Will Bode

My Harvard Law Review article with Mike Paulson about the case just came out yesterday, finally. Yes, that was cert. So I guess it can still be a precarium like Trump versus Anderson. Hopefully it's a better opinion than Trump versus Anderson. Anyway, they seem to have lost track of exactly what they're doing, but it went from shadow docket to merits opinion in a very short time.

My Harvard Law Review article with Mike Paulson about the case just came out yesterday, finally. Yes, that was cert. So I guess it can still be a precarium like Trump versus Anderson. Hopefully it's a better opinion than Trump versus Anderson. Anyway, they seem to have lost track of exactly what they're doing, but it went from shadow docket to merits opinion in a very short time.

And I think, I'll just say before we get to the substance, I think procedurally, this is another good one for the court. But they got this pressing issue, they had this deadline, and they tried to get it as good of briefing and argument and full consideration as they could in the timeline they had. And I think that was a good, that was the right way to handle it.

And I think, I'll just say before we get to the substance, I think procedurally, this is another good one for the court. But they got this pressing issue, they had this deadline, and they tried to get it as good of briefing and argument and full consideration as they could in the timeline they had. And I think that was a good, that was the right way to handle it.

Right, because there they had two rulings. They had the shadow docket ruling the night or the day after the statute went into effect. Right. With the kind of Trump versus New York style, one paragraph opinion. And then they had the subsequent cert before judgment cert combined with the other case. There's a whole typology of these.

Right, because there they had two rulings. They had the shadow docket ruling the night or the day after the statute went into effect. Right. With the kind of Trump versus New York style, one paragraph opinion. And then they had the subsequent cert before judgment cert combined with the other case. There's a whole typology of these.

And they've had some executions that are more like the OSHA case, I think, where they put the state of execution on the question on the argument calendar.

And they've had some executions that are more like the OSHA case, I think, where they put the state of execution on the question on the argument calendar.

Well, I went into that question, which is that I think when When they have an opinion where they know what they want to say, but they don't exactly know why, so the reasoning is going to be a little dodgy, they usually assign that one to Justice Curiam because he doesn't have a great... Nobody wants to take the hit.

Well, I went into that question, which is that I think when When they have an opinion where they know what they want to say, but they don't exactly know why, so the reasoning is going to be a little dodgy, they usually assign that one to Justice Curiam because he doesn't have a great... Nobody wants to take the hit.

I mean, he didn't write Bruin or Dobbs.

I mean, he didn't write Bruin or Dobbs.

Yeah, I don't know what the variable is.

Yeah, I don't know what the variable is.

Okay. Okay. So on the merits, the court says the law is fine.

Okay. Okay. So on the merits, the court says the law is fine.

In fact, the court says in a footnote that ByteDance clearly does not. Because it's a wholly foreign entity. Or to the extent that ByteDance's asserted expressive activity occurs abroad, that activity is not protected by the First Amendment. I guess that's different.

In fact, the court says in a footnote that ByteDance clearly does not. Because it's a wholly foreign entity. Or to the extent that ByteDance's asserted expressive activity occurs abroad, that activity is not protected by the First Amendment. I guess that's different.

So the problem, I mean, this is the problem with this law is it presents several hard questions. One is, does this case implicate the first amendment? And that's, she says, no. And so it's easy way to resolve the case, but like, it seems like a big deal to say this, this doesn't implicate the first amendment because it's a national security ban on foreign average ownership rather than speech. Yeah.

So the problem, I mean, this is the problem with this law is it presents several hard questions. One is, does this case implicate the first amendment? And that's, she says, no. And so it's easy way to resolve the case, but like, it seems like a big deal to say this, this doesn't implicate the first amendment because it's a national security ban on foreign average ownership rather than speech. Yeah.