Will Baude

You couldn't be a member of the bar unless you could take an oath saying you'd never support the Confederacy, which was described as just a civil rule.

And the Supreme Court said it's actually that's actually a de facto criminal rule.

The only reason I want to talk about this case was the concurring opinion by Justice Thomas and Justice Gorsuch, which, first of all, doubles down on something Justice Thomas had written before, which is his questioning whether this court's 1798 decision in Calder v. Bull is rightly decided.

Calder v. Bull is where the court said the X plus factor clause only applied to punishment for a crime.

You know, it has been 228 years and it's still on the table of opinions Justice Thomas is willing to reconsider, which is, I think, a record for Justice Thomas.

This is also an opinion that the great William Winslow Krosky, who I've been writing about, thought was wrong.

And in previous opinions, Justice Thomas has cited Krosky's analysis.

The lead, unfortunately, does not get cited here.

But then Justice Thomas now has a new move, which is like, well, even if I can't overturn Calder v. Bull after 228 years, we should return to the original understanding of Calder v. Bull, which when it said... Which is broader, as he reads it.

Exactly.

When it said criminal law, it didn't mean the modern tests for criminal law.

It meant basically to first approximation, anytime the government is the person imposing the sort of the government is the real party imposing the the thing.

So it's a public wrong versus a private.

So it fits nicely into the Thomas Caleb Nelson at all theories of like public versus private rights in standing.

So for the same reason that Justice Thomas would resolve a lot of standing cases by saying, look, if the proper party in the civil civil case is a individual, but the proper party when it's public wrong is the government.

So he sort of bring that in here and say, in most cases, the inquiry will just come down to who enforces the law, the sovereign or the injured party.

And if the sovereign is the one enforcing a public wrong against you, then it's a crime.

Do you think that would be true for all the other criminal law provisions too?

Like all the, you know, the jury trial, right?

And all that stuff?