well your argument today in case sixteen fourteen thirty two finn versus mellon was you know house mr chief justice and may please the court the question before the court today is whether the application of a revocation on died did he pay premiums i'd have to i'm not i'm not sure he did he did pay them before the divorce i'm not sure if the policy was alive at the time of his death i'm not sure i think it may been funded by the present or even paid on the policy but that was just a f question and you may want to introduce your argument and tell us well my understanding what your general outline is going to be but i'll just answer quite a minor standing is that he had already paid enough into the policy that the policy itself pay the premiums at a certain point all right that could be so i think that's so i don't think he actually paid any more after the divorce my understanding is that that is in the course of your argument suppose this were the first that you've done this subject would that make a difference and then i could add to the hypothetical suppose the empirical evidence were such that most people assume that divorce would not change the beneficiary would that change but i interrupted you at the first you might have a broader out right you want to get well i'm happy to answer those questions they were forced that revoked wills upon divorce so really the historic purpose of the statutes according to the uniform probate code was to align the law of life insurance policies with the law of wills so we would take the position that even the first of these statutes that was enacted could be applied to existin policies under the contracts clause to turn to your second question which was what if empirically speaking someone didn't know so first of all i do think that i don't need to fight the hypothetical but in this case i think the legislature made the empirical determination that the typical person designates a spouse as a beneficiary because it's the spouse and when the divorce happens that the calculus changes on the basis of what we're in the record i'm sorry we're in the record as the basis for their parents will find there's no that is correct so minnesota like numerous other states simply implemented the uniform probate code i don't think there is any hearings in the legislative record guarding the empirical findings underlying that code i think it was it was her and me it is and desired the beneficiary may change it was suggested by the other side that minnesota could have accomplished this in a much better way that they could have made it a condition of every divorce decree that judge tell the couple life insurance do you have life insurance do you want to leave it as it is if you want to change yes so first of all no other statute actually does it that way without a revocation on divorce statute respond and does cite statutes like that from virginia and utah but those states also have revocation on divorce statutes these notification requirements are a kind of a supplement to that i guess minnesota could have done that but i don't think it would accomplish the goal of the statute which is to align the law of life insurance policies which with a lot of wills which is what the uniform probate code said because again wills automatically excuse me a divorce automatically revokes though i think justice ginsburg question goes to the  wing that some of our cases suggest that we have to do in this these cases and if you concede as i believe you have that minnesota could achieve everything it wants to achieve by prospect of lee applying this law and then retroactive are ordering courts to make sure that this issue is dealt with in the bourse to crees how does that inform our analysis as to the legitimacy and need for overriding contracts in these cases so first of all i would i don't agree with the premise that minnesota could have achieved all they wanted to achieve just by this notice requirement first of all i think that again the goal is to align the law of life insurance policies with a lot of wills and the will is revoked so minnesota wanted to all spectacle a though you'd knowledge it could have a jessel chance to achieve and retroactively could have done as justice ginsburg suggests and told divorce courts that this is a matter that they have to take up so how is it that they wouldn't be able to achieve all that they  wanted because first of all i mean the person might not do it and you make and all these disputes about what what a decree means one of the reasons for the statute is that decrees were often ambiguous and what they did whether they were intended to revoke the designation or not and the statute eliminates this ambiguity that ambiguity wouldn't go away if you just tell told people don't forget you have to change a policy they wouldn't do it and then you have a dispute over what the dick so i think that the reason that no state has adopted that option without a revocation on the board statute is precisely because those problems wouldn't be solved i want to make one other point about the retroactivity issue though which is that first of all i don't think that the arguments that this that the statute doesn't really say is inconsistent with the intent of a typical spouse i don't think that goes to the retroactivity of a statute it's more of an argument of the statute sort of a bad idea both going backwards and going forwards and i don't think the contracts clauses is designed to protect against just bad statutes generally it's designed to protect against unfairly retroactive statutes well you do does the beneficiary on the policy is that individual properly viewed as a third party beneficiary under contract law no your honor it's been conceded in this case that she responded had no contractual interest that's why the sole interest is protecting is mark's means her theory of third party standing i think that if she had a protected interest then this case would be very different and by the way the statute does not apply if there's a point is that a matter of putting aside what you regard as a concession i don't know if your friend would agree with that but  it the uniform conclusion under state law the common law that a beneficiary is not i mean they are called the same thing third party beneficiary under contract law the relevant question is whether that person has in forcible vested rights in the contract so you actually can buy an insurance policy if you want to that says that there's a third party beneficiary who who has a vested right you can't change it without the person's consent you can buy that kind of policy if you want to and this statute wouldn't apply by its terms to such a policy but in this particular case it was agreed as the case was litigated that it was mark's viens rights issue because she had the you know he had the right to change the beneficiary days so is there any state will say that the person is that the named beneficiary is a third party purchase you can do that in minnesota or everywhere and in that case the statute wouldn't apply but here in this case as this case reaches this court the argument is that it was mr scenes the deceit and contractual rights that were infringed responded didn't have any vested rights happened first and then the enactment of the statute and then the death with the statute of applied so that's an unsettled question of state law i think that there is an unpublished minnesota's decision that says it would apply in that context because of the person can still read designate so i think that does present some retroactivity concerns but i think it's retroactivity concerns with respect to the divorce decree in other words it seems to be altering an employed term of the decree so i think the analysis in that case would be kind of a due process analysis because it's an issue of changing the judgement rather than changing the preexisting on your answer for contract clause purposes would be to say yes with respect to the underlying insurance policy yes i think that the record the reason that there would be a retroactivity concern is that it would interfere with settled expectations at the time of the divorce from to create rather than the contract honor and i think that's a important point in this case because again the contracts cost protects the reliance interest fundamentally that's why distinctions between contracts that are signed before and after the statutes connected and in a case like this i think the reliance interest really come into play at the time of the divorce because the statute is inert until the divorce actually happens and that's when people are thinking about this because they're making a decision ok there's this change circumstance i'm no longer married to this person do i want them to stay the beneficiary or do i not want them to stay the beneficiary and at the time that that decision is made the existence of the statue makes a difference in what they do because if they know the statutes on the books they don't have to contact me into company and change the designation and in this case the statute was passed years before the divorce it's tell me what are the various ways that the insured who wants to keep his former wife as the beneficiary what would he have to do after the divorce well there was no he could the to if he doesn't want to so he just has to send so there's an automatic revocation so if you want to read designate the spouse to send in a change of beneficiary form so that is the insurance company know that there's been a divorce so that they receive the letter and sort of go why is he doing this we already have that beneficiary well i assume that the insurance company had has lawyers is aware of that the statutes are on the books why does it matter the insurance company gets a letter saying i want my wife to be the beneficiary period so that's the beneficiary yeah it would be on the i mean the insurance company matter where they know about the divorce don't know about the divorce who cares right so it is not right gets a letter i assume that they'll just put it in the person's file and have a date on it and then the person that the spouse will be added i think in many cases this is  or not i mean it's quite possible that the attorney was perfectly effective and advised mr speed feen you don't have to change a beneficiary designation because it's already happened and now that he's dead it's somewhat ironic that respondent is trying to assert his rights  intent when he's not here to say well in most in most cases i think where there is a lot of property the insurance will be on the table and they'll talk about it yes absolutely there your case applies to really small divorces i think i don't know which way that cuts well i think that it's quite possible that so i mean we don't know what the agreement was we don't know what mark's been wanted he's not here he can't say what he wants but there was the most of a settlement and if you divorce yes and and contract clause arguments have been rejected are there are there any the cases that you can rely on that are in the state courts that are analogous to this so i think the best analogy maybe i have  statutes that are rather statute that affected the way property was divided in divorce and this was when i started out my remarks today or so you know in one nine hundred seventy s there was a very dramatic revolution in american divorce law before the seventy's divorce and wives were left divorcing husbands would large due process and contracts cause challenges to the statutes essentially saying that when i bought the asset i would have kept it in a divorce and therefore it violates the contracts last to change the divorce laws and those those arguments were checked by state courts essentially saying it's a police power issue and states are allowed to decide how assets are distributed in divorce we view this is analogous because really again the statute is inert until there is a divorce and even when there is a divorce all the statute does is it regulates also do we know that the dead husband here didn't as part of the divorce which this set to remain with his with his ex wife sometimes that is part of a de force arrangement that there is a life there is a divorce settlement and the settlement does not override the default rule that perhaps the work force lawyers told them about me we don't know where the divorce lawyers told them that's all we know so you know that mean we don't exactly know what he wanted and we don't know at this point that's certainly the case but  i think it's just hard to say there is an impairment of his reliance interests when really the reliance interest came to play does anyone pay the life insurance for the joy of paying life insurance isn't the specification of the beneficiary pretty important for me just as washington and dartmouth college said you know the bounty of a contract is is is essential to the obligation absolutely wrong of course the identity of the beneficiary is very important it's the key of the policy but the point with this stat does is it construes the divorce as an exercise of as an option to change the beneficiary which the legislature has deemed that not everyone but most people want to do and it's still reserves the option in the policyholder to designate the expos either in the divorce decree  pay the money simply goes to the contingent beneficiary and what if it didn't go to contingent beneficiaries then what will if there's no contingent beneficiary goes into the estate and it's the money is distributed so the statutes that if it goes to a charity or or state says contract we don't care about your primary or contingent beneficiary the money goes to the state and the constitution united states says that a state cannot compare the obligations of contract and and you don't think we have a problem i think that would be a taking because it would not i don't know i don't think so that would be a taking because it would violate the constitution you know i'm asking you about the contract clause violation that's no contract clause violation there's no impairment of an obligation if the money just is gz to the state and on the statute just says a new goes to the goes to wherever the state nice charitable organization we'd all agree on that most people would support if not everybody most people just like most people would want to change their beneficiary here there's no impairment of an obligation in that case so we have the broader arguments and the narrative it's in our brief and to the broadest argan my brief that's not an impairment because it's like a will we make the argument is analogous to a will a will isn't a contract it may be bad for money in a will to be distributed to some party but that's not a contractual obligation but if you disagree with me your honor we have several arguments in our brief that distinguish this precise scenario you've discussed so one of our leading arguments in our brief is that this is a mere default rule and that's not an impairment when there's only a people work burden that argument which you make which is supported by numerous nine hundred centuries cases long before blaise del would not apply to the hypothetical you've just given so we cite a number of cases in which there's these recording statutes that say if you don't submit a piece of paperwork to the government you lose your rights altogether they're extinguished and those statues did not exist at the time the contract was purchased and in a series of nineteenth century cases from peak a peak era of enforcement  contract was the court had no difficulty upholding the statute saying it's just a paperwork obligation and therefore there's no impairment in the relevant sense and also talked about remedies right as being distinct from obligations to some of those that's true but i think that these were not remedial status i think that these destroyed the obligations altogether like if you didn't submit the recording obligation the mortgage was wiped out so that's not something to remedial issue i think that's wiping up the right i mean for instance the gilfillan case from the one nine hundred century is another good example that has nothing to do with contractual someone else bought the property your contractual rights were eliminated i don't think that's really remedial argument it would just completely destroy the rights of the contract period in the me the gilfillan case is a better example which is a good one thousand century case which is not the case about remedies that was a case involving a corporate bond holder settlement where the legislature was concerned that that citizens wouldn't agree to the settlement which might not leave the company afloat so inactive the statute saying that if you don't dissent affirmatively from the settlement you'll be deemed to have consented to the settlement and the court had no difficulty upholding the statute saying it's a mere paperwork obligation all you have to do is sent a letter to the insurance company or or to the company in that case there's no impairment of a contractual obligation and that's the see see that's the same impairment in this that you made the point earlier that i understood you to make the point that this would be outside the scope of the contract clause because it was an exercise of the state's police power in the guess that's a different argument in content no force may be allowed but is that true to the full extent of the police power anything that we would characterize as a police power authority would be exempt from the scrutiny under contract law you know this is an argument of the sweet generous nature of divorce so the relevant point for us is that even safina i'm sorry to be jumping around between these arguments but even when mr spin purchased the insurance policy the state had the authority to decide what would happen to that beneficiary designation in a divorce it's not like an ordinary contract where courts are bound by the inten problem with the police argument your main thing is that i don't think it stands alone meaning you can think that the state has a greater interest in certain areas like the force or others regulated feels like mineral or but i don't think that state police power gives unbounded discretion to the state to some extent since you're mix with what's the state's purpose and isn't the legitimate thing it's doing we are not arguing for unbounded state power there is this particular argument about divorce which is premised on the fact that even when mr spin bought the policy the divorce court had made it was the divorce court decision on what would happen to that policy in a divorce so that goes back to justice course which is question could the state say upon divorce i'm giving the money to the state or i'm giving it to a charity except and you said yes but i wasn't quite sure why it seems to me that even under state power you have to be able to articulate some fit between the needs and the solution right responses just as gorsuch was about a different argument about treating insurance policies like wills with regard to a divorce i agree with you that i don't think that just giving the money to a charity or to the government could conceivably be deemed as an exercise of preexisting police power because at the time mark's be bought his policy the divorce court can just randomly take the parties assets and give it to the government to discourage divorce or something that was not within the repertoire of options for the divorce court but the divorce court could revoke been fishery designations that happen all the time so i think that the difference unfair question but one of the things that struck me in reading your brief and now in listening to you it's an unusual thing we see in your brief this kind of we have five arguments in varying levels you know it's it's it's the police power it's not a don't really which one do you think because you know you're answering some of our questions like oh that's an answer from column one and no now i can give you an answer from column three but when we have to decide this case we presumably have to pick one and if we were to go with you i mean where do you really think that the this this is the the question is here i think that the cleanest way to vote for us and i hope you do is that it's just it's really just a default rule and it's just a paperwork burden and there's no interference with reliance interests because really the reliance interests come into play at the time so you're so used to it is not a substantial alteration is that the sec that's right so i think same argument yes i think so and there's really two pieces to that one is that you only have to send in a letter to the company and this court has said in a lot of cases that that's not a sufficient environment to implicate the contract was and also the fact that the all of the contracts losses to protect the lions interest and  realistically the reliance interest come to play at the time of the divorce because the statute inert until then when you say it's not a substantial impairment are you acknowledging that it is an impairment at least in terms of ranking your your argument i don't think it's an impairment at all but i think that because this court held that in substantial impairments are not impairments at all i think that sort of an easier to way to get to where we want but certainly we are going our brief and i'm i stick to our argument today that there's just not an impairment period because it's simply the exercise of an option that leaves the option to re designate the beneficiary by sending a letter i also think the divorce aspect of the case is important and i do think the arguments sort of go together the state has broad authority over divorce always has we quote james john marshall and james kent who have given broad powers to legislature over divorce and if the court is concerned that you don't want to give the legislature unlimited power over divorce then you can say well the legislature has broad powers to legislate the effect of a divorce decree and how you know maybe if even if that's power is not unlimited at least extends to imposing this kind of people work burden which even outside the divorce context this court has already held does not constitute substantially permanent so i'd like to reserve my time if i may thank you mr chief justice and may it please the court the constitution forbids states from passing any law impairing the obligation of contracts here in minnesota directly and retroactively alter the contractual means by which policyholders select who will receive policy proceeds and it did so even though it had evident alternatives such as requiring notice of the revocation statute and to force to creese to achieve its purposes equally well but without impairing contractual obligations minnesota therefore violated contracts cause it's clear prohibition whether this court returns to that causes original understanding takes the smaller step of treating impairments of public and private contracts alike or simply applies current doctrine he the  because the contracts cause applies to laws passed by the legislature it's not to the actions of courts chief justice taft explained that an opinion along a long time ago and that opinion itself cited twenty other precedents of this court saying the same thing it follows from the text of the contracts clause that it speaks only of laws and it makes sense that that the contracts cause would only apply to legislatures rather than courts because courts are constantly in the business of addressing contractual disputes and the framers did not to constitutionalized every contracts clause case but when a state judges do what they do as a result of laws meaning they don't just decide to redistribute insurance proceeds out of the kindness of their heart or or they do it because there's a specific law that gives them the right to do that so i'm not sure what the differences i think of the laws is compelling here in the last permitting it said in a divorce decree the court will assume that the intent is to leave the beneficiaries the same or the beneficiaries different than the court acts under that statute and you have a contract clause with the fact that the court is implementing the state's policy doesn't mean it's a court to create not a state degree i think there is there has historically been a fundamental distinction though between what courts do and what legislatures do and that's a result again both precedent and of the common sense notion that the contracts cause can't apply to what courts do or else every time a court does anything with respect to a contract outside the divorce context as well every time a court declares a contract unconscionable that would be a contract violation that just can't be but the this court has long recognized as the framers intended that when a legislature passes a law that impairs contract that is getting directly at the heart of what the contracts cause was intended to cover we'll designated beneficiary it passed the law and it says it will not go to the beneficiary that you initially designated unless you act affirmatively right that's the contract situation that was yes yes ok now i found three cases from the nineteenth century eighteen seventies eighteen eighties nine hundred twenty three not a period when this court was about to interpret the contract clause loosely i think that's fair one of the cases says the legislature passes a law after smith who is a bond holder of a corporation enters into a contract with the corporation the subcontract smith and the corporation they have a bond the legislature passes a law that makes that bond less valuable less valuable for applies it retroactively and this court says that's fine you know why because all that smith has to do in order to stop its value going down rejecting the change is affirmatively notify the company and they say well that isn't a big deal ok case to smith by his property at a tax sale at a taxi or right now the owners can get it back by the way if they pay their taxes within a year or some period of time they pass a law retroactively say smith you can't keep your property unless you tell the owner is there are about to lose it that would seem to make quite a difference because after all if they find out they smith has an agreement with the mortgage company it says where there is foreclosure the mortgage company has to do a b and c retroactively the legislature says oh by the way mortgage company you also have to do d which is file an affidavit surely an affidavit is no easier to file that to write a letter to an insurance company the court says that is not an obligation you have not violated the contracts cause because filing an extra affidavit is not a big deal so when i read those three cases i looked at what they said was not a big deal then i looked at the obligation here which is simply write a letter to the insurance company if you don't like their changing the designation that i originally put out then i thought maybe this isn't a big deal which of course is just what there are so i would like to know how do i for getting blase deal hold for you first just as prior let me emphasize that the key term of this contractual the contract the life insurance contract provides precisely how the policy holder is to designate the beneficiary and in turn assures the policy holder that that is the beneficiary that will be paid that like the mortgage contract or i disagree with the grand sorry that is different than the case it was given that is different in the cases that you were talking about let me start with the gilfillan case that is the case involving the bond and the the retroactive retroactive change there the court went out of its way in the gulf own opinion to point out that the the bond contract there was a particular kind of contract in which bond holders effectively assume obligations to one another it's a type of contract where there is like a good a duty of good faith and fair dealing to your co bond holders that's very different than our case where the policy holder has a direct explicit assurance about the beneficiary designation so there's a difference in the the nature of the impairments moreover in the gulf own case the court also focused on the practicalities and whether or not it was still reasonably possible for the bond holder to protect his original contractual rights in the court noted that there was both actual notice of the change and sufficient time to object to it whereas in this case the entire premise of the minnesota law according to the petitioners is that policy holders are in attentive to their beneficiary it's paradoxical to expect an inattentive policy holder somebody who is presumed not to know about this or to be paying attention to it to protect their by rights by being aware of the law and then objecting to the change and so the is when the divorce occurs and as long as the divorce is subsequent to the statute i don't see how you can make that argument i would agree with you if minnesota had taken the same kind of step that virginia has taken and actually required the divorce decree to inform the divorcing parties about the revocation on divorce statute at least under modern doctrine that would solve our concerns because at that point your right is part of the divorce the policyholder the divorce and party would be aware of the change but there's no reason to presume that as part of the divorce absent such a notice requirement that the inattentive policy holder is aware indeed that the whole premise of the statute is that people do go through divorces but this issue of beneficiary designations is not something that they are paying attention to and so i think it's not a fair assumption that most people when they divorced do not want their former without some evidence in the record to that effect and there's no statement of legislative purpose there is no amicus support from minnesota or from any other states whose laws are at issue here as to the  question suggests i think that there are some people who would want to keep who'd want to change beneficiary designations but there are plenty of reasons why people might not that's why the federal government and almost half the states don't have this kind of a law and i do and the question they asked m that is forty five dash three and it spells out who got which car and i think there was a snowmobile an a t v and some other property but it's all spelled out at district court forty five dash three but what the divorce decree two things of note on the divorce decree one it is silent about insurance and so we simply don't know one way or another based on the divorce decree itself what mr scene's intentions were we do know that ms mellon put in an affidavit in the record that they had maintained that they had reached an oral agreement to maintain one another  that's true but the only evidence in the record one way or another that we didn't satisfy minnesota's clear and convincing evidence standard for an oral contract but if you're honest question is what evidence do we have that's the only evidence that we have and she in fact kept him as her  policy beneficiary up until the time of his death one of the other were what if there was evidence that mr scene was very well aware of the statute at the time of the divorce but did nothing so suppose there was  testimony by ten witnesses that you know that at the time of the divorce he got a copy of the statute and he read it would that make a difference i still don't think it would make a difference because the way the court has considered these sorts of impairment questions and whether whether it is possible to overcome the impairment by informing the insurance company has been an across the board basis not based on the particular facts of the case of the mcgahee case which is from the era of the justice pryor was asking me about earlier is an example of this that was the case where retroactively the state required bondholders to produce the original bond and not just the bond coupon in order to collect and there were surely some some bond holders who could have produced the original bond but many who couldn't and the easier which is easier to produce an original bonge that you bought say twenty years ago and who knows where it is or to write a letter saying please keep my wife as beneficiary that's a loaded question well ok but but but i think it's a loaded it's a loaded question because it has a premise built into it that it's only easy file the form if you are aware of the need to do so and the whole premise of the minnesota law is that people are not aware of the likely i mean i don't know i'm not a family law expert which family law is the most difficult subject i think there is it's horrible human terrible it's really difficult but if i were to guess i would guess the when there is a divorce proceeding there's a lawyer quite often usually and he discusses with his client the lawyer what this is likely to affect property to which but a lot of people would think i have an insurance policy now i don't know that that happens but i suspect i suspect that sometimes it does but it doesn't always happen because not everybody even absolutely right on that i mean that might not be a fair question because sometimes people will and sometimes they won't and i think you're originally saying often they won't think of it and that's true and sometimes they will think a bit that's true i don't think actually perhaps neither of us knows our right but i think the point is that what the contracts cause is concerned with is the impairment of the rights of those who were counseled who are not aware who don't know that they need most if i can come back to justice  is questioned because in answering justice alito you say we don't look to mr sweeney in particular even if we know a lot about him we look to this broad class of people who are in this situation and if that's true i mean i guess i had sort of conceptualize your argument is the exact opposite well we don't know anything about mr spin so even if it's true that people generally want to give their life insurance policy to their children that doesn't matter because we don't know that about mr spin but if you are  saying really we look to the broad class of people then why shouldn't the broad class of people that we look to you know why shouldn't we make the same judgment that the work that the legislature made it made or at least accept that judgment that if we the broad class of people most of them would rather give their life insurance policy to their children than to that they're divorced spouse because i think it's indisputable that whether or not most would many would not and  you just said when we're not mean if if if the question is the class rather than the individual then what option do we have other than to say something in general about the class because i think when you speak about the quiesce as a whole you're also in compassing some individual some individuals within that class who aren't going to want their it's to have to be abrogated by the legislature and what the contracts cause is concerned with is making sure even under this that the legislature doesn't abrogate the rights of some even if it's intending to benefit others by effectuating their independence and here are your answer to me to my question leads to the conclusion that you are comparing the insurer and the obligations that the insured counts on in in relation to the contract there's a contract the meaning of the contract is determined by state law the insurer knows at the time of divorce that under state law the meaning of the contract is that expels the now ex spouse will not be the beneficiary the the  alternative beneficiaries will will receive the money and you're saying that doesn't matter that the insured may have counted on this still the the the the state law dictating interpret interpret the contract is overridden by the contracts clause and that's because for contracts cause purposes the relevant law is the time is the law that is in effect at the time of the contract that's time of the divorce it was in place at the time of the divorce and as we've been discussing there's simply no evidence one way or another besides the the conduct of the parties after the divorce with respect to ms mellons beneficiary designation no evidence that mr savina either was or was not aware of it the divorce decree that i cited earlier at forty five dash three has a very long appendix with the various notices that minnesota already requires divorce courts to provide and divorce decrees to include the state has no interest that i can fathom and certainly no interest that any state has come forward to advance for why it needed to achieve its purported goals in this case the way it did and by by doing this the way it did is impairing the contractual rights of at least some policyholders those who have good reasons for not wanting to revoke their beneficiary designations just leave something like this but when i am curious a lot of people did buy life insurance policies before two thousand and two which don't say anything about it they bought it for a lot of people probably were divorced between two thousand and two two thousand and eighteen so what if you win this case what happens to all those people who were told by their lawyers that state law means that your wife is no longer the beneficiary unless you write a letter to the insurance company and they say good i don't want to be i want my children to be great what happens to those people if you in this case i think that their beneficiary designations are determined in accordance with the terms of their contre saying obviously the question is do all those people who thought their children would get the money they're just out of luck is that right they're out of lock on last they run read as if they have to write a letter in the last they wrote that he'd write a letter ok i think we've established that now that i find out about this case if you win and maybe they just read supreme court cases and we all court has approved recording statutes as an impairment what we do about the recording statutes are different for a few reasons first the recording statutes don't directly change an expressed term of the contract in the way that this law does here we have a contract with  designated as an alternative so you get somebody the money's pretty that's a lot better than having your rights revoked completely first just assume that the contract in those cases didn't speak one way or another to the recording obligation that was simply a procedural changes to remedy that legislatures adopted after the fact second the recording statutes don't leave the property owners without recourse  mr smith from justice briar's hypothetical sells the same property twice only one of them can get the property but the other one still has recourse against mr smith for double selling the property and so the recording statutes are fundamentally different because they're not acting directly on the contract in the same way as the law that's at issue here and they're still there is still a remedy it's not nullify and the entire point of the contract which in the life insurance context is to provide for a particular beneficiary  does directly change a term of the contract that in that situation the court has found has found a contract clause violation so in siebert there was a bond that provided for a particular procedure for collecting the taxes that would be used to pay the bonds the legislature subsequently changed that and the court found a violation that's analogous to the situation here where you have a contractual provision about beneficiary selection and then the gate he as i was mentioning earlier that is the case where yet that is the case where the bondholders had to produce the original bond and the court looking at the class of bond holders as a whole recognize that some bond holders might be able to meet that requirement but in order to protect the rights of those who couldn't and it was impractical for those who couldn't to somehow produce these bonds the court recognize that there was a contract was a discourse which is one which is we look at the nature of the impairment how difficult is it to do whatever is being changed and there's a big difference between producing something you may have lost twenty years before and writing a letter and to an insurance company or including it in your divorce to create or doing something else doesn't cost you much to do so again i think those cases stand for the proposition that there isn't the reason there wasn't an impairment there is that the contract was not being directly altered by the legislature in the way that it is here even if you look at it as a practicability question the the practical problem here is that policyholders are presumed to be unaware and again under the original understanding of the contracts cause any impairment was sufficient at a minimum if you if the court were to equalize the treatment of public and private contracts essentially ending the experiment begun in us trust the state here has a less restrictive way of achieving its objective simply by providing notice and lastly even under the the court's more flexible modern precedents if the contracts cause means anything at all it's that the state can't impair contractual rights group to it asli where there is an alternative that works equally well at a minimum the state has to do that much and even under the court's modern cases the court has said repeatedly that the contract causes more than just rational review and so what does that mean at a minimum it means one the state litigants after the fact can just come in with conjecture about what the state legislature was trying to achieve there must be some showing of that in the record that's what the court allied structural and second where contractual rights are impaired and there's a ready alternative at a minimum the legislature ought to be required to take that particular alternative  that policy what about the retroactive of a slayer statute so i think under modern contracts was doctrine that would probably pass muster because the state interest in ensuring that murderers don't collect life insurance proceeds is i think both intuitively on about what about the original understanding so under the original understanding i think it's a harder question i think arguably if the slayer statute were viewed as a form of punishment for murder then that could be within the very narrow original understanding of the legislature's police power but that's very far removed from this case which doesn't  address again the original understanding of the police power something had to be directly related to health safety or more us slayer statutes might survive under the original understanding i think they almost surely would survive under the modern understanding because the interest is much greater so i think under the original understanding that would be a contract cause violation under the modern test there is a court there is a case we said in our brief that has found such a change to be unconstitutional it would however there would however stronger case for its constitutionality than there is here if under the modern approach the state thought that it had a strong policy interest in ensuring the equal treatment of adopted children that however is fundamentally different from this case where we're no one has made any showing of a strong policy interest in effectuating the presumed intent of some policyholders at the expense of the intent of others mistreated koski in his argument made a few points as to why the virginia alternative or a notice alternative would not be sufficient that i'd just like to briefly address one the notice the notice that is provided can exist alongside the revocation on divorce statute in other words the state is free to have under the modern approach the revocation on divorce statute on the books so long as it tells people and is also free to do the same thing had the same revocation of divorce statute for wills and for life insurance policies and also to provide the same notice for wills and for life insurance policies and so in that respect that achieves the goal that the mystery house the positive of achieving equal treatment of wills and life insurance policies so long as that is actually what people want as long as that is actually what the the divorcing parties want as for disputes about what it is a decree means that the revocation on divorce statute can take effect so long as there is notice and so there doesn't need to be a dispute about what the  if the court has no further questions again the contracts cause is absolute in its language chief justice marshall recognized long ago that this was a cause so clear that it could hardly be misunderstood and recognized that it applied to all manner of contracts we ask that the court bear that an original understanding of the contracts cause in mind in resolving this case and even under the more deferential modern approach that original understanding ought to inform the approach particularly where as here there is a ready alternative to achieve all of the state's objectives without impairing anybody's contractual rights thank you council five minutes  you mr chief justice so there's been a lot of different arguments floating around at the argument today there's arguments about divorces about wills about reliance and others so i'd like to say a few words about what i think would be a kind of a clean way to resolve this case now really that wouldn't open some of the parade of horribles that some members of the court i'm concerned about some lower courts have conceptualized life insurance policy beneficiary designations as similar to wills that's a broad argument that produces some of the concerns that justice course which posed questions about we stick to that argument but the court doesn't need to meet to decide that in order to vote in our favor today so i think i'm sorry i think that the first important principles that this is a divorce case the court isn't reaching out and interfere with private relationships the statute only comes into effect when people come to the court and that's the court's jurisdiction to divide their assets and my colleague discussed what the status of chief justice marshall chief justice marshall himself said that the contracts loss has never been understood to restrict the general right of the legislature to legislate on the subject of divorces so i think that we have a very strong originalist argument that specifically in the context of divorce the police power so it's not because justice marshall also said that marriage contracts are not within the cognizance of the contract clause and i don't think anyone disputes that life insurance policies are of the contract clause or do you know i should certainly they are but the statement that chief justice marshall made is that the general right of the legislature to legislate on the subject divorces has not been questioned and i think this is your marriage contracts are not within the relationship all together which will necessarily have dramatic impact on the parties property interests i think it's a much lesser power to simply regulate one way in which a divorced severs that relationship and i think that it's all there's also history provides a different lesson which is that there's never been a case ever until a few cases on the circuit split in this case were any court has held that a statute regulating the effect of a divorce decree violates the contract clause and not for lack of opportunities because the law of equitable distribution of property has changed dramatically over the center of the two centuries and yet this argument has never succeeded so i think that at a minimum especially in the context of its tradition of state law control over divorce there's a broad police power there but i don't think the court has to hold the divorce courts  riposte civil war era cases where state legislatures passed laws to prevent hated out of state bondholders from being paid back that was the purpose of these laws professor book about the contract clause who wrote it because group in this case discusses the virginia statute where there's a whole bunch of cases where the virginia legislature specifically tried to prevent bond holders from being paid back by putting these requirements they knew that they couldn't meet and then there's the case where there was a contractual right to force courts to pay money on these bonds abrogated the new law provided that the prosecutor had to get the county court to pay to raise taxes which was never going to happen so these were laws that were specifically designed to prevent creditors from being paid back that can't be more different from this case which really is a paperwork obligation which is quite comparable to the recording obligations that we talk about in fact i think that this is less of a burden because as justice sort of my or pointed out you don't submit that form your land patent is completely wiped out you don't get anything that strikes me as a far greater impairment than this case where the failure to submit a form is actually going to vindicate the person's intent in the typical case so i think that when you talk about the broad police power over divorce and then the fact that it's only writing a letter i think the statute is constitutional especially and the third thing i'd like to talk about is the reliance issue because this is a case about retroactivity the question is not whether the court agrees with the statute or not the question isn't even whether it typically indicates the intent of the spouse or not that's a policy question both going forward and backwards the question is whether it retro actively impairs a contractual obligation and the answer is no because the reliance interest as i think even my colleague conceded really comes into play at the time of the divorce that is when people are thinking about this the statute doesn't even do anything until the divorce happens and i think that reliance is important to the contracts clause because that's why the clause distinguishes between statutes passed before and after a contract because of the recognition that the contract itself generates reliance interests and so therefore if it's essentially undisputed that reliance interest really come into play at the time of the divorce rather than at the time of contracting it's just not an impairment of contractual obligations in the relevant sense the only thing that would be impaired the way reliance expectations would be impaired are those of mark sabine who might not be able to get the proceeds or might not be able to distribute the proceeds as he intended thank you counsel the case is submitted