1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:05,960 --> 00:00:08,799 Speaker 1: The Supreme Court has ruled that US Bank won't have 3 00:00:08,840 --> 00:00:12,440 Speaker 1: to face a lawsuit challenging steep losses to its pension 4 00:00:12,480 --> 00:00:15,960 Speaker 1: plan because the planned participants who filed suit have nothing 5 00:00:15,960 --> 00:00:18,639 Speaker 1: to gain or lose through the case. It was a 6 00:00:18,720 --> 00:00:23,160 Speaker 1: five to four decision along familiar ideological lines. My guest 7 00:00:23,239 --> 00:00:26,520 Speaker 1: is Robert Hockett, a professor at Cornell Law School. Bob 8 00:00:26,560 --> 00:00:29,479 Speaker 1: tell us about the issue behind this case. So the 9 00:00:29,520 --> 00:00:33,440 Speaker 1: issue here was whether a couple of pensioners who hold 10 00:00:33,479 --> 00:00:37,880 Speaker 1: stakes in the particular pension had standing to sue those 11 00:00:37,920 --> 00:00:41,120 Speaker 1: who were managing the pension for having lost a great 12 00:00:41,159 --> 00:00:44,400 Speaker 1: deal of money out of the pension right through excessively 13 00:00:44,600 --> 00:00:50,879 Speaker 1: reckless and or insufficiently careful investment activity. And normally, if 14 00:00:50,880 --> 00:00:53,800 Speaker 1: you were a shareholder in a particular fund such that 15 00:00:53,880 --> 00:00:57,000 Speaker 1: your own payout was a function of the value of 16 00:00:57,200 --> 00:01:00,320 Speaker 1: the fund itself, it would be very clear right that 17 00:01:00,360 --> 00:01:02,480 Speaker 1: you've lost money at the fund lost money, and that 18 00:01:02,520 --> 00:01:04,480 Speaker 1: you had gained money at the fund gained money. But 19 00:01:04,560 --> 00:01:08,720 Speaker 1: because these are pensioners who have basically fixed income rights 20 00:01:08,760 --> 00:01:12,640 Speaker 1: in the investment trust, their income is the same right 21 00:01:12,640 --> 00:01:15,759 Speaker 1: no matter what the value of the pension, at least 22 00:01:15,800 --> 00:01:18,360 Speaker 1: assuming that the pension kind of continues in existence and 23 00:01:18,400 --> 00:01:20,800 Speaker 1: has not gone bankrupt, right and in other ways, in 24 00:01:20,880 --> 00:01:24,480 Speaker 1: more or less ordinary times, quite irrespective of the value 25 00:01:24,600 --> 00:01:26,959 Speaker 1: of the fund, the pensioners have the same rights to 26 00:01:27,000 --> 00:01:29,840 Speaker 1: the same income because these are essentially debt liabilities that 27 00:01:29,920 --> 00:01:33,080 Speaker 1: the fund owes to the pensioners, right, rather than equity liabilities. 28 00:01:33,560 --> 00:01:36,319 Speaker 1: So the question really is whether the pensioners have standing 29 00:01:36,360 --> 00:01:39,440 Speaker 1: to sue UH in light of some loss of value 30 00:01:39,520 --> 00:01:41,920 Speaker 1: on the part of the fund, because legally speaking, the 31 00:01:41,959 --> 00:01:45,280 Speaker 1: obligations that are owed to the pensioners are not contingent 32 00:01:45,360 --> 00:01:47,600 Speaker 1: on the value of the fund. Right, strictly speaking, the 33 00:01:47,640 --> 00:01:50,400 Speaker 1: fund has to pay the fixed obligation, whether it be 34 00:01:50,480 --> 00:01:53,560 Speaker 1: worth five billion dollars or a hundred billion dollars. Right, 35 00:01:53,880 --> 00:01:57,560 Speaker 1: So again, in sort of strictly legal terms, nothing sort 36 00:01:57,560 --> 00:02:01,680 Speaker 1: of changes for the pensioners just cause the pension itself 37 00:02:01,760 --> 00:02:04,320 Speaker 1: might change in value. But you know, you of course 38 00:02:04,360 --> 00:02:06,760 Speaker 1: know by now, I mean the questions are almost never 39 00:02:07,080 --> 00:02:11,040 Speaker 1: strictly legal or strictly theoretical in cases like this, because 40 00:02:11,080 --> 00:02:13,040 Speaker 1: of course we're really dealing with the reality of which 41 00:02:13,160 --> 00:02:18,080 Speaker 1: risk matters. In other words, a pensioner's likelihood of actually 42 00:02:18,120 --> 00:02:21,720 Speaker 1: receiving what she is owed is not only a function 43 00:02:21,840 --> 00:02:25,120 Speaker 1: of the legal obligations of the fund manager. It's also 44 00:02:25,160 --> 00:02:27,560 Speaker 1: a function of the financial health of the fund. If 45 00:02:27,560 --> 00:02:30,800 Speaker 1: the fund, in other words, is in the vicinity of insolvency, 46 00:02:31,000 --> 00:02:33,560 Speaker 1: then the risk that the pensioners don't end up being 47 00:02:33,560 --> 00:02:37,960 Speaker 1: paid grows appreciably right if not indeed enormously in some cases. 48 00:02:38,600 --> 00:02:41,679 Speaker 1: And so what that means, in turn is that there 49 00:02:41,680 --> 00:02:45,360 Speaker 1: really is a particular danger to which the pensioners are 50 00:02:45,400 --> 00:02:48,240 Speaker 1: subject if the fund is mismanaged, and if it loses 51 00:02:48,320 --> 00:02:52,680 Speaker 1: value massively and thus endures a sort of significant rise 52 00:02:52,800 --> 00:02:55,840 Speaker 1: in the likelihood that it will ultimately fail and go 53 00:02:55,960 --> 00:02:58,440 Speaker 1: bankrupt and not be able to pay out its liabilities. 54 00:02:58,600 --> 00:03:01,079 Speaker 1: And how is the Supreme Court treating this issue of 55 00:03:01,240 --> 00:03:05,440 Speaker 1: standing in recent years when it comes to standing all 56 00:03:05,680 --> 00:03:08,560 Speaker 1: rights on some very curious developments in the Supreme Court 57 00:03:08,560 --> 00:03:12,639 Speaker 1: over the last thirty years where standing doctrine is concerned. So, 58 00:03:12,720 --> 00:03:15,480 Speaker 1: by way of very very brief background, um, the way 59 00:03:15,600 --> 00:03:18,000 Speaker 1: we tend to operate under the Article three of our 60 00:03:18,040 --> 00:03:21,560 Speaker 1: Constitution is essentially just sort of treat our courts as 61 00:03:21,639 --> 00:03:26,800 Speaker 1: deciders of what we oftentimes call actual cases or controversies. Right. 62 00:03:26,800 --> 00:03:29,840 Speaker 1: In other words, some actual material state has to be 63 00:03:30,000 --> 00:03:33,200 Speaker 1: at stake in a lawsuit. We don't typically think of 64 00:03:33,200 --> 00:03:35,920 Speaker 1: our courts as entities that sort of just declare what 65 00:03:36,000 --> 00:03:39,560 Speaker 1: the law is, just as as if they were professors. Right. Um, 66 00:03:39,800 --> 00:03:43,720 Speaker 1: they don't simply uh answer theoretical questions or sort of 67 00:03:43,720 --> 00:03:49,080 Speaker 1: way in theoretical questions. Uh. They decide actual cases and controversies. 68 00:03:49,120 --> 00:03:54,280 Speaker 1: And so if you, June had a beef with with me, bob, um, 69 00:03:54,560 --> 00:03:58,440 Speaker 1: let's say, with respect to my theory of relative theory 70 00:03:58,440 --> 00:04:00,560 Speaker 1: of relativity, you and I have a just agreement or 71 00:04:00,600 --> 00:04:03,360 Speaker 1: the theory of relativity. Um, you know, this is not 72 00:04:03,440 --> 00:04:06,280 Speaker 1: an actual case or controversy between us. It's simply a 73 00:04:06,320 --> 00:04:09,840 Speaker 1: disagreement on the theory of relativity. So you wouldn't really 74 00:04:09,840 --> 00:04:11,960 Speaker 1: have standing to sue me, and you wouldn't have a 75 00:04:11,960 --> 00:04:14,600 Speaker 1: cause of action against me either in a case like that. 76 00:04:14,960 --> 00:04:17,520 Speaker 1: On the other hand, if I do something to sort 77 00:04:17,520 --> 00:04:20,080 Speaker 1: of deprive you of something to which you're entitled, if 78 00:04:20,080 --> 00:04:22,599 Speaker 1: I steal from you, for example, if I harm you 79 00:04:22,640 --> 00:04:25,159 Speaker 1: in any particular way, then of course you do have 80 00:04:25,240 --> 00:04:28,000 Speaker 1: standing to sue. We have an actual material dispute rather 81 00:04:28,040 --> 00:04:31,040 Speaker 1: than to say, theoretical dispute, and so the courts are 82 00:04:31,120 --> 00:04:34,120 Speaker 1: situated to decide it. Now, that's a pretty easy distinction 83 00:04:34,120 --> 00:04:37,040 Speaker 1: to draw, right that. The somewhat harder part sometimes can 84 00:04:37,080 --> 00:04:40,400 Speaker 1: be a circumstance in which the disagreement that we're talking 85 00:04:40,400 --> 00:04:43,640 Speaker 1: about is definitely over something concrete and real, it's not 86 00:04:43,680 --> 00:04:47,679 Speaker 1: really theoretical. However, in some cases, the concrete or real 87 00:04:47,760 --> 00:04:51,800 Speaker 1: thing might not be an actually occurred harm or actually 88 00:04:51,800 --> 00:04:54,800 Speaker 1: a current harm, but might be a substantial rise in 89 00:04:54,839 --> 00:04:57,640 Speaker 1: the likelihood of harm. Right. In other words, the sort 90 00:04:57,680 --> 00:05:01,320 Speaker 1: of risk of harm might rise significantly. And so the 91 00:05:01,400 --> 00:05:03,560 Speaker 1: question then for a court to sort of figure out 92 00:05:03,720 --> 00:05:06,200 Speaker 1: is do we think of a risk, right that sort 93 00:05:06,200 --> 00:05:09,680 Speaker 1: of increases the likelihood of a physical harms happening, or 94 00:05:09,640 --> 00:05:13,160 Speaker 1: at actual concrete harms occurring. Should we think about a 95 00:05:13,440 --> 00:05:16,400 Speaker 1: theoretical thing, kind of like the theory of relativity, or 96 00:05:16,400 --> 00:05:18,720 Speaker 1: should we think of it as itself a real thing? 97 00:05:18,960 --> 00:05:20,960 Speaker 1: Right that, basically, you know, risk is a real thing, 98 00:05:21,000 --> 00:05:24,359 Speaker 1: it's not just theoretical. And you know, historically we've tended 99 00:05:24,400 --> 00:05:26,919 Speaker 1: to answer that question in the affirmative that basically the 100 00:05:27,000 --> 00:05:29,560 Speaker 1: risk is a real thing. And so if I do 101 00:05:29,680 --> 00:05:33,000 Speaker 1: something that subjects you to significant risk, or that actually, 102 00:05:33,320 --> 00:05:36,480 Speaker 1: you know, lowers the expected value of some asset that 103 00:05:36,520 --> 00:05:40,200 Speaker 1: you hold, like the pension benefit, that's a concrete harm 104 00:05:40,320 --> 00:05:41,919 Speaker 1: as far as the law is concerned. And that's the 105 00:05:41,920 --> 00:05:44,520 Speaker 1: way it has typically been in our legal history. Starting 106 00:05:44,560 --> 00:05:47,240 Speaker 1: in the nineteen eighties and proceeding on to the nine 107 00:05:47,480 --> 00:05:50,200 Speaker 1: nineties right down to the present, the Supreme Court seems 108 00:05:50,240 --> 00:05:52,919 Speaker 1: to have been really kind of keen on limiting people's 109 00:05:52,960 --> 00:05:55,680 Speaker 1: access to the courts. And one way of doing that, 110 00:05:55,760 --> 00:05:58,440 Speaker 1: of course, is to shrink the number of things that 111 00:05:58,600 --> 00:06:03,360 Speaker 1: count as concrete or actual non theoretical harms. The more 112 00:06:04,080 --> 00:06:07,400 Speaker 1: such things they can remove from the class of actual 113 00:06:07,480 --> 00:06:10,160 Speaker 1: concrete harms, the harder it gets for you or me 114 00:06:10,279 --> 00:06:12,120 Speaker 1: to get into court, because the harder it gets for 115 00:06:12,160 --> 00:06:14,479 Speaker 1: you or me to establish that we have standing, that 116 00:06:14,520 --> 00:06:17,760 Speaker 1: we actually have an actual case or controversy that is 117 00:06:17,920 --> 00:06:23,120 Speaker 1: sort of amenable to judicial decision or adjudication. So, in 118 00:06:23,120 --> 00:06:25,880 Speaker 1: a sense, you can view this particular case, this particular 119 00:06:25,960 --> 00:06:28,880 Speaker 1: decision by the Supreme Court is simply the latest in 120 00:06:28,960 --> 00:06:32,560 Speaker 1: this rather distressing, from my point of view, long line 121 00:06:32,760 --> 00:06:36,760 Speaker 1: of decisions that have sort of progressively narrowed the doorway 122 00:06:36,800 --> 00:06:39,279 Speaker 1: for you and I to get access to justice in 123 00:06:39,320 --> 00:06:42,920 Speaker 1: the courts, basically simply by defining in a sense out 124 00:06:42,920 --> 00:06:47,360 Speaker 1: of existence certain harms that previously would have been treated 125 00:06:47,360 --> 00:06:49,520 Speaker 1: as actual harms and would have been defined as harms 126 00:06:49,560 --> 00:06:51,880 Speaker 1: and us would have qualified us to get into court 127 00:06:51,960 --> 00:06:55,560 Speaker 1: withstanding to sue. So in this particular case, you it's 128 00:06:55,560 --> 00:07:00,520 Speaker 1: it's quite transparent. In Kavanaugh's rather surprisingly school boyish opinion 129 00:07:00,600 --> 00:07:04,960 Speaker 1: for the majority, tell us more about Kavanaugh's opinion for 130 00:07:05,040 --> 00:07:08,320 Speaker 1: the Conservative majority in the case, he says, you know, look, 131 00:07:08,880 --> 00:07:10,680 Speaker 1: this is a fixed liability and the part of the 132 00:07:10,720 --> 00:07:15,280 Speaker 1: pension um that's owed to these pensioners um. That means that, 133 00:07:15,320 --> 00:07:19,600 Speaker 1: at least legally speaking, uh, they basically enjoy the same 134 00:07:19,640 --> 00:07:22,560 Speaker 1: benefit through the pension if they win this suit as 135 00:07:22,600 --> 00:07:25,120 Speaker 1: if they lose this suit. Right, the outcome of the suit, 136 00:07:25,160 --> 00:07:28,600 Speaker 1: in other words, doesn't change the liability that the pension 137 00:07:28,640 --> 00:07:32,440 Speaker 1: fund owes to the pensioners. Therefore, it makes no difference 138 00:07:32,480 --> 00:07:34,760 Speaker 1: whether they're in the suit or not, and therefore they 139 00:07:34,760 --> 00:07:37,800 Speaker 1: don't have standing. Right. But again, the problem with that 140 00:07:37,880 --> 00:07:41,320 Speaker 1: line of reasoning is it completely ignores the fact that 141 00:07:41,400 --> 00:07:45,520 Speaker 1: there are two determinants of harm here, right. One is 142 00:07:45,640 --> 00:07:49,360 Speaker 1: the legal obligation of the pension fund, which is admittedly 143 00:07:49,640 --> 00:07:53,240 Speaker 1: invariant as between the circumstance in which the plaint iss 144 00:07:53,280 --> 00:07:56,760 Speaker 1: win and the circumstances which they lose. But the other determinant, 145 00:07:56,800 --> 00:08:00,480 Speaker 1: again is the actual likelihood of being hey right, the 146 00:08:00,880 --> 00:08:04,640 Speaker 1: actual risk of the funds turning out not to be 147 00:08:04,720 --> 00:08:07,240 Speaker 1: able to pay what it oes and thus going bankrupt. 148 00:08:07,600 --> 00:08:09,880 Speaker 1: And that's just completely ignored. It's treated this so we're 149 00:08:09,920 --> 00:08:12,800 Speaker 1: just a non existent issue. It's almost as there were 150 00:08:12,800 --> 00:08:14,920 Speaker 1: there were sort of a blind spot where the color 151 00:08:15,000 --> 00:08:18,320 Speaker 1: orange and Justice Kavanaugh was wearing orange glasses and so 152 00:08:18,360 --> 00:08:20,400 Speaker 1: he just couldn't see it. It's just sort of not 153 00:08:20,560 --> 00:08:23,440 Speaker 1: there as far as he is concerned. And in that sense, 154 00:08:23,960 --> 00:08:26,840 Speaker 1: this is a sort of garden variety, you know, once 155 00:08:26,880 --> 00:08:31,920 Speaker 1: again narrowing the doorway standing determination by the Supreme Court. 156 00:08:32,400 --> 00:08:34,800 Speaker 1: So you know, if you I think what this means 157 00:08:34,840 --> 00:08:37,440 Speaker 1: really is there's sort of two reasons to bases on 158 00:08:37,480 --> 00:08:40,000 Speaker 1: which to be sort of really disturbed about this decision. 159 00:08:40,440 --> 00:08:42,640 Speaker 1: The first is what I just mentioned, that it is 160 00:08:42,679 --> 00:08:44,920 Speaker 1: just yet another one of these cases that sort of 161 00:08:45,040 --> 00:08:48,560 Speaker 1: narrows the doorway, makes it less and less possible for 162 00:08:48,600 --> 00:08:51,839 Speaker 1: you or me uh to get redress in the courts 163 00:08:51,840 --> 00:08:55,280 Speaker 1: of law, which are there to provide us with redress. 164 00:08:55,360 --> 00:08:58,440 Speaker 1: And secondly um it sort of carries on with this 165 00:08:58,480 --> 00:09:02,040 Speaker 1: tendency among some judges to treat risk as we're something 166 00:09:02,080 --> 00:09:05,400 Speaker 1: that's not real, as though it were as theoretical as 167 00:09:05,520 --> 00:09:08,760 Speaker 1: the theory of quantum mechanics or something, so that disputes 168 00:09:08,880 --> 00:09:12,319 Speaker 1: over risks are no different than disputes in Parisian cafes 169 00:09:12,800 --> 00:09:15,679 Speaker 1: over you know, the truth or falsehood of the theory 170 00:09:15,720 --> 00:09:18,120 Speaker 1: of quantum mechanics or the theory of relativity or what 171 00:09:18,200 --> 00:09:20,360 Speaker 1: have you. And risk is not like that, right. The 172 00:09:20,360 --> 00:09:22,640 Speaker 1: only proof you need of that is just to look 173 00:09:22,760 --> 00:09:25,680 Speaker 1: at our financial markets, right. I mean, basically, every price 174 00:09:26,080 --> 00:09:30,280 Speaker 1: associated with every asset in any financial market is itself 175 00:09:30,320 --> 00:09:33,240 Speaker 1: partly a function of the risk that attaches to that asset. 176 00:09:33,280 --> 00:09:35,760 Speaker 1: In other words, we deal not in value but in 177 00:09:35,880 --> 00:09:39,440 Speaker 1: expected value when we're talking about financial assets, and that 178 00:09:39,480 --> 00:09:42,280 Speaker 1: means we're treating risk as something real. We're treating risk, 179 00:09:42,320 --> 00:09:45,120 Speaker 1: in other words, as something with a dollar value. Right. 180 00:09:45,760 --> 00:09:48,480 Speaker 1: A riskier asset is something that all else being equal, 181 00:09:48,559 --> 00:09:51,840 Speaker 1: you pay less for, and a less risky asset, all 182 00:09:51,880 --> 00:09:55,400 Speaker 1: else being equally you pay more for right, it's dollar valued. 183 00:09:55,880 --> 00:09:58,960 Speaker 1: What could be more concrete or real than that in 184 00:09:58,960 --> 00:10:02,079 Speaker 1: a modern economy? Um, And so when Justice Kathina sort 185 00:10:02,080 --> 00:10:04,239 Speaker 1: of pretends like, well, the only things that are concrete 186 00:10:04,480 --> 00:10:06,840 Speaker 1: are this really primitive things like you know, clubs and 187 00:10:06,880 --> 00:10:09,640 Speaker 1: baseball bats and fists in your nose and stuff. But 188 00:10:09,640 --> 00:10:11,800 Speaker 1: but you know, risk is just not real. I mean, 189 00:10:11,840 --> 00:10:14,360 Speaker 1: it's it's, first of all, again very primitive. It's a 190 00:10:14,440 --> 00:10:16,840 Speaker 1: very sort of pre modern way of thinking of the 191 00:10:16,880 --> 00:10:19,800 Speaker 1: world or thinking of things. But it's also completely obtuse 192 00:10:20,280 --> 00:10:23,120 Speaker 1: to pretty much everything that gets done in our economy, 193 00:10:23,120 --> 00:10:25,520 Speaker 1: pretty much every decision that stated in our economy, because 194 00:10:25,559 --> 00:10:27,680 Speaker 1: every decision made in our economy is at least partly 195 00:10:27,679 --> 00:10:32,360 Speaker 1: made on the basis of perceived or even measurable risks. 196 00:10:32,559 --> 00:10:33,800 Speaker 1: You look at this and you say, well, it's just 197 00:10:33,840 --> 00:10:36,800 Speaker 1: an issue of standing. Why is it a five to 198 00:10:36,920 --> 00:10:42,040 Speaker 1: four split along ideological lines? Give us another explanation of 199 00:10:42,160 --> 00:10:47,760 Speaker 1: why this split the justices along ideological lines? Sure? Yeah, so, Um. 200 00:10:48,080 --> 00:10:50,559 Speaker 1: The reason that this tends that that the standing question 201 00:10:51,000 --> 00:10:54,120 Speaker 1: tends to divide the court belonging at theological lines, and 202 00:10:54,160 --> 00:10:56,760 Speaker 1: tence sort of invites the five four type decisions that 203 00:10:56,800 --> 00:11:00,199 Speaker 1: we see so much of these days is precisely that 204 00:11:00,840 --> 00:11:06,320 Speaker 1: it's primarily political and judicial conservatives who have been sort 205 00:11:06,320 --> 00:11:09,199 Speaker 1: of who have been the primary drivers, you might say, 206 00:11:09,240 --> 00:11:13,040 Speaker 1: of this long term trend over the last thirty years 207 00:11:13,120 --> 00:11:16,439 Speaker 1: or so within the Supreme Court to narrow the gates 208 00:11:16,480 --> 00:11:18,559 Speaker 1: through which people can get um in order to get 209 00:11:18,600 --> 00:11:22,400 Speaker 1: access to justice. In other words, conservatives for the last 210 00:11:22,440 --> 00:11:25,440 Speaker 1: three years or so seemed to be really reluctant to 211 00:11:25,600 --> 00:11:28,679 Speaker 1: let people have access to the courts um. And so, 212 00:11:28,800 --> 00:11:31,760 Speaker 1: you know, the whole history of the conservative legal movement 213 00:11:32,520 --> 00:11:34,760 Speaker 1: over the last thirty years or so is in a 214 00:11:34,800 --> 00:11:39,560 Speaker 1: sense a sort of history of systematic, uh diminishment of 215 00:11:39,600 --> 00:11:42,520 Speaker 1: the grounds on the basis of which you can get 216 00:11:42,640 --> 00:11:45,000 Speaker 1: justice in a court of law. And if you think 217 00:11:45,040 --> 00:11:47,720 Speaker 1: about it, this kind of hangs together rather nicely, right 218 00:11:47,800 --> 00:11:51,280 Speaker 1: with the sentence, the way in which conservatives and political 219 00:11:51,320 --> 00:11:55,320 Speaker 1: campaigns and then their rhetoric in congression and legislatures and 220 00:11:55,360 --> 00:11:59,200 Speaker 1: so forth, are always demonizing the quote unquote the trial lawyers. 221 00:11:59,280 --> 00:12:02,040 Speaker 1: You know, they're always upset about lawyers, they seem to 222 00:12:02,080 --> 00:12:05,240 Speaker 1: and they're always on about unelectric judges, and you know, 223 00:12:05,280 --> 00:12:08,600 Speaker 1: there's that tendency for them to demonize the courts and 224 00:12:08,600 --> 00:12:11,640 Speaker 1: and and and the legal process and the law itself. 225 00:12:12,040 --> 00:12:14,400 Speaker 1: There's this kind of inherent suspicion that they seem to 226 00:12:14,440 --> 00:12:17,320 Speaker 1: have UM. And so I think, you know, if you 227 00:12:17,360 --> 00:12:21,440 Speaker 1: look at the way they've sort of changed standing doctrine 228 00:12:21,440 --> 00:12:23,840 Speaker 1: over the years, if you also look at the doctrine 229 00:12:24,320 --> 00:12:29,480 Speaker 1: surrounding the circumstances that determining the circumstances under which there 230 00:12:29,480 --> 00:12:32,400 Speaker 1: are private rights of action that individuals can bring into court, 231 00:12:32,480 --> 00:12:35,959 Speaker 1: you know, as distinguished from regulators uh sort of uh 232 00:12:36,160 --> 00:12:39,720 Speaker 1: initiating process in the court about UM. If you look 233 00:12:39,800 --> 00:12:45,040 Speaker 1: at UM, you know, the grounds on which people even 234 00:12:45,080 --> 00:12:48,720 Speaker 1: are deemed as having causes of action under particular bodies 235 00:12:48,760 --> 00:12:51,760 Speaker 1: of law, the regulatory law or other. The trend is 236 00:12:51,760 --> 00:12:53,960 Speaker 1: pretty much the same, you know, all of those different 237 00:12:53,960 --> 00:12:58,160 Speaker 1: realms UM when it comes to conservative the judges or 238 00:12:58,280 --> 00:13:02,479 Speaker 1: lawyers or legislators on the one hand, and non conservative 239 00:13:03,040 --> 00:13:06,640 Speaker 1: judges or lawyers or or or politicians on the other hand. 240 00:13:06,960 --> 00:13:10,000 Speaker 1: In general, those who are not conservative seem to be 241 00:13:10,080 --> 00:13:14,360 Speaker 1: more friendly to the idea of giving people access to justice, 242 00:13:14,480 --> 00:13:16,880 Speaker 1: making sure that people have access to the courts, making 243 00:13:16,880 --> 00:13:19,280 Speaker 1: sure that people can vindicate their rights and enforce their 244 00:13:19,360 --> 00:13:21,320 Speaker 1: rights in courts of law. That's what the courts are for, 245 00:13:21,440 --> 00:13:24,200 Speaker 1: after all. And then it seems that what the conservatives 246 00:13:24,200 --> 00:13:26,439 Speaker 1: are sort of all about is sort of progressively taking 247 00:13:26,480 --> 00:13:29,920 Speaker 1: all of that stuff away, sort of diminishing. So let 248 00:13:29,920 --> 00:13:32,959 Speaker 1: me ask you this. The circuit courts were split before 249 00:13:33,000 --> 00:13:36,720 Speaker 1: this decision. Does this mean that those courts will now 250 00:13:37,120 --> 00:13:41,040 Speaker 1: have to follow this decision? Yeah, the short answer is yes, um. 251 00:13:41,080 --> 00:13:45,760 Speaker 1: And the slightly longer answer is that mainly yes. So 252 00:13:45,760 --> 00:13:48,240 Speaker 1: so to explain, I mean, the reason that the short 253 00:13:48,240 --> 00:13:50,960 Speaker 1: answer is yes is that, yeah, that's that's typical ground 254 00:13:51,080 --> 00:13:53,960 Speaker 1: on which the Supreme Court to science to hear a case. Right, 255 00:13:54,000 --> 00:13:57,120 Speaker 1: it has discretion to not to hear cases or to 256 00:13:57,240 --> 00:13:59,120 Speaker 1: go ahead and hear them. And what are the principal 257 00:13:59,120 --> 00:14:03,000 Speaker 1: reasons are basically on which the Supreme Court will go ahead, um, 258 00:14:03,080 --> 00:14:06,040 Speaker 1: and grant the so called rite of sertuary and thus 259 00:14:06,080 --> 00:14:08,559 Speaker 1: hear a case and decide it is the so called 260 00:14:08,559 --> 00:14:11,560 Speaker 1: circuit split. Right, if there's a significant split between circuits 261 00:14:11,559 --> 00:14:14,160 Speaker 1: in the country, then to sort of resolve the ambiguity, 262 00:14:14,280 --> 00:14:16,160 Speaker 1: the Supreme Court will take the case and sort of 263 00:14:16,240 --> 00:14:18,320 Speaker 1: you know, weigh in and settle it once and for all. 264 00:14:18,720 --> 00:14:20,600 Speaker 1: And that's the way it's supposed to work, that theory, 265 00:14:20,640 --> 00:14:23,040 Speaker 1: and in general that's the reality as well. The one 266 00:14:23,120 --> 00:14:25,320 Speaker 1: sense in which you might hedge this, and hence the 267 00:14:25,640 --> 00:14:29,320 Speaker 1: slightly longer answer, um, is that you know, if this 268 00:14:29,400 --> 00:14:33,440 Speaker 1: decision is as controversial as it seems to me it 269 00:14:33,480 --> 00:14:36,920 Speaker 1: ought to be, um, and hence remains a kind of 270 00:14:37,040 --> 00:14:42,400 Speaker 1: contested territory for a while, then circuits that are that 271 00:14:42,520 --> 00:14:47,880 Speaker 1: do not find this opinion persuasive or congenial or consistent 272 00:14:47,920 --> 00:14:51,520 Speaker 1: with principles of justice will look for grounds on which, 273 00:14:51,560 --> 00:14:55,880 Speaker 1: to quote unquote, distinguish this decision from later cases that 274 00:14:55,960 --> 00:14:58,480 Speaker 1: might come up. Right. In other words, other cases might 275 00:14:58,480 --> 00:15:00,280 Speaker 1: come up that are similar to this one in some 276 00:15:00,440 --> 00:15:04,080 Speaker 1: respects while also differing from it in other respects. And 277 00:15:04,120 --> 00:15:07,120 Speaker 1: if it's plausible to sort of single out the differing 278 00:15:07,360 --> 00:15:11,240 Speaker 1: respects in any particular case as legally relevant or salient, 279 00:15:11,920 --> 00:15:14,880 Speaker 1: then you might, as a circuit court come come down 280 00:15:14,880 --> 00:15:17,600 Speaker 1: in a way that's not in a sense consistent with 281 00:15:18,120 --> 00:15:20,800 Speaker 1: this Supreme Court decision. But but on the other end, 282 00:15:21,120 --> 00:15:25,400 Speaker 1: kind it is right, um, because you can sort of say, well, look, 283 00:15:25,600 --> 00:15:29,200 Speaker 1: if this particular case before us were identical in every 284 00:15:29,240 --> 00:15:31,960 Speaker 1: relevant respect to the case that was before the Supreme Court. 285 00:15:32,040 --> 00:15:34,880 Speaker 1: In this decision, then yes, we would be bound by 286 00:15:35,040 --> 00:15:37,880 Speaker 1: that Supreme Court decision. But again, at this case before 287 00:15:37,920 --> 00:15:41,360 Speaker 1: us differs in some legally relevant respect or seemingly salient 288 00:15:41,520 --> 00:15:44,360 Speaker 1: or important respect from the case that was before the 289 00:15:44,400 --> 00:15:47,880 Speaker 1: Supreme Court, then we can plausibly argue that that Supreme 290 00:15:47,920 --> 00:15:50,520 Speaker 1: Court decision doesn't actually apply here. It's about a different 291 00:15:50,520 --> 00:15:54,000 Speaker 1: sort of issue than this issue, um, and therefore we 292 00:15:54,040 --> 00:15:57,280 Speaker 1: can come down differently, even if it's superficially looks like 293 00:15:57,320 --> 00:15:59,800 Speaker 1: it is a decision that is intentioned with that Supreme 294 00:15:59,800 --> 00:16:02,800 Speaker 1: Court decision, and whether that happens is pretty much just 295 00:16:02,840 --> 00:16:04,520 Speaker 1: a matter of, you know, just sort of what happens 296 00:16:04,520 --> 00:16:06,280 Speaker 1: out there in the world. That's the sort of function 297 00:16:06,360 --> 00:16:09,960 Speaker 1: of what sorts of disputes or cases or controversies arise 298 00:16:10,240 --> 00:16:13,040 Speaker 1: if anybody brings them to court, and then whether they 299 00:16:13,080 --> 00:16:15,600 Speaker 1: get past the disreport up to the circuit court in 300 00:16:15,240 --> 00:16:19,360 Speaker 1: the territory in question. Thanks Bob. That's Robert Hacket, a 301 00:16:19,360 --> 00:16:22,120 Speaker 1: professor at Cornell Law School. And that's it for the 302 00:16:22,280 --> 00:16:25,480 Speaker 1: edition of Bloomberg Law. I'm June Grosso. Thanks so much 303 00:16:25,480 --> 00:16:28,000 Speaker 1: for listening, and remember to tune to The Bloomberg Law 304 00:16:28,040 --> 00:16:31,120 Speaker 1: Show weeknights at ten pm Eastern, right here on Bloomberg Radio.