A Seat at the Sitting - March 2022

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Jess Bravin:  Hello, everyone. Welcome to The Federal Society's “Seat at the Sitting.” This is a monthly breakdown of the Supreme Court's docket. We are gathering today at one of those very rare moments where the entire nation's attention is focused on what's happening at the Supreme Court because next week will really be a historic time. And that's, of course, when the Court considers Morgan v. Sundance on Monday, finally getting to the question of the degree of prejudice necessary to invoke mandatory arbitration in contested proceedings before federal court. So I know that we'll all be glued to C-SPAN to see what happens. And we are going to, today, take a look at that case, along with some of the other important cases that many lawyers spend their entire lives working toward obtaining a seat on the Supreme Court for the chance to adjudicate.

 

We have a tremendous panel today. Let me briefly introduce them -- introduce myself, Jess Bravin, Supreme Court reporter, Wall Street Journal. That's me. Okay. Forget about me. Let's hear from the great brains with us. Jonathan Urick. He's the Associate Chief Counsel at the U.S. Chamber of Commerce litigation center, a very common customer at the Supreme Court. He handles a variety of litigation matters there. He clerked at all levels of the judiciary for Judge Thapar at the Eastern District of Kentucky, at the Sixth Circuit for Judge Jeff Sutton, and at the Supreme Court for Justice Antonin Scalia, who turned out to be not that interesting, so he went on to clerk for Justice Clarence Thomas as well.

 

Coming to us from out on the coast, we have Theane Evangelis. She's a Partner at Gibson Dunn. She's co-Chair of the firm's global litigation practice. She previously headed the firm's class action practice, so she's head of the class in our view. She clerked for Justice Sandra Day O'Connor and at the Ninth Circuit, which has such a wonderful home in San Francisco.

 

Next up we have, I would say, the best-dressed man in Zoom. That's John Elwood of Arnold & Porter. He's the head of the firm's appellate practice and Supreme Court practice. He's argued nine times before the Supreme Court and in many of the federal appellate courts. He clerked for Justice Kennedy and Judge Danny Mahoney on the Second Circuit, and he writes an invaluable column on SCOTUS blog that is the tip sheet for all of us looking at the petitions that are pending at the Supreme Court.

 

And Dean Evan Caminker of the University of Michigan Law School, one of our great Gothic architecture institutions in the United States. Dean Caminker, he writes, teaches litigants within various issues of American constitutional law, individual rights, governmental powers, judicial decision making, and he clerked for Justice Brennan and Judge William Norris on the Ninth Circuit. So it's a privilege to have them all here, and I hope that you'll have questions for them as our discussion proceeds.

 

Housekeeping notes: All expressions of opinion are those of the speaker, except me because I don't have any opinions; I am an impartial reporter. If you have questions for our experts, you can put them in the Q&A tab and maybe we will get to them during the discussion. Otherwise, put your hands up virtually, and we will aim to get to them at the end of our discussion.

 

So we are going to get right into it. I'm just going to say a word at the beginning. Many of the cases this upcoming session deal with arbitration, and that has been one of the themes of Supreme Court's jurisprudence in recent years, the inviolability of arbitration provisions in many different kinds of contracts.

 

The cases we have coming up will be very important for the way that business and labor and consumers operate in the United States, or at least in some of the United States. So it is a topic that may not be immediately as headlineable as some of the other cases of the Supreme Court, but these are decisions that really do affect a tremendous number of people and businesses and our economy.

 

So let us start not with Morgan v. Sundance. We want to hold something exciting back and reserved. Instead, we're going to start with Southwest Airlines v. Saxon. And Theane, can you kick us off?

 

Theane Evangelis:  Oh, thank you, Jess. And I know we're all just waiting in suspense for Morgan, but I'm going to turn it over to John to kick us off with Southwest Airlines.

 

Jess Bravin:  Okay.

 

Jonathan Urick:  Thank you, Jess and Theane. As Jess hinted, there's been a bit of an arbitration explosion at the United States Supreme Court. The Court granted four arbitration cases that are all going to be argued at the upcoming sitting, and we're going to cover all four of them today. And as Jess said, the first is Southwest Airlines v. Saxon and to be argued on March 28. This case is about the scope of the Federal Arbitration Act's exemption for interstate transportation workers, and that exemption provides that the FAA does not apply to "seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce," and the really important phrase is "engaged in foreign or interstate commerce."

 

In 2001, in a case called Circuit City Stores v. Adams, the Supreme Court held that only certain transportation workers fall within the exemption's catch-all language, the "any other class of workers" phrase, sometimes called the residual clause. And so, this case, the Southwest case, is about precisely what kind of transportation workers qualify for this exemption. The case is specifically about whether Southwest's airplane baggage handlers and their supervisors fall within the exemption. The baggage handlers load and unload luggage from planes, but they don't actually transport them across state lines or foreign borders.

 

The respondent in this case, a woman named Latrice Saxon, actually worked for Southwest as a ramp agent supervisor exclusively at Chicago's Midway Airport, so she doesn't travel across different airports in the country. At Midway, she supervised, trained, and assisted ramp agents loading and unloading passenger baggage onto and off of planes, and her employment contract with Southwest includes an agreement to arbitrate any wage disputes, but she sued Southwest in federal court under the Fair Labor Standards Act, alleging that Southwest denied her overtime pay. But she argued that her arbitration clause was not covered by the FAA because she is a member of a "class of workers engaged in foreign or interstate commerce" that are exempt under the transportation worker exemption.

 

The district court granted Southwest's motion to compel arbitration, but the Seventh Circuit reversed, actually. The Seventh Circuit held that cargo loaders like Ms. Saxon are "engaged in commerce for purposes of the FAA's exemption because they are so closely related to interstate transportation as to be practically a part of it."

 

And although the Seventh Circuit acknowledged that loading cargo is not quite the same as transporting it across state lines in foreign or interstate commerce, the Court nevertheless concluded that such closely related work is, for purposes of the FAA's exemption, interstate transportation. So in the Seventh Circuit's view, workers that do not actually transport goods or people across state or national borders, like Ms. Saxon, can nevertheless still qualify as transportation workers that are exempt.

 

Now, Southwest argues that the FAA's transportation worker exemption is a narrow one that only covers workers that participate directly in the cross-border transportation of goods for people, and by "directly," Southwest means that they actually have to transport goods or people across state or national borders. Southwest argues that this is the core meaning of "engaged in foreign or interstate commerce," which it considers a legal term of art in 1925 when Congress enacted the FAA based on related cases at the time.

 

What's so interesting about this case is that the party's briefs are actually fairly both originalist; they're both looking for -- at least purportedly originalist. They're both looking for arguing about the alleged original 1925 meaning of this phrase in the FAA. And so, the parties are primarily arguing about that historical meaning, and they're also arguing about a level of generality question, about how high a level of generality do we interpret the class of workers.

 

So Southwest also argues that this narrow definition is confirmed by the statute's neighboring references to seamen and railroad employees which, in Southwest's view, share the core common attribute of interstate transportation across state and national borders. And Southwest further emphasizes that the exemption should not be interpreted so broadly that it effectively swallows a large portion of the FAA's subsequent provisions.

 

And in response, Ms. Saxon argues that airplane luggage handlers fall within the transportation worker exemption because they play the same necessary role in the flow of commerce as seamen and railroad employees who are explicitly listed in the statute. And furthermore, Saxon argues that the relevant level of generality for defining the "class of workers is airline workers generally rather than baggage handlers specifically or ramp agent supervisors specifically.

 

And like I said earlier, Saxon also has a contrary historical argument, insisting that those engaged in the loading or unloading of interstate shipment were, in fact, considered to be engaged in interstate commerce, in the relevant sense, in 1925. And so, what's interesting particularly about this case is, it's obviously very important for Southwest, and it's going to have a lot of important implications, but what's so important is going to be how broadly or narrowly the Supreme Court ultimately writes an opinion.

 

It's theoretically possible that the Court writes an opinion that says, "Well, baggage handlers are not even transporting goods and people in interstate commerce in the relevant sense, so we don't really need to work out all the details about exactly what kind of transportation counts or whether what portion of the interstate journey counts."

 

For example, there's all kinds of potential fact patterns where this could arise. Amazon Flex drivers that are completing an intrastate leg, the last intrastate portion of interstate delivery of a package where the item remains in its original packaging. What about them? Uber and Lyft drivers, they may not be -- we may not get a definitive answer about them from this decision, for rideshare drivers that may occasionally go across state lines, but not primarily.

 

But anyway, it's very likely that even a favorable opinion for Southwest in this case will not resolve all the potential issues about the scope of the transportation worker exception. But to address some of that, and provide some additional commentary, I want to turn it over to Theane.

 

Theane Evangelis:  Thank you, John. This really is a fascinating case because it's a question that has been much debated. What is the relevant class of workers? And if you take Saxon's argument to its logical conclusion, then anyone who touches the airline industry or an airline would seem to fall within Section One, but the question is really, does it matter what the worker does or what the employer does? And Saxon's argument is really focusing on what the employer does, but I don't think that's the right inquiry.

 

And what I found fascinating, too, is that the parties are debating what it means to be a railroad worker or a seaman. And I thought Southwest Airline's argument on this was very persuasive; they said, "It has to be someone who was riding the rails or sailing the seas, or is it someone who was painting the ship?" It's really an important exercise in line drawing.

 

I think all of this counsel's in favor of minimalism here and being careful of what consequences a broad ruling might have, but there are certain principles that just have to be the case. This is a narrow exception to the broad FAA, so we know that. We know that we're talking about movement of goods in interstate commerce, in the channels of commerce. So how far removed do you get before you're outside of that? I would argue that Southwest has the better argument there.

 

And it really is going to be an interesting case to see which angle the Court takes in deciding this. But I think there's a lot of focus, as you say, on what was intended in 1925, but we're now applying that framework to whole other classes of workers in different industries that, of course, were not contemplated then.

 

So I always find that fascinating in debating how far we'll go here, but there are certain principles that I think would be helpful if the Court were to weigh in and say simply crossing state lines once, of course, is not enough. You have to be in the business of doing that, of moving things or people across state lines, and that's the central job description. I think those were Justice Barrett's words in the Wallace v. Grubhub case, which I think are just spot on here. So very interesting to watch what the Court will do for those of us who love arbitration issues.

 

Jess Bravin:  Also, just for context as we look at these cases, one point that occurs to me is that they're all arbitration cases. They also all are wage theft cases. In other words, the allegations in these cases are all that the employer has underpaid or shorted the employees. And there are class-wide issues because, typically, they don't just short—if they are—one baggage handler; it'd be all of them. Maybe they were on a shift or something like that.

 

And so, the question of class arbitration and class rights is key to this. As we go on, I just wanted to note that, although the Supreme Court has treated the Arbitration Act really almost as sacrosanct—maybe the most inviolable statute we have, compared to other statutes they've interpreted recently—the Congress has surprisingly, perhaps, pulled back a little bit. This year, they passed an exception for cases alleging sexual harassment. And so, I wonder, as we discuss further, if we are seeing any kind of pullback from Congress for the kind of blanket endorsement of arbitration clauses in all circumstances.

 

And finally, this is probably the only place, when we talk about Southwest Airlines, when people say FAA, they're not thinking of the Federal Aviation Administration. Okay. So we have another transportation-related case involving arbitration, and that is the Viking River Cruises. Shall we move on to that one?

 

Theane Evangelis:  Yeah. Thank you, Jess. And, again, you're right. This case has, underlying it, a wage and hour claim. This case was brought by the plaintiff, Angie Moriana, who worked for Viking River Cruises as a sales representative in Los Angeles for just about a year. And before she began her employment, she was presented with a bilateral arbitration agreement. She had a full opportunity to opt out, so this was not mandatory arbitration.

 

This was a voluntary decision by her to resolve all of her claims in bilateral arbitration. And the agreement very explicitly called out class collective representative, or—here it is—private Attorney General action cases, and claims she waived her right to bring those. So she agreed to bring her claims and bilateral arbitration, but lo and behold, she filed her case in court under the California Private Attorney General Act.

 

So despite her arbitration agreement, she filed her suit in court because California courts—the California Supreme Court in the Iskanian case—have held that those PAGA claims cannot be waived, that those are claims that an employee—an aggrieved employee is the language of the statute—has the right to bring in court and they cannot be waived in an arbitration agreement, that that would be against California's public policy.

 

So what is PAGA? PAGA is, I think, as some of us call it, a Frankenstein statute where, in California, it's really become the escape valve out of the rule against -- It's the way to get around class-action waivers. It's the way that plaintiffs have begun bringing aggregate claims through a class-like procedure.

 

The Private Attorney General Action permits an individual employee to seek penalties on behalf of themselves, but also all other purportedly aggrieved employees. So we're talking tens of thousands—sometimes hundreds of thousands—of people collected together in aggregate litigation.

 

It looks like a class action, it walks like a class action, it quacks like a class action, but California courts don't treat it like a class action. They have said that -- The California Supreme Court has said that it's almost an inalienable right that an employee can bring a PAGA action in court. It can't be waived in an arbitration agreement.

 

So what we have is a situation where the employee purports to bring the suit in the name of the state, and it seeks penalties; 25 percent go to the employees, 75 percent go to the government, attorneys' fees come off the top. They sometimes exceed—often exceed—what the employees recover. And we're talking about penalties that stack up in a very significant way. These are hefty penalties: $100 per pay period, stacking of all these intricate, arcane labor code violations.

 

And, by the way, if you're an employee, all you have to have suffered—according to the California courts—is one Labor Code violation in order to seek penalties on behalf of everyone who ever suffered any Labor Code violation. So just imagine the scope of this. So we know the Supreme Court said very clearly that class-action waivers are enforceable, class actions are inconsistent with bilateral arbitration, undermine all its benefits in the Concepcion case. They repeated that again in Epic Systems. This is as clear and bedrock of a principle now as any. And in response to that, we've seen this huge push for PAGA actions, and they've really taken the place of class actions and collective FLSA actions in California.

 

And so, each day, there are 15 PAGA notices. An employee has to give notice to the state before it pursues its litigation. So there are about 15 notices a day and over 5000 each year in California. There are thousands of PAGA actions filed every year. And what I thought was particularly interesting is Viking River's briefing called out some of the plaintiff's attempts to direct people to bring PAGA actions. They're just unabashedly calling for PAGA as the new class action. There was even one plaintiff's lawyer who famously had a Mr. PAGA license plate, and I love that footnote in Viking River's brief.

 

So this is really a huge problem. And so, the Court, very recently, has had just a very big flow of cert petitions asking the Court to take this on, and I think there was a period several years back when there were a few petitions filed, but then they all started with new urgency in the last couple of years.

 

And so, I think the Viking River grant is really perhaps reflective of the huge demand, or ask, by employers in California to please correct this because it really an end run around Concepcion and Epic Systems. So when Viking River moved to compel arbitration here, the California courts denied the motion, cited Iskanian. The California Supreme Court, as usual, denied review.

 

So the question is whether the FAA requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims under PAGA. And Viking River argues—and I think this is the key here, and this line is repeated throughout their briefing. I think it really comes through and it's quite effective—that there's "no meaningful difference between the class action at issue in Concepcion, the collective actions at issue in Epic, and the representative PAGA action at issue here." And they go on to explain that PAGA actions are even less compatible with individual arbitration than class actions, and I think that's true. 

 

And Judge Randy Smith's dissent in the Sakkab case from the Ninth Circuit went through this in detail and was quite effective in explaining how PAGA actions are so dangerous and problematic. And the Ninth Circuit, unfortunately, though, didn't agree with him, but since then, other judges have called out PAGA and the need for review here.

 

So Moriana's arguments, really, I found them interesting. What Moriana is arguing is that Viking is actually not just seeking to compel arbitration of a PAGA claim, but to preclude her from bringing a PAGA claim in any form, so really trying to turn this into a waiver situation, not an arbitration agreement. It seems rather defensive, and I don't think it's persuasive because, again, if it walks like a duck and looks like a duck, I'd say it really is quite like exactly what the Supreme Court said was not permissible in Epic and in Concepcion. So thanks, Jess.

 

Jess Bravin:  Do we have anything else on this case? Anyone want to jump in quickly?

 

Jonathan Urick:  Sure. Yes. There's some really interesting aspects of this case and potential implications for other related rules. So first, I want to definitely echo Theane's comments that Iskanian in California fundamentally changed how significant PAGA was. PAGA claims went from sort of a tagalong claim in a lot of lawsuits to really the main event because of the Iskanian rule and how they allow plaintiffs to avoid their clients' arbitration clauses and, importantly, the class-action waivers that are part of those arbitration agreements.

 

What's also interesting about this grant is the timing of it. After so many petitions had been denied for so long on this issue, Justice Barrett joins the Court, and then all of a sudden, the Court grants the cert petition. Now, we certainly don't know for sure—I'm speculating—that her presence on the Court made a difference. It could just be, as Theane suggested, that the Court was getting so many of these petitions from employers that the need to resolve this question was just imperative, but it could also be that Justice Barrett joining the Court made a difference. So those are some interesting facts.

 

Another one is that this case comes out of a state court. The Supreme Court, for a while, had avoided taking arbitration cases from state supreme courts because Justice Thomas, notably, doesn't believe that the Federal Arbitration Act applies in state court. And so, it was kind of a vehicle problem for the Court to take an arbitration case from a state court because there was always the risk that the Court would not be able to form a five-justice judgment.

 

So we're testing that now. My suspicion is that the majority—the conservative majority—believes that they have five solid votes that the FAA -- at least five solid votes that the FAA applies in state court. So Justice Thomas's unique view may not become an issue anymore, but we also don't know whether Justice Gorsuch or Justice Barrett or Justice Kavanaugh shares Justice Thomas's view on that; they haven't indicated one way or another. So that'll be interesting.

 

And then, finally, I just want to note that California has a very similar rule, called the McGill rule, about what are known as public injunctions, which are very similar to these PAGA claims, where a plaintiff is seeking an injunction not just on their own behalf, but on behalf of the public and other plaintiffs, and generally, they're very similar to class actions. And California has a similar rule from the McGill case that holds that arbitration agreements that do not allow plaintiffs to bring public injunction claims before the arbitrator are void and unenforceable.

 

And I think a favorable decision for Viking River that holds this Iskanian rule that PAGA preempted the reasoning of such a decision would very likely also doom the McGill rule as also preempted, but that's another thing to watch. After a decision in this case, what will be the effect of the decision on this related rule in California?

 

Jess Bravin:  Yeah, and I just want to say you're both very persuasive, and listening to you, you would have to think California and the other party were out of their minds to even make this case. I think we should just say that, as I read the papers, I believe that the plaintiff -- and she agreed to an arbitration clause. It wasn't that she went and had wonderful counsel like the people on this panel; she had a bunch of forms that she got when she got a job, and there was an opt-out box on one form that she didn't check.

 

So it's not the kind of thing where she and her team of lawyers met with Viking River Cruises' team of lawyers and they spent three weeks at a ski chalet working out these details. This was much more of a very quick employment agreement that many people in wage jobs get and sign without a great deal of informed legal advice.

 

California's position is that it's not economical for it to police every single wage violation in the state, and so they have decided, as a matter of efficiency, to sort of outsource enforcement of state law. And the Supreme Court in other circumstances, one might mention, has thought it seems okay for a state to outsource enforcement of its legal policies or prohibitions to private parties.

 

So that is one thing California says it is doing through this. Whether, in reality, it works that way or not, obviously, is a matter of debate. You know, people are trying to get an advantage from whatever legal devices are at their disposal, no doubt, but we have seen, in this case and in other cases, California very much disliking the Supreme Court's understanding of the Federal Arbitration Act, and certainly, this is a way they want to get around that. But they also say that they have public policy objectives that this legislation fulfills.

 

And I think that we have seen some amicus briefs or some people say there might be implications for other types of actions where a private party takes on the representation of a government interest like Federal False Claims Act cases or other qui tam actions. Are there any implications for this case and other types of situations where you have a private party asserting a government interest?

 

Theane Evangelis:  Well, Jess, this really isn't a qui tam statute. I'd like to take that premise on because the plaintiffs are trying to argue that it is, but that's really a key point here. And actually, there's a very interesting opinion from the Ninth Circuit in Magadia v. Walmart, which explains why PAGA is not a traditional qui tam statute.

 

A plaintiff in a PAGA case brings the case on behalf of herself, as Ms. Moriana did here. So it is the individual's claim, and the individual controls the suit. It's not the same as a False Claims Act situation at all. And so, we're really dealing with something that is an end run around Rule 23, Class Action Procedures and Safeguards, and in this case, arbitration agreements.

 

And if it's so important to the state, the state has now built up a war chest through its 75 percent of penalties through settlement after settlement since PAGA was enacted, so maybe it could use that for the cases that really merit taking them on, or an individual can bring a claim on their own behalf and pursue it in arbitration.

 

So I do disagree with the premise that this is going to affect enforcement. I think that what, hopefully, it will do is weed out the cut-and-paste jobs that we're seeing where the word "class action" and the plaintiff's name are cut and pasted over to a different name with PAGA to replace the class action. So we'll see what happens.

 

Jess Bravin:  Now, I know they are beating down the doors to hear about Morgan v. Sundance, and I think that we don't want any stampede, so can we turn to that case now?

 

Jonathan Urick:  Sure, Jess. And notwithstanding Jess's hype about Morgan v. Sundance, it is a bit technical, and so we'll try to keep our discussion of that a little bit brief. And if you really have burning questions about Morgan, we can certainly explore them after the full discussion. But Morgan v. Sundance is about whether waiver of the right to invoke an arbitration agreement requires the party resisting arbitration to demonstrate prejudice from any delay in invoking the right to arbitrate.

 

And so, respondent Sundance owns a bunch of Taco Bell franchises across the United States, and petitioner Robin Morgan worked at one of these Taco Bells in Iowa as an hourly employee. And as Jess explained earlier, this is one of those Fair Labor Standard Act cases where Ms. Morgan alleges that Sundance violated her rights under the statute by not paying her and other Taco Bell employees for all of her hours that she worked, and also by not paying her legally required overtime.

 

And for these alleged FLSA violations, Morgan brought a nationwide collective action against Sundance in federal court under the FLSA. And just as a note for those who may not be familiar, the FLSA has a statutory collective action procedure that's not exactly a Rule 23 class action, but it's very similar to a Rule 23 class action. But the differences don't matter for purposes of this case and the arbitration issue.

 

Jess Bravin:  And it can be waived; is that right?

 

Jonathan Urick:  Yes, it can be subject to arbitration, just like any other claim. Immediately upon Ms. Morgan's suit, Sundance didn't immediately move to compel arbitration. It first filed an unsuccessful motion to dismiss without mentioning arbitration in that motion. After the district court denied that motion to dismiss, Sundance then filed an answer raising various affirmative defenses. Also, none of those affirmative defenses included the arbitration agreement.

 

Sorry. I should have mentioned that Ms. Morgan's employment contract with Sundance includes an arbitration clause. That's the premise of this case. Sorry. After answering Ms. Morgan's complaint, there was also a brief attempt by Sundance to settle the claims through mediation, but they were unsuccessful and weren't able to resolve Ms. Morgan's claims. And then, three weeks after the mediation concluded unsuccessfully, Sundance then, for the first time, moved to compel arbitration.

 

And at that point, the district court denied this motion to compel arbitration, agreeing with Morgan that Sundance had demonstrated an affirmative intent to waive its right to invoke the arbitration clause by engaging in courtroom litigation and seeking to settle her claims, but the Eighth Circuit reversed, holding that Sundance had not, in fact, waived its right to enforce the arbitration agreement because Morgan had not been prejudiced by the delay—by Sundance's delay—in invoking the agreement.

 

So Ms. Morgan argues that a prejudiced requirement for waiver of arbitration rights essentially violates the Federal Arbitration Act because such a requirement is not a general requirement for the waiver of other contract rights besides the right to arbitrate. And so, it's really trying to take that equal treatment principle that the Supreme Court has reiterated so frequently in recent cases, trying to use that against Sundance, who's trying to invoke arbitration. In response --

 

Jess Bravin:  That's kind of the funny thing about this case, right? They're trying to say, "It's our incredible respect for arbitration that makes us want to avoid our arbitration clause."

 

Jonathan Urick:  Yes, exactly. Exactly right. That's what makes this case a bit unique and unusual. So Sundance, in response, raises various arguments, one of which is that the FAA itself says that a court must -- Sorry. The word is shall, and shall means must, Sundance says, and the Court, thus, must issue a stay when there's a valid arbitration agreement unless a party is in default of their agreement. That's the relevant language from the statute. And Sundance says default for various reasons and naturally includes a prejudice requirement that there's no default of our contractual obligations unless someone has been prejudiced.

 

And Sundance also argues that this sort of situation should be handled by general background procedural rules rather than state-by-state contract waiver doctrines, which may be vague and differ across states, at least in federal court. Table the state court issue, which is a little tricky, but at least in federal court, this waiver forfeiture question -- There's also a dispute about exactly the terminology and how to characterize it. Is it waiver? Is it forfeiture? Is it laches?  Is it estoppel? I'm not going to get into all those technical distinctions.

 

But the gist of Sundance's argument is the general rules of federal civil procedure, which govern when parties can raise defenses, should govern this issue, and those generally applicable rules require prejudice. And so, therefore, Sundance shouldn't be held to have waived its right to invoke the arbitration agreement because its delay did not cause Ms. Morgan any prejudice.

 

Yes, Sundance engaged in some litigation already, but discovery, for example, had not even started, and discovery is sort of like a major moment in the litigation where the costs increase. And so, before discovery, at least, there's no prejudice to Miss Morgan.

 

And then, Sundance also does make some policy arguments that I suggested earlier about how doing the state-by-state approach would be very unpredictable, would not give defendants very much comfort in being able to rely on their arbitration clauses and know exactly by when they have to raise these arguments, and that the no-prejudice rule is just harsh. It's unfair and harsh. Why should a party lose its right to arbitrate if the delay has not prejudiced anyone?

 

So those are at least at a high level, but that's a general summary of the party's arguments in this case, and I want to turn it over to Theane to discuss any commentary that she wanted to offer on Morgan.

 

Theane Evangelis:  Sure. And I really go back to Jess's point at the outset. What's really fascinating here is that the plaintiff, Morgan, is arguing, "No, no, no, we just love arbitration so much. That's why we're going to apply waiver rules that apply generally to contracts here as well." And the FAA requires a general application of rules—not special rules—for arbitration agreements, whereas Sundance is arguing, "No, the FAA is decidedly pro arbitration, and it requires the application of rules that favor arbitration."

 

And here, this is exactly the sort of made-up "gotcha" rule that would actually defeat arbitration agreements. And at what point would a party waive arbitration? I'd be afraid to pick up the phone and try to resolve a case informally. We know that's good for everybody, but you didn't immediately seek arbitration, so now you waived it. I'm not sure at what point you can draw the line there.

 

So this would just be open to all sorts of hyper-technical "gotcha" manipulations by anyone trying to avoid an arbitration agreement. And also, it would allow states -- Morgan's position would allow states to create their own special waiver rules to try to defeat arbitration. We just saw in Viking River the extents to which California and California courts have gone to really go against the Supreme Court's teachings on the FAA, so this would just open the door to mischief.

 

I think that the much better view, not surprisingly, from my perspective, is that which is advocated by Sundance. And the Eighth Circuit's decision just seems right here. So at first, I thought this is an interesting grant because the decision below is right, but I think since 2007, the Court has reversed in 70 percent of the cases, so in 30 percent of the cases, they have affirmed. So I think that the respondent actually has the better of this argument.

 

But lastly, I will just say, what will be the reach of this decision potentially? Hard to know. Depends on which way the Court goes, but we have seen—at least in my home state of California—that the legislature and the courts have been very hostile to arbitration, and they've enacted laws recently that are aimed at finding waiver of the right to arbitrate.

 

So SB 707 is one such law. It relates to mass arbitration and the filing fees that are due when arbitration demands are filed. And it has a very punitive system of waiving your right to arbitrate if you don't immediately pay, even if the demands are invalid, even if they didn't follow the arbitration agreement—even if, even if. You have all of these arguments, but you still waived your right to arbitrate, according to the State of California. So that is really problematic. I think waiver rules are an area where those who are against arbitration are really seeking to push the envelope, so it will be interesting to see what the Court does here.

 

Jess Bravin:  Yes. Well, thank you, Theane and Jonathan, our own Sundance kids for today's session. Any other thoughts on this particular trio of domestic arbitration cases? I mean, certainly it's not the first time we've seen a state perhaps bristle at Supreme Court precedents in a certain area and enact laws that try to push the envelope. Maybe some other sessions will also involve cases that involve that phenomenon, or maybe some have already even argued.

 

You know, when I think of the Federal Arbitration Act, I think, of course, of President Coolidge. And I was reading the papers of President Coolidge and looking up what he had to say about arbitration because, of course, he signed that Act in 1926, and most of his remarks on arbitration actually do not involve domestic commercial arbitration. He talks a lot about arbitration as a way to resolve international disputes.

 

And, of course, earlier this week, all eyes were on the Peace Palace at The Hague, the seat of international justice, where we were all very eager to see what that tribunal, the Permanent Court of Arbitration based in the Peace Palace, might be up to. Instead, it was preempted by the ICJ, which had some other dispute that it was opining on.

 

But it turns out that our next case involving international law also involves arbitration. And for that, Mr. Elwood, are you able to take us on a ride?

 

John Elwood:  Certainly. So enough about arbitration. Let's talk about arbitration, but at least this is a slightly different flavor—international, or it has an international flavor. Now, Section 1782 of Title 28 of the U.S. Code provides that federal district courts have discretion to order someone who resides or is found in that court's district to give testimony or produce documents "for use in a foreign or international tribunal."

 

Now, the case that was supposed to begin this term, back on the first Monday of October, Servotronics v. Rolls-Royce, addressed whether that discretion extends not just to foreign court proceedings, but also extends to discovery for use in a private arbitration that occurs overseas. But that case settled on the eve of argument. More speculation later on why it may have settled.

 

But once that case settled, other parties in cases that presented the same issue practically tripped over each other trying to be the replacement vehicle for the Court to resolve a recognized split. And it's a measure of how often this issue comes up. There were a number of cases in the pipeline behind Servotronics for the Court to take. There were two winners in the race to the courthouse, and the Court granted cert to have the cases argued together. So there's been, I think it's about an hour of argument, although I suspect it will run long.

 

The first of the two cases is ZF Automotive US v. Luxshare, LTD. Now, Luxshare is a Hong Kong company which sued the U.S. subsidiary of a German auto parts maker for fraudulent concealment in connection with the sale of a business unit. So the sale went sour, and they went into arbitration to sue for it. We read that the case involves private arbitration by contract in Germany.

 

Luxshare, the Hong Kong corporation, successfully got a district court in Michigan to order discovery. Now, because Sixth Circuit precedent already supported that ruling, already said you have to -- or that they have discretion to order discovery for a foreign private arbitration proceeding, the Supreme Court granted cert before judgment; that is, they took a case that had only been decided by the district court and hadn't yet been reviewed by the court of appeals, which is the normal way things are done.

 

That's still a fairly rare procedure. I've been watching the Court pretty closely for a couple of decades, and I can only think of a few examples of that. The second case is AlixPartners v.—this is a very catchy name—Fund for Protection of Investor Rights in Foreign States. It just rolls off the tongue. The facts of that case are slightly different.

 

The Fund is a Russian corporation—which may be why the name is so clunky—that owns an interest in a private bank that Lithuania nationalized when Lithuania said that the bank had become bankrupt. The Fund commenced arbitration against Lithuania, not under a contract, but under a bilateral investment treaty between Lithuania and the Russian Federation. That treaty provided either proceedings in a court of either of one of the states or in an ad hoc arbitral body, and the Fund chose arbitration.

 

The Fund successfully sought an order requiring discovery of AlixPartners because one of their employees is a fact witness. And I just have to note—because I have a very juvenile sense of humor—that the man's name is Freakly, like the adverb form of "freak." But although the petitioners in both cases argued that their case was clearly the better vehicle, I think both cases -- I think both petitioners and the Court appreciated that it might be better to have both of the cases granted so that the Court had different types of arbitration before it, which might allow the Court to give a more complete answer, and that is what the Court wound up doing.  They both have kind of the more common instance of contractual arbitration and also arbitration under an investor-state treaty.

 

Now, the petitioners in both cases are the parties resisting discovery, and both petitioners, obviously, but also joined by the United States or the Solicitor General as amicus curiae—or a friend of the court—argued that the ordinary contemporary meaning of tribunal when Congress enacted the provision back in 1964 was limited to governmental forums—not just sort of private groups that have convened to give arbitration by contract or under a treaty, but only governmental forums.

 

They note that the surrounding provisions to Section 1782 reference the same phrase, "foreign or international tribunals," and that those other provisions around it only makes sense if they involve governmental entities. For example, there's one provision that authorizes the State Department—the Federal State Department—to receive a letter rogatory from a foreign or international tribunal.

 

And I don't know how many of you know what a letter rogatory is, but it's a way that states generally ask other states to give information, and, really, only governments can issue those, although, as soon as this is over, I think I'm going to print up a document that says "letter rogatory" on my printer just because it sounds kind of a fun thing to do.

 

They argued that the theory is most consistent with the predecessor statutes the pre-existed 1964 that only involve judicial assistance; that is, only assistance to re-alive governmental courts and things like that, and it was meant to be expanded only slightly to encompass things like administrative or investigatory bodies, like magistrates and things like that.

 

And there's no dispute that, before 1964, the statute really only applied to foreign courts, and they argued that there's nothing about the text that suggests they should expand it so broadly. They also note that domestic arbitral bodies can't ask courts for discovery. You know, arbitration in the United States is really kind of a very streamlined procedure, and obviously, you can't ask for courts to assist you in discovery here. And the petitioners in the United States argue it would be weird to treat foreign arbitral bodies better than they treat domestic arbitral bodies, and they also say that it's inconsistent with the idea of arbitration being faster and more streamlined.

 

The government and AlixPartners in the second case—that is, the case involving investor-state arbitration or an investor-state treaties—argue that the same is basically true of arbitration on those kinds of cases as well and that the panel there functions independently of any governmental body, and it's convened on an ad hoc basis, just like contractual arbitration.  They argue that having discovery would upset the subtle expectations of the people who enter into those sorts of -- into those sorts of treaties.

 

Now, by contrast, the parties seeking discovery in both of these cases argue that there are some broad definitions of tribunal that literally would encompass arbitral panels. They basically just say that a tribunal is a body that adjudicates disputes, and they argue that the presence of the word "foreign" and "international" don't obviously add a governmental aspect. They say that foreign films and international music aren't governmental either. And so, basically, you add those words, and it doesn't add this whole new gloss.

 

They argue that it was obviously meant -- Section 1782 was obviously meant to expand the scope of what was available. For whatever it's worth, the Supreme Court previously held in a case called Intel v. Advanced Micro Devices that Section 1782 permitted to district courts to provide discovery to a European antitrust commission, although that doesn't really add that much because that was doubtlessly a governmental body.

 

But for people who are really reading the cases closely, if you look at the opinion in Intel, the Supreme Court repeatedly quoted, with approval, a law review article written by a guy named Hans Smit, who was a professor who served as the reporter on the commission that drafted the recommendations that gave rise to 1782.

 

And the Supreme Court, in an example of why you shouldn't include language in an opinion that isn't really necessary, they quoted, in a parenthetical, a footnote in the Smit article stating the following: "The term 'tribunal' includes investigating magistrates, administrative, and arbitral tribunals." So it looks like, if you're reading the case very closely, the Supreme Court already kind of decided that.

 

So in any event, this kind of brings us to the end of me just reciting the facts, and now I will give you guys a little bit of insider information so you know why you tune into these things. I participated in essentially a school for new appellate judges over the summer, and because so few cases had been briefed by that point, they used the Servotronics case as an exercise for the new judges.

 

And so, we had a whole roomful of new appellate judges, as well as a panel of actual appellate judges—or longtime, experienced appellate judges—and at the end of that proceeding, they used my associates to argue the case back and forth. And at the end of that, they all voted to see who won—and this is the Servotronics case—and the judges, new and experienced, voted overwhelmingly that Section 1782 does not cover private arbitral proceedings.

 

So for whatever that's worth, they didn't have the second case involving the investor-state arbitration, so maybe the facts were slightly different, but at least if you go by a fairly well ventilated issue with a lot of experienced judges, they seem to think, overwhelmingly, that 1782 doesn't cover arbitral proceedings. So for whatever that's worth, I pass that along.

 

Jess Bravin:  Obviously, we welcome discussion, but I wanted to say firstly, John, you've demonstrated why we call this "Freakly Friday." There are lot of -- Always, you can look at the cases through many different lenses. Another way to look at these cases has to do with supplying discovery to a foreign legal proceeding of some kind.

 

And we did have -- Just for context, we had another interesting case involving that this term that was decided recently, and that was where Guantanamo detainee Abu Zubaydah, working with Polish prosecutors, wanted to get evidence from the CIA's torture contractors who worked with him, you could say, in Poland years ago.

 

And even though everything they -- or much of what they've done is well known publicly and has been reported and they've written books about it and been on TV and so on, the question was whether that was a state secret because the United States intervened in that effort and did not want those contractors to provide that evidence, even though there was a treaty with Poland that envisioned cooperation with their legal proceedings.

 

And the Court did hold that state secrets privilege would require that request to be denied. So that was -- You know, these issues of providing evidence to foreign proceedings or international proceedings come up repeatedly, and perhaps we'll even see them related to the Ukraine war, as the United States has taken a great interest in the international law consequences of that conflict. We have another international case. Can you walk us through it, John?

 

John Elwood:  Sure. So, in Golan v. Saada, the U.S. Supreme Court will once again weigh in on the interpretation of the Hague Convention on the civil aspects of international child abduction, which is an international agreement adopted in 1980 to deal with international child abductions during domestic disputes.

 

Now, this may sound like kind of an obscure treaty, but it is remarkable how many times the Supreme Court has addressed this. It's not quite as common as cases on the Armed Career Criminal Act which seem to come up. My standard joke is there are more on Armed Career Criminal Act cases and there are armed career criminals. But it this isn't quite as common as that, but they're still quite common. This will be the fifth time that the Court has construed that treaty just since 2010, which is really very frequent to be coming back to a treaty. It's probably the most commonly litigated treaty.

 

Now, under the Convention, children who are wrongfully taken from the country where they live—which, under the terms of the treaty, is a country where they are habitually resident—they must be returned to that country so that the custody dispute can be resolved in the country where they ordinarily live. The rationale behind this mandate is that a parent should not be able to gain an advantage in a custody dispute by abducting the child and taking them to a different country.

 

The Convention carves out an exemption to the general return requirement for cases in which there is a "grave risk" that returning the child would expose the child to physical or psychological harm. Now, in Golan, the justices agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home—that is, ameliorative measures.

 

That is, once the court finds that there is a grave risk in returning the child, whether they can just stop there and allow the child to remain in the country where they are now—here—or whether they are obligated to consider whether they should be permitted -- or they're obligated to consider whether there are steps they could take to make it safe to return home.

 

The question comes to the Court—as Hague Convention cases generally do—in a case involving parents from two different countries. Narkis Golan, a U.S. citizen, married Isacco Saada, an Italian citizen—I apologize for butchering the pronunciations—in 2015. The couple's child, known as B.A.S. in the Court proceedings, was born in Milan in 2016.

 

Saada was abusive towards the Golan throughout their marriage, often in front of B.A.S., but there's no indication that he mistreated the child directly. In 2018, Golan took B.A.S. to the United States and did not return, remaining in a domestic violence shelter in New York City. Saada went to federal court there, trying to compel B.A.S.'s return to Italy under the Convention.

 

The district court concluded there was a grave risk of harm to B.A.S. if he was returned, but then came up with some relatively mild ameliorative measures to reduce the risk of harm. Now, the case went up to the Second Circuit on appeal, and it concluded that, when a district court concludes that a child's return would pose a grave risk of harm, the district court is obliged to consider measures that would reduce the risk.

 

The Court also concluded that the measures there weren't sufficient to ensure B.A.S.'s safety, so the case was sent back to the district court, which spent another nine months considering ameliorative measures, and after all that, ordered B.A.S.'s return to Italy with a wide variety of measures in place to protect him. For example, Saada was required to pay Golan's expenses for an entire year so she could live there to protect him. He entered sort of a protective order against Saada and ordered therapy and parenting classes for Saada.

 

So Golan, the mother, went to the Supreme Court, asking for the justices to take up her case. She argued that the Second Circuit's rule requiring courts to consider measures to reduce the risk of harm clashed with the holdings of other courts of appeals, which do not require such measures, particularly in cases involving domestic violence.

 

In April 2021, the justices asked the federal government for its views, and the Solicitor General took a while, and then filed a brief, in which they agreed with the mother that the Supreme Court should weigh in also, but then agreed also, I guess, with the mother in saying that the Hague Convention allows but does not require the Court to consider measures that could ameliorate the risk to the child.

 

Now the Court is fully briefed and awaiting argument in the upcoming weeks. The petitioner—again, the mother—argues that the Hague Convention does not require consideration of ameliorative measures. They said that, if you find grave danger, it's okay to just say, "We're not going to return the child." They acknowledge what they say could be limited use of ameliorative measures, if narrowly tailored to facilitate the prompt return of the child, but she focuses on things like -- You know, she says that there's kind of a broad range.

 

Again, not all of these cases involve things like domestic abuse. They could involve cases like, for example, where the child is being asked to be returned to a country where there's rampant disease, and they say that the focus should be on more things like countries where there are communicable diseases where it's a fairly easy fix to just say, "The child should be vaccinated" or something like that.

 

And they say that the text of the treaty suggests that, for things like domestic abuse, the idea is that you should have fairly quick proceedings to return the child. And for things like domestic abuse where you have to have months and months of proceedings—like in this case, there were over a year of proceedings, both before and after the appeal—in order to come up with the sorts of measures that would ensure there wasn't a grave risk.

 

And they say that, in cases like domestic abuse where you have to have these extensive proceedings, that that's kind of inconsistent with the idea that they're supposed to be relatively quick proceedings and send them back to the country. They also say that ordering these kinds of extensive measures are inconsistent with the idea here that you're supposed to have these very quick proceedings before you send them back, and when you're having these proceedings where you're ordering these sort of extensive measures, that you're basically stepping on the toes of the family courts in these foreign countries when you're saying, "Here are all these sorts of extensive measures that have to be in place before you even send the person back."

 

And they say it's inconsistent with the idea that these are relatively quick proceedings and then you send them back. They also say that these are proceedings that are very unusual for courts. You know, after all, federal courts are used to addressing federal jurisdiction and specific types of state proceedings on the whole. They don't have a lot of experience with family court. I mean, that's kind of by design that federal courts don't have a lot of experience in these sorts of family measures and that they don't know family law, period.

 

Respondents, by contrast, say that such orders -- that this is really -- that the treaty expects that you're going to really make an effort to be able to return people or return these children back to their home jurisdictions and that it kind of is implicit in that, that you're going to be able to make steps to try to return people back and that you should really take all steps possible in order to make it feasible to return children to their home countries, and that you can't just sort of throw up your hands and say, "Oh, sorry, grave risks." You really have to exercise some sort of best efforts to try to return them.

 

And they also say that it isn't really inconsistent to impose these kinds of measures because, after all, they're just kind of provisional orders saying -- when you say they should have parenting classes in therapy and send them back, that this is just for purposes of provisionally sending them back, and that once they were sent back to the other country, that, really, those countries are going to take over at that point. And if the local—in this case, Italian—judges don't think that parenting classes are warranted, they're not obliged to abide by those rules. They can take over and start over again, essentially.

 

Now, I think I offered a little bit of a prediction in the last case. My crystal ball was a little bit foggy or here. I will say that, overwhelmingly, as a statistical matter, between two-thirds and three-quarters of petitioners win in the Supreme Court. And here, the petitioner is the mother, the party that doesn't really want the child returned, but I wouldn't really offer prediction. If I had to guess, from a fairly superficial review of the papers, I think that the petitioner, the party seeking not to return the child, probably has a slightly better chance, but again, that opinion is worth exactly what you paid for it.

 

Jess Bravin:  You know, I don't have -- Thank you for that summary. I mean, I wonder when I see these custody cases sort of going to the Supreme Court -- I mean, are the children still children by the time it gets to the Supreme Court? I mean, it seems -- You know, they grow up so fast, and how many years does it take to resolve -- I mean, I don't want to unfairly put you on the spot, but I'm just curious to know if these proceedings, just the length of them, regardless of the outcome, are that helpful for a child.

 

John Elwood:  Right. No, it is a good point because, I mean, I think in this case, the child is still a child, but you can easily see how litigation could really -- you know, that the child could grow into adulthood during the pendency of a case because it took a year and a half to get through the -- for proceedings just in district court, and then there's a Second Circuit appeal.

 

And then, I think a good rule of thumb, generally speaking, is that it usually takes about a year to get a case to the Supreme Court, so it does suggest that there's something about the whole proceeding that is somewhat inconsistent with a prompt return. And it may be that the parties resisting the return of the child—the mother, in this case—has the better of the case.

 

You know, the whole point of this treaty is to have fairly concise proceedings in federal courts in the United States before they're returned. And if you're going to go to all the trouble of having testimony from experts and possibly a guardian ad litem and other things like in order to come up with more extensive measures to ensure the security of the child, it just doesn't make sense to do all that if you're going to return them in time to have them grow to adulthood in the home country.

 

Jess Bravin:  And before we turn it to Evan, just one more thought on this because the -- Do we know anything about the kinds of children who are involved in a case like this? I mean, on the one hand, you could think you'd have to be from a fairly affluent family if you have litigation that goes all the way to the Supreme Court.

 

On the other hand, I remember another case from Italy a few years ago that certainly seemed to be more of a middle-class family where one parent was a professor, but it seems that to -- You know, do we know anything about what kind of children -- or what kind of families are involved in this sort of litigation?

 

John Elwood:  You know, I don't know. I do think that once you get to the Supreme Court, there's resources that are available. Basically, people will fight to do your case for free, but it's a lot of litigation. And one thing that kind of struck me is that the Supreme Court thought, essentially, that a $30,000 stipend for the wife to live in Italy for a year wasn't enough, and they upped it. You know, they said it wasn't enough, and on remand, the father has to provide a $150,000 stipend, which is a fairly good chunk of change. I don't know if that's representative, but I do think that you have to have substantial resources.

 

I mean, it's expensive enough to litigate a case in your home country, and it's another thing to litigate a case in a foreign country and in federal court in the United States. You know, I like to say I couldn't afford me, and I definitely couldn't afford me in another country.

 

Jess Bravin:  Well, we're glad to have you and everyone else here for free today. Evan, let me turn to you. Thank you for so patiently waiting until we got to the state sovereign immunity case. Can you tell us about it?

 

Evan Caminker:  Sure. Thank you. It's a pleasure and honor to be here. I should start by saying my title says dean, and I apologize if that's my fault. I'm only the former dean here, thank the Lord. I'm presenting Texas Department of Public Safety v. Torres, which raises the question of whether the doctrine of state sovereign immunity bars private individuals from suing in state court, seeking damages against state governments when those suits arise pursuant to Congress's Article I war powers—more specifically here, the power to raise and support armies.

 

That is not always the first source of power that we think of for most federal legislation, which is why perhaps this is a novel question. You'll be very happy to hear that the facts are much, much, much more simple than any of these international or domestic arbitration cases. The plaintiff is Le Roy Torres, who was once a state trooper for the State of Texas. He then left his employment to serve in the United States Army, after which he sought to return to become a state trooper again.

 

Because he had acquired a lung condition during his army service, he asked the state to rehire him into a somewhat different position as a state trooper, and he alleges the state says no. He sued Texas under the federal Uniformed Services Employment and Reemployment Rights Act of 1994. That Act is designed to prohibit an employer—either a public or private employer—from taking an adverse action against a potential employee simply because they served in the military.

 

And in this context, he alleges, what the Act means is that, if you leave the employment of a company and then you seek to come back after your army service, you have to be offered either the same position or something substantially equivalent. His argument is that the State of Texas refused to accommodate his newly acquired disability during his service, and the alternative position that they offered him was not sufficiently equivalent to his old job, so he claims he was, essentially, constructively fired and brought a civil suit against the state for damages, basically for his lost compensation.

 

The suit was filed in state court. The federal statute actually specifies that, if you're suing a state entity, you have to sue in state court. In defense, the state claimed that the state had an automatic and complete defense of state sovereign immunity, according to which, the state cannot be sued for money damages, even in its own court, without its consent, and the state argued it had not given its consent in any form. The state appellate court in Texas agreed and dismissed Torres's suit, and the state supreme court did not review the case, so the Supreme Court granted Torres his cert petition directly from the appellate court.

 

By way of legal background, we have to say something about, what is this state sovereign immunity claim? If you look for the state sovereign immunity claim or clause in the Constitution, you'll be looking for a long time because there isn't one. The Supreme Court has derived this notion of a state sovereign immunity defense based on kind of structural values that it presumes served as a backdrop to the Constitution itself. The legal framework actually started in the context of suits against states in federal court, and the original language of Article III of the Constitution can easily be read to give federal courts jurisdiction over suits brought against states by citizens.

 

In 1793, in Chisholm v. Georgia, the Supreme Court upheld a particular species of that category, a suit brought against a state by a citizen of another state. There was what the Court describes as a major outcry, apparently not from federal court scholars—although, perhaps had there been federal court scholars at the time, they would have joined the group—but basically, the country said, "No, no, no, no. That ignores the fact that states ought to retain some kind of sovereignty for which they can't be sued without their consent." And Congress proposed and the states quickly ratified the Eleventh Amendment, which overruled the result in that case.

 

For the past 100 years—well, maybe 200, but certainly starting 100 years ago—there's been substantial disagreement among the justices and scholars about the meaning of the Eleventh Amendment. What the Court has done has finally taken a relatively now stable and definitive view, and they have held that the Eleventh Amendment text is not limited to what the text actually says, which is kind of a narrow reconfiguring of Article III jurisdiction, but it reflects a much broader proposition, that the states, in fact, do enjoy a constitutionally grounded immunity from suits brought against them by individuals in court.

 

So in other words, the Court says the Eleventh Amendment isn't important only for what it "says," but the "presupposition which it confirms." And a few years later in a case, Alden v. Maine, the Supreme Court said the state can claim that immunity not only in federal court, which is what the 11th Amendment talks about, but in state court as well. So the idea is that the states came to the Constitution originally, they had some kind of pre-constitutional sovereignty, and in the negotiation to create the federal government in that original plan of the Convention, they maintained their sovereignty, except insofar they may have waived it as part of the process of constitutional creation.

 

This is my way of introducing the fact that I, too, am talking about arbitration. You didn't know it, but basically what we're saying is the states arbitrated with the federal government the nature of any retain state sovereignty that was essentially arbitrated in the original crafting of the Constitution.

 

So where do we -- So this notion is there's a federal immunity unless the states waived it in the Constitution. Then the question is, did the states, in fact, waive their immunity from private suits seeking to enforce the war powers? Supreme Court has long held that, in general, the answer is no, that Congress cannot use its Article I powers to create legislative regimes that allow private citizens to sue states, but they have found a couple of exceptions.

 

About 15 years ago, they said there's an exception for the bankruptcy clause. They held that the states did agree in the plan of the Constitutional Convention not to assert sovereign immunity defenses dealing with bankruptcy claims or proceedings brought pursuant to the law on the subject of bankruptcies. And the Court looked at the particular history of that clause and the post-ratification discussion of that clause to decide that the states actually had consented to be sued.

 

Now, some of that may be because bankruptcy court proceedings are a little bit specialized. The Court says they really deal more with property, with in-rem kind of jurisdiction, and not necessarily personal jurisdiction for damages. And in fact, a couple of years ago, the Supreme Court referred to this exception, and Justice Kagan use the language of bankruptcy exceptionalism, perhaps suggesting that this is the only exception in Article I for where Congress can authorize a suit against a state.

 

But then, last year, the Court decided to notice such case, PennEast Pipeline v. New Jersey, and the Court held that the states surrendered suit—sorry, immunity to suit—in federal eminent domain proceedings, even when those proceedings were brought by individuals who are essentially deputized that power by the federal government. And again, the Court looked at structural principles and early historical practice.

 

So in this case, Torres says the Court should basically decide to same thing for this particular Article I power, which is the power to raise and support armies, the notion being that Congress has plenary and exclusive power to do that, and part of the means that it's implementing that is by protecting people from adverse employment reactions. If they leave employment to go into the army, they should be able to come back out of the army without having kind of lost their job and their priority. Torres and a slew of amici argue the answer is yes, this is another one of these special cases.

 

The war powers is certainly an example of power given to Congress that was fully understood to be plenary and exclusive. States retained absolutely no sovereign powers to wage war on behalf of the United States and, therefore, shouldn't be thought of as having any sovereignty to do anything that kind of gets in the way of the United States' decision to raise an army. The Court, in an older case, quoted President Lincoln once, saying that the power to raise and support armies is given fully, completely, and unconditionally. It's not at power to raise armies if state authorities choose to consent.

 

So the state, on the other side, argues that, "Look, there was no direct discussion in the Constitutional Convention about the power of raising armies and how it affected state sovereign immunity, and it wasn't like there was an old tradition starting from the framing of having lawsuits brought under this power, unlike both the bankruptcy context and the federal eminent domain context where you can find precursors of suits involving those subject matters against states, and therefore, this is not one of those exceptional cases."

 

There aren't a lot of guideposts, so it's very difficult to figure out exactly how to predict what's going to happen in this case. The trend line certainly favors state sovereign immunity. As a general matter, the Court has been protecting that in almost every case after case after case. On the other hand, the Court did grant cert in this case, even though the lower court had protected state sovereign immunity, so it makes one wonder whether or not there are enough votes in the Court to think maybe the war powers really is an exceptional power that'll override state sovereign immunity.

 

As a final comment, I will say there's a much more straightforward and, I think, satisfactory basis for resolving this case. I and many federal courts scholars think that the whole premise here is problematic, that the Constitution itself contains only a narrow grounding for state sovereign immunity, and that is the narrow grounding that was provided by the Eleventh Amendment fix to Article III jurisdiction, and that all the other states sovereign immunity principles are there, but they're there as a matter of common law, in which case, Congress, if it chooses to, can use any of its Article I powers to override state sovereign immunity because Congress can always use its Section I powers to override common law. But while I might --

 

Jess Bravin:  Hang tight one second. I want to just -- Pardon me for one moment. I just wanted to —because we are, believe it or not, running closer to the end of our of our discussion today—just remind viewers that we'd welcome some questions, that you can raise your hand via Zoom or type in a message in the chat.

 

And I just would throw out just a couple quick thoughts here. One, I was little surprised at the facts of this case in one way, because, we hear, at least judging by bumper stickers, that Texas is very pro-military, so to have such a parsimonious approach to a service member who actually wants to rejoin a paramilitary organization, the state police, to me, was sort of surprising that, bumper stickers aside, their actual policy, when it came down to giving the guy job was maybe a little different.

 

The other thing also, though, to try to tie it into some context is that, towards his actual alleged injury—I don't know if it's alleged; maybe real injury, I guess, because he's injured—is from the famous burn pits that the president spoke about, where he spoke about his own son potentially having developed a cancer from exposure to those burn pits in Iraq and Afghanistan.

 

So even though this case, in some ways, seems a little pedestrian in that it's about a state trooper who wants a desk job, it does tie into some very larger questions and shows you the interrelationship between many different forms of policy in this country and how they got to the Supreme Court.

 

I'll just quickly mention a couple of the other cases, which also actually are interesting once you get toward them. One of them has to do -- Similar to the Southwest Airlines case, it deals with the definition of a transport worker. It has to do with railroad employees, and are they involved in interstate commerce when they are not moving, but they're putting things on and off trains? So it's similar in some ways to the Southwest Airlines case.

 

And maybe of greater political significance is we have a case from North Carolina where state lawmakers want to intervene in a voter ID case to represent an interest that the state's lawyer, the Attorney General, and the elections board have decided to dispose of differently. And we've had a number of cases where you have some state official who disagrees with other state officials about how to defend or argue for a law, want to get involved in the litigation.  And we had one where the Court recently let the Kentucky Attorney General intervene in a case involving an abortion regulation, even though the state had decided not to continue appealing an adverse ruling.

 

Here, we have a similar type of situation, and it might be interesting to see if this is treated similarly and if, really, the Court wants to open the door to have pretty much any elected official come in when they don't agree -- or not any. At least some elected officials come in when they don't agree with other elected officials who are adopting a litigation position. So those are the other two cases, but panelists and audience, now is the free-for-all round. What say you?

 

Evan Caminker:  I can just add a little point on one of the cases. You mentioned the intervention case. What makes the North Carolina case interesting is, usually, the punitively intervening party is representing a different party than somebody else already in the litigation. So the state wants to come in or is already in, but the legislature wants to come in as a separate entity.

 

What makes this case a little bit different is that the legislative bodies are essentially trying to come in to represent the state qua state. So at least one way of looking at it is that they are seeking to have two sets of lawyers for the same client because they're arguing that the first set of lawyers isn't defending the client's interest in the way that the second set of lawyers want to.

 

So it's a little bit trickier than at least many—maybe not all, but many—of the more recent intervention cases, and it's not a case where nobody was defending the statute, where somebody new wanted to come in because the old person said, "I'm done." So it's a little bit trickier, which is why it's a very interesting case to watch.

 

Jess Bravin:  You've heard of court packing; this is counsel packing. Okay. We have some questions from the audience. How about Robert Fitzpatrick? Okay. Well, he seems muted, so let's move on to Larry White. Here's Larry.

 

Larry White:  Hi. Can you hear me?

 

Jess Bravin:  Yes.

 

Larry White:  Okay. Good. Thank you very much. I greatly enjoy these, by the way. I'm an American lawyer in Turkey. I've had some experience with a number of Hauge Convention cases, normally contacted by lawyers on either side.

 

Just a couple of observations. One of them, is there was a question about the assets of the family. I'm very familiar with an American woman whose family completely liquidated all their assets to carry the case, and it only went up to the First Circuit, but they had completely wiped out all their savings in terms of fighting a Hague issue.

 

The second one is my question. In my view, one of the reasons to try and do this is to essentially create longer time of the children in the new home, or the preferred home by whatever party it is, so they can better make the argument that the children are well settled. And in the cases I've seen, in fact, these cases go on for five or six years, and by that time, the children don't want to go back anywhere.

 

[CROSSTALK]

 

John Elwood:  So this is one point that, having lived somewhere for certain time, there's one of the other exceptions in the statute to return, is where the child is mature enough to make up their own mind and they want to stay someplace, they want to stay at the new place. And you can imagine how after it's gone on for five years and Italy or Turkey or wherever seems like a distant memory, that they may decide to remain in the United States. So even though the idea was prompt return so that the party that takes the trial doesn't gain an advantage, as they say, possession is nine-tenths of the law.

 

Larry White:  Well, I agree with you, especially when there's an issue of language. If the children would have to go to school, they'd have to learn the language that they probably are not that proficient in. But thank you very much. I appreciate the discussion on that.

 

Jess Bravin:  Thank you, Larry. Another question? All right. Well, I wanted -- I know you all were waiting; I forgot to say, "Fasten your seatbelts" when we talked about the Southwest Airlines case, so I apologize for omitting that juvenile quip. Okay. Well, we are approaching the end of our session today, unless we have any last-minute questions or comments from the panel.

 

I want to thank everyone for your scholarship and erudition and for putting up with my infantile humor. And I want to thank the audience for tuning in because these are important cases. These are the bread-and-butter work of the Supreme Court and other courts. Probably a few of these cases will prompt questions next week when Judge Jackson appears before the Judiciary Committee, but it's worthwhile to remember that this type of stuff is really much of the Court's business and the kind of decision that we rely on the justices' wisdom and expertise and judgment to resolve to the nation's benefit.

 

Reminding you again, all opinions, if any, that were expressed today are those of the individual. Thank you, Federalist Society, panelists, audience, and tune in for the next sitting coming up next month.

 

 

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