WEBVTT - Divided Supreme Court Curbs Pension Suits 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.960 --> 0:00:08.799 The Supreme Court has ruled that US Bank won't have 0:00:08.840 --> 0:00:12.440 to face a lawsuit challenging steep losses to its pension 0:00:12.480 --> 0:00:15.960 plan because the planned participants who filed suit have nothing 0:00:15.960 --> 0:00:18.639 to gain or lose through the case. It was a 0:00:18.720 --> 0:00:23.160 five to four decision along familiar ideological lines. My guest 0:00:23.239 --> 0:00:26.520 is Robert Hockett, a professor at Cornell Law School. Bob 0:00:26.560 --> 0:00:29.479 tell us about the issue behind this case. So the 0:00:29.520 --> 0:00:33.440 issue here was whether a couple of pensioners who hold 0:00:33.479 --> 0:00:37.880 stakes in the particular pension had standing to sue those 0:00:37.920 --> 0:00:41.120 who were managing the pension for having lost a great 0:00:41.159 --> 0:00:44.400 deal of money out of the pension right through excessively 0:00:44.600 --> 0:00:50.879 reckless and or insufficiently careful investment activity. And normally, if 0:00:50.880 --> 0:00:53.800 you were a shareholder in a particular fund such that 0:00:53.880 --> 0:00:57.000 your own payout was a function of the value of 0:00:57.200 --> 0:01:00.320 the fund itself, it would be very clear right that 0:01:00.360 --> 0:01:02.480 you've lost money at the fund lost money, and that 0:01:02.520 --> 0:01:04.480 you had gained money at the fund gained money. But 0:01:04.560 --> 0:01:08.720 because these are pensioners who have basically fixed income rights 0:01:08.760 --> 0:01:12.640 in the investment trust, their income is the same right 0:01:12.640 --> 0:01:15.759 no matter what the value of the pension, at least 0:01:15.800 --> 0:01:18.360 assuming that the pension kind of continues in existence and 0:01:18.400 --> 0:01:20.800 has not gone bankrupt, right and in other ways, in 0:01:20.880 --> 0:01:24.480 more or less ordinary times, quite irrespective of the value 0:01:24.600 --> 0:01:26.959 of the fund, the pensioners have the same rights to 0:01:27.000 --> 0:01:29.840 the same income because these are essentially debt liabilities that 0:01:29.920 --> 0:01:33.080 the fund owes to the pensioners, right, rather than equity liabilities. 0:01:33.560 --> 0:01:36.319 So the question really is whether the pensioners have standing 0:01:36.360 --> 0:01:39.440 to sue UH in light of some loss of value 0:01:39.520 --> 0:01:41.920 on the part of the fund, because legally speaking, the 0:01:41.959 --> 0:01:45.280 obligations that are owed to the pensioners are not contingent 0:01:45.360 --> 0:01:47.600 on the value of the fund. Right, strictly speaking, the 0:01:47.640 --> 0:01:50.400 fund has to pay the fixed obligation, whether it be 0:01:50.480 --> 0:01:53.560 worth five billion dollars or a hundred billion dollars. Right, 0:01:53.880 --> 0:01:57.560 So again, in sort of strictly legal terms, nothing sort 0:01:57.560 --> 0:02:01.680 of changes for the pensioners just cause the pension itself 0:02:01.760 --> 0:02:04.320 might change in value. But you know, you of course 0:02:04.360 --> 0:02:06.760 know by now, I mean the questions are almost never 0:02:07.080 --> 0:02:11.040 strictly legal or strictly theoretical in cases like this, because 0:02:11.080 --> 0:02:13.040 of course we're really dealing with the reality of which 0:02:13.160 --> 0:02:18.080 risk matters. In other words, a pensioner's likelihood of actually 0:02:18.120 --> 0:02:21.720 receiving what she is owed is not only a function 0:02:21.840 --> 0:02:25.120 of the legal obligations of the fund manager. It's also 0:02:25.160 --> 0:02:27.560 a function of the financial health of the fund. If 0:02:27.560 --> 0:02:30.800 the fund, in other words, is in the vicinity of insolvency, 0:02:31.000 --> 0:02:33.560 then the risk that the pensioners don't end up being 0:02:33.560 --> 0:02:37.960 paid grows appreciably right if not indeed enormously in some cases. 0:02:38.600 --> 0:02:41.679 And so what that means, in turn is that there 0:02:41.680 --> 0:02:45.360 really is a particular danger to which the pensioners are 0:02:45.400 --> 0:02:48.240 subject if the fund is mismanaged, and if it loses 0:02:48.320 --> 0:02:52.680 value massively and thus endures a sort of significant rise 0:02:52.800 --> 0:02:55.840 in the likelihood that it will ultimately fail and go 0:02:55.960 --> 0:02:58.440 bankrupt and not be able to pay out its liabilities. 0:02:58.600 --> 0:03:01.079 And how is the Supreme Court treating this issue of 0:03:01.240 --> 0:03:05.440 standing in recent years when it comes to standing all 0:03:05.680 --> 0:03:08.560 rights on some very curious developments in the Supreme Court 0:03:08.560 --> 0:03:12.639 over the last thirty years where standing doctrine is concerned. So, 0:03:12.720 --> 0:03:15.480 by way of very very brief background, um, the way 0:03:15.600 --> 0:03:18.000 we tend to operate under the Article three of our 0:03:18.040 --> 0:03:21.560 Constitution is essentially just sort of treat our courts as 0:03:21.639 --> 0:03:26.800 deciders of what we oftentimes call actual cases or controversies. Right. 0:03:26.800 --> 0:03:29.840 In other words, some actual material state has to be 0:03:30.000 --> 0:03:33.200 at stake in a lawsuit. We don't typically think of 0:03:33.200 --> 0:03:35.920 our courts as entities that sort of just declare what 0:03:36.000 --> 0:03:39.560 the law is, just as as if they were professors. Right. Um, 0:03:39.800 --> 0:03:43.720 they don't simply uh answer theoretical questions or sort of 0:03:43.720 --> 0:03:49.080 way in theoretical questions. Uh. They decide actual cases and controversies. 0:03:49.120 --> 0:03:54.280 And so if you, June had a beef with with me, bob, um, 0:03:54.560 --> 0:03:58.440 let's say, with respect to my theory of relative theory 0:03:58.440 --> 0:04:00.560 of relativity, you and I have a just agreement or 0:04:00.600 --> 0:04:03.360 the theory of relativity. Um, you know, this is not 0:04:03.440 --> 0:04:06.280 an actual case or controversy between us. It's simply a 0:04:06.320 --> 0:04:09.840 disagreement on the theory of relativity. So you wouldn't really 0:04:09.840 --> 0:04:11.960 have standing to sue me, and you wouldn't have a 0:04:11.960 --> 0:04:14.600 cause of action against me either in a case like that. 0:04:14.960 --> 0:04:17.520 On the other hand, if I do something to sort 0:04:17.520 --> 0:04:20.080 of deprive you of something to which you're entitled, if 0:04:20.080 --> 0:04:22.599 I steal from you, for example, if I harm you 0:04:22.640 --> 0:04:25.159 in any particular way, then of course you do have 0:04:25.240 --> 0:04:28.000 standing to sue. We have an actual material dispute rather 0:04:28.040 --> 0:04:31.040 than to say, theoretical dispute, and so the courts are 0:04:31.120 --> 0:04:34.120 situated to decide it. Now, that's a pretty easy distinction 0:04:34.120 --> 0:04:37.040 to draw, right that. The somewhat harder part sometimes can 0:04:37.080 --> 0:04:40.400 be a circumstance in which the disagreement that we're talking 0:04:40.400 --> 0:04:43.640 about is definitely over something concrete and real, it's not 0:04:43.680 --> 0:04:47.679 really theoretical. However, in some cases, the concrete or real 0:04:47.760 --> 0:04:51.800 thing might not be an actually occurred harm or actually 0:04:51.800 --> 0:04:54.800 a current harm, but might be a substantial rise in 0:04:54.839 --> 0:04:57.640 the likelihood of harm. Right. In other words, the sort 0:04:57.680 --> 0:05:01.320 of risk of harm might rise significantly. And so the 0:05:01.400 --> 0:05:03.560 question then for a court to sort of figure out 0:05:03.720 --> 0:05:06.200 is do we think of a risk, right that sort 0:05:06.200 --> 0:05:09.680 of increases the likelihood of a physical harms happening, or 0:05:09.640 --> 0:05:13.160 at actual concrete harms occurring. Should we think about a 0:05:13.440 --> 0:05:16.400 theoretical thing, kind of like the theory of relativity, or 0:05:16.400 --> 0:05:18.720 should we think of it as itself a real thing? 0:05:18.960 --> 0:05:20.960 Right that, basically, you know, risk is a real thing, 0:05:21.000 --> 0:05:24.359 it's not just theoretical. And you know, historically we've tended 0:05:24.400 --> 0:05:26.919 to answer that question in the affirmative that basically the 0:05:27.000 --> 0:05:29.560 risk is a real thing. And so if I do 0:05:29.680 --> 0:05:33.000 something that subjects you to significant risk, or that actually, 0:05:33.320 --> 0:05:36.480 you know, lowers the expected value of some asset that 0:05:36.520 --> 0:05:40.200 you hold, like the pension benefit, that's a concrete harm 0:05:40.320 --> 0:05:41.919 as far as the law is concerned. And that's the 0:05:41.920 --> 0:05:44.520 way it has typically been in our legal history. Starting 0:05:44.560 --> 0:05:47.240 in the nineteen eighties and proceeding on to the nine 0:05:47.480 --> 0:05:50.200 nineties right down to the present, the Supreme Court seems 0:05:50.240 --> 0:05:52.919 to have been really kind of keen on limiting people's 0:05:52.960 --> 0:05:55.680 access to the courts. And one way of doing that, 0:05:55.760 --> 0:05:58.440 of course, is to shrink the number of things that 0:05:58.600 --> 0:06:03.360 count as concrete or actual non theoretical harms. The more 0:06:04.080 --> 0:06:07.400 such things they can remove from the class of actual 0:06:07.480 --> 0:06:10.160 concrete harms, the harder it gets for you or me 0:06:10.279 --> 0:06:12.120 to get into court, because the harder it gets for 0:06:12.160 --> 0:06:14.479 you or me to establish that we have standing, that 0:06:14.520 --> 0:06:17.760 we actually have an actual case or controversy that is 0:06:17.920 --> 0:06:23.120 sort of amenable to judicial decision or adjudication. So, in 0:06:23.120 --> 0:06:25.880 a sense, you can view this particular case, this particular 0:06:25.960 --> 0:06:28.880 decision by the Supreme Court is simply the latest in 0:06:28.960 --> 0:06:32.560 this rather distressing, from my point of view, long line 0:06:32.760 --> 0:06:36.760 of decisions that have sort of progressively narrowed the doorway 0:06:36.800 --> 0:06:39.279 for you and I to get access to justice in 0:06:39.320 --> 0:06:42.920 the courts, basically simply by defining in a sense out 0:06:42.920 --> 0:06:47.360 of existence certain harms that previously would have been treated 0:06:47.360 --> 0:06:49.520 as actual harms and would have been defined as harms 0:06:49.560 --> 0:06:51.880 and us would have qualified us to get into court 0:06:51.960 --> 0:06:55.560 withstanding to sue. So in this particular case, you it's 0:06:55.560 --> 0:07:00.520 it's quite transparent. In Kavanaugh's rather surprisingly school boyish opinion 0:07:00.600 --> 0:07:04.960 for the majority, tell us more about Kavanaugh's opinion for 0:07:05.040 --> 0:07:08.320 the Conservative majority in the case, he says, you know, look, 0:07:08.880 --> 0:07:10.680 this is a fixed liability and the part of the 0:07:10.720 --> 0:07:15.280 pension um that's owed to these pensioners um. That means that, 0:07:15.320 --> 0:07:19.600 at least legally speaking, uh, they basically enjoy the same 0:07:19.640 --> 0:07:22.560 benefit through the pension if they win this suit as 0:07:22.600 --> 0:07:25.120 if they lose this suit. Right, the outcome of the suit, 0:07:25.160 --> 0:07:28.600 in other words, doesn't change the liability that the pension 0:07:28.640 --> 0:07:32.440 fund owes to the pensioners. Therefore, it makes no difference 0:07:32.480 --> 0:07:34.760 whether they're in the suit or not, and therefore they 0:07:34.760 --> 0:07:37.800 don't have standing. Right. But again, the problem with that 0:07:37.880 --> 0:07:41.320 line of reasoning is it completely ignores the fact that 0:07:41.400 --> 0:07:45.520 there are two determinants of harm here, right. One is 0:07:45.640 --> 0:07:49.360 the legal obligation of the pension fund, which is admittedly 0:07:49.640 --> 0:07:53.240 invariant as between the circumstance in which the plaint iss 0:07:53.280 --> 0:07:56.760 win and the circumstances which they lose. But the other determinant, 0:07:56.800 --> 0:08:00.480 again is the actual likelihood of being hey right, the 0:08:00.880 --> 0:08:04.640 actual risk of the funds turning out not to be 0:08:04.720 --> 0:08:07.240 able to pay what it oes and thus going bankrupt. 0:08:07.600 --> 0:08:09.880 And that's just completely ignored. It's treated this so we're 0:08:09.920 --> 0:08:12.800 just a non existent issue. It's almost as there were 0:08:12.800 --> 0:08:14.920 there were sort of a blind spot where the color 0:08:15.000 --> 0:08:18.320 orange and Justice Kavanaugh was wearing orange glasses and so 0:08:18.360 --> 0:08:20.400 he just couldn't see it. It's just sort of not 0:08:20.560 --> 0:08:23.440 there as far as he is concerned. And in that sense, 0:08:23.960 --> 0:08:26.840 this is a sort of garden variety, you know, once 0:08:26.880 --> 0:08:31.920 again narrowing the doorway standing determination by the Supreme Court. 0:08:32.400 --> 0:08:34.800 So you know, if you I think what this means 0:08:34.840 --> 0:08:37.440 really is there's sort of two reasons to bases on 0:08:37.480 --> 0:08:40.000 which to be sort of really disturbed about this decision. 0:08:40.440 --> 0:08:42.640 The first is what I just mentioned, that it is 0:08:42.679 --> 0:08:44.920 just yet another one of these cases that sort of 0:08:45.040 --> 0:08:48.560 narrows the doorway, makes it less and less possible for 0:08:48.600 --> 0:08:51.839 you or me uh to get redress in the courts 0:08:51.840 --> 0:08:55.280 of law, which are there to provide us with redress. 0:08:55.360 --> 0:08:58.440 And secondly um it sort of carries on with this 0:08:58.480 --> 0:09:02.040 tendency among some judges to treat risk as we're something 0:09:02.080 --> 0:09:05.400 that's not real, as though it were as theoretical as 0:09:05.520 --> 0:09:08.760 the theory of quantum mechanics or something, so that disputes 0:09:08.880 --> 0:09:12.319 over risks are no different than disputes in Parisian cafes 0:09:12.800 --> 0:09:15.679 over you know, the truth or falsehood of the theory 0:09:15.720 --> 0:09:18.120 of quantum mechanics or the theory of relativity or what 0:09:18.200 --> 0:09:20.360 have you. And risk is not like that, right. The 0:09:20.360 --> 0:09:22.640 only proof you need of that is just to look 0:09:22.760 --> 0:09:25.680 at our financial markets, right. I mean, basically, every price 0:09:26.080 --> 0:09:30.280 associated with every asset in any financial market is itself 0:09:30.320 --> 0:09:33.240 partly a function of the risk that attaches to that asset. 0:09:33.280 --> 0:09:35.760 In other words, we deal not in value but in 0:09:35.880 --> 0:09:39.440 expected value when we're talking about financial assets, and that 0:09:39.480 --> 0:09:42.280 means we're treating risk as something real. We're treating risk, 0:09:42.320 --> 0:09:45.120 in other words, as something with a dollar value. Right. 0:09:45.760 --> 0:09:48.480 A riskier asset is something that all else being equal, 0:09:48.559 --> 0:09:51.840 you pay less for, and a less risky asset, all 0:09:51.880 --> 0:09:55.400 else being equally you pay more for right, it's dollar valued. 0:09:55.880 --> 0:09:58.960 What could be more concrete or real than that in 0:09:58.960 --> 0:10:02.079 a modern economy? Um, And so when Justice Kathina sort 0:10:02.080 --> 0:10:04.239 of pretends like, well, the only things that are concrete 0:10:04.480 --> 0:10:06.840 are this really primitive things like you know, clubs and 0:10:06.880 --> 0:10:09.640 baseball bats and fists in your nose and stuff. But 0:10:09.640 --> 0:10:11.800 but you know, risk is just not real. I mean, 0:10:11.840 --> 0:10:14.360 it's it's, first of all, again very primitive. It's a 0:10:14.440 --> 0:10:16.840 very sort of pre modern way of thinking of the 0:10:16.880 --> 0:10:19.800 world or thinking of things. But it's also completely obtuse 0:10:20.280 --> 0:10:23.120 to pretty much everything that gets done in our economy, 0:10:23.120 --> 0:10:25.520 pretty much every decision that stated in our economy, because 0:10:25.559 --> 0:10:27.680 every decision made in our economy is at least partly 0:10:27.679 --> 0:10:32.360 made on the basis of perceived or even measurable risks. 0:10:32.559 --> 0:10:33.800 You look at this and you say, well, it's just 0:10:33.840 --> 0:10:36.800 an issue of standing. Why is it a five to 0:10:36.920 --> 0:10:42.040 four split along ideological lines? Give us another explanation of 0:10:42.160 --> 0:10:47.760 why this split the justices along ideological lines? Sure? Yeah, so, Um. 0:10:48.080 --> 0:10:50.559 The reason that this tends that that the standing question 0:10:51.000 --> 0:10:54.120 tends to divide the court belonging at theological lines, and 0:10:54.160 --> 0:10:56.760 tence sort of invites the five four type decisions that 0:10:56.800 --> 0:11:00.199 we see so much of these days is precisely that 0:11:00.840 --> 0:11:06.320 it's primarily political and judicial conservatives who have been sort 0:11:06.320 --> 0:11:09.199 of who have been the primary drivers, you might say, 0:11:09.240 --> 0:11:13.040 of this long term trend over the last thirty years 0:11:13.120 --> 0:11:16.439 or so within the Supreme Court to narrow the gates 0:11:16.480 --> 0:11:18.559 through which people can get um in order to get 0:11:18.600 --> 0:11:22.400 access to justice. In other words, conservatives for the last 0:11:22.440 --> 0:11:25.440 three years or so seemed to be really reluctant to 0:11:25.600 --> 0:11:28.679 let people have access to the courts um. And so, 0:11:28.800 --> 0:11:31.760 you know, the whole history of the conservative legal movement 0:11:32.520 --> 0:11:34.760 over the last thirty years or so is in a 0:11:34.800 --> 0:11:39.560 sense a sort of history of systematic, uh diminishment of 0:11:39.600 --> 0:11:42.520 the grounds on the basis of which you can get 0:11:42.640 --> 0:11:45.000 justice in a court of law. And if you think 0:11:45.040 --> 0:11:47.720 about it, this kind of hangs together rather nicely, right 0:11:47.800 --> 0:11:51.280 with the sentence, the way in which conservatives and political 0:11:51.320 --> 0:11:55.320 campaigns and then their rhetoric in congression and legislatures and 0:11:55.360 --> 0:11:59.200 so forth, are always demonizing the quote unquote the trial lawyers. 0:11:59.280 --> 0:12:02.040 You know, they're always upset about lawyers, they seem to 0:12:02.080 --> 0:12:05.240 and they're always on about unelectric judges, and you know, 0:12:05.280 --> 0:12:08.600 there's that tendency for them to demonize the courts and 0:12:08.600 --> 0:12:11.640 and and and the legal process and the law itself. 0:12:12.040 --> 0:12:14.400 There's this kind of inherent suspicion that they seem to 0:12:14.440 --> 0:12:17.320 have UM. And so I think, you know, if you 0:12:17.360 --> 0:12:21.440 look at the way they've sort of changed standing doctrine 0:12:21.440 --> 0:12:23.840 over the years, if you also look at the doctrine 0:12:24.320 --> 0:12:29.480 surrounding the circumstances that determining the circumstances under which there 0:12:29.480 --> 0:12:32.400 are private rights of action that individuals can bring into court, 0:12:32.480 --> 0:12:35.959 you know, as distinguished from regulators uh sort of uh 0:12:36.160 --> 0:12:39.720 initiating process in the court about UM. If you look 0:12:39.800 --> 0:12:45.040 at UM, you know, the grounds on which people even 0:12:45.080 --> 0:12:48.720 are deemed as having causes of action under particular bodies 0:12:48.760 --> 0:12:51.760 of law, the regulatory law or other. The trend is 0:12:51.760 --> 0:12:53.960 pretty much the same, you know, all of those different 0:12:53.960 --> 0:12:58.160 realms UM when it comes to conservative the judges or 0:12:58.280 --> 0:13:02.479 lawyers or legislators on the one hand, and non conservative 0:13:03.040 --> 0:13:06.640 judges or lawyers or or or politicians on the other hand. 0:13:06.960 --> 0:13:10.000 In general, those who are not conservative seem to be 0:13:10.080 --> 0:13:14.360 more friendly to the idea of giving people access to justice, 0:13:14.480 --> 0:13:16.880 making sure that people have access to the courts, making 0:13:16.880 --> 0:13:19.280 sure that people can vindicate their rights and enforce their 0:13:19.360 --> 0:13:21.320 rights in courts of law. That's what the courts are for, 0:13:21.440 --> 0:13:24.200 after all. And then it seems that what the conservatives 0:13:24.200 --> 0:13:26.439 are sort of all about is sort of progressively taking 0:13:26.480 --> 0:13:29.920 all of that stuff away, sort of diminishing. So let 0:13:29.920 --> 0:13:32.959 me ask you this. The circuit courts were split before 0:13:33.000 --> 0:13:36.720 this decision. Does this mean that those courts will now 0:13:37.120 --> 0:13:41.040 have to follow this decision? Yeah, the short answer is yes, um. 0:13:41.080 --> 0:13:45.760 And the slightly longer answer is that mainly yes. So 0:13:45.760 --> 0:13:48.240 so to explain, I mean, the reason that the short 0:13:48.240 --> 0:13:50.960 answer is yes is that, yeah, that's that's typical ground 0:13:51.080 --> 0:13:53.960 on which the Supreme Court to science to hear a case. Right, 0:13:54.000 --> 0:13:57.120 it has discretion to not to hear cases or to 0:13:57.240 --> 0:13:59.120 go ahead and hear them. And what are the principal 0:13:59.120 --> 0:14:03.000 reasons are basically on which the Supreme Court will go ahead, um, 0:14:03.080 --> 0:14:06.040 and grant the so called rite of sertuary and thus 0:14:06.080 --> 0:14:08.559 hear a case and decide it is the so called 0:14:08.559 --> 0:14:11.560 circuit split. Right, if there's a significant split between circuits 0:14:11.559 --> 0:14:14.160 in the country, then to sort of resolve the ambiguity, 0:14:14.280 --> 0:14:16.160 the Supreme Court will take the case and sort of 0:14:16.240 --> 0:14:18.320 you know, weigh in and settle it once and for all. 0:14:18.720 --> 0:14:20.600 And that's the way it's supposed to work, that theory, 0:14:20.640 --> 0:14:23.040 and in general that's the reality as well. The one 0:14:23.120 --> 0:14:25.320 sense in which you might hedge this, and hence the 0:14:25.640 --> 0:14:29.320 slightly longer answer, um, is that you know, if this 0:14:29.400 --> 0:14:33.440 decision is as controversial as it seems to me it 0:14:33.480 --> 0:14:36.920 ought to be, um, and hence remains a kind of 0:14:37.040 --> 0:14:42.400 contested territory for a while, then circuits that are that 0:14:42.520 --> 0:14:47.880 do not find this opinion persuasive or congenial or consistent 0:14:47.920 --> 0:14:51.520 with principles of justice will look for grounds on which, 0:14:51.560 --> 0:14:55.880 to quote unquote, distinguish this decision from later cases that 0:14:55.960 --> 0:14:58.480 might come up. Right. In other words, other cases might 0:14:58.480 --> 0:15:00.280 come up that are similar to this one in some 0:15:00.440 --> 0:15:04.080 respects while also differing from it in other respects. And 0:15:04.120 --> 0:15:07.120 if it's plausible to sort of single out the differing 0:15:07.360 --> 0:15:11.240 respects in any particular case as legally relevant or salient, 0:15:11.920 --> 0:15:14.880 then you might, as a circuit court come come down 0:15:14.880 --> 0:15:17.600 in a way that's not in a sense consistent with 0:15:18.120 --> 0:15:20.800 this Supreme Court decision. But but on the other end, 0:15:21.120 --> 0:15:25.400 kind it is right, um, because you can sort of say, well, look, 0:15:25.600 --> 0:15:29.200 if this particular case before us were identical in every 0:15:29.240 --> 0:15:31.960 relevant respect to the case that was before the Supreme Court. 0:15:32.040 --> 0:15:34.880 In this decision, then yes, we would be bound by 0:15:35.040 --> 0:15:37.880 that Supreme Court decision. But again, at this case before 0:15:37.920 --> 0:15:41.360 us differs in some legally relevant respect or seemingly salient 0:15:41.520 --> 0:15:44.360 or important respect from the case that was before the 0:15:44.400 --> 0:15:47.880 Supreme Court, then we can plausibly argue that that Supreme 0:15:47.920 --> 0:15:50.520 Court decision doesn't actually apply here. It's about a different 0:15:50.520 --> 0:15:54.000 sort of issue than this issue, um, and therefore we 0:15:54.040 --> 0:15:57.280 can come down differently, even if it's superficially looks like 0:15:57.320 --> 0:15:59.800 it is a decision that is intentioned with that Supreme 0:15:59.800 --> 0:16:02.800 Court decision, and whether that happens is pretty much just 0:16:02.840 --> 0:16:04.520 a matter of, you know, just sort of what happens 0:16:04.520 --> 0:16:06.280 out there in the world. That's the sort of function 0:16:06.360 --> 0:16:09.960 of what sorts of disputes or cases or controversies arise 0:16:10.240 --> 0:16:13.040 if anybody brings them to court, and then whether they 0:16:13.080 --> 0:16:15.600 get past the disreport up to the circuit court in 0:16:15.240 --> 0:16:19.360 the territory in question. Thanks Bob. That's Robert Hacket, a 0:16:19.360 --> 0:16:22.120 professor at Cornell Law School. And that's it for the 0:16:22.280 --> 0:16:25.480 edition of Bloomberg Law. I'm June Grosso. Thanks so much 0:16:25.480 --> 0:16:28.000 for listening, and remember to tune to The Bloomberg Law 0:16:28.040 --> 0:16:31.120 Show weeknights at ten pm Eastern, right here on Bloomberg Radio.