Courthouse Steps Decision: Fuld v. Palestine Liberation Organization

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Welcome to fedsock Forums, a podcast of the Federal Society's
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Practice groups. I'm Ny kas Merritt, Vice President and Director
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of Practice Groups at the Federal Society. For exclusive access
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to live recordings of fedsock form programs, become a Federal
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Society member today at fedsoc dot org.
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Hello everyone, and welcome to this Federalist Society virtual event.
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My name is Edith Harold and I'm an assistant director
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of Practice Groups with the Federalist Society. Today we're excited
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to be hosting this Courthouse Steps decision on Fold versus
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Palestine Liberate Liberation Organization. We're very pleased to welcome Ariel
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Davidson to this discussion today. Ariel is an associate at
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Holtzmann Vogel and special thanks to Shize Fransaft Firm Francis
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for moderating this discussion. Shaza is an associate at Shuitson
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Bowen and prior to law school, she worked in the
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first Trump administration and for Governor Ron DeSantis. If you'd
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like to learn more about today's moderator or speaker, their
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full bios can be viewed on our website dot org.
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Throughout the program, we may turn to the audience for questions.
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So if you have a question, please enter it into
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the Q and A function at the bottom of your
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zoom window, and we will do our.
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Best answer as many as we can.
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And finally, I'll note that, as always, all expressions of
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opinion today are those of our guest speakers and not
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the Federalist Society. With that, Shizza, thanks so much for
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joining us today and I'll hand things over to you.
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Thank you, Edith.
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So today we have Ariel who's going to be discussing
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the holding the Sorry Felled VPLO, which the court recently decided,
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and we have two buckets that we're going to be
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touching upon, the anti terrorism litigation bucket and the very
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nerdy civil procedure bucket. So I'm going to give it
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over to Ariel to start, and then feel free to
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send in your audience questions and we'll really take it
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in the direction of whatever the audience finds interesting or
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whatever stands out awesome.
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Well, thank you as a and thanks for having me
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to the Federalist Society. So the question in Fold versus
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PLO is it seems fairly basic, but I think it
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has a lot of implication implications within both, as you
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pointed out, she's the Fed Fed Court's realm and then
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also the anti terrorism litigation space. So the question that
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the court was answering in Fold v. PLO was whether
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the Promoting Security and Justice for Victims of Terrorism Act
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violates the Due Process clause of the Fifth Amendment. And
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the case itself involved a group of eleven families that
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were either injured or lost a loved one in a
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Palestinian terror attack.
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And those attacks.
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Or those involved in the attacks were actually individuals who
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were paid by the PA or the PLO. So that
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is the component that involves the Palestinian Authority or the
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Palestine Liberation Organization Fold. So the plaintiffs whose name is
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on the case, his wife brought the suit, Miriam Fold.
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She is a widow her husband Ari Folt, actually a
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native New Yorker father of four, was standing outside a
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grocery store in twenty eighteen in I Believe in Judea
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and he was stabbed to death by a Palestinian terrorist
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seventeen year old. After he was stabbed, he actually chased
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his attacker and shot the terrorists before he was able
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to go into the grocery store and commit more acts
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of terror, which he said was his intention, because he
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was eventually taken, indicted and imprisoned. And what made the
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attack even, what added to the severity or the brutality
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of it, was the fact that the individual who the
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terrorist who killed him, is now on the payroll of
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the Palestinian Authority. So the Palestinian Authority has a program
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called Pay for Sleigh and it's basically a constellation of
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laws that have been put into place by the Palestinian
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government that allow for any individual who engages in a
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terror attack or quote unquote martyrs himself becomes a shaheed
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to collect monthly stipends from the PA, and if they
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survive the terror attack, to actually get a government job
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after they release from prison. And the longer you are
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in Israeli prison, the higher your stipend. If you are
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killed while completing the terror attack, your family is then
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eligible to receive your stipend. So you see that there's
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actually it's a formal institutionalized structure for funding terrorism within
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Palestinian society. And this is not Gaza and Hamas, this
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is the West Bank, this is the PA, the PLO,
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the ones that actually have set up shop on us soil,
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which we'll talk about that and have engaged with the
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United Nations. I refer to the PA and the PLO
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as terrorists and suits. I think that's one hundred percent,
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although it is my opinion, so I'm biased, but that
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is the basis of the suit was being able to
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bring the.
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PA and the p l O into court.
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And I can talk a little bit shazz of if
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you think it'd be helpful about the basis of jurisdiction
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and what the issues were in the case, or you
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can sort of guide us through it through questions, but
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I wanted to lay the framework so individuals understood why.
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You know, what was specifically interesting or relevant or pertinent
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about the PA and the PLO in this case, and
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it's that the attackers who killed these American citizens are
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are getting paid by the.
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PA and the p l O and continue to get paid.
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Yes, So in response, Congress passed a few rounds of legislation,
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and we were wondering if you could discuss how that
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gave victims of terror the opportunity to present their claims
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in federal courts.
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Absolutely so the ps jvt A, as Hiza pointed out,
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actually represents a long and tortured path on the part
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of Congress to try to get a statute that would
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allow US courts to exercise jurisdiction over the PLO and
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the PA, so we have something. In the early nineties,
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the Anti Terrorism Act was passed and this actually allowed
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It was a civil statute that allowed for in private
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litigants victims of terrorism to have the rights vindicated in
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court and to bring a case against those who provide
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material support to terrorists. But obviously there are jurisdictional limits
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attached to civil cases that you don't necessarily have in
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the criminal context. Obviously you have to satisfy personal jurisdiction
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in the criminal sense, but it's much more territorial based
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as opposed to a question of due process and fairness
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in the civil context. And so, because even though the
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ATA was on the books, there was still a jurisdictional
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hurdle of being able to bring a group like the
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PLO in the PA into court providing material support. So,
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for instance, in a typical material support case, you would have,
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you know, perhaps a bank based in New York that's
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conducting transactions for affiliates of Hezbola.
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No jurisdictional issues there.
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That's a very common actually it's a very common ATA
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style case. In this instance, we're dealing with a group
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that you know doesn't have as many contacts or as
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much footing on US soil, and so how can we
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make it so that when they're brought into court it's
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not violating due process, et cetera. And so Congress went
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back and forth over how to deal with this question
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and what prompted it was there was initially a case
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brought into the Second Circuit called Waldman, very similar to
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Fold and actually they were combined eventually. But in that
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case in Waldman, the Second Circuit determined that the test
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for personal jurisdiction is the same under both the fitth
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Amendment in the Fourteenth Amendment. And so, if you recall,
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when it comes to the fourteenth Amendment, we deal with
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questions of general pearls personal jurisdiction, whether an individual is
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or an entity is at home in the United States,
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and then you have specific personal jurisdiction, whether there is
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the minimum contact test is satisfied. So these are our
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questions that the Court said emphatically. The PLO just did
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not satisfy either general personal jurisdiction or specific personal jurisdiction.
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Congress was a bit beside itself, and it actually passed
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what was called the Anti Terrorism Clarification Act. So this
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is before the statute issue right now, we're talking about
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the predecessor. The ATCA actually said that the ATA allows
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for a party to have consented to jurisdiction if after
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one hundred and twenty days of the ATCA enactment, the
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defendant accepted certain forms of aid from the United States
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ed an office in the United States. The PLO and
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the PA did both, and at the time they shut
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their offices. They were like, we don't want to be
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subjected to the jurisdiction of US courts.
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We're shutting our offices down.
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And so again when the case came before the Second Circuit,
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they still refused to exercise jurisdiction because the PLO and
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the PA had denied assistance and shuttered their offices.
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And so in.
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Response, Congress passed the PSJVTA, which is the statute issue here.
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And the PSJVTA was crafted.
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With the knowledge of what would make what would trigger
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quote unquote the Second Circuit to say no. So the
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PSJAVTA provides two bases of jurisdiction. The first is if
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you're making payments directly or indirectly to a terrorist that
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either injures or kills the US national, or if you
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pay the terrorist family members, So that's the whole pay
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for slave program I opened up with. And then or
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if you maintain or establish any office, headquarter, premises, or
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facility establishments the United States, or conduct any other activity
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that's not exempted under the UN. What made the PSJVTA
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even narrower is that it actually calls out the PLO
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and the PA by name. So this is not a
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jurisdictional statue that applies to all non sovereign organizations operating
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abroad that might fund terrorism. This applies specifically to the
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PLO and the PA. So you see the degree of
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particularity and that Congress had when it designed this statute.
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And so I think when we get into the opinion,
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i'll talk about why that's relevant, but effectively, that's what
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made it. So that's what made I think the Court's,
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at least the Supreme Court much more forgiving that this
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is not a widen scope statute. It's very narrow, it's
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very particularized to the PLO and the PA. So going
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back to that case Waldman. Eventually the Waldman plant is
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filed for certain petition. After this, the ps JVTA came
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into existence and the Supreme Court remanded sent it back
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to the Second Circuit for review.
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Fold was combined with Waldman, and.
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There is actually another Second Circuit decision which I will
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we can talk about further.
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We can talk about later on.
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But again the Second Circuit said, we can't exercise tourisdiction
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here because the PSJVTA as written is unconstitutional because it
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violates the due process clause of the Fifth Amendment. And
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judgment Ashley had a dissent from enbanc that was excellent
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that went into quite a bit of detail about why
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the Second Circuits a regional decision was incorrect and the
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Supreme Court actually relied a decent amount on it.
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So we can talk a bit about that as well.
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But that gives you a little bit of the procedural
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history as well as sort of the laws that preceded
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the PSJVTA, namely the Anti Terrorism Act the ATA, follow
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by the ATCA, and then finally the PSGVTA, which is
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the statue we're dealing with today.
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Yes, and these cases go on for a very long time.
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That jury trial in that first case was the jury
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VERDIC came in in twenty fifteen, and this case is
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still ongoing. We do have one question that's an easy
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one to answer. Yes, the PLO and PA were the
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defendants in the case, so they are actively involved in
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the participation in litigation.
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And defending this case.
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So essentially, the Supreme Court held that the Fifth Amendment
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was not violated. The Fifth Amendment due process clause was
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not violated because it's outer limits are broader than what
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is under the Fourteenth Amendment. So for our Fed Court
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civil procedure listeners, can you just touch upon that a
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little bit and where you see there's where you see
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the clarity in the opinion, if there is some if
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there isn't, and where this kind of this kind of
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jurisdical question will go in the future.
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Yeah, it's a very interesting. It's a very interesting opinion
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because when you and I had prepped for this conversation
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SHOWSOH we talked about how it was sort of definition
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by exclusion, like they dropped this room. Court sort of
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drop this bomb on us about the relationship between the
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Fifth Amendment and the fourteenth Amendment, but then doesn't give
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us any more information, so it effectively in Scotus's opinion,
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they say, the language of the Fifth Amendment in the
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fourteenth Amendment are roughly the same, but they don't mean
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the same thing because the state and the federal government
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occupy different sovereign spheres, and so they don't want to
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apply the same tests that we use for the fourteenth Amendment,
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namely the minimum contact tests. That standard. We're not going
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to read that into the Fifth Amendment. And and part
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of their reasoning, which I think is very straightforward, is, look,
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the fourteenth Amendment dealt with interstate federalist concerns. Namely, you know,
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states don't want their citizens being brought dragged into court
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in other states if they actually if that state court
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is the one to have jurisdiction. So there was you know,
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the fourteenth Amendment was about balancing state power concerns. You
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don't have those same concerns when it comes to the
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Fifth Amendments. And so that's why the restrictions that are
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applied on the fourteenth Amendment are just are improper for
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the purposes of the Fifth Amendment. What was interesting and
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fold is that the plaintiffs actually argued that there was
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no restrictions on Fifth Amendment federal jurisdiction. The court rejected
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that position, but they didn't really say anything beyond they
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they didn't attempt to establish what tests should apply. So
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even though they rejected importing the minimum contact tests for
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the purposes of the Fourteenth Amendment for the purposes of
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the Fifth Amendment, they don't actually tell us what are
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the what are the boundaries, or what are the confines
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of Fifth Amendment jurisdiction.
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And so all they really held, and it's a pretty
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narrow holding in.
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That sense, is that a statute such as the Psgavta
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that quote ties federal jurisdiction to conduct close related the
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United States and implicates foreign policy concerns is constitutional. So
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they don't really define the limits of jurisdiction under the
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Fifth Amendment. What was interesting is that Thomas wrote a
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concurrence and he actually said that there the Fifth Amendment
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plays no limits on jurisdictions of the federal courts. And
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you know, at the what made this what makes this
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case interesting is that again it's a definition by exclusion.
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We know, we're attempting to define the bounds of Fifth
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Amendment of jurisdiction under the Fifth Amendment by saying what
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it isn't and that is can.
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Be a longer process.
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And so what I would be curious about is if
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further opinions down the road come down, if they don't
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just continue to sort of chip away at a framework
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by continuing to do it sort of definition by exclusion approach.
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We're not going to spell out a test, We're just
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going to tell you what it's not. I think that
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sometimes can make litigation both easier and harder, right, Because
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harder in the sense you don't really know what the
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rule is, but easier is that you can sort of
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craft one and attempt to present it to the courts
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as one possible avenue that comports with due process under
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the Fifth Amendment.
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So this case is.
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Very meaningful, but then I think it kind of stops
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short of giving us a real framework for understanding what
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the limits are of jurisdiction under the Fifth Amendment. I
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thought Judgment Ashy made a very interesting point and that
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was sort of pivy in his denial. He said, since
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foreign states are not generally subject to due process clause,
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if the PA and the PLO were recognized tomorrow. If
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they would not, then the PSGBTA would be perfectly constitutional.
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And that's funny because that's the position of the PA
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and the PLL anyways, that they are sovereigns, and so
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if they were, we wouldn't even be conducting this.
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Due process analysis.
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So there's a bit of having your cake and eating
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it too here as well on the part of the defendants.
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But I think Judgment actually does a nice job was
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sort of crystallizing that in his denial for his dissent.
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Yes, and the Court at the end of the opinion
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really explicit explicitly said, we don't need to touch upon
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the issue because even under these circumstances, the Fourteenth Amendment
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heightened standard is meant, so we don't need to really
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think about that lower standard, which again I think begs
305
00:17:33.359 --> 00:17:37.359
the question of which Chase would actually present a question
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like squarely to the court. And I want to touch
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a little bit about Justice Thomas's concurring opinion, and he
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really touches on what his definition of the decoration of
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due processes versus the historical understanding, and he essentially he
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has the law of the land view that if the
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due processes due process laws don't limit the legislature, they
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limit the executive and to a certain extent, the judicial branch.
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So if you could just comment a little.
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Bit about how that really.
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Kind of comforts with foreign policy and how it's done
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in the anti terrorism litigation space.
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Yeah, so this is this is an instance of a
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specific federal jurisdictional statute that is designed to give the
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federal court's authority when they otherwise may not have it.
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And that's perfectly in line with the foreign affairs powers
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that the founders envisioned for both Congress and the executive
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And so this is not outside the realm of what
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would be reasonable. And I think that you know, it
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is it is. I think it is interesting. Again, we
325
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talked about this earlier. It is interesting that the Court,
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you know, still recognizes that even if the fourteenth Amendment
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were the standard for determining whether do you know, the
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firsteenth Amendment tests were the standard for determining whether due
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process has been satisfied, it's still those standards still would
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have been met. I do think it's interesting. It's a
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little bit of equivocation on the part of the Court.
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So I appreciated that Thomas kind of just went full
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throttle in his concurrence and ignored all of that. But
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there is a little bit of equivocation I think, or
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maybe even slight hesitation on the part of Scotus.
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That being said, you know, we talked about, well.
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What does this mean for the ATA space. This is
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00:19:32.839 --> 00:19:35.039
a pretty big deal for the ATA space for a
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few reasons.
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One, you know, I can't tell you the.
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Number of plaintiffs that have attempted to bring cases against
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the PLO and the PA and have had their cases
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tossed out on the basis of personal jurisdiction. So putting
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aside sort of the merits ATA cases, there's a lot
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of debate over the merits of whether material support has
346
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been satisfied through various different tests under Helberson b et cetera.
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And we could do a whole segment on that. That's
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that's the merits of the case. And to be frank,
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you know, fold those litigants have a long road ahead
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of them because this is just the threshold question of
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whether personal jurisdiction is satisfied. They've got to get to
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now into the merits of their ATA case, which is
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a long which is a long road. And as you've
354
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pointed out, this litigation takes a very long time. It's
355
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particularly true in the ATA context and in the f
356
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SIA context if you you know, for instance, sue Aaron
357
00:20:29.319 --> 00:20:32.319
so these So in terms of you know, what it
358
00:20:32.400 --> 00:20:35.160
means for ATA litigation, the first is that it helps
359
00:20:35.160 --> 00:20:37.599
a lot of a lot of victims of America, a
360
00:20:37.640 --> 00:20:40.000
lot of American victims of terrorism who otherwise wouldn't be
361
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able to get the PLO and the PA into court.
362
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It also, you know, I think opens the door for
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potential litigation against the PA and the PLO after October seven.
364
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And the reason I say that so you know, I
365
00:20:53.559 --> 00:20:57.640
represent a group of October seven victims in various cases
366
00:20:57.720 --> 00:21:02.440
ATA cases right now. And one of the things that
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00:21:02.640 --> 00:21:06.920
obviously is relevant is whether you know an organization has
368
00:21:06.960 --> 00:21:10.359
provided material support to those who engage in acts of terrorism.
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And in the case of October seven, what's interesting about
370
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the PLO and the PA is that because they've institutionalized
371
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their pay for slave program, we know and they actually
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00:21:20.720 --> 00:21:21.319
advertise it.
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This is what's even crazier.
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They advertise the number of individuals they're paying, and they
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do it proudly because to them, this is like a
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form of welfare, so they will advertise that the number
377
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of individuals that they're paying has increased. So after October seven,
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the PLO and the PA increase the number of prisoners
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they were paying by seventy percent. Now, the economy in
380
00:21:44.599 --> 00:21:49.240
the West Bank is very is crippled, declining, in really
381
00:21:49.319 --> 00:21:52.440
rough shape. But they managed to put together scrape together
382
00:21:52.599 --> 00:21:56.200
some money aka foreign aid to pay the individuals that
383
00:21:56.240 --> 00:22:00.680
are in prison for killing for killing Jews.
384
00:22:01.160 --> 00:22:02.240
And so they.
385
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Advertise that they increase the number of prisoners that they're
386
00:22:05.400 --> 00:22:06.640
paying by seventy percent.
387
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And what does that mean?
388
00:22:07.640 --> 00:22:10.319
I mean the after October seven, there were individuals who
389
00:22:10.359 --> 00:22:13.400
partook in October seven that the PA and the PLO
390
00:22:13.480 --> 00:22:16.759
is rewarding. So I actually see an opportunity here for
391
00:22:16.960 --> 00:22:20.000
victims of October seven to go after the PLO and
392
00:22:20.039 --> 00:22:23.640
the PA, which sounds unusual because we know Hamas and
393
00:22:24.319 --> 00:22:28.079
Palastinian civilians from Gaza carried out October seven. But now
394
00:22:28.200 --> 00:22:31.960
there's this sort of interesting wrinkle here of possibly a
395
00:22:32.000 --> 00:22:36.400
new frontier of litigation for October seven victims, particularly because
396
00:22:36.880 --> 00:22:39.079
we have, you know, the numbers to show for it.
397
00:22:39.160 --> 00:22:41.519
Because the PLO and the PA are so brazen in
398
00:22:41.559 --> 00:22:45.200
their pay for Sleigh program. So I think post October seven,
399
00:22:45.240 --> 00:22:48.519
they are very particular implications. And then the last point
400
00:22:48.559 --> 00:22:52.200
I'll make is it just shows that the respectability of
401
00:22:52.240 --> 00:22:54.680
the PA and the PLO could not be.
402
00:22:54.680 --> 00:22:55.960
At a lower point.
403
00:22:56.599 --> 00:22:59.359
You know, I think they've tried to advertise themselves as
404
00:23:00.319 --> 00:23:02.480
the potential peace partner and sort of as a foil
405
00:23:02.559 --> 00:23:05.279
to Hamas and you just see that Congress and now
406
00:23:05.319 --> 00:23:07.759
the Supreme Court aren't buying it in so far as
407
00:23:08.000 --> 00:23:11.680
you know, they should be dragged into court for terrorism
408
00:23:11.720 --> 00:23:12.720
related offenses.
409
00:23:13.079 --> 00:23:15.480
And that's because they fund terrorism.
410
00:23:15.799 --> 00:23:21.119
And so the veneer of respectability has so deeply eroded
411
00:23:21.480 --> 00:23:25.480
that that's what that the most critical case relating to
412
00:23:25.519 --> 00:23:28.759
them is one that says, actually, you guys fund terrorism.
413
00:23:29.680 --> 00:23:34.839
Yes, And along those lines the PSJ VTA, we have
414
00:23:34.920 --> 00:23:37.759
a question would that extend to other entities or is
415
00:23:37.799 --> 00:23:40.599
that really just limited by its text to the PLO.
416
00:23:40.759 --> 00:23:43.039
And it's just limited by its text the Pillow and
417
00:23:43.079 --> 00:23:47.160
the PI, which is why it was so And I
418
00:23:47.200 --> 00:23:49.880
think again this goes to why the Scotus was so
419
00:23:50.079 --> 00:23:55.440
willing to to read it as constitutional, because it was
420
00:23:55.680 --> 00:23:56.960
so narrow in its focus.
421
00:23:57.039 --> 00:24:00.680
It wasn't overbroad in any way, and also.
422
00:24:02.160 --> 00:24:06.160
Really represented the culmination of Congress's efforts to bring the
423
00:24:06.200 --> 00:24:10.640
PLO and the PA into court. Because PLO and paterrorism,
424
00:24:10.720 --> 00:24:12.799
for those who don't realize, it's been going on for
425
00:24:12.880 --> 00:24:15.680
decades since the nineteen seventies, since the PA and the
426
00:24:15.680 --> 00:24:21.079
PLO were founded, they have funded terrorism, particularly against Americans,
427
00:24:21.160 --> 00:24:24.279
for a very long time. There's actually a particular case
428
00:24:24.359 --> 00:24:29.400
Klinghoffer in the eighties where there was an American on
429
00:24:29.440 --> 00:24:33.480
a cruise ship. He was wheelchair bound and terrorists funded
430
00:24:33.519 --> 00:24:36.160
by the PLO actually asked him if he was American
431
00:24:36.200 --> 00:24:38.599
before they threw him overboard, and they were targeting him
432
00:24:38.599 --> 00:24:42.319
because he was an American, and his case also came
433
00:24:42.359 --> 00:24:46.359
into US courts. So this is something that has really
434
00:24:46.400 --> 00:24:49.279
really bothered Congress for a long time, and I think
435
00:24:49.319 --> 00:24:50.160
Scotis knew that.
436
00:24:51.319 --> 00:24:53.759
I think the Chief Justice touched upon it in his
437
00:24:53.839 --> 00:24:55.079
opinion that.
438
00:24:55.480 --> 00:25:00.519
There should be some protection for US citizens that that
439
00:25:00.559 --> 00:25:04.240
has some extra territorial limits, and in the context of terrorism,
440
00:25:04.319 --> 00:25:06.599
it's one of them. It's in like the broader bucket
441
00:25:06.720 --> 00:25:09.640
of intentional sorts when it comes to being subject to
442
00:25:09.680 --> 00:25:13.039
the jurisdiction of the United States. We have one more
443
00:25:13.119 --> 00:25:16.559
question along the foreign policy route, and then we could
444
00:25:16.559 --> 00:25:21.599
switch back our gears. So how in practice would these
445
00:25:21.839 --> 00:25:27.079
litigants actually collect damages well or is this really just
446
00:25:27.119 --> 00:25:29.680
a symbolic victory that they get in a US sport.
447
00:25:30.519 --> 00:25:31.880
That's a really interesting question.
448
00:25:32.000 --> 00:25:36.160
So in the case of so, if you're dealing with
449
00:25:36.440 --> 00:25:39.680
I guess i'll answert in two parts general ATA litigation,
450
00:25:39.880 --> 00:25:41.920
it really depends on the defendant. If you're dealing with
451
00:25:41.960 --> 00:25:44.680
a non state actor, let's say like a charity, the
452
00:25:44.839 --> 00:25:48.279
ideal would be, you know, potentially that the charity either
453
00:25:48.839 --> 00:25:52.079
shuts down or there are instances in which a charity
454
00:25:52.160 --> 00:25:56.119
might come to the attention of DJ and it may
455
00:25:56.160 --> 00:26:00.839
be prosecuted under criminal statute. So there's an analogous statute
456
00:26:01.359 --> 00:26:05.119
from which the civil statute was born eighteen USC. Two
457
00:26:05.119 --> 00:26:08.279
through three nine B that deals with material support and
458
00:26:08.279 --> 00:26:12.160
that that's the criminal statute that would allow for individuals
459
00:26:12.200 --> 00:26:15.240
to be prosecuted. So there's a possibility, and we see
460
00:26:15.279 --> 00:26:18.759
this happen in the ATA space quite a bit, where
461
00:26:18.799 --> 00:26:22.400
you have, you know, a certain defendant is brought to
462
00:26:22.440 --> 00:26:26.359
the attention of DJ, and then there's there's prosecutorial measures
463
00:26:26.359 --> 00:26:29.440
that are taken against that defendant. And what's interesting, under
464
00:26:29.680 --> 00:26:32.720
two three three nine B, you can actually be prosecuted
465
00:26:32.799 --> 00:26:36.039
for attempting to provide material support. And the standard for
466
00:26:36.160 --> 00:26:39.680
material support in the criminal context is a bit lower
467
00:26:40.559 --> 00:26:41.559
than the civil one.
468
00:26:41.599 --> 00:26:42.799
Shiza and I talked about this.
469
00:26:42.960 --> 00:26:46.559
The criminal context, you basically just have to show that
470
00:26:47.319 --> 00:26:50.759
the defendant was providing material support to an FTO. There's
471
00:26:50.799 --> 00:26:54.799
no knowledge requirement that actually has to tie the defendant
472
00:26:54.799 --> 00:26:56.200
to the act that took place.
473
00:26:56.400 --> 00:26:58.640
It's just if you give money to a.
474
00:26:58.599 --> 00:27:01.039
Member of Ramas, you have been deemed to have provided
475
00:27:01.039 --> 00:27:05.640
material support to Hamas, and then if someone's injured by Hamas,
476
00:27:05.680 --> 00:27:08.119
you can be held accountable. So that's how the criminal
477
00:27:08.119 --> 00:27:11.279
statue works. And you in terms of collecting in other
478
00:27:11.319 --> 00:27:15.880
instances where it's not an American based entity like a
479
00:27:15.960 --> 00:27:18.440
charity for instance, or an individual in the United States.
480
00:27:19.480 --> 00:27:21.559
You know, in the case of let's say you were
481
00:27:21.599 --> 00:27:24.480
suing like a non sovereignity like the PA the PLO,
482
00:27:24.599 --> 00:27:27.279
it's possible you could get their assets frozen and then
483
00:27:27.319 --> 00:27:29.240
try to collect on any assets that they have in
484
00:27:29.279 --> 00:27:33.799
the United States. That's that's very hard. We see it
485
00:27:33.799 --> 00:27:36.680
in the f si A context. So the PLO and
486
00:27:36.720 --> 00:27:39.599
the PA can't be sued under the f SIA because
487
00:27:39.599 --> 00:27:41.920
they're not sovereigns.
488
00:27:41.440 --> 00:27:43.359
And you can we take a pause and explain what
489
00:27:43.480 --> 00:27:44.599
the foreign sovereign.
490
00:27:44.680 --> 00:27:47.519
Yes, yes, okay, so this is you ask like a
491
00:27:47.519 --> 00:27:48.920
loaded question, how do you collect?
492
00:27:48.920 --> 00:27:50.039
And it's it's a good one.
493
00:27:50.079 --> 00:27:52.759
But the reason I bring up the Foreign Sovereign Immunities
494
00:27:52.799 --> 00:27:55.799
Act is because there are exceptions to when you can
495
00:27:55.880 --> 00:27:59.200
sue sovereigns. So, for instance, a state sponsor of terror
496
00:27:59.240 --> 00:28:03.039
like Iran gets sued a decent amount because there are
497
00:28:03.119 --> 00:28:05.799
victims of terrorism that have been sponsored by Iran, and
498
00:28:05.839 --> 00:28:10.039
so the FSIA says sovereigns are immune unless they satisfy
499
00:28:10.160 --> 00:28:13.400
certain exceptions like a commercial activity exception or in this case,
500
00:28:13.440 --> 00:28:16.640
the terrorism exception. So Iran will be brought into court
501
00:28:17.160 --> 00:28:19.480
and you know they'll be sued and there may be
502
00:28:19.480 --> 00:28:22.640
a default judgment. It's often what happens. And then if
503
00:28:22.680 --> 00:28:25.599
there's a default judgment, then it's on the plaintiffs to
504
00:28:25.640 --> 00:28:29.000
try to find assets to execute. And that's really hard
505
00:28:29.119 --> 00:28:32.640
actually because of sanctions, there aren't as many assets in
506
00:28:32.680 --> 00:28:34.880
the United States and they just have fewer There are
507
00:28:34.920 --> 00:28:37.880
fewer things to seize and to liquidate, and so what
508
00:28:38.039 --> 00:28:40.799
ends up happening in that case is plaintiffs will have
509
00:28:40.799 --> 00:28:43.720
to go into court and have the decision actually revived
510
00:28:43.839 --> 00:28:45.519
basically every ten or eleven years.
511
00:28:45.880 --> 00:28:46.720
So there are certain.
512
00:28:46.559 --> 00:28:49.319
Decisions that are outstanding in the DC circuit. For instance,
513
00:28:49.359 --> 00:28:51.920
if you go on the docket, you'll find that those
514
00:28:51.960 --> 00:28:54.599
decisions have had to be revived like two or three
515
00:28:54.640 --> 00:28:58.039
times because the plaintiffs just can't find assets to collect on.
516
00:28:58.759 --> 00:29:02.160
So it's actually really had hard when you see rogue
517
00:29:02.440 --> 00:29:06.240
sovereign states like Iran. Now you're asking about PLO and PA,
518
00:29:06.640 --> 00:29:09.640
it can even be harder, right because they're not sovereign states.
519
00:29:09.640 --> 00:29:12.920
So even there's even less of a formal institutional framework
520
00:29:13.319 --> 00:29:17.119
for you know, locating their assets because they're not a
521
00:29:17.200 --> 00:29:21.559
sovereign so there is some symbolism tied to it. But
522
00:29:21.640 --> 00:29:25.799
there's a lot of you know, foreign policy considerations that
523
00:29:25.880 --> 00:29:28.240
might come into play, and you may possibly be able
524
00:29:28.279 --> 00:29:30.519
to get their assets frozen.
525
00:29:30.640 --> 00:29:33.279
You may be able to get the US government involved.
526
00:29:32.880 --> 00:29:36.640
In some way and through some collaboration with the state
527
00:29:36.720 --> 00:29:39.559
or d J, so there are there are other avenues.
528
00:29:39.599 --> 00:29:42.160
It's just a bit unconventional and you know, as the
529
00:29:42.240 --> 00:29:45.359
questionner points out there is a symbolism attached to it,
530
00:29:45.400 --> 00:29:47.519
but yeah, I mean you can. You can do your
531
00:29:47.519 --> 00:29:50.640
best to sort of bankrupt these these organizations as much
532
00:29:50.680 --> 00:29:54.200
as possible by going after the assets that you can locate.
533
00:29:55.880 --> 00:29:59.039
And again, Justice Thomas also touched upon this a little
534
00:29:59.079 --> 00:30:01.319
bit in his concurrent ins as to why what.
535
00:30:01.519 --> 00:30:03.480
Should be hesitant to really have any.
536
00:30:03.319 --> 00:30:07.599
Limits under the Fifth Amendment because these kind of actions
537
00:30:07.640 --> 00:30:12.079
are used as a bargaining chip in the broader foreign
538
00:30:12.079 --> 00:30:15.440
policy debate. Let's say you want to at the conflict,
539
00:30:15.440 --> 00:30:17.440
while one of the bargaining points could be that you
540
00:30:17.480 --> 00:30:20.000
have to pay the judgment all of these outstanding judgments
541
00:30:20.000 --> 00:30:21.960
for the tied up state sports, which.
542
00:30:21.799 --> 00:30:23.680
I think was a was a good point.
543
00:30:23.480 --> 00:30:26.680
Like the per salient, Yeah, because it goes to the
544
00:30:26.720 --> 00:30:29.319
fact that, like there is it, even though this is
545
00:30:29.359 --> 00:30:33.240
a civil suit with private litigants, the foreign affairs powers
546
00:30:33.519 --> 00:30:37.480
is still very much implicated and so it's not like,
547
00:30:37.519 --> 00:30:39.240
as you point out, it's highly relevant.
548
00:30:39.680 --> 00:30:44.160
Yes for sure, And going back again to the fed
549
00:30:44.240 --> 00:30:46.160
Forwards issue about it a little bit.
550
00:30:47.240 --> 00:30:50.839
So. One other I think critique that could.
551
00:30:50.640 --> 00:30:55.119
Be had of congressional legislation in this kind of space
552
00:30:55.400 --> 00:30:59.559
is that sometimes if it's the intent of the legislature
553
00:30:59.680 --> 00:31:03.079
or not, it really changes the outcome of pending litigation,
554
00:31:03.200 --> 00:31:07.000
maybe in one or two cases. And interestingly, the Chief
555
00:31:07.160 --> 00:31:10.480
Justice wrote this opinion that was nine to oh, but
556
00:31:10.559 --> 00:31:14.759
he dissented in a seven and two opinion called Bank Markazi,
557
00:31:14.839 --> 00:31:18.920
where he essentially said that Congress crossed the line and
558
00:31:19.160 --> 00:31:22.039
infringing on the judicial power by essentially changing the law
559
00:31:22.200 --> 00:31:26.000
to direct an outcome in a case involving terrorism. So
560
00:31:26.559 --> 00:31:28.880
can you just comment on that space a little bit
561
00:31:29.559 --> 00:31:32.160
and how you see that role fitting.
562
00:31:31.880 --> 00:31:35.599
In even though practically it looks like the Chief Justice
563
00:31:35.599 --> 00:31:36.640
has abandoned.
564
00:31:36.240 --> 00:31:38.200
It and there's been a lot of turnaround in the court.
565
00:31:38.319 --> 00:31:41.480
So maybe this is just going to be sort of
566
00:31:41.480 --> 00:31:46.200
a blip for the Chief and will will be non
567
00:31:46.200 --> 00:31:47.279
an issue going forward.
568
00:31:48.400 --> 00:31:52.480
I think so, without getting into the weeds on Bank Markazi,
569
00:31:52.559 --> 00:31:54.519
but I think it's a very interesting point.
570
00:31:54.559 --> 00:31:58.079
You make two things I'd be curious about. One is.
571
00:31:59.480 --> 00:32:02.279
I wonder if with this type of when this opinion was,
572
00:32:02.359 --> 00:32:04.880
when Roberts wrote this opinion, if he felt from the
573
00:32:04.920 --> 00:32:07.799
get go that the Second Circuit had gotten it wrong repeatedly.
574
00:32:08.519 --> 00:32:11.039
And I think if you believe that the Second if
575
00:32:11.079 --> 00:32:13.720
you believe that the initial opinion that launched this so
576
00:32:13.880 --> 00:32:16.039
with the first Waldman opinion, if you believe that the
577
00:32:16.039 --> 00:32:19.400
Second Circuit's just been getting it wrong repeatedly and Congress
578
00:32:19.440 --> 00:32:24.319
has been very accommodating, then that sort of changes the framework,
579
00:32:24.359 --> 00:32:26.960
because it's not really that Congress is being sort of
580
00:32:28.519 --> 00:32:33.759
malicious or attempting to target individual, you know, an individual.
581
00:32:33.400 --> 00:32:33.960
Or an entity.
582
00:32:34.039 --> 00:32:36.119
It's just that they're trying to get their work done
583
00:32:36.319 --> 00:32:39.160
and they're getting thwarted by the courts, and now Scotus
584
00:32:39.160 --> 00:32:41.799
finally has the chance to be decisive about it.
585
00:32:42.200 --> 00:32:43.440
That's sort of how I see it.
586
00:32:43.480 --> 00:32:47.000
Is more that from my take on how Roberts can
587
00:32:47.359 --> 00:32:50.039
hold two opinions at the same time is that in
588
00:32:50.079 --> 00:32:52.599
this case, I think he really he must have felt
589
00:32:52.720 --> 00:32:55.559
to some degree that the initial opinions that have been
590
00:32:55.559 --> 00:32:57.720
issued by the Second Circuit like ten years ago with
591
00:32:57.759 --> 00:33:01.759
regards to Waldman were wrong, that when they dealt with
592
00:33:02.720 --> 00:33:08.799
whether it was the ATCA or the ATA more generally,
593
00:33:09.079 --> 00:33:10.720
that they were just incorrect.
594
00:33:10.759 --> 00:33:12.720
Now I'm not I can't read the mind.
595
00:33:12.519 --> 00:33:14.720
Of Roberts, but that would be how I would hold
596
00:33:14.799 --> 00:33:17.839
both of those opinions at the same time. I also
597
00:33:17.960 --> 00:33:20.240
think again, going back to the idea that this is
598
00:33:20.319 --> 00:33:24.160
extremely narrow opinion, It's narrow in two ways.
599
00:33:24.200 --> 00:33:25.240
It's narrow because.
600
00:33:25.039 --> 00:33:28.440
It just deals with the a statute that targets exclusively
601
00:33:28.480 --> 00:33:31.079
the PA and the PLO. And it's also narrow because,
602
00:33:31.119 --> 00:33:34.400
as we talked about, it doesn't really define the limits
603
00:33:34.400 --> 00:33:36.200
of the Fifth It doesn't give us a test or
604
00:33:36.240 --> 00:33:39.880
a standard or rule for determining whether the Fifth Amendments
605
00:33:39.920 --> 00:33:44.319
do process clause has been satisfied. So I think that again,
606
00:33:44.599 --> 00:33:47.279
you know, I don't think Robert sees this opinion is
607
00:33:47.359 --> 00:33:51.359
that sweeping. The way in which it is sweeping, and
608
00:33:52.079 --> 00:33:54.319
not in a fed Court sense, but an ATA sense,
609
00:33:54.440 --> 00:33:57.920
is that it shows the ethos of the court. Where
610
00:33:57.960 --> 00:34:00.519
the court is now, as we mentioned earlier, is that
611
00:34:00.640 --> 00:34:04.000
you should and can you can and should be able
612
00:34:04.400 --> 00:34:06.319
to bring the PA and the p l O into court,
613
00:34:06.599 --> 00:34:11.159
and that anti terrorism litigation is a real is a
614
00:34:11.199 --> 00:34:14.519
real tool and a toolkit held by Congress and his
615
00:34:14.679 --> 00:34:18.320
executive for dealing with foreign terrorism. That's the takeaway I
616
00:34:18.360 --> 00:34:21.880
got from this, as you pointed out in Thomas's concurrence,
617
00:34:21.880 --> 00:34:24.079
but that's what I got from this opinion as well,
618
00:34:24.199 --> 00:34:27.199
is that this even though this is private litigation.
619
00:34:27.800 --> 00:34:29.079
This is regarded as.
620
00:34:29.000 --> 00:34:32.000
A very important tool of deterrence for dealing with international
621
00:34:32.079 --> 00:34:35.519
terrorism against American victims. And so that to me is
622
00:34:35.559 --> 00:34:38.679
a big, big takeaway in terms of how the court
623
00:34:38.760 --> 00:34:43.280
understands at litigation. This is not just your standard h
624
00:34:43.519 --> 00:34:46.760
towards issue, but this is something that you know, the
625
00:34:46.920 --> 00:34:50.840
Scotus feels very strongly that the federal government is implicated.
626
00:34:50.320 --> 00:34:53.440
In Yeah and uh.
627
00:34:53.960 --> 00:34:57.679
Along the lines of that switching gears back to the
628
00:34:57.679 --> 00:35:01.519
Fedport's question. I've had differ versions of this question of
629
00:35:01.559 --> 00:35:05.679
what the difference between the fourteenth and fifteenth and the
630
00:35:05.679 --> 00:35:08.760
fifth Amendment, even though the words are textually similar, has
631
00:35:08.760 --> 00:35:12.159
in other areas of the law. And I know it
632
00:35:12.199 --> 00:35:14.599
was a particular concern of Justice Barrett and some of
633
00:35:14.639 --> 00:35:18.719
the other justices during oral arguments. They referenced, for example,
634
00:35:18.840 --> 00:35:23.800
Judge Hosts concurring opinion in a similar case that warned
635
00:35:23.840 --> 00:35:26.719
the Court to be very hesitant to read these two
636
00:35:26.800 --> 00:35:32.719
clauses differently because that has implications for incorporation. Some folks
637
00:35:32.760 --> 00:35:36.840
are asking, and how is this different in the immigration context. So,
638
00:35:37.400 --> 00:35:39.719
with knowing that this is a very limited opinion, that
639
00:35:39.760 --> 00:35:44.000
doesn't say much if you feel comfortable speculating as to
640
00:35:44.400 --> 00:35:46.519
how this will impact other areas of the law.
641
00:35:46.920 --> 00:35:48.280
We'd love to hear your thoughts on that.
642
00:35:49.719 --> 00:35:52.039
Yeah, So it's actually that's a very good question. In
643
00:35:52.079 --> 00:35:53.920
you and I talked about this, and so I'm going
644
00:35:54.000 --> 00:35:55.840
to give my opinion, but I also want you to
645
00:35:55.880 --> 00:35:58.440
feel free to do so as well, because I'm sure
646
00:35:58.480 --> 00:36:02.039
you also have thought about this, because you were when
647
00:36:02.039 --> 00:36:04.559
we first started talking. You were intrigued by the Fed
648
00:36:04.599 --> 00:36:07.440
Court's element of this case, and I kind of came
649
00:36:07.480 --> 00:36:09.480
into it with you know, very very intrigued by I
650
00:36:09.480 --> 00:36:12.039
becauid I do anti terrorism litigation, so this was like
651
00:36:12.159 --> 00:36:15.039
a very big day for us in the ATA world.
652
00:36:15.880 --> 00:36:18.559
So yeah, I mean, the implications of it to me
653
00:36:18.800 --> 00:36:21.639
are not are not obvious because I think you would
654
00:36:21.760 --> 00:36:24.920
if if Thomas's concurrence had been the opinion of the court,
655
00:36:25.280 --> 00:36:27.039
I think we would be we would be operating in
656
00:36:27.079 --> 00:36:29.679
a very different world. Do I think that we're waking
657
00:36:29.760 --> 00:36:32.920
up now in a completely different space?
658
00:36:33.559 --> 00:36:33.800
Uh?
659
00:36:34.440 --> 00:36:38.559
Not really, unfortunately, and unfortunately only because as I said before,
660
00:36:38.880 --> 00:36:41.360
it doesn't seem to me that there's any there's not
661
00:36:41.480 --> 00:36:44.199
a lot of meat to work with here. Part of
662
00:36:44.239 --> 00:36:48.079
that is because Roberts actually conducted the Fourteenth Amendment analysis
663
00:36:49.159 --> 00:36:51.519
on the PLO and the PA in order to say,
664
00:36:52.039 --> 00:36:55.320
even if you, you know, disagree with our holding, the
665
00:36:55.400 --> 00:36:59.079
fourteenth Amendment is still satisfied. So in my mind, it's
666
00:36:59.079 --> 00:37:01.880
not really it's not really clear to me that there's
667
00:37:02.320 --> 00:37:04.239
it's not clear to me what the implications are going
668
00:37:04.280 --> 00:37:08.119
to be outside the foreign affairs space. And there's also
669
00:37:08.159 --> 00:37:12.559
a line here under the Fifth Amendment a quote more
670
00:37:12.639 --> 00:37:16.920
flexible jurisdictional inquiry is permitted commensurate with the federal government's
671
00:37:16.920 --> 00:37:21.960
broader sovereign authority. And so it's not again to me,
672
00:37:22.079 --> 00:37:25.119
it's these are this is very generalist language that doesn't
673
00:37:25.199 --> 00:37:28.559
really imply to me other spaces where it's going to
674
00:37:28.599 --> 00:37:32.599
be relevant or problematic, let's say, because I think it's
675
00:37:32.599 --> 00:37:35.440
probably going to introduce more problems than help because the
676
00:37:35.519 --> 00:37:39.440
language is so broad and ambiguous, like this is the
677
00:37:39.480 --> 00:37:43.880
power of the federal Court's okay, but shiz a go.
678
00:37:44.079 --> 00:37:45.760
I mean, if you have ideas about where you see
679
00:37:45.760 --> 00:37:48.480
this playing out elsewhere, feel free to share. I just
680
00:37:48.599 --> 00:37:50.800
I think at this point the opinion is way too
681
00:37:51.519 --> 00:37:55.880
It's both very limited and also ambiguous in its language
682
00:37:55.920 --> 00:37:57.480
as to where else it might apply, and the Court
683
00:37:57.480 --> 00:38:01.000
doesn't even opine, Like, the Court doesn't even give us
684
00:38:01.000 --> 00:38:04.360
an idea of where else this could be applicable. But
685
00:38:04.440 --> 00:38:06.920
if you're a creative litigator, that might be actually really
686
00:38:07.360 --> 00:38:09.599
kind of great because you can fill in the gaps.
687
00:38:10.960 --> 00:38:16.519
Yes, So I encourage everyone to read the Fifth Circuit opinion. Douglas,
688
00:38:17.800 --> 00:38:20.400
I cannot say this Liligan stamp, so I'm not going
689
00:38:20.400 --> 00:38:24.519
to attempt, but it's this citation is forty six f
690
00:38:24.519 --> 00:38:28.760
fourth two two six. Essentially, there were a lot of
691
00:38:29.079 --> 00:38:32.960
concurrences and differences of opinion. The fort below held that
692
00:38:33.119 --> 00:38:36.199
the standard for minimum for the due process standard for
693
00:38:36.280 --> 00:38:38.800
both the Fifth and fourteenth Amendment were the same, which
694
00:38:38.840 --> 00:38:41.400
is obviously not what the Court held in this case.
695
00:38:41.920 --> 00:38:46.559
But Judge Hose concurrence said that if we really do
696
00:38:46.679 --> 00:38:52.199
take this linguistic drift theory seriously, that because these flaws,
697
00:38:52.400 --> 00:38:55.840
these clauses were ratified at different times, that they have
698
00:38:56.079 --> 00:38:59.639
somewhat different meanings, then one of the implications of that
699
00:38:59.719 --> 00:39:06.360
would definitely be the incorporation doctrine, which would definitely definitely
700
00:39:08.320 --> 00:39:11.719
throw some upheaval into constitutional law as we know it
701
00:39:11.760 --> 00:39:14.119
for sure, because we'll have to do a different historical
702
00:39:14.159 --> 00:39:19.360
analysis for you know, claims against the federal government infringing
703
00:39:19.440 --> 00:39:22.079
on your rights under the Bill of Rights and claims
704
00:39:22.119 --> 00:39:25.800
against the states doing it. So I think that my
705
00:39:25.960 --> 00:39:29.159
big takeaway was that there's lots of warnings in different
706
00:39:29.239 --> 00:39:32.639
directions to keep this very limited, and I think the
707
00:39:32.679 --> 00:39:34.199
Court itself wants to do that too.
708
00:39:34.320 --> 00:39:35.719
Even in oral arguments.
709
00:39:36.199 --> 00:39:40.480
Really everyone was sort of on the same page that
710
00:39:40.559 --> 00:39:43.679
this is allowable under the Fifth Amendment, but we need
711
00:39:43.719 --> 00:39:45.480
to find a rule, and I think this is what
712
00:39:45.880 --> 00:39:49.440
the Court is struggling with too. Justice Prsage in particular
713
00:39:50.239 --> 00:39:55.400
discuss some cases that just the story wrote authored and
714
00:39:55.800 --> 00:40:00.719
how they would potentially have to be overruled. And you know,
715
00:40:00.760 --> 00:40:03.199
there's always like the hesitation on Twitter, like is this
716
00:40:03.320 --> 00:40:05.480
the end of international shoe I don't think it is,
717
00:40:07.519 --> 00:40:11.000
or if it was, I would probably have to quit
718
00:40:11.039 --> 00:40:15.519
being a lawyer because I want to don't what to do. Well, Yeah,
719
00:40:15.599 --> 00:40:18.360
but I think that by general takeaway and what we'll
720
00:40:18.360 --> 00:40:22.480
see is that this will probably continue to be very
721
00:40:22.480 --> 00:40:26.280
limited in the future because it's just so much simpler,
722
00:40:26.960 --> 00:40:30.880
and this opens a lot of it's just so much
723
00:40:30.920 --> 00:40:33.760
simpler to leave it as it is. Now, but we'll
724
00:40:33.760 --> 00:40:36.079
see what the court does. This is kind of in
725
00:40:36.119 --> 00:40:41.239
the broader sphere of the court figuring out how rights
726
00:40:41.239 --> 00:40:46.519
apply in with a purely originalist understanding of things. We've
727
00:40:46.599 --> 00:40:50.920
kind of like we've gotten across the finish line of Okay,
728
00:40:51.400 --> 00:40:55.280
you generally have to do original interpretation, and the context
729
00:40:55.280 --> 00:40:58.760
and text and history really matter to what does that
730
00:40:58.880 --> 00:41:04.159
mean in practice? And there are interesting questions, technical questions
731
00:41:04.159 --> 00:41:06.920
that come up when you do that kind of analysis,
732
00:41:06.960 --> 00:41:09.559
and also just the broader question of whether court should
733
00:41:09.599 --> 00:41:11.159
be doing that kind of analysis.
734
00:41:11.440 --> 00:41:13.159
Well, it's it's.
735
00:41:12.719 --> 00:41:16.639
It's hard because originalist interpretation is kind of at odds
736
00:41:16.639 --> 00:41:21.280
with proposivism, right, So what there what what Scotis was
737
00:41:21.960 --> 00:41:26.519
getting at was really and Judge Hoe is a proposivist
738
00:41:26.599 --> 00:41:29.599
interpretation of the distinction between the Fifth Amendment and the
739
00:41:29.639 --> 00:41:32.199
fourteenth Amendment, right, because what was the purpose of each?
740
00:41:32.960 --> 00:41:36.320
That's not originalism, right, Originalism as we understand it is
741
00:41:36.360 --> 00:41:37.559
public media originalism.
742
00:41:37.599 --> 00:41:41.280
So how was how was this statute understood at the
743
00:41:41.320 --> 00:41:42.719
time it was enacted?
744
00:41:43.800 --> 00:41:46.440
Or I guess originalism is more about how is the
745
00:41:46.440 --> 00:41:49.400
constitution in particular? Not statute, but how is the Constitution
746
00:41:49.760 --> 00:41:52.840
understood when it was enacted, and that in and of
747
00:41:52.880 --> 00:41:57.079
itself is you know, there may be times where proposivism
748
00:41:57.239 --> 00:42:00.880
and originalism overlap, i e. In the sense that the
749
00:42:00.920 --> 00:42:04.360
public understands the purpose of the particular provision of the
750
00:42:04.400 --> 00:42:08.199
Constitution and so therefore the understanding the art, you know,
751
00:42:08.280 --> 00:42:13.360
the original public meaning merges with the purpose of the
752
00:42:13.400 --> 00:42:16.400
actual provision. But that's not always the case. And so
753
00:42:16.440 --> 00:42:19.960
we're kind of an interesting world too now where this
754
00:42:20.159 --> 00:42:25.159
is not really like an originalist opinion that in that way.
755
00:42:25.800 --> 00:42:28.039
And so I think to your point, it's going to
756
00:42:28.119 --> 00:42:32.159
lend for some very interesting interpretations because it's not often
757
00:42:32.159 --> 00:42:36.159
that you'll see courts, at least, you know, GP appointed
758
00:42:36.199 --> 00:42:40.320
judges engaging and necessarily proposivism explicitly. But I think there's
759
00:42:40.320 --> 00:42:42.480
a bit of that going on here. And I do
760
00:42:42.559 --> 00:42:46.719
think that the dicta will be relevant as lower courts
761
00:42:46.920 --> 00:42:48.239
have been given this directive.
762
00:42:48.880 --> 00:42:51.039
The dicta is going to be helpful. The dicta is
763
00:42:51.079 --> 00:42:53.599
the Fifth Amendment and the Fourteenth Amendment aren't the same thing.
764
00:42:54.400 --> 00:42:55.440
Do what you want with it.
765
00:42:55.559 --> 00:42:57.840
I think we're going to see very interesting tests come
766
00:42:57.880 --> 00:43:00.880
out of different circuits where one hundred going to see
767
00:43:00.880 --> 00:43:03.800
this come up again in Scotus they've just sort of
768
00:43:03.840 --> 00:43:05.519
kicked the can down the road a little bit. But
769
00:43:05.559 --> 00:43:07.440
I do think we're going to see circuits come up
770
00:43:07.480 --> 00:43:10.039
with interesting creative tests as.
771
00:43:09.880 --> 00:43:10.599
A result of this.
772
00:43:11.519 --> 00:43:14.440
Yes, And I think one other is area where this
773
00:43:14.559 --> 00:43:18.519
is going to manifest in the international space is in
774
00:43:18.559 --> 00:43:22.679
the commercial litigation space and in the arbitration space. The
775
00:43:22.880 --> 00:43:26.440
Court said we're not commenting on anything where parties have
776
00:43:26.559 --> 00:43:30.360
consented to jurisdiction, but that's also a big you know
777
00:43:30.480 --> 00:43:35.039
what if there are treaties around enforcing arbitration agreements that
778
00:43:35.199 --> 00:43:38.039
have less of the moral valance and does.
779
00:43:38.199 --> 00:43:40.559
Acts of terror against American cizens.
780
00:43:40.920 --> 00:43:42.880
Yeah, where we're going to have to figure out maybe
781
00:43:42.880 --> 00:43:47.119
it is really unfair for this defendant who is a
782
00:43:47.159 --> 00:43:50.719
foreign entity to be hailed into this sport under this
783
00:43:50.840 --> 00:43:53.800
law or under this treaty. We have had more minutes,
784
00:43:53.840 --> 00:43:59.800
so if anyone else has any questions, we'd be happy.
785
00:43:58.679 --> 00:44:00.760
To chat with the as well.
786
00:44:01.079 --> 00:44:03.400
Do you and if you don't, do you have any
787
00:44:04.039 --> 00:44:08.679
closing thoughts wrapping up about I think we covered a
788
00:44:08.760 --> 00:44:12.320
lot of it about how you see this fitting into
789
00:44:13.000 --> 00:44:15.239
the broader international space.
790
00:44:16.480 --> 00:44:18.960
I think we've I think we covered I think we
791
00:44:19.079 --> 00:44:21.199
covered everything. I will say, like it was. It was
792
00:44:21.239 --> 00:44:23.920
good to be able to cover the the in a
793
00:44:23.920 --> 00:44:26.400
little bit of the intricacies of paper sleigh, so people
794
00:44:26.440 --> 00:44:29.199
can kind of realize the degree to which the PLO
795
00:44:29.320 --> 00:44:32.079
and the PA, you know, we're not just dragging quasi
796
00:44:32.159 --> 00:44:36.480
sovereigns into court, We're dragging terrorism sponsors into court.
797
00:44:36.719 --> 00:44:39.360
And that's an interesting again, that's.
798
00:44:39.360 --> 00:44:42.000
This really chips away at the respectability of the PLO
799
00:44:42.079 --> 00:44:44.440
and the PA if we're talking about sort of the
800
00:44:44.519 --> 00:44:47.320
foreign affairs implications of this decision.
801
00:44:48.679 --> 00:44:51.960
And so what is next for these litigants after the
802
00:44:52.039 --> 00:44:52.679
Scotus win.
803
00:44:53.199 --> 00:44:54.440
Yeah, that's a great question.
804
00:44:54.679 --> 00:44:57.079
Now it's going to be remanded, it's going back down
805
00:44:57.119 --> 00:45:00.440
to the court lower courts, and they're now the real
806
00:45:00.480 --> 00:45:02.800
I would say the real fight begins, although I wouldn't
807
00:45:02.800 --> 00:45:05.360
say that because I actually was on a podcast last
808
00:45:05.360 --> 00:45:09.320
week with Miriam Fold and you know, she's been fighting.
809
00:45:09.800 --> 00:45:12.320
As you point out, she's been fighting for quite some time.
810
00:45:12.679 --> 00:45:15.159
So her husband was killed in twenty eighteen, so this
811
00:45:15.199 --> 00:45:18.599
has been going on for quite some time, and that
812
00:45:18.639 --> 00:45:21.519
has been that jurisdictional fight was a fight and of itself.
813
00:45:21.599 --> 00:45:24.960
But now the next step of work begins, which is,
814
00:45:25.159 --> 00:45:29.360
you know, showing the merits of the case. And you know,
815
00:45:29.440 --> 00:45:35.239
she has evidence that shows that the individual who killed
816
00:45:35.239 --> 00:45:38.280
her husband is or was in fact, receiving payments. He
817
00:45:38.360 --> 00:45:43.559
actually was released during a he was released during the
818
00:45:43.599 --> 00:45:47.559
October seven negotiations to have hostages released when Israel was
819
00:45:47.559 --> 00:45:49.480
forced to release prisoners.
820
00:45:49.960 --> 00:45:51.920
So her husband's murderer is.
821
00:45:51.880 --> 00:45:56.280
Now free, but prior to that, there is evidence that
822
00:45:56.320 --> 00:45:59.960
he was receiving payment from the PA after killing her husband.
823
00:46:00.039 --> 00:46:01.760
And so, uh, you.
824
00:46:01.679 --> 00:46:03.679
Know, I think this is where the heart, This is
825
00:46:03.679 --> 00:46:05.920
where a lot of the hard work and a lot
826
00:46:05.920 --> 00:46:08.719
of the activity meat space takes places on the merits,
827
00:46:08.760 --> 00:46:11.920
Like she's going to have to show there a certain
828
00:46:11.960 --> 00:46:16.760
knowledge requirement was established, which I think will be fairly straightforward. Uh.
829
00:46:16.800 --> 00:46:18.800
And you know I'm not her attorney, so it won't
830
00:46:19.119 --> 00:46:23.079
comment on the case itself, but uh, it's it's I
831
00:46:23.079 --> 00:46:26.159
think she has a it's a strong it's a strong case,
832
00:46:26.199 --> 00:46:29.800
and I think it will be an important one to follow. O.
833
00:46:29.880 --> 00:46:30.559
Great, great.
834
00:46:30.920 --> 00:46:33.440
I think this seems like a great point to wrap up.
835
00:46:33.760 --> 00:46:36.800
If there are no more questions, I will throw it back.
836
00:46:38.400 --> 00:46:39.239
To FEDSALK.
837
00:46:39.800 --> 00:46:42.920
Thank you Ariel for giving us your time, and I
838
00:46:42.920 --> 00:46:45.880
hope everyone who's participated has enjoyed this.
839
00:46:46.719 --> 00:46:49.519
Thank you, Shiza, thank you, and just echo that on
840
00:46:49.599 --> 00:46:51.039
behalf of the Federalist Society.
841
00:46:51.079 --> 00:46:53.079
Thank you so much to Ariel.
842
00:46:52.800 --> 00:46:54.840
For speaking with us today about this decision, and to
843
00:46:54.960 --> 00:46:58.199
Shize for moderating. We're so grateful for your time and expertise,
844
00:46:58.679 --> 00:47:00.599
and thank you also to our audience than for joining us.
845
00:47:00.679 --> 00:47:03.719
We really appreciate your participation. You could stay up to
846
00:47:03.800 --> 00:47:06.960
date with announcements and other upcoming webinars on our website
847
00:47:07.159 --> 00:47:10.199
fedsoc dot org or on all major social media platforms.
848
00:47:10.679 --> 00:47:13.199
Thank you much more for tuning in, and we are adjourned.
849
00:47:14.599 --> 00:47:17.199
Thank you for listening to this episode of FEDSOC Forums,
850
00:47:17.320 --> 00:47:20.440
a podcast of the Federal Societies Practice Groups. For more
851
00:47:20.480 --> 00:47:23.719
information about the Federal Society, the practice groups, and to
852
00:47:23.719 --> 00:47:26.639
become a Federal Society member, please visit our website at
853
00:47:26.639 --> 00:47:28.000
fedsoc dot org