I, I think-

And, and, and, and, um, and, and, and so you say we just can't go down that road and also that Stinson suggested that even, even unambiguous, uh, guidelines could be revised or glossed by, by the, uh, by commentary.

You know, in kind of a brand X sort of way and override judicial opinions, and you reject all of those things that are associated with Stinson, and you try and ground it admirably in, in statutory text and express delegation.

But I'm having a hard time seeing that in 994.

Yes, they have the authority to write these things, but all courts have to do is consider them under 3553.

Absent s-special circumstances where courts are bound by them, Congress knows how to write that.

Normally, we say that's a contextual clue that we, we should give us some, some idea that the other, other situation's different, that the normal run of the situation's different.

Justice Thomas?

I welcome the Court's questions.

Uh, Ms. Flynn, uh, normally in these administrative cases, we have a regulatory body making a decision, and our determination has to be whether or not that is a final action for APA purposes.

In this case, we have a regulated body applying to a regulatory body, um, that you-- I mean, your argument is that the application process makes it a final decision.

Do you have another example where the regulated body's decision to apply to a regulatory body, uh, uh, is a final decision for APA purposes, or a final action for APA purposes?

Justice Thomas?

Uh, I'd like to go back to my point.

Uh, when we had the, uh, Seven County case here, the Surface Transportation Board, uh, considered the proposal of Seven County to build the, uh, railroad spur, and it was the Surface Transportation Board's, uh, NEPA, uh, report that was being considered.

Here, we...

But what the Ninth Circuit has done here is it has attempted to predefine the kind of comparison that will count when a court is asking how the performance allegations contribute to plausibility.

I think what the Ninth Circuit is saying is you can't compare apples and oranges.

If you have a fund, uh, an equity fund that is designed to produce, uh, high returns but riskier returns, uh, and you can't compare that to a fund that is, uh, to protect against losses.

They are requiring enough similarity to make the comparison meaningful, and that's gonna vary from case to case.

Do you think it's appropriate, uh, well you probably do, but does it seem appropriate to make, uh, make this determination at the pleading stage on a motion to dismiss?

I welcome the Court's questions.

Can applied constitutional challenges be considered under 511? Can

I welcome the Court's questions.

How would you respond to Petitioners' point that If the government lost a constitutional claim before the board, it had no right to appeal it.

So

I welcome the Court's questions.

Mr. Shamigan, before we get to the merits...

Would you spend some time and explain why we have jurisdiction?

I welcome the Court's questions.

Ms. Harris, would you discuss the issue of jurisdiction and whether or not this is a final determination from the State Court?

You have never liked to conform.

Well, I don't like being told what to do.

I just think when you – The nuns made it clear that when God created us, it was mind, soul, and body.

And you don't just liberate the body.

And that you were responsible.

You committed a sin.

It wasn't because the devil didn't make you do it.

And if you just share that story.

You have never liked to conform.

Well, I don't like being told what to do.

I just think when you – The nuns made it clear that when God created us, it was mind, soul, and body.

And you don't just liberate the body.

And that you were responsible.

You committed a sin.

It wasn't because the devil didn't make you do it.

And if you just share that story.

it.

You gave in.

You made the decision.

And you were responsible.

And you didn't do your homework.

You were responsible.

Excuses didn't count.

And if you just share that story.

Mm.

That it is people not living up to what is right, um, that's the problem, not the, the underlying principles.

So the church, the belief, the tenets of the church are not wrong.

It's that the people are failing in living up to that.

And, but at any rate, when you're young, you don't make those fine distinctions.

So I think an easy way to deal with that, or a quick way, or, uh, to, to, to sort of res- respond when you're that age, is to find these sort of radical movements you participate in, you protest.

Uh, y- y- you sort of let off steam, and you're angry, and you feel empowered by that anger.

[laughs]

it.

You gave in.

You made the decision.

And you were responsible.

And you didn't do your homework.

You were responsible.

Excuses didn't count.

And if you just share that story.

Mm.

That it is people not living up to what is right, uh, that's the problem, not the, the underlying principles.

So the church, the belief, the tenets of the church are not wrong.

It's that the people are failing in living up to that.

And but at any rate, when you're young, you don't make those fine distinctions.

So I think an easy way to deal with that, or a quick way, or f- uh, to, to, to sort of res- respond when you're that age, is to find these sort of radical movements you participate in.

You protest.

[laughs]

the court and its precedent had basically turned use into purpose.

But there's another thing, principle, that we have followed for years, which is you don't take – the government doesn't take property, private property from person A and give it to private person B.

Right.

That's not a public use.

But going back to your point that a public use would be a park, it would be a hospital, it would be – a highway, et cetera, something that the public uses.

A public purpose doesn't necessarily, is much, much broader.

So just imagine you have a somewhat blighted area, but suddenly it's attractive to people with, lots of money in the the a a city decides well uh i'd like to we'd like to increase our tax base well these there are all these young people with lots of money who want to build these mcmansions yep or these high-end two or three million dollar uh structures Well, the public purpose would be to increase that tax base, but that's not a public use.

And if you just share that story.

Sure.

Um, but this is, you know, the, as I said, and just, "Lord, grant me the wisdom to know what's right and the courage to do it." Um, that has been a constant plea of mine.

Um, and it is what brought me back to the church, being, stopping at first St. Nicholas, then sometimes St. Mary's, and sometimes St. Joe, uh, to just ask for the wisdom and to know what is right and the courage to do it.

But you know, you, it is just the, you pledge to...

Uh, I gave President Bush my promise.

I made a, I took an oath.

Uh, and he said, "Can you call 'em as you see 'em?" He asked me that in Kennebunkport, July 1, 1991, and I said, "I can." And that's what I've lived up to.

Yep.

the court and its precedent had basically turned use into purpose.

But there's another principle that we have followed for years, which is you don't take – the government doesn't take property, private property from person A and give it to private person B.

Right.

That's not a public use.

But going back to your point that a public use would be a park, it would be a hospital, it would be – a highway, et cetera, something that the public uses.

A public purpose doesn't necessarily, is much, much broader.

So just imagine you have a somewhat blighted area, but suddenly it's attractive to people with...

And if you just share that story.

You stopped going to Mass.

Well, I left the church completely.

Yeah.

And I think if I had to do over, I would not have left the church.

And I think it's a matter of, and this is a point my grandfather was making at the time.

He said you're throwing the baby out with the bathwater, that it is people not living up to what is right that's the problem, not the underlying principles.

So the church, the belief, the tenets of the church are not wrong.

it.

Hmm.

That it is people not living up to what is right, uh, that's the problem, not the, the underlying principles.

So the church, the belief, the tenets of the church are not wrong.

It's that the people are failing in living up to that.

And but at any rate, when you're young, you don't make those fine distinctions.

So I think an easy way to deal with that or a quick way or, uh, to, to, to sort of res- respond when you're that age is to find these sort of radical movements you participate in.

You protest.

Yeah.

Mm.

That it is people not living up to what is right- On that's the problem, not the, the underlying principles.

So the church, the belief, the tenets of the church are not wrong.

It's that the people are failing in living up to that.

And, but at any rate, when you're young, you don't make those fine distinctions.

So I think an easy way to deal with that, or a quick way, or, uh, to, to, to sort of res- respond when you're that age, is to find these sort of radical movements you participate in, you protest, uh, y- you, you sort of let off steam, and you're angry, and you feel empowered by that anger.

And but then as time goes on, you take a step back and you start thinking about what you're doing.

Yeah.

Hi,

everybody.

But, yeah, I'm stoked about this trip.

And, like I said, it's

where they're on business.

Obviously, there's a social aspect, too.

But Michigan's got a lot of cadre potential.

Um, yet today they sentenced his father to 15 years for providing the gun and not like recognizing that his son had deteriorating, deteriorating mental health.

But I would argue, Your Honor, that in a context where there's no review on the substantive determination, the procedural rules are all the more important then to ensure that we have appropriate government decision-making.

So i- in the case of appellate courts, for example, uh, they have authority to, uh, review judgments.

Uh, would you, uh, using the same logic, say they can only review the substantive underlying judg- judgment, but not the underlying determinations?

Justice Thomas, anything further?

Uh, just briefly, uh, with respect to the jurisdiction-stripping provision again.

If the secretary actually designates, um, uh, uh, does not terminate, but designates in favor of, of a particular group, can others use the exact same, uh, objection that you're offering?

In Grokster and Cox, um, the Court made clear that failure to take affirmative steps to prevent infringement is, is not what the standard-

But what if you, what if, uh, respondent had engaged in a certain degree of self-adulation and said that, uh, "This is a great product for this, that, or the other," and you merely quoted it? Wouldn't that almost be baiting people into inducement or inducing people into, uh, um, using the product more broadly than, uh, the unpatented use?

Uh, the, uh, the Grokster court addressed a similar type of situation when distinguishing the Sony case, and, uh, and, and distinguished statements like, "Record favorite shows on your Betamax," and said, "That does not encourage conduct that necessarily infringes, and therefore, that's not actively induced infringement." And if you don't actively induce infringement, you fall under Section 271b.

I, I think what I'm asking you is, is the only way to actively induce infringement is us overstating, or your own statements, uh, sound as though the patented use is covered by your product, as opposed to simply quoting, uh, the, uh, respondent's, uh, website or, um, statements about its product which is patented.

But I would argue, Your Honor, that in a context where there's no review on the substantive determination, the procedural rules are all the more important then to ensure that we have appropriate government decision-making.

So i- in case of appellate courts, for example, uh, they have authority to, uh, review judgments.

Uh, would you, uh, using the same logic, say they can only review the substantive underlying judg- judgment but not the underlying determinations?

Justice Thomas, anything further?

Uh, just briefly, uh, with respect to the jurisdiction-stripping provision again.

If the secretary actually designates, um, uh, uh, does not terminate, but designates in favor of, of a particular group, can others use the exact same, uh, objection that you're offering?

Yeah

... rules that inc- that almost impossible in this area because determining whether or not, um, there's active inducement is always contextual I think Grokster said that one of the factors it used was that the name that the infringer was using was suggestive of the infringement, so that wasn't the express statement of any way to infringe.

It was su- just a suggestion.

But in context with other things, it reached, uh, active inducement.

Uh, I'm asking a very simple question.

You don't need all of the things you've been arguing about to win under Trombley and Ical [knocks], correct?

It's just the general inducement provision, and we think application of the general rules is-

Is, is enough.

I welcome the court's questions.

Uh, Mr. Hoffman, uh, how available was, uh, were, uh, uh, or common was aiding and abetting liability in tort cases in 1789?

Justice Thomas?

Uh, when we had Central Bank appear, uh, uh, the point, of course, that is a securities case, but it makes the point that there was no general background common law rule, uh, as to aiding and abetting, uh, aiding and abetting, uh, in, uh, tort cases.

Um, if that is the case, how does that affect aiding and abetting in 1789 on, uh, the three categories that we, uh, su- indicated, uh, in, uh, Sosa?

I welcome the court's questions.

Uh, Mr. Hoffman, uh, how available was, uh, were, uh, uh, or common was aiding and abetting liability in tort cases in 1789?

Justice Thomas?

Uh, when we had Central Bank up here, uh, uh, the point, of course, that is a securities case, but it makes the point that there was no general background common law rule, uh, as to aiding and abetting, uh, aiding and abetting, uh, in, uh, tort cases.

Um, if that is the case, how does that affect aiding and abetting in 1789 on, uh, the three categories that we, uh, su- indicated, uh, in, uh, Sosa?

I welcome the Court's questions.

Uh, how exactly did the warrant violate, um, petitioner's, uh, rights at the Fourth Amendment rights at step one?

I mean, I suppose the Court could say that the theoretical chance that something might happen, uh, is enough to keep this case alive, but I don't think that makes a, a great deal of sense.

Uh, additionally, the, um, uh, policy, Google's policy has changed, and would you compare that policy to this and the effect of that change?