Welcome to another edition of Thinking Like a Lawyer.I'm Joe Patrice.
Hi, Joe Patrice.I'm Katharine Rubino, also of Above the Law.
I hadn't even, I don't know if I even said that I was from Above the Law, but I am.And we are here to do this show where we talk about some of the big stories in the week that was in legal.
That's true.Yes, that is what we do.
Yeah.But before we... Oh, no, that's the sign that we have a little bit of small talk to do to open up the show.
Yeah, so kind of a little behind the scenes moment.We were we record this on Monday.So tomorrow is Election Day.But by the time this gets published on Wednesday, Election Day will be over.
And so my question to you, Joe, is by the time that everyone's listening to this, will we know who the president is?
Uh, I think it will be on Wednesday, I don't know when on Wednesday, so I don't know, so I will, uh, when people listen to it, who knows.
Fair, fair, but I definitely think that for a lot of people this week is filled with plenty of anxiety and I am on that list of folks.
Yeah, well, so for what I was going to say for small talk is it is Halloween is behind us, which means that I am in possession of the- Christmas trees?Hallmark holiday movies calendar.
Yes, and I have searched it for the key terms.
Attorney, lawyer, big city.
Yeah, yeah, yeah.And it seems as though this year there may only be one.
We're falling down on the job, folks.We, as a profession, are no longer represent the kind of cold-hearted character that can be turned by returning home and the love of a good person.
Yeah, I mean, look, this is a Mad Libs of jobs. You go down it.
It's like an interior hard-working interior designer determines a hard-working this determined a couple of doctors I think but no the only one that I see involving us is a 90s Christmas on November 29th, which is an evening in a time-traveling taxi
makes a workaholic lawyer reassess her priorities as she gets a chance to relive the Christmas of 1999 with her mom, sister, best friend, and high school crush.
Ah.Yeah.1999, that's what they're calling a 90s Christmas?That seems like the last possible moment.
Because that's really old, a long time ago, you know?
It sure was, but I'm just saying that 1999 is not necessarily emblematic of the decade.
Oh, I see what you mean.Yeah, because it's only two years before the decade ends.
And I guess Christmas a year in a bit.Yeah, it's very, colloquially I think that the 90s ends in 1999.Yeah, certainly.
Well, no, because you count 1990.
See, I don't think you do.
I think when you're talking about like a decade, like what is the 90s?It has to have a nine in it.
See, but there's no year zero, so all of that has to always be off.
But this is not like counting.This is referring to it as the 90s, right?This isn't saying like the decades changed at this moment or that moment where you might have an argument.
I'm just saying that the 90s, when you're talking about the 90s, you have to, in fact, have a nine in it.
That's what I'm saying.And this is mere days away from the start of the 2000s.I feel like that this should be called a Y2K at Christmas.
Oh, yeah.By the way, it's gonna be really, there's gonna be a Y2K joke in this movie, isn't there?
There should be.I bet there isn't, but there should be.
It's gonna be like a missed opportunity because it's gonna be written by people who didn't actually live through it or did, but they were like children and didn't really, it wasn't one of those core memories for them, but there'll be some moment in this where you look at it, you'd be like, oh, there should have been a Y2K joke right there.
I actually saw somebody, somebody posted a thing on there's some movie coming that time travel movie where they go back to like 2003.And that's the whole thing.
And I saw somebody immediately reply to it with none of the things that are here as old actually were from 2003.Like none of this reflects what actually was going on it.And in a weird way, it did kind of look like
It was being written by somebody who remembers that the 80s are old and they just kind of ported all that on top of it.Like everyone's wearing like fluorescent colors.And I'm like, I don't remember that from 2003, but I do from the 80s.
It's not what happened in the year 2003.
But the most amazing part of it was everyone has like flip bones and stuff. and- That is true.And Discman and stuff.Yeah, which that's all true.
But all the high school kids were looking down at them as they were like listening to music as though you would be looking at your phone.
Even if it had no visual, like, but it's one of those issues where it's clearly written by somebody who doesn't understand what the concept of not having that.
Some directors should have been like, that's, your phone doesn't do that.
It's a tiny little screen that only shows you the number you hit.
But yeah, they're just looking down at a Discman as it plays.As though that was, yeah.
Yeah, that's not what you did.
So are you gonna watch A Very 90s Christmas?
It's not a very, it's just a 90s Christmas.
So when you said November 29th, so I have some appointment viewing on November 29th apparently.And then we'll maybe chat about it after I watch it.
Yeah, I mean, I sure don't want to, but I can see.
I'll put something on your calendar for whatever this is.Oh, good.
And as we know, internally here at Above the Law, I'm very good about always checking the calendar for these sorts of issues.He's the worst.I'm not.Ellie was the worst, but now that I'm- He's no longer currently employed by Above the Law.
But now that I'm here, yeah, no, I guess that's fair.
All right, well, we can be done with small talk. And move on to the, yep, move on to the big stories that we have to discuss.
I do like that you kind of, we use a trumpet sound right here because- Oh yeah.
Yeah, thanks.Because I think that trumpet kind of heralding knighthood is also something that I think of.
Yeah, so as it turns out, Justice Samuel Alito got knighted.This was actually a long time ago.He got knighted back in like 2017, but nobody was really paying attention.
Well, also because there was not nearly as much pressure for him at the time to disclose all sorts of gifts.
And now that the heat kind of is on for folks to, for not just folks, Supreme Court justices, to disclose their gifts, he disclosed a bunch of gifts from a princess.
Yes, so that's a little bit separate, but that's an excellent point.We should go back to that.As it turns out, he is getting concert tickets and stuff like that from his chummy relationship with a German princess.
Now, this German princess in question is now a big, kind of a trad Catholic, big activist.
Yeah, big Trad Catholic activist, and therefore pushing her relationship with Alito over abortion rights and such.
You know, it's interesting to think of her as Trad Catholic, by the way, something that she seems to have come to later in life because she was, how she has her title is she was married to a social, she was a socialite and she was married to this also very paparazzi driving German prince.
So it's interesting because he was very publicly bisexual.So it's interesting that she's kind of gone this direction, given her husband and how they lived their way through the 80s.
But hey, she's here now and giving a lot of gifts to Alito, which prompted some inquiry from other sources.New York Mag did a look in and found that in addition to all of this hanging out with German aristocrats.
He also apparently back in 2017, got himself knighted by something called the sacred military Constantinian Order of St.
George, which is a lot of words that I don't like seeing together.
Yeah, it's a, you know, it's a weird little knighthood.But the point of it the matter, regardless of how it works out, it is A knighthood that is run by a chivalric order in Europe that is run at this juncture overseen by some aristocrats.
The question that I've gotten some back and forth on is whether or not this is the same version of the Order of Constantine that is run by the House of Bourbon, which in my article suggested it was, but it may be slightly different.
Although, when you look it up, it says that it is still the House of Bourbon to Sicilies.There might be some schism there.Regardless, he has a European knighthood.
I bet none of those details matter to what the founding fathers thought about such details.
That's an excellent point.
The man who is very adamant that he can read the minds of the framers seems to believe that the part of the constitution that says specifically that no office holder can get a title of any kind whatever from a king, prince, or foreign state.
Yeah, and really, I think you inadvertently sort of hit on exactly what the issue is, right?
That Alito and other originalists thinks that they can read the minds of what a founding father might have thought about problems that would simply blow the minds of founding fathers, right?
Like the question of how originalist intent would apply to the year 2024 is largely unknowable, I think.But here's the thing. We know exactly what they thought about getting a title from a foreign government.
Yeah, they were not big fans.
Yeah, they put it in the Constitution.There's a federalist paper about it?
There is.Alexander Hamilton kind of referred to it as royal prostitution, which seems negative.
Oh, we should now refer to Samuel Leto as Supreme Court Justice, comma.
Ooh, easy.But he did get, as part of it, he got this, apparently this cape made by the Pope's tailor and everything.So he looks a little bit more like Superfly than prostitution.So maybe that's the side he's on of it.Anyway, the point is.
Superfly references are getting a little old.Anyway. A point is, yeah, so the serious angle on this is no, nobody really thinks that the House of Bourbon to Sicily's is about to prevail upon the Supreme Court to do much of anything.
That said, the Supreme Court probably can't restore them in control of Naples, which is apparently what at least some reports suggest that the point of this order is.But that's not the point.The point is,
The Constitution makes kind of one command of office holders here, and we live in a world where the Supreme Court has been dodging ethical requirements, making the argument, as John Roberts has, that because of the separation of powers, no one can regulate them.
We can pass rules to regulate lower court justices, but the Supreme Court exists in some sort of constitutional twilight zone where they are answerable to no one, according to this.That is problematic on a lot of levels.
It also doesn't make a ton of sense.We have rules governing the other branches.And even after the most recent immunity case, we recognize there are still at least some sort of rules governing presidents.
So the idea that the Supreme Court is devoid of all of them is problematic.But even that argument about separation of powers would fall in light of a constitutional command. So whatever ethical rules exist, there's at least a constitutional rule.
And the constitutional rule is pretty clear, you can't take this stuff.Even though it's probably meaningless, that almost cuts the other way, right?Like, it's so meaningless, why would you ever do this?
It speaks to... Because you want a fancy cape?
Yeah, I mean, it speaks to the sort of pettiness and vanity that Hamilton in that paper is talking about, where he's suggesting that the reason they have to have a ban on this is you don't want
some sort of bad actor in office who is swayed by trinkets from European aristocracy because that speaks to kind of a broader sort of unfitness for office.
And so that's really where this comes down.This probably is stupid and a stupid title that has no long term value to it.But that's, that's why it's so much more important that they not take these sorts of titles.
And it's a real New York mag reached out to him to get some degree of answer about this, and he did not respond.
Yeah, and that I think is really emblematic of a big part of the problem is that he doesn't have to respond to these inquiry.
We already know that he has utter scorn for journalism, but there's no impact to him doing something blatantly unconstitutional.There's no mechanism the way our current politics works that he will ever be censured or removed from office or anything.
This is a lot of people rightly getting angry about it and nothing can or will be done.
Yeah, it's so much more egregious than any of the other ethical lapses that we've seen out of him because
Because it's so explicit.Yeah, it's it's dumber.It is probably substantively less problematic than flying insurrection flags, which we've got him doing.
But it's so much more explicit that it's really.
And maybe also because this is happening during a pretty contentious election season.
But it'll be interesting to see if there are even articles of impeachment written as a result of this or if it's just one more thing that just gets swept under the rug.Yeah.
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Yeah, we had a story last week about the University of Chicago Law School.Some of their policies, they have an explicit policy that they instituted this year
about when students are allowed to access recordings of classes because they want to sort of encourage in-person attendance.They only have a limited number of instances where somebody can look at the recording.They don't want somebody just to
you know, be drunk or hungover from the night before and not go to class and still be able to get the access to the materials.
So you have to, you can only access them if it's in observance of a religious holiday, if there is an approved disability accommodation, an approved Title IX accommodation, or when two makeup classes are scheduled for the same time.
There's some notable other reasons you might actually need access to a recording of a class.For example, there is actually a petition, over 100 students signed it.What happens if somebody has COVID and they can't go to class?
What if somebody has surgery planned?What if there's a death in the family? None of these sort of very, very legitimate reasons are covered underneath the existing policy.And in fact, people have requested, you know, like, oh, well, can I?
I had covid.I can't go to class.Can I get access to it?And they were told, no.
Yeah, that's that's not great, because you probably don't want to encourage people who have covid to go to class.
Yeah, it's, I mean, let's be very, very frank.The whole reason why there's this prevalence of recorded classes is because of COVID.
Yeah, I mean, look, you don't necessarily want to give out legal education for free, so you can't like publicly post it.
But if you had some kind of a secure place where people could watch the shows, I think that's something you should probably encourage for exactly this reason.
I also understand that there's increased ethical rules saying that, you know, law students have to attend a certain percentage of the classes and all, but if they're watching it and you have some way of registering that, you know, so-and-so was gone for COVID and they watched this and you can clarify that, that should count too.
Yeah, and let's be clear, the students at this school are not even asking for something nearly as broad as what you're suggesting. It's not saying, oh, they should be available that anybody can watch for their own personal reasons.
They're saying, if I have this and I am presenting that to the professor, can't I have access to this?And in the current system, the professors are not allowed to give access to these recordings to students who are out because
a family, their mom died, for example.And that seems unduly harsh.And listen, I really do take the point of trying to encourage in-person education.I think there's a ton of benefits to it.
And what we're seeing is it doesn't really benefit students to think that everything can be just be done online, because that's how the law school was, when we know that sort of big law
that isn't really flying anymore in big law, that increasingly we're moving to more and more days in the office.Clifford Chance just spent $20 million on a Houston office.
So, you know, it's unrealistic to say just, oh, it's available if you want it in your own personal discretion.But certainly there's a
There are many other reasons besides the ones that Chicago currently recognizes that it's very legitimate reasons to watch a recording of a class.
So yeah, hopefully the petition will prevail upon cooler heads over there at Chicago to figure something out.We have the technology, we can use it for good.
And again, just use it for the exact reasons why it was a thing in the first place, right?The only reason why we have this is because of COVID.Let's make sure we're not also spreading COVID.
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Okay, we are back.This is a another story that did well for us last week, that we thought was important.Richard Epstein, who's a law professor, you know, kind of of the Chicago school, though not currently there.
He appeared at a Federalist Society panel last week, you know, it's not really even wouldn't have even really been big news, except something struck me, which is that coverage that panel pointed out that he
It was about Chevron and its demise as a legal standard.
For those who don't remember, that's the standard that says that agencies, agency experts probably should be the default if you're trying to interpret vague terms in a law and by vague terms in a law.
If you have like a Clean Air Act and say, hey, don't pollute the air.What is a pollutant?Well, the scientists probably can figure that out better than Congress.
Right, and more to the point, especially when you're talking about science, they may not have at the time of passage a full list of every potential pollutant because we are always creating more pollutants.That's a great thing about our country.
Right.And so that is so with that gone.But in this instance, Epstein makes a point in this panel that he has always been against Chevron, which is, you know, maybe that's true.It actually is interesting.
Chevron, while it was defended down the stretch as a boon for more left of center policymaking because of the way in which it fills in the gap with pollutants and stuff like that.Originally, it was intended to be a boon for right wingers.
The case was originally argued on the logic that Reagan's EPA could go ahead and say, we don't see why dumping sludge into things is all that bad.And so
It evolved since then and, you know, in no small part because scientists tend to be driven more by science.And so they had real issues with it.But anyway, so he's always been against it.
And the only reason this became an issue for us is as I read that, I was reminded of something, which is that at the beginning of COVID's arrival on US shores, Epstein,
who I will note is just a law professor, wrote very passionately that he had done the numbers himself, and only 500 people were going to die of COVID.
It was not correct.It was sufficiently not correct that within Within a couple weeks, it had already hit, the death toll had already hit 5,000, and he re, well, actually it hadn't yet.
He, within a couple weeks, revised it to say, oh, what I mean is, because it had hit 500, what I mean is, I didn't carry a decimal point, it really was 5,000.
But then when 5,000 got blown by a couple of weeks after that, they just stopped updating the article and kind of memory hold it.
But this is what he thought about science and felt the need to proclaim, which had real impacts because later reports indicated that his article declaring that only 500 people were going to die
was widely circulated among White House staffers at the time.It had a role in the slow Trump administration response because they believed law professor numbers over the scientific and public health reports they were getting.
This is an instance where the phrase stay in your lane is actually really important.
Right, well, I mean, that's the thing.Sometimes lawyers just don't think they have a lane.They think, and look, the article, one of the points I make in the article is look, Lawyers blur a line, which it's a subtle distinction, but an important one.
The skill of lawyers is kind of having a flexible mind.
You know, I don't know anything about how various O rings are constructed for aerospace applications or something like that, but I can be put on a case, read the files and go through things and talk to experts and crunch numbers and read cases.
And I can, figure out how to explain to somebody that issue.And I become an expert in it within the limited confines of explaining it.And then afterwards I move on to a new case.And that is a skill.That does not make you, as a lawyer,
de facto an expert in everything you choose to set your mind to.
And that subtle distinction is what leads to situations like this, where a law professor decides to declare with some degree of disastrous results that he's figured out that only 500 people get killed.
And the fact that he is going out and saying he's always been against Chevron is just a chef's kiss of learning no lesson here.He believes that people like him should be making those sorts of scientific calls rather than scientists.
Right.And if he's wrong by millions of deaths, so be it.
Right, in this instance, the current COVID death count is just above a million, all told obviously to slow down considerably as things have finally gotten better and vaccines are widely available and so on. you know, a million is way off of 500.
That's kind of the situation you end up with.And look, I understand, there are people who say that not every response that we had was the optimal one.And that's probably true.
People are making decisions on the fly and they made ones that they thought were good in the time, whatever.But that's part of that calculus.
If you wanted to say, hey, lockdowns were too aggressive, you can say that, but you have to kind of begin from the premise of it was actually that devastating, but maybe there's a better way than a lockdown.Like you can have that debate.
You can't have the baseline debate.I don't think this is going to kill anybody.
Right, right.You can disagree about the way that a lot of these policies were implemented without saying, hey, we should have done nothing.
Right.Well, and yeah, and that's the whole issue here.And this speaks to an extra layer of hubris, right?And one that is poignant in this moment, because when we talk about Chevron, this is what we're talking about.
We're talking about turning over the decision of What's toxic sludge?What's a pollutant?How much rat poison can be in a hot dog before it's not safe for human consumption?
These are the sorts of questions that we currently farm out to the agencies who pay scientists to work it out for us.And Epstein believes that this should be substituted.
So does the majority of the Supreme Court.Right.
Should be substituted for what the Supreme Court feels.
Which is the current state of the law.
Yeah. which is a terrifying place to put things.
I mean, there's there's a real, I think, good argument that for all of the wild jurisprudence that the Supreme Court has recently engaged in, that getting rid of Chevron deference is going to cause the most deaths long term.
Long-term, yeah, and it'll be in small, subtle ways that won't be quantified.
It'll be constant in an ever-increasing amount of ways, but I think that long-term, the death of Chevron, unless something is done about that, is going to be absolutely devastating.
One of my favorite tweets of the last week was somebody pointed out, like, you know, the meme, like, I hate blank Halloween.It was I hate D.C.Halloween.What do you mean you're the ghost of Chevron deference?
I don't even know what that costume would look like, but it's just a bunch of rat poison in a costume or something.I don't know.But it's it's good.
Well, I think that's all the time we have.Let's close this up.Thanks, everybody, for listening.Subscribe to the show to get new episodes when it comes out.Leave reviews, stars, write something.Check out some other shows.
Catherine's the host of the Jibo.I'm a guest on the Legal Tech Week Journalist Roundtable.There's also a bunch of other shows from the Legal Talk Network to listen to. There is above the law that you should be reading.
So you read these and other stories before we talk about them here.You should follow social medias at ATL blog, at Joseph Patrice, at Catherine One.Also, I'm over at Blue Sky at Joe Patrice for that purpose.Otherwise, everything's the same.
And with all that, I think we're done.
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