules mean that a lot of constitutional disputes never get there. Yeah. So the constitutional, actual constitutional structure depends on voluntary compliance, not just federal court injunctions.

Can I circle back a bit to, back to common good constitutionalism just for a minute? back to common good constitutionalism just for a minute. Yes. So my question is this. So you work every day with law students. Is this something that's gaining meaningful traction amongst young law students? And if so, why? Wait, can I just add a note, by the way, that the University of Chicago has a pretty weak Federalist Society compared to the Burke Society at the University of Chicago, so it's worth discussing the fact that Professor Bode's interaction with students is already weird. I mean, they were University

of Chicago students to begin with, so they were weird on that level, but then you have the Burke Society instead of the Federalist Society on campus. We have both societies. Both are great. I acknowledge that you had both, but... I've been members of both societies. Both are great. I acknowledge that you had both, but... I've been members of both societies. I'll say, I can't tell if it's actually gaining traction.

It's definitely gaining interest. I think there's definitely a widespread sense. I mean, it's just the classic generational thing of some sense that the old people are morally compromised and lack energy and you're going to, whatever. I was like that too once, embarrassingly recently. And then the specific sense again that there's something kind of missing. The soul is missing from the rituals and debates.

And then maybe a dose also of the fear of unilateral disarmament uh which i feel like is present on both sides now like some sense like the left they don't play fair right they just pour their policy into their constitutional law and we are always tying one hand behind our back like trying to win these fights in the courts while also being honest about you know whether the legal materials support it so i think there's a lot of that discontent going on. I'm not so sure that there are a lot of people who both understand what common good constitutionalism is and support it.

I don't mean that to sound as patronizing as maybe it does, but I'm not sure there are as many people there yet. It could happen. And I could be completely wrong about this. Love your thoughts on it and sarah's thoughts on it there was this real i think there was more energy for it after bostock

than after dobbs yeah in other words that the bostock moment was the holly the conservative legal movement has failed whereas dobbs is the greatest triumph, arguably, of the conservative legal movement in its entire history. And so it feels as if this sort of idea, you know, you have the Coach Kennedy case, you have the Carson case, you have Dobbs, you have this Fulton, you've got this run the table of important constitutional cases that make the First Amendment more robust, that have invalid, that have overturned Roe. And so sort of this idea that federalism, the Federalist Society judges are weak and not really up to the challenge. A lot of air has gone out of those tires, I'd say.

Disagree. You disagree. Disagree with you both. I think this is very, very popular for a tribalistic reason. I mean that in the human mind, lizard brain part, which is it's been 40 years, and so now there is this established structure of Federalist Society originalism, which means that if you're a young person, you have to wait in line, pay your dues, take your turn, or you can tear it all down and be king at 25 years old. And so I think there's a lot of incentive to take advantage of, yeah, the brittleness of the structure. What have you done for me lately? Fine, you did Dobbs.

That was your whole 40-year plan. You did it and now you have nothing left and it's time to hand off the baton to us and we're gonna storm the castle. And I think there's a lot of law clerks and law students out there who are champing at the bit and feel like they know more, they're ready to have the leadership reigns and how dare you tell them that they need to learn their craft, pay their

dues, or anything like that. I mean, it's like every 25-year-old man. Literally, I don't think I've ever worked on a campaign where there wasn't an assistant-level person who thought they should be campaign manager. We may have a way to solve this problem in multiple directions. So may I suggest to all these people that they go become originalist law professors? Because while there's an assembled structure maybe out there in constitutional litigation, there are so few originalists in the academy that, look, you can have the place to yourself.

There are three or four of us, but at almost any school, you'll be the only one doing it. There are tons of questions to write on that nobody's written on before. You don't have to wait in line. Like, you know,

the line of, of originals work to be done. So exceeds the number of scholars we have to do it. So if people just want to feel sort of like embattled and, uh, you know, like they can have the, the,

you know, endless fields of combat to, to run forward or whatever, like, you know, come join us. Uh, no one will have to mess things up. We can actually accomplish something.

I think one thing, just to push back a little bit, I agree with you, Sarah, that this is a perennial, I'm 25 and I figured this out. I mean, remember the Federalist Society in 1982 was started by law students. It was revolutionary. This is Thomas Jefferson's, you know, every 25 years. Yeah. Oh, for sure. No,

I'm with you completely. Although I would say that the Federalist Society 25 years ago had a bit more of blue ocean in front of it to use like that business consultant speak. There was a lot of, there was a lot, there were a lot of wide open ranges where they could go where there wasn't actually in the conservative world much of a legal establishment to speak of. The question I have is, okay, yeah, you're 25 years old. You've figured it all out. You're really mad at the olds. And you've got this argument that's different from them that's upsetting the established order. The question is not so much do you have that argument and do you have ambition, it's do you have resonance. And I think that the Dobbs decision in many ways robs these individuals a lot of the resonance of

their argument. And this is a point that I was making to folks before Dobbs came out, because their argument was the path of stability is upholding Roe. That's the path of stability. And my argument was, I'm not so sure about that. If you want to see the conservative legal movement begin to implode upon itself, you would uphold Roe. That would be a path of profound instability in a whole nother part of the American legal world. There was not a way forward in the Dobbs decision, which is part of the legacy of Roe itself, where you would say, well, one decision, everything's okay and normal, and another decision, everything's completely disrupted. I just didn't, I thought that was not, that was a false dichotomy. And that the Dobbs decision robs a lot of these guys of the resonance

they need to make real progress in their restless ambition, which is common to every single last generation of young activists. You know one other factor we haven't mentioned? That Leonard Leo, the former head of the Federalist Society, has $1.6 billion to play with in his outside group. I actually think it'll be really important of whether he takes the common good constitutionalism argument seriously enough to foster a debate

within legal conservative movement or whether he tries to shut that out because $1.6 billion is a lot of candy. It's funny because the book actually specifically complains about the well-funded libertarian originalist establishment and how it's, you know. So, it'll be interesting to see where that lands. David, I love what you're selling, but let me just, for the same reason that I thought 2020 was the wrong time to panic,

I do worry that 2022 is too soon for a victory lap on even the Dobbs thing. It's not going to be too long where the Supreme Court has more abortion cases. And they're not all going to come out for the right. I mean, now, there's field personhood, which I don't actually think is the biggest issue. But there's even just like the circuit split about whether EMTALA preempts

the abortion legislation of Idaho and Texas. They're going to be the right to travel cases. Or Texas is going to start prosecuting people who provide funding for people who travel. And again, some of those, the right will win some of those, but the right is not going to win all of those. And so in 2026, when Brett Kavanaugh holds that there's a constitutional right to give money

to somebody to cross interstate, cross state lines in order to obtain an illegal abortion, I just hope we don't go through this all over again and be like, oh, we need a common constitution after all. It seems like a mistake to let one or two votes in a particular year influence it. Obviously, Dobbs

is a big one. It's not just one case, but I don't want this conversation to have an expiration date. I don't think it will. I don't think it will. And with that, we'll see what the expiration date is. We can each put our little milk container stamps on it

and see who wins the debate. Professor Bode, thank you so much. Two-time guest on Advisory Opinions, co-host of the legal podcast Divided Argument. Will you just give a brief description of your Divided Argument podcast

and what niche you are filling in this wide world of podcasting? Well, it's people who've run out of advisory opinions episodes to listen to and still want more Supreme Court coverage. Dan Epps and I are both law professors who follow the court, and he is on the left, and I am more on the right. And the central premise of our podcast is that it is still possible for two people on the left and right to have reasonable conversations about the Supreme Court in which we don't yell at each other and try to talk about things rationally and understand shared points of agreement and disagreement.

I think we succeed 90% of the time at proving that's possible. Because we're both law professors, we have no schedule, which is terrible marketing. We put out episodes when we have something to say when the Supreme Court has done something, which means the Supreme Court is busy. We put out a lot of episodes when the Supreme Court is slow. We spend our time working on scholarship. So we call it an unscheduled, unpredictable Supreme Court podcast, both in content and timing. So it is a good addendum podcast.

Exactly. The addendum pod... I don't know that that's the marketing they want, Sarah, the addendum I don't know that that's the marketing they want Sarah the addendum podcast sorry I think that's good though it's like I don't know when I like read a book and like it it's really that next book that I read that like is you know meatier we really

do have some iTunes reviews that are things like other than advisory opinions I can't think of any podcast that I like you know that's fantastic if like, you know. That's fantastic. If you liked, you know, yeah. If you want a deeper dive with two law professors, it's pretty different than our malpractice podcast here. If this is not nerdy enough for you. Yeah.

Well, thank you, Professor. This was fantastic. Really appreciate you joining us for a second time. The third time the countdown clock has begun. I want that jacket. Yes. Yeah, we have to design it. We have to design it.

But yeah, yeah. One day a podcast will actually create a jacket and that will be a glorious day. So, but thank you very much. And thank you listeners as always. We're going to be back on Thursday morning with a podcast. There was a lot.

I kept putting into our advisory opinion Slack channel. There is so much going on. Circuit court case after circuit court case on contentious issue after contentious issue. So we got a lot to cover. So we're closing out our Nerd August, but we're going to have a bonus episode in September that I don't want to spoil for you yet, but is going to be, and I'm sorry, Sarah, my favorite thing since Brett Devereaux? Oh, yes, since. As long as it's since Orc Logistics. That was the best present anyone has given you, aside from your wife, like ever. That was incredible.

So that's what I'm going to say. It's since Orklygistics, but it's going to be... For the last two weeks. Spectacular. Yes, right. And that's coming in September. But we'll be back on Thursday with a normal law podcast about all kinds of interesting stuff. But in the meantime, please go rate us.

Please subscribe. Please check out thedispatch.com, and we'll see you on Thursday.