OA27: Abortion and Planned Parenthood v. Casey, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello, and welcome to Opening Arguments. This is episode 27. I'm Thomas Smith, and how you doing, Andrew Torrez?

0:01:25 Andrew: I am fantastic. I'm allergy free. How are you?

0:01:27 Thomas: You son of a bitch. I have a little reference to my Clarenton D that I took and tweeted about. Anyway, inside joke. I am doing great for a multitude of reasons. For one, check out Andrew on episode 300 of Atheistically Speaking coming at you soon. Actually, that one will be Thursday. I want to thank Andrew for coming on. It was lots of fun. And also, am so excited by the answers we got for Thomas Takes the Bar Exam. That was good. Okay, so here's the thing. This bit was a good idea. I knew it was a great idea. I knew this was going to be fun. It felt fun when we were doing it. Andrew and I were excited about it. And then Andrew selected the winning answer from last week, uh, last week's question. And it's even better than I ever could have hoped anything would ever be. It's, it is so magical. I'm excited. So I'm pumped. How about you? You excited? You feeling good?

0:01:32 Andrew: Let's not keep that one in.

0:02:22 Andrew: Am very excited. So let's get into that. Took question one on Thomas takes the bar exam. You remember?

0:02:25 Thomas: Yep. Yeah. Are you keeping my stats? You got your, you know, like a clipboard.

0:02:30 Andrew: Yeah. Oh, yeah. This is right. Because remember, the bar bar exam is pass fail and no associate has ever failed the bar exam at this firm. So, um, yeah.

0:02:39 Thomas: Yeah. I'm, I'm particularly worried about that. That. It's very intimidating to know that no one here at Covington Burlington Coat Factory has ever not passed. So let's look at the results, shall we? What do you think?

0:02:46 Andrew: Yeah. So you remember this question involved a property owner selling a piece of property to his neighbor for $200,000. The owner, uh, wrote out an agreement, uh, and signed it. Uh, the neighbor presented the $200,000, but did not sign the agreement. And then the property owner upon, uh, being handed the $200,000 check said, no, I don't like these terms after all. Uh, I'm going to back out of this. And

0:03:18 Thomas: And the neighborhood never signed it, right? Did you say? I think you missed that. Yeah. Okay. So that was the question. So was it going to stand up basically?

0:03:22 Andrew: Correct. Correct? Right. And so, So as is the case for the actual bar exam, you have to not only pick does the agreement stand up, but you have to pick why. Had four answers. We had A, no, because the neighbor did not expressly state that he accepted the agreement. B, no because the neighborhood had to put his signature on the document to make it a binding contract. And I would say on an informal basis, we had all four answers were submitted to us by listeners. I would Say B is probably the most popular answer. No, he didn't sign it. Not a binding contract yet.

0:03:54 Thomas: Right.

0:04:04 Thomas: Makes sense. This is the intuitive answer that I would would say.

0:04:07 Andrew: Thomas went with C. Yes, because the neighbor manifested his assent by his conduct of tendering the full sale price, at which point a contract existed. And then D was yes, because the property owner created a binding contract when he prepared an agreement containing the agreed terms, uh, which I believe you thought was the most foolish of the answers, but nevertheless, the list got a couple of uh, got a couple nibbles from uh, from the audience, so the answer is C, you

0:04:08 Thomas: Yes. Yes, I got it right. I'm in disbelief. Wow. That's incredible. I got it right?

0:04:44 Andrew: So yeah, we're gonna keep track of your score, uh, you uh, you got the first one correct, you are one for one with 199 questions to go, uh, yeah, I like this question because shows a couple of different things about the bar. And one thing that I think is pretty common to opening arguments, right, which is to say a signature on a contract certainly helps when you are attempting to explain and prove in court that the parties agreed to things, right? Like, so if your signature is on something, it's very, very difficult for you to argue that you didn't agree to it. But a signature isn't magic. And lots of times business gets done and people don't sign agreements for lots of reasons, right? Like you start performing and it's assumed that eventually you're going to sign it. Or I have litigated and I have seen a lot of these kinds of cases where, you know, what you have is something less than kind of the ideal all perfect situation.

0:04:50 Thomas: Yes. Oh, wow.

0:05:45 Thomas: So is this a way to kind of get away from a gotcha thing where it's like, well, we can start the contract, but I didn't technically sign it, but I'm kind of like, oh, I will sign it. And then I get some services or something and And then I will try to go back on it. So the law is saying, well, there are other ways you can show that you agree to a contract besides just signing. Is that what's happening? Basically, a sign

0:05:47 Andrew: Yeah, that's exactly right. And when I give you, if you say, Hey, give me $200,000 and I'll give you these, this piece of property. And I give you the $200,000, right? That is, uh, in the, in terms of the question that is a cent. Yeah. That says, look, yeah. I agree. So a contract is created, uh. When one party makes an offer, offer. That offer is supported by consideration, which is to say something of value. And the other party agrees to the terms. And so once that happens, the contract is completed. Are a couple of interesting distractions with listeners who wanted to talk about the statute of frauds, which which is doctrine a regarding contracts that cannot be completed in a certain period of time. But tendering the real estate here is just, this is a garden variety contract. Don't get distracted by anything else. There was an offer, 200 grand. There was consideration, which is the actual money and the property. And there was acceptance, which was manifested by the neighbor

0:06:18 Thomas: That you are agreeing. Yeah, yeah.

0:07:07 Thomas: Since

0:07:07 Andrew: Giving the money.

0:07:08 Thomas: I got it right, I can pretend I knew all that. Basically, that's how multiple choice works. Yeah,

0:07:15 Andrew: Yeah. So you got it right. Thomas, And, I believe you, you had some thoughts on, on some of our suggested listeners.

0:07:20 Thomas: Sure. Sure. Well, we've got to shout out to Nicholas Alcoff, who Andrew noted, wrote a 10 paragraph, 900 word response, screenshot it and attach it to Twitter. Now that's okay. If you quote and tweet, as long as it's quoted and retweeted, you can respond in a screenshot thing or whatever, but he guessed C then A then B. That's a very, that's a Very Lawyer-y thing to do. I feel like like covering your ass. Okay, good. But now we've got to talk about the greatest answer. This was such a good answer. I can't believe it.

At GodlessSteve said, instead, C, because on To Catch a Predator, the pedo who brings a burger after being asked to, helps show intent and strengthens the case against him. It is so great because it's the right answer, and that reasoning, it kind of applies, right? Like, isn't it sort of the same thing? If they were asked to bring a burger to, you know, on this date that he's going on, and he does, you know, that that helps show that he intended to, you, he assented to the contract they were forming. I don't know, it's kind of close.

0:08:07 Andrew: I Yeah, there's no there's no contract of showing up at a house with a an informer pretending to be a 14 year old girl. I got it. I gotta tell you if

0:08:41 Thomas: But It Does But The Principle Behind That bolstering the case is got to be similar to the principle, showing up with the two hundred thousand dollars showing you agree, I mean, it's, it's a similar thing.

0:08:54 Andrew: The farthest extremes, the idea that you can say yes without saying yes I will accept that part of the answer. Either way, it's a fantastic we totally agree.

0:09:04 Thomas: It's a great answer. Thank you,

0:09:06 Andrew: This was a fantastic answer.

0:09:06 Thomas: Godless Steve. You're the winner. Lots of people got it right. Lots of people guessed every single answer, which is good.

0:09:12 Thomas: Yeah, that was a success. I consider that... Godless Steve, I don't know how you're going to live up to that one. We'll see what television show reference he pulls out next. Thanks for that. Yeah, I think that's it. Look forward to... The next question will be at the end of this episode. That'll be question two, and we'll see if I do that, because if I miss that one, I mean, I'm at 50%, you know, and there's a... What threshold is pass-fail? What threshold do I have to get to pass?

0:09:39 Andrew: I will look, it changes from year to year. Um, and, and so, uh, the other thing is there's a component of both the multi-state and the essay exams, which obviously that would be some fantastic radio.

0:09:40 Thomas: Oh, is it a curve?

0:09:51 Andrew: Like Thomas, Thomas writes a two hour legal essay on the air. Like it'll, it'll just be the sounds of your pen scratching. It will be outstanding. Um.

0:09:49 Thomas: Yeah. Thomas takes the essay exam portion of the bar. I'll just... You'll hear me just scribbling and like, no, gosh. Yeah, we probably won't do that that one. Let's pretend I aced that. Me a ballpark. What do I need to roughly get? I mean, what? 75%. Okay.

0:10:07 Andrew: Yeah, well, so, yeah, I, I don't think it's quite that high. I think you need, um, assuming that you wrote great essays and we're going to assume that I, yeah.

0:10:19 Thomas: We just, yeah, we already did that portion on an earlier show and I, I, I passed with flying colors.

0:10:24 Andrew: Yeah. I Think You Can Get in the 130s. I could be wrong about that. Uh, it's been a long time out of 200 questions.

0:10:28 Thomas: One thirties. Oh, oh, for the out of 200. Okay. Okay,

0:10:32 Andrew: So 65%.

0:10:32 Thomas: We'll go, we'll shoot for that.

0:10:33 Andrew: Yeah. Yeah. I will look before our next episode. I will look and see.

0:10:35 Thomas: Okay? Because if I do pass, when we get 200 episodes from now, Now, uh, when I do pass, I do expect some sort of ceremony from you, some sort of, you know, I don't know what, but yeah. Yeah. Okay.

0:10:40 Andrew: Yeah. Yeah. Well, obviously. Yeah, no, I think that

0:10:49 Thomas: On the show too.

0:10:50 Andrew: Goes without saying.

0:10:50 Thomas: I want to be recognized, you know? Okay. And, and, and I'll be, I'll be admitted to the bar on. Oh, wait, like I can practice law just on this podcast. That'll be what it, not in any state, but just like floating in the podcast, uh, sphere. That's, that's the only place I can practice if I pass.

0:10:51 Andrew: Yes. Yeah Yeah. And and and you can continue to hold yourself out as Thomas Smith Esquire.

0:11:11 Thomas: Of course. Of course. Okay. So let's, let's get on to our, well, oh no, I guess we have a non-segment thing to talk about first, right? This goes in the category of Andrew Torrez is pretty much always right. The reason that, you know, I'm very proud to be on a show with him. Michigan recount stopped after judge says Jill Stein has no legal standing. We've gotten a lot of email about this, comments about this. And before this, we've got a bunch, you've got a bunch of questions. It's like, hey, there is a recount going in Michigan. You know, a-hole, you were wrong, right? Have you got a few of those?

0:11:12 Andrew: Right.

0:11:46 Andrew: Not only did I get that, I I'm not kidding about this. I had 11,000 people reply or vote angry on a Facebook post before I got kicked off of a, yeah, it was, it Thanksgiving night.

0:12:01 Thomas: 11,000? Oh, this is that lawyer group

0:12:03 Andrew: Yeah.

0:12:04 Thomas: Thing.

0:12:04 Andrew: I was added to a, uh, lawyers, liberal lawyers, uh. Private Facebook group, uh? By one of our listeners. And I'm not sure whether I appreciate this or not. Uh, who had, you know, essentially posted our take. Right. And she was not a lawyer. And so she said, all right, well, I'm going to bring in the lawyer who said this. And I was tagged in and I was kicked from the group in about half an hour, which was, you Know, look, I one of the things, I've said this elsewhere, we're trying to help people understand news stories that may be inaccurately or failing to cover legal issues in current topics. And you know, look, sometimes the law isn't clear, uh, but to the best of our ability, like we're going to try and take a stand and, you know, and we're going to try and be accountable too, right? Like, I mean, if this recount had gone forward, you know, I mean,

0:12:29 Thomas: Wow. For being right, damn it.

0:13:02 Thomas: Yeah.

0:13:02 Andrew: There was not, there's no place for me to hide, right? Like, I mean, I made my opinion really really clear and

0:13:06 Thomas: It would just be all bar exam questions after that. And we'd be like, oh, I didn't have time to admit Andrew was totally full of crap.

0:13:08 Andrew: Yeah. Right. Yeah. Sorry. Yeah, no, it, right, I mean, I, and, and look, like I'm going to get stuff wrong, uh, because Everybody, everybody gets stuff wrong. But, you know, I you and I, are skeptics and, you know, we believe in being held accountable. So

0:13:17 Thomas: Mm hmm. But not this. Absolutely. And this is the kind of thing where, yeah, there was a lot of the stuff you call out. And, you know, I can't really include myself, mainly you, but I try is, you Know, right wing bias, Scalia and his terrible decisions that he made when he thought he was, you Now, interpreting, reading some chicken bones and telling what the founders wanted to do. But this is a case of, you know, left-wing bias. People really wanted something to be true, and I think, and it wasn't. And I argued with people who really were not receptive to our opinions on this at all, and that's unfortunate.

0:13:46 Andrew: Yeah.

0:13:56 Andrew: And I had The same thing. I take pride that this week alone I have been called a left-wing shill by a Trump supporter who refused to listen to 0813. I mean this is somebody who was still going around chanting, lock her up. And one of our listeners was like, you know, maybe you should listen to Opening Arguments 13. And, you know you'll come. And he was like I'm not listening to some Hillary shill and you know whatever. And I was called a Trump shill by by about 11,000 Jill Stein supporters. Like like to think we're pretty open, right I mean we we say where our biases are politically, right, we're left of center, we're we're out there and in front of that, it but but we're going to try and give you the actual facts to the best of our abilities and uh I Think if We can get Called out by, yeah,

0:14:49 Thomas: So enough praising ourselves, but I mean, I think that's all true. But so what happened? I mean is it, do we even need to get into it. The judge pretty much said what you said, right?

0:14:53 Andrew: Yeah, Yeah, Yeah I It. I I mean that our If you look at the article, which I will link in the show notes, uh, here is the uh gravamen of the judge opinion. U.S. District Judge Mark Goldsmith uh agreed with the Republicans who argued that the three-day recount must end a day after the state appeals court dealt a blow to the effort. Stein, who finished fourth in Michigan on the on November the 8th, did not have a chance of winning even after a recount, and therefore isn't an quote aggrieved candidate, the appeals court said. And now Quoting Directly From The Ruling.

0:15:00 Thomas: Yeah. Case closed.

0:15:29 Thomas: Boy, that sounds just like what you

0:15:31 Andrew: Yeah.

0:15:31 Thomas: Said.

0:15:32 Andrew: Yeah, Because There Is No Basis For this

0:15:32 Thomas: Weird. Sorry. I shouldn't gloat. So we're going to be wrong at some point.

0:15:36 Andrew: Court to Ignore the Michigan court's ruling and make an independent judgment regarding what the Michigan legislature intended by the term aggrieved. Plaintiffs have not shown an entitlement to a recount. And, you know, This this was what we flagged from that day before Thanksgiving vegetable chopping evening. Um, it uh and again, you know, it's it's really, and it continues to be illustrative of the point that we make on the show all the time, which is, um, know the law is not uh an arcane series of, you traps and and minefields that you have to like say the magic words to cross and and you. You know, you apply a little bit of common sense. In this case, you know, literally everybody that I talked to who had no opinion on the subject was like, yeah, it seems kind of weird that Jill Stein would be the one bringing the recount if

0:15:37 Thomas: Yeah. There you go.

0:16:28 Thomas: Yep.

0:16:28 Andrew: She's not the one who can win after a recount. And, you know, it's really not more complicated than that, right? Right. You you wrap it in the language of aggrieved and you say aggrieve means that the court must be able to provide a remedy that solves the wrong of which you are complaining. And, you know, and you go back and ask that question. But but at the end of the day, you knows, there's... there's that that common sense intuition really, really, really can hold

0:16:54 Thomas: All right.

0:16:55 Clip: He who questions training, only trains himself at asking questions. What?

0:17:03 Thomas: All right. Let's get to our listener question for the day. Patron Paul. That's an interesting first name. No. Patron Paul, I have a question about abortion in the Supreme Court. Say the Supreme Court got a conservative majority and they ended up overturning Roe versus Wade. What happens regarding historical abortions? Presumably, many states still have abortion laws in their books. If Roe v. Wade is overturned, does that reinstate those laws retrospectively. Now, that's an interesting nuance because I thought he was going one way. At first, I thought He was asking like, what about someone who already got an abortion? Would they then be like punished or something? And I think that the obvious answer would be no to that, right? That's never the case usually. But his question I think is a little more nuanced, which is these laws that were overturned at the time by the Supreme Court ruling, do they just instantly go back in effect, or would states have to write new laws after this ruling?

0:18:00 Andrew: Yeah, you have analyzed this exactly correctly. So let's answer the first part of the question, right, in which you get it correct, which is anybody who's had an abortion in the past, even if a new law were passed or reinstated, and I'm going to speak to that in a second, would have a defense, which which is to say that they were acting under color of law. Right. So when, uh, the courts say you are entitled to do X, right. Which, um, Roe v. Wade has said for the last, uh, 43 years, you know, that, that women, let's say this is a standard first trimester abortion, which is 99% of the abortions in this country, uh that she would be acting, uh under color of law and would have a defense to any kind of statute that might, you know, retroactively apply.

0:18:51 Andrew: So whenever a court says you can do something, you can proceed to that with confidence, even if you think there might be a conflicting law that could potentially stop you. That make sense? And then the second question, when those laws were struck down by Roe v. Wade, they are are struck down. And so they do not automatically spring back into existence. If Roe v. Wade is overturned, you would have to pass new laws by the legislature. Kind of related to that, there is a constitutional prohibition on what are called ex post facto laws, right? So laws that criminalize behavior, criminalize that behavior prospectively. It applies after the date that the law is passed or some effective date that's in the legislation.

0:19:37 Andrew: Oftentimes, laws will have kind of a lead-in time period, you know, to sort of get you prepared for the fact that the law is going to change. But they can't, when it is restricting your liberty, they can't look back. There are certain instances where you could have a law that expands your liberty that does in fact look back, So, for example, that a state, California, you right, decides that they are going to fully legalize marijuana, right? The state could then decide and would have the option of legalizing marijuana from this point forward. Alternatively, legalizing marijuana and invalidating the convictions of anybody in state prison for, you possession or possession with intent to distribute of marijuana. Right. So they would be able to choose. So ex post facto means law can't retroactively prohibit certain behaviors.

0:19:43 Thomas: Right. All

0:20:34 Andrew: But you can retroactively forgive certain behaviors. So I like the question and it ties in on abortion.

0:20:40 Thomas: Right. Yeah. Great question.

0:20:42 Andrew: So thought it was a good one to answer.

0:20:42 Thomas: That's an excellent question. Yeah, yeah, and not necessarily, I mean, when you explain it, it does seem like that would be the obviously right answer, but I didn't necessarily know that ahead of time. That, that's, that, no, that was an excellent question.

0:20:56 Thomas: All right, let's get to our main topic for the day and that is the abortion Planned Parenthood versus Casey and this is going to be part one. Now, this is something you have you've alluded to. This was going to be the next next steps

0:21:11 Andrew: And so if, if you remember back to our last abortion episode, at the end of uh, opening arguments number 11. If you have not listened to Opening Arguments 9 through 11, download those, go listen to those, put this on pause, go listen, that uh, it's like three hours of goodness, and um, and at the end, that I asked you, Thomas, a question, uh, from a strategic perspective, which you might remember.

0:21:14 Thomas: Oh, that's right.

0:21:34 Andrew: So Roe

0:21:35 Thomas: Thomas takes the bar exam, the original version.

0:21:40 Andrew: Wade was a 7-2 decision in 1973. We are now almost 20 years later. We are in 1992. And the court, because we have had an almost uninterrupted run of Republican presidents, the Supreme Court has shifted rather drastically from Roe v. Wade. So of the seven to two initial allocation of the votes on the court, here's where it stands in 1992. The two dissenters from Roe v. Wade are William Rehnquist and Byron Whizzer White. Okay, they're still on the Court. And in fact, William Rehnquist is now chief justice. Of the seven justice majority, only Harry Blackmun, who wrote Roe, is still on the court.

Court. And the other known vote, consistent vote in favor of abortion rights over the last 20 years is John Paul Stevens. Very, very liberal. He's about 105 at the time that this case comes up. So you have two strong pro-Roe advocates. You have two justices who dissented from Roe. And then the question is, who are the other five justices on the court, And as it turns out, other five justices on the court are all Republican nominees. Okay. Those Those are, uh our friend Antonin Scalia, who was appointed by Ronald Reagan, uh Clarence Thomas, who is appointed by George H.

0:22:21 Thomas: Right.

0:23:10 Andrew: W. Bush, uh Sandra Day O'Connor, who was appointed by Ronald Reagan, Anthony Kennedy, who was appointed by Ronald Reagan, and David Souter, who was appointed by George H.W. Bush. So, uh, yeah, So there's your lineup. And I asked you the strategic question. Pennsylvania has, um, several abortion laws, uh, that, restrict, but do not ban abortion. And if you recall, the holding of Roe was a trimester-based approach that said, in order of balance the state's interest in the potential future life of the foetus and the state's interests in protecting woman's liberty to choose her medical procedures, there would be a trimester approach, and that is that the state could not touch abortion in the first trimester, restrict but not prohibit abortion in the second trimester and could prohibit in the third trimester.

0:23:22 Thomas: Very Republican heavy.

0:24:09 Andrew: Since that's pretty clear, in the intervening 20 years, you had a lot of by pro-life individuals. This is pretty common and it's actually, you Yeah.

0:24:21 Thomas: Still goes on today, right.

0:24:22 Andrew: And and and look like when we talk about, you know what's going to happen under a Trump Supreme Court. Right. Like looking at. So on the left, looking at what the right did, you know after the Supreme Court decided Roe v. Wade was was, you know, to look at the decision and see, okay, can we do to agitate around this? And so one of the things, for example, was to come up with restrictions on the right to abortion that were nevertheless not directed at the procedure itself, right? So, for example, in Pennsylvania, you have, I'm going to say that there are four or five statutes that are actually at issue, but the key ones are a provision that requires a 24-hour waiting period? And related to that is it's 24 hours and you get some information about the complications of,

0:24:23 Thomas: Yeah. Right. Some pamphlets

0:25:15 Andrew: Yeah, Right. So law number one, 24-hour waiting period plus pamphlets. And you can see how that's a slight deterrence. Law number two required who were under the age of 18 to have parental consent. And law number three required women of any age who were married to have spousal consent of the husband and father before seeking an abortion. And you can see how none of those laws prohibit a woman from having an abortion. And so the

0:25:15 Thomas: Or something.

0:25:48 Thomas: Right. I

0:25:49 Andrew: So they took effect without kind of outside the trimester framework. Framework. Then my question to you at the end of OA 11 was, uh, knowing what you know about the makeup of the Supreme court, you can bring this in one of two ways. You can either narrowly try and defend the statutes, or you can say, you know what, it's time to go up to the Supreme court and get this terrible Roe v. Wade decision overturned. And let's, let's go big or go home. I don't know if you remember the choice that you made.

0:26:23 Thomas: Thought I said with that kind of Supreme Court going on, why not go big? Why not go for it all?

0:26:30 Andrew: That is exactly what you decided. And by the way, it is exactly what the state of Pennsylvania decided to do. Said, we want to present the argument that Roe v. Wade was wrongly decided. And so resulting decision, Planned Parenthood versus Casey, became about whether Roe v. Wade would survive or whether the conservative court would overturn Roe versus Wade. And unlike last time where we sort of did some storytelling, I think, you know, the punch line here, because that was 24 years ago.

0:27:10 Thomas: Because Roe v. Wade is no longer law. Yeah.

0:27:11 Andrew: Right. And yeah.

0:27:14 Thomas: No, it is law.

0:27:15 Andrew: Here's what happened.

0:27:16 Thomas: That's already interesting to think about because it certainly makes me feel a little better when people are talking about Roe v. Wade coming down now. If that kind of court with those nominees didn't do it, then I guess I feel a tiny bit better about right now, or at least in the coming years when Trump replaces some justices. So that's interesting to thing about.

0:27:35 Andrew: That's exactly that's exactly why I wanted to do this right now. So. So one of the things that's interesting about Planned Parenthood versus Casey is have talked about Supreme Court cases from a majority minority standpoint. Right. Five, four, six, three, seven, two. With our current justice Supreme Court, you know, six to two or whatever. And people have have become aware of the fact that the court can split four to four, in which case the lower court ruling remains intact. We've talked about that in a previous episode. But as it turns out, because of the way in which the court is composed, you can have a case which has no majority holding. Day.

0:27:40 Thomas: I

0:28:22 Andrew: And, and the way in which that happens. So I want you to imagine this case has never happened as far as I know, uh, which is imagine all nine justices, right? A separate opinion, They all want to reach a different result. Okay, that would be one to one to one to right.

0:28:33 Thomas: Okay. Hmm. How's that? Oh, I've never thought about that. So it's not a binary thing. There's different.

0:28:43 Andrew: Right. Yeah. Well, think about your, you're going to take your, You've taken one bar exam question. You're going to take a second one at the end of this episode, right? You know that it's not just enough in the law, particularly at the Supreme Court, to say yes or no. You have to say Yes Because or No Because.

0:29:00 Thomas: Wait a minute. Have these justices taken the bar exam? Do they know about this? Do they know that?

0:29:04 Andrew: They might, right. Right. So so now you could deadlock a court. Right. One to one to one to one, to one. Right, right. That's never happened. That never going to happen. But but work with me on the example. Now take one of the justices and have him defect. And so now you get a two justice plurality with seven dissents.

0:29:05 Thomas: Okay. Okay. Yeah.

0:29:28 Andrew: And what you have in Planned Parenthood v. Casey is you have a three-justice plurality that is the central core of the opinion. I'm going to read how it breaks down, and that's not going to make any sense, so I'm gonna try and further explain it. But let me read it first, okay? Okay. Justice O'Connor, Justice Kennedy, and Justice Souter announced the judgment of the court and delivered the opinion of the court with respect to parts 1, 2, 5A, 5C, and 6, an opinion with respect of part 5E, in which Justice Stevens joins, and an opinion with respects to parts four, five B and five D.

0:29:29 Thomas: Okay, this is all nonsense so far. Yeah, okay.

0:30:16 Andrew: So basically three judges wrote a six part opinion. Of that different judges joined in different parts of that plurality opinion, but only three judges voted for the plurality opinions. They didn't get five.

0:30:36 Andrew: They was three, okay, but all of the other dissents were not sufficient, nobody got a five on any of the other descents, so the net result was, because there are five votes, uh, with respect to parts of the plurality, that the whole of the three judge plurality is considered the controlling opinion with respect to, uh, precedent. So it's really, really weird. It's not something I would have tried to explain other than the fact that this is one of the most important contemporary cases. Uh, and, and it's, it's a weird process. Yeah.

0:31:15 Thomas: Yeah, so it didn't get a majority, but it still is.

0:31:20 Andrew: It'S the law.

0:31:21 Thomas: Okay so that doesn't kick it back down to the lower court?

0:31:21 Andrew: ItS, it'S the controlling opinion. Nope.

0:31:26 Thomas: No. Oh, so you don't need five justices. Okay. You just need a majority decision.

0:31:26 Andrew: Yeah, remember you can, you can have my, itS, IT'S a plurality if it'S less than five, right? You, but you can have my two.

0:31:35 Thomas: Oh, sorry. Sorry.

0:31:36 Andrew: Yep.

0:31:37 Thomas: Plurality.

0:31:37 Andrew: Yeah. You can have my two to one to one, to one.

0:31:37 Thomas: Yeah. 2-1-1. Oh wow.

0:31:40 Andrew: Which again has never happened, but, but this is as close as you get.

0:31:43 Thomas: That is so crazy.

0:31:44 Andrew: So what what did the plurality hold? Let's start at the very beginning of part one. Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. Joining the respondents is Amicus Curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. Okay, so that sort of sets this out. And you have this plurality opinion is written by two centrist judges, O'Connor and Kennedy, and Souter, who who was a Republican appointee who started off as a centrist and became a liberal. So kind of at the core of this was the go big or go home question, right?

0:32:33 Andrew: Which is, OK, we are being asked by the Solicitor General of the United States, Ken Starr, who you may recall from some later fame, as well as the state of Pennsylvania, to overrule Roe v. Wade. But, and here's what the plurality goes on to say, after considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, which we talked about in the last episode, we are led to conclude this, the essential holding of Roe v. Wade should be retained and once again affirmed. Then they say, it must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viabilty, and to attain it without undue interference from the state.

0:33:23 Andrew: Before viability, the state's interests are not strong enough to support the prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the state's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the state has legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another, and we adhere to each. So, um, there's some important stuff in each of those three holdings. Um, the the most important one, I, what Casey does is, um, substitute the trimester approach set out in Row for a viability test, right? And they say, yeah.

0:34:08 Thomas: Right. Oh yeah. I was wondering about that.

0:34:10 Andrew: Yeah. And so essentially, like, they say, well, look, the reason that the court picked trimester three is because that's when the fetus becomes viable. The difference between 1973 and 1992, from a medical standpoint, is viability has become much, much earlier. And so now, you know, you have, instead of a pretty clear fixed right, trimester one, trimestre two, trimestra three, you now have the state can start banning abortions at the point of viability. And the point of viabilty, because of medical advancements, is pushed back, you know, is we're pushing that back every day, right? And with good reasons, right? But but but so you're sort of left with of a perverse situation where medical research, life saving medical research, is actually restricting jurisprudence over individual rights. So that's a really important twist. And there is, yes, yes.

0:34:11 Thomas: Okay oh yeah yeah yeah.

0:35:10 Thomas: And this did switch that through? So you're saying this did kind of, bait and switch that this this ruling oh,

0:35:17 Andrew: And this legal tactic, which is when a judge wants to say, I am completely following the rule of the Smith decision. And by the way, that rule is this. And then they and then they restate it in a slightly different way.

0:35:17 Thomas: Wow.

0:35:30 Thomas: Sort of change it. Yeah.

0:35:33 Andrew: Yeah. Know, that's yeah.

0:35:34 Thomas: Bastards. Right.

0:35:35 Andrew: That that happens. So that's part one of the opinion. It, I'm going to talk about part two, and then I think we can probably, you type a few loose ends. That's really sort of the punchline, which is to say, upshot of this is that that the court said that the spousal consent law constituted an undue burden on abortion pre-viability?

0:35:58 Andrew: But that the remaining laws, the 24-hour waiting period, the informed consent for minors, and the information provisions did not constitute an undrue burden. So, yeah, right.

0:36:11 Thomas: Well, at least they did that, because I would hope that that spousal thing wasn't gonna check out. Because if you think from a rights perspective, if there was, like, let's take the second amendment, and they decided, uh, you know, well, it's okay for for you to buy, again, just get permission from your, your spouse. You'd be like, well, that's not really, that it's not really a right then if you have to get somebody else's permission for it.

0:36:20 Andrew: Right. Right. But, you know, but I would point out that this plurality opinion was authored by and, you know, we think of Kennedy as a swing justice today. And he is and he's moving to the left. But but he was not a particularly liberal justice at the at the time that this was written.

0:36:53 Andrew: So I wonder, in an alternate universe, if you had taken and Ken Starr had taken the go small approach, if they could have persuaded a court to uphold even the spousal permission statute if they had not made the essential case about should you overturn Roe or not. Um, and I would point out, we're going to talk a little bit about it, that the analysis you saw the top line, but the uh, core of the analysis for why these three centrist to, you know, center right judges decided to uphold Row was the principle of stare decisis, right? They looked at it and they said, "Hey, look, it's been 20 years, everybody Knows What the law is

0:37:38 Thomas: Yeah. Was Scalia confused when they used that term? Was he like, hold on guys. What, what is this? Can you define that for me?

0:37:44 Andrew: I can read you some." Yeah, I can read you. Some fun Scalia stuff from this opinion, but right. I mean that the the the court said, you know, we talked about this in the last episode. The court said hey look there is value in predictability for the past 20 years. We know what the law is. It has worked. Our cases have reaffirmed that holding and we don't see the reason to overturn that holding and depart from stare decisis, cannot say that Roe v. Wade was so wrongly decided that need to do that. And I think this is just a really, really good illustration of that principle from judges who were not, like I said, I mean, they upheld the more restrictive, the parental consent and the waiting period and everything else.

0:38:34 Andrew: I mean, these are not judges who, uh, are, you, pro-choice in their daily lives. Uh, but, uh, but they really felt like, um, you know, this was, uh, the judicial minimal approach. So this is, in my view, you Now, we talked about what constitutes judicial activism, um, last episode. And, uh, and, and the Planned Parenthood versus Casey decision is, I think, the knockdown, no doubt about it, illustration of what, uh, judicial minimalism, of judicial, uh, small c conservatism is all about, right.

0:39:06 Thomas: Right. Yeah. I was going to say, because it's a case, like you said, it's the case of conservative justices still upholding prior rulings and, and, and stare decisis, right? Without that bait and switch, I guess, except for that. But, but other than that,

0:39:07 Andrew: Yep. Right. Right. Right. Um, so uh, part two, uh, redefines our penumbra a little bit and tries to um make it a bit more tethered. So instead of saying, yeah, you can find it somewhere, somewhere, the court says is, "Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the 14th Amendment. It declares that no state shall, quote, deprive any person of life, liberty, or property without due process of law. The controlling word in the cases before us is liberty." And then it goes through. I'm not going to read all the citations. I's not going talk about the difference between substantive due process and procedural due process, because we've done so much law geekery in this episode. But that's a good a topic for another show, if anyone cares.

0:40:00 Thomas: I'm actually starting to have seizures because of this. My blood is too full of law geekery, but, but yeah, go ahead.

0:40:06 Andrew: We'll wait till you get through the bar exam. You know, they go on to say the most familiar of the substantive liberties protected by the 14th Amendment are those recognized by the Bill of Rights. Then they talk about incorporation, which we talked about in our 0821, the first episode, of the Second Amendment, exactly, um, and then it says, um, "It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution." And then this is my favorite line "But of course, this court has never accepted that deal.

It is also tempting for the same reason to suppose the that the Due Process Clause protects only those practices defined at the most specific level that were protected against government interference by other rules of law when the 14th Amendment was ratified." And then they cite to a Scully opinion. "But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before."

0:40:20 Thomas: Second amendment. Yeah.

0:41:08 Andrew: Marriage is nowhere mentioned in the Bill of Rights, and interracial marriage was illegal in most states in the 19th century, but the court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving versus Virginia, which we talked about in the first episode. So that's a terrific, terrific smackdown of Scalia that this centrist court give. They say, look, like you you may want to define substantive due process as only protecting those rights that are expressly spelled out in the first eight amendments to the Constitution, but the court has never taken that view. And you might say you might have the view that Scalia has, and they specifically cite a Scalia dissent, that it's only protecting the kinds of rights that were recognized historically at the time that the 14th Amendment was passed, which is 1865.

0:41:24 Thomas: Right. That this is a court that that Scalia is a part of, right? So these are just three of the justices, we're like, gosh, we're so I hate that guy, you know, that Scalia guy. Okay, I can't stand Him. Let's, let's let's just totally embarrass him. And yeah, go ahead. Yeah, still

0:42:00 Andrew: Yeah, yeah, They are, yeah. Yeah, he Scalia. Has only been on the court yeah, and that's what they're doing. That is literally what they are doing. Scalia has been on court for five years at this time, and this is senior yeah, these are esteemed conservative jurists saying, "You get out of of here with your crazy originalist ideas. Um, we don't accept that." Um, those were the days. So that's the plurality opinion. They reaffirm the central holding of Roe. They change the trimester approach to the viability approach, which we will see in the next episode what some of the implications of that are. And they reaffirma the central concept that the right to abortion is part of the notion of substantive due process, of these basic fundamental liberties that might not be spelled out in the Constitution, like the right marriage, but are nevertheless part of the ordered concept of liberty that is inherent to a free society. And so, in a situation where it looked like you might have a 7-2 majority to overturn Roe v. Wade, the go big or go home resulted in the anti-Roe forces going home.

0:42:19 Thomas: Hazing him. Yeah, boy, those were the days, huh? So

0:43:23 Andrew: And that framework of Planned Parenthood versus Casey is what stands today. And in part two, I think we'll draw some parallels and talk about what does it mean for an upcoming Trump appointee on the Supreme Court

0:43:42 Thomas: Yeah, all all right, looking forward to part two. And, by the way, patrons over Patreon.com/law, we should be able to make this one available early for you. All Right. Time for breaking down the law. Everyone's favorite segment just because because of the ridiculous intro. Class

0:43:53 Clip: The law breaking down

0:44:07 Andrew: That remains. I never there is never a point when I'm listening to our episodes that I do not smile when breaking down the law. Yeah.

0:44:15 Thomas: Well, you can smile and break down this for me. Class action lawsuits. Break it down.

0:44:21 Andrew: And class actions are an interesting vehicle. So it's kind of confusing, because you can have multiple parties in a lawsuit, right? Even if it's just plaintiff versus defendant, you could have 20 plaintiffs versus 50 defendants, for example. And while that would be confusing, potentially confusing, that's not a class action, A right? Class action is a special kind of lawsuit that you bring when identifying each and every member that belongs on a certain side of the equation is impractical. Okay, that is the exact language that is used in the Federal Rules of Civil Procedure. So let me give you a classic example. This is one of the most famous class action lawsuits of all time. It involved the Ford Pinto, which was an exceptionally cheap car that was produced in the late 1970s. And the Ford Pinto had a defect in its construction such that when hit from behind, the car would explode, okay?

0:45:01 Thomas: Hmm. Right. Yeah,

0:45:32 Andrew: Which is, yeah, which is a bad thing. And what makes it a really famous case in tort law, in civil damages,

0:45:32 Thomas: It's probably not good. Not a good way to make a car. Oh, do I know this? Wasn't it because they decided, maybe this is what you're talking about, but isn't it? Because they decided that it wasn't worth the money to fix it. Like they they would just deal with the legal costs rather than fix it.

0:45:47 Andrew: That's exactly right. Right. So What happened was, they internally, they discovered that there was this flaw. And then what Ford decided to do was, instead of recalling the Pinto, they went to their accountants and said, "OK, we want you to run up some numbers for us." Right. And the first is, what's, what would it cost us to recall the Pento and fix the defect? Effect. And then the second is, how often is this likely, that because it was not just every time it was hit from behind, it would blow up, like, there, there was, there had to be a certain, uh,

0:45:53 Thomas: Oh, cool.

0:46:24 Thomas: Certain amount of force or something.

0:46:26 Andrew: Well, but also there had be a sequence of events. Like it, it was not just every time you were hit from by, you had to be hit from behind, like, when you were engaging into fourth gear. So I don't remember the precise precondition, right? But like it was a, a cascade of events, it was an unlikely occurrence. And so what, what they said was, so first, run up the costs of a recall. And second, why don't you model the costs of how often do we think this is likely to happen? And what are we going to have to pay out in settlements, right? For when people, when it blows up and people die. And so their accountants went to the actuarial tables and modeled it. And they came back with the following piece of advice, which I can give to you because this is not quite taking legal advice from a podcast. Your career, if someone ever asks you to model, can you model do the right thing versus pay off lots of lawsuits when people die, you might not want to do that work, right? You, yeah, yeah.

0:46:37 Thomas: Oh really? Okay. Right.

0:47:21 Thomas: I feel like this is, if someone asks you, if you're a God, you say yes.

0:47:29 Andrew: If someone asks you, is it cheaper for us to pay off lawsuits in settlements settlements uh than to fix a problem that will murder children uh you should maybe say no no it isn't uh but but as it turned out

0:47:40 Thomas: Okay. Yeah. This is, this is maybe, so you're saying this is the one time maybe take advice from this podcast. This isn't really legal advice. It's more right.

0:47:42 Andrew: Yeah not legal not legal advice yeah this

0:47:48 Thomas: Yeah, it's more. Okay, Okay, good.

0:47:48 Andrew: Is this is just good common sense

0:47:50 Thomas: Clarification.

0:47:50 Andrew: Um, so they got this internal memo that said, yeah, you know, it's going to be a lot more expensive to do the recall, and so Ford said, okay, cool, so we'll just pay off settlements Whenever, yeah, whatever people blow up. Um, and so as it happens in a, in a civil lawsuit, are entitled to discovery. And so the, the other side, uh, got access to all the internal memoranda, you know, to Ford's board of directors and about, the uh. Pinto and eventually the document was turned over that, that showed this and that was used, uh as the basis for punitive damages because it was, beyond, we talked about the analogous sort of gross negligence standard, but, you Know, it was it was It showed either gross negligents or specific intent to harm because yeah, I mean, they were given the option of, you

0:47:58 Thomas: Dead children.

0:48:13 Thomas: Not good.

0:48:37 Andrew: Could fix this.

0:48:37 Thomas: So does that mean they were personally liable? Like it was that bad that those people were personally liable or was it just...

0:48:40 Andrew: No, what it meant, what It meant was that that Ford, in addition to paying the actual costs costs of having blown up children, uh, had to pay punitive damages on top of it. Right. So that's, uh, that was the significance there. But, um, all of that fun story about the Ford Pinto, um, that Was a class action because if you think about it, um. Who is your class of plaintiffs in that case? Right. Like who's been harmed?

0:48:51 Thomas: Okay.

0:49:04 Thomas: Does it count if it didn't happen to you? Is it just everybody who bought a Pinto that it might happen or is it just people who it did happen to?

0:49:11 Andrew: Yeah, no, it's just right. It's just people who bought the pinto and it blew up, right? But if you want to prove it, remember Ford's model was based on taking these lawsuits one at a time and settling them out, right, and just paying people off. What you can do is aggregate all of the cases together and just prove it once, right, which is what the plaintiffs did in that case. But it would not be practical to take several thousand people, and A, I mean, you'd have to find them all, right? So what you do is you bring something as a class action, okay? And when you bring something as class action—this is governed by Rule 23 of the Federal Rules of Civil Procedure—you say, okay, there's one kind of injury. This is for plaintiffs. You can have class defendants. It's more rare, and I'm just not going to go into it in this segment. Right.

0:49:16 Thomas: Oh, okay.

0:50:01 Thomas: Get into it

0:50:02 Andrew: Yeah. So most, almost all class cases are plaintiff class cases. And what happens is you have one kind of injury, right? And lots and lots of people who suffer as a result of the injury. And so you say, we're just going to sue once. And you get named representatives of the class. And then there's a separate hearing. It's called a Rule 23 hearing in which you decide if, if those representatives are appropriate to represent the class and will cover all of the interests of everybody in the class. So the way, and if they do, if they meet all the requirements of Federal Rule 23, go forward and instead of hearing testimony from 5,000 Ford Pinto victims, you hear testimony from three people who are the class representatives.

0:50:02 Thomas: Later. I

0:50:52 Andrew: So you you can prove the case in kind of a more streamlined way, and then the verdict runs to the entire class a couple little caveats that I'm about to explain. One of the things that's a challenge about class litigation is if people suffer from the single wrong in multiple ways, right, you could argue that the class representatives are not good representatives of, you know, kind of all of the members. Right. So, for example, consider lead paint claims. Right. Like know that ingesting lead paint can cause damage in very, very small children. Right. But it affects different people differently.

0:51:38 Andrew: Right? Like it would affect, I don't know if you have an adult eating lead paint off his walls for some reason. And, um, yeah, right.

0:51:43 Thomas: Do that. Yeah, I dothat from time to Time. Yeah.

0:51:45 Andrew: It would affect the adult differently than it would affect a seven-year-old differently than it would effect a toddler differently than That would affect, you know, an infant. And so, you know, you would want to make sure that your class, that the defendants would argue that if you just had, um, class, your class representatives were, uh, now who ate paint as a kid, you would say okay but like that's not representative of the full class that you want them to represent so there are a lot of complex issues with related that the the real area in which you see a lot class actions in which a lot of people are familiar are antitrust class actions because those are situations where it's shown that a manufacturer of a product has been able to overcharge for a particular product. And then the class is really, really easy to determine because it's the class of everybody who bought that product.

0:51:50 Thomas: Hmm. Well,

0:52:38 Andrew: Right. And they've all suffered. They've all engaged in exactly the same conduct and they've also suffered exactly the the same injury. Right. So, for example, yeah.

0:52:45 Thomas: But That's why I was asking you though, like, I mean, I don't know how much the details matter, but it was it just everyone who bought a Pinto or did they have to have something actually happen to them?

0:52:53 Andrew: Yeah, it was the the class was defined as those people. I believe it was defined als I think there were multiple classes. There were people who suffered injuries and people who died as a result of the explosion. Right? So you had to it was a class of people who were in exploded pintos. There was, I believe subsequent litigation on behalf of all Pinto owners, because, you know, once you're told, by the way, your car has a certain risk of exploding, you would have certain consumer protection rights because,you know, you thought you were buying a car that was a non-exploding car.

So that shows kind of another aspect of this where you can have subclasses of plaintiffs, But each subclass has to have a representative that represents that subclass, right, that has that suffered the same injury in the same way. And again, I'm alighting over a lot of the things if our listeners are super interested, we can do a deeper dive on this. But but I guess the real point on understanding class action versus individual is that the phrase gets thrown out a lot in movies, in public news and that sort of thing. If the if you have everybody is actually present in the courtroom. Right. Even if it's hundreds of people, then that's not a class action. Class action is on behalf

0:53:40 Thomas: Okay. Okay.

0:54:16 Andrew: Of somebody else.

0:54:15 Thomas: So That's The key Distinction. Is there a limit to how many you can have in a not class action lawsuit?

0:54:17 Andrew: Yep. there'S a, a practical limit, um, you know, fitting people in the courtroom, but no, I mean, no, yeah, no. If it, well, and, and I have

0:54:23 Thomas: I'm Just Wondering, so What I'm imagining is when all our listeners sue you because you got something wrong, I'm juste wondering, you Know? No, this is going to be individually because you never told them to not take legal advice from a podcast. I'm pretty sure I could not. I could Not wait until there's a lawsuit for this. If there ever is, I will say, hold on, let me go back and I will get every time you've said that Will be and I will make the the whoever suing you sit there and listen to 48 at consecutive hours of you saying, now remember, don't Take live in just forever. I can't wait.

0:54:40 Andrew: Said, don't take legal advice from a podcast. Gas. I

0:55:04 Thomas: That'll be fun. Fine.

0:55:01 Andrew: Have That's By The Way, I

0:55:04 Thomas: It'll be worth it.

0:55:04 Andrew: Mean, You're- You're cracking a joke, but that's exactly that's

0:55:07 Thomas: It's what we would do.

0:55:08 Andrew: Actually how I would begin, uh, my defense if That actually Happened. Um, So, yeah, no, the reason that there's a trend towards, um, aggregating together you dozens of people, even hundreds of people, and naming them all individually is because in the past 30 years, there's been an increasing trend at the federal court level of courts deciding on that class representatives do not meet the requirements. They're not adequate. They're not typical. They're not representative of the class. Under the Rule 23 analysis, it's become harder and harder to prove, particularly in mass tort cases, of which the Ford Pinto is an example, right? Because, you know, if you think about it, right, when the car explodes, you know, everybody experiences that injury a little bit differently, and 30 years ago, 35 years ago, 40 years ago, courts were more flexible in saying, yeah, yeah, we get it, but, you know, the the net result is a whole bunch of have exploded kids.

0:55:11 Thomas: Yeah. Yeah, right.

0:56:07 Andrew: We're going to let you go forward. And today, in my experience, there is considerable more scrutiny.

0:56:13 Thomas: Are they more strict about it?

0:56:14 Andrew: Yeah, that's exactly right. So you get around that. You have to meet an additional hurdle to have your class certified. You can get around that. If you found every last person, you can name them all individually.

0:56:16 Thomas: Yeah. Oh, I got, I've got a question for you. Sorry to, I was just probably dragging on too long, but is a class action lawsuit by definition, does that have to be like a federal lawsuit because the people are everywhere or does that not matter?

0:56:27 Andrew: Sure.

0:56:40 Andrew: That is a really good really good question. Um, are bringing in the, our prior discussion on diversity jurisdiction in federal court. So yes, uh, when you have, um, complete diversity, right, which is to say that the, all of the plaintiffs, uh and all of defendants are in different states, uh that gets gets you into federal court.

0:56:50 Thomas: Right.

0:57:02 Thomas: Well, the defendant might be in one state, right? I mean, if you're just suing Ford or something, are they in, or, but they're doing business. And do

0:57:06 Andrew: Right. But but but what I mean by that, well, no, but but what I means by that is if Ford is a resident of Michigan, let's say, then you need to not have a Michigan plaintiff. Otherwise, you if you have one Michigan plaintiffs that defeats complete diversity, all of your plaintiffs have to be from states other than Michigan in order to have diversity jurisdiction in federal court. Diversity means, right, because if you think about it in the one-on-one, right? That is, you're from California, defendant's from Michigan, you get into federal court to avoid the Homer problem. But if you have two plaintiffs and one's from California and one's from Michigan and the defendant is from Michigan, then you don't have complete, you don'T have complete diversity and therefore you donT get diversity jurisdiction in federal court.

0:57:57 Thomas: Right.

0:57:57 Andrew: So, yeah.

0:57:58 Thomas: But when it's a class action, you don't know who they all are. So that's why I was thinking, do you just assume?

0:58:01 Andrew: And, and the, the, I mean, the answer is that it's a mechanism provided by in the federal rules. So you have to establish that you have a federal, uh, you have have a reason to be in federal court in the first place. Now it's really, really easy to cross, you know, the, the the minimum $75,000 rule in, in federal court. And it's really, really easy to get named plaintiffs who are outside the home jurisdiction of the person that you're suing. So easy to get into federal court that way. And then, you know you're you abide by the procedures that were set forth okay yeah

0:58:04 Thomas: Yeah. Okay.

0:58:37 Thomas: Okay, cool. Thanks for breaking that down.

0:58:40 Clip: Oh, no associate of this firm has ever failed the bar exam., No kidding., Thank you.

0:58:46 Thomas: All right. Time. Hey, it's time to get back to it. Our favorite segment now. Thomas takes the bar exam. I am one for one. I've got a perfect score. I'm really, I'm sitting on a perfect, I're going for 200 for 200. I mean, I mean I'm on easily on pace for that, right? I mean. I did, I put it into the calculator. I seem to be.

0:59:00 Andrew: Yeah. I I would be disappointed actually If you don't go 200 for 200 all

0:59:07 Thomas: Let's hear it. Question two. I m one for 1. Here we go.

0:59:09 Andrew: Right. Question two. An inexperienced bicycle rider took her new bike for a test run. Yeah, at an intersection. She could not stop for a red light and went into the intersection, where she slipped off the bike. While attempting to remount it, a car coming into the intersection with a green light ran her over, causing severe injuries. The car driver was distracted by his cell phone and received a careless driving ticket from the police. The woman filed a claim for damages, asserting that the car driver wasn't the one who caused the accident. The woman was negligent per se. She claimed that a finding of negligence per se prevented the driver from asserting comparative negligence under a state statute. Will the trial court likely grant the woman's motion to preclude the man's attempted comparative negligance defense? And I should add, yeah,

0:59:16 Thomas: I already love this question.

1:00:03 Thomas: Yeah, what the hell,

1:00:03 Andrew: So in states, actually not the case in Maryland, through a weird quirk, but in most states, so this is a standard question of negligence, right? That is when you owe a duty to someone and you fail to exercise proper care. So driving through an intersection when you're distracted by your cell phone. That's outside the standard of care. And you run somebody over because the argument would be if you weren't distracted by your cell phone, you would have noticed a woman lying in the middle of the intersection.

1:00:04 Thomas: Man?

1:00:33 Thomas: Uh-huh.

1:00:33 Andrew: So that's the negligence action. A comparative negligence defense. Right. Says, OK, I may be negligent, but you have also contributed to this problem. And so we should weigh the amount of the negligence that you, the plaintiff, have contributed and reduce my liability by that percentage. And contribute this this comparative negligence defense replaced in most states an earlier doctrine called contributory negligence, which was just a binary question. Right. So it used to be in many states you would say, oh, you know, you're negligent. And then the defendant would say no, no, but you contributed to the negligence. And if you contributed to the negligence, then it was everybody gets to go free. Right. So yeah.

1:00:34 Thomas: Okay. Wow.

1:01:26 Thomas: So this is all we're already cheating because you're explaining too much of this but uh that was in my I just happened to read that in my review before I uh came here to answer this question uh-uh

1:01:28 Andrew: Yeah. Well, but I'm explaining. Yeah, right. Yeah this is something it is you. It's perfectly reasonable that you would know as as a hotshot young would be lawyer. You would know.

1:01:42 Thomas: Yeah yeah you were just explaining it to the listeners I understand I could have done it but uh your speaking voice is better so I just wanted you to explain it uh not me.

1:01:44 Andrew: Yeah right. Exactly. Yeah Yeah, no, it's I obviously you knew that. OK, so,

1:01:52 Thomas: So what am I? Did we get to the question?

1:01:53 Andrew: Yeah. So that's the question. The question is, the question is will the trial court likely grant the woman that's the accident victim, the plaintiff's motion to preclude the man, the defendant's attempted comparative negligence defense. OK, yes. So he's going to raise comparative negligences and say, OK, whatever you prove.

1:02:02 Thomas: Okay. I think I get it. We're both kind of negligent, right? He's trying to say we're both kind of negligent. She's trying to say, no, no way. Your negligence should preclude any of mine.

1:02:16 Andrew: Yeah, right. Right. Right. Because remember, she ran the red light. So as with before, we have four answers and, answer A, yes, because the driver had the last clear chance to avoid the accident, which abrogates the comparative negligence law. B, yes. Because negligence per se is a final judgment of total negligence against the driver and it cannot be modified or rebutted.

1:02:26 Thomas: Okay.

1:02:47 Thomas: I'm sorry. Did he get charged with negligence per se? I thought she was was saying it would be negligence.

1:02:52 Andrew: She's claimed that. There is no, yes, right, yeah.

1:02:55 Thomas: Claim that. She, he hasn't. Okay. Gotcha.

1:02:57 Andrew: Those are the two yes answers.

1:02:58 Thomas: So that, that's, that sounds like the second. So B so far sounds like nonsense to me unless I'm missing something. Go ahead.

1:03:02 Andrew: C, no, because the common law doctrine of negligence per se does not abrogate the defendant's right to apportion fault under the comparative negligence statute. And D, D, the intersection knowing it was a red light, thereby putting herself voluntarily and knowingly in danger, and she assumed the risk.

1:03:13 Thomas: Okay.

1:03:24 Thomas: Can you read C one more time? That was a bit of a weird one.

1:03:27 Andrew: No because the common law doctrine of negligence per se does not abrogate the defendant's right to apportion fault under the comparative negligence statute.

1:03:36 Thomas: So, that is interesting. So. That sounds like it would sort of be more of a technicality. Like, that seems like what she is even trying to assert wouldn't work even if it were true to So, man, I feel like this is a hard one. This is a really hard one Um, feel like B was kind of nonsense. I think D was, uh, can you read me D one more time?

1:03:59 Andrew: Is No.

1:04:00 Thomas: I'll probably cut it out.

1:04:00 Andrew: Because she entered the the intersection knowing it was a red light, thereby putting herself voluntarily and knowingly in danger and she assumed the risk.

1:04:03 Thomas: Okay. I I Feel Like D Can't Be Right. Don't Maybe It's Just Because I'm In California, And I FeelLike We're Pretty Hard On Cell Phones, But I Just Kind Of Feel Like That Trumps Everything Else. Else. So for that reason, I was leaning toward an A answer, sorry, an A or B answer. But the C answer is pretty tough because that is plain old law school knowledge that I'm studying knowledge that I don't have, I feel like. I'm going to go with A for this one. I don't think I'

1:04:37 Andrew: All. Right, so, uh, you have answered A, and we will find out, uh, if you are correct on next week's episode and please continue to to play along, uh, and the way in which you play along is, Thomas, let

1:04:45 Thomas: M law as well. Make Sure You Follow at Open Args. That's our Twitter account, of course. And make sure you find the episode for the tweet for this episode and retweet, and quote, and in your quote, you put your answer and a little bit of reasoning and you can get creative. You can screenshot something if you wish, but you saw who won last time. That was pretty unbeatable. Maybe you'll be the next person to come up with one of those unbeatible answers. Still tons of support flooding in. We can't tell you how grateful we are. Going to be another Law'd Awful Movies this month. You know what? I spilled the beans over on Atheistically Speaking.

1:05:30 Thomas: I don't know if you caught that, Andrew, but we are planning on doing Miracle on 34th Street, a Christmas theme for this month's lot awful movie. You don't want to miss that. That is a ton of fun. It's really funny. I think a lot of people, I think these pledges are showing that they want to check out that bonus content and they should because it's really funny and it's Also informative too. So let's thank our new patrons. What do you think? I want to thank Logan, Frank Aponte, Seth L, Travis Peterson, Sarah McLean, Shelly Liebman, Pumpkin Spice, Dan Hyman, Donovan, Morgan Mata, David. Thank you, The Wayward Willis. Thank you Gallaroo, thank you Starside, the lawless one, Richard Stewart, Ben Wilcox, Austin Parks, Richard

1:05:29 Andrew: I did Awesome.

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1:06:24 Thomas: And

1:06:24 Andrew: To Kristin Mendez, Nicole Jason Groutwell, Sarah Charlton, Jeffrey Smith, Mark Landis, Jaded Zappa, Adrian Parks, Larry McLaren, Sarah Ostermeyer, Terry Niemeyer, Joshua Mostite, Daniel Fox, and Malice of Forethought. Good name. Thanks to all of you, uh, new patrons, for pledging over at patreon.com and

1:06:49 Thomas: Of course, we've got to thank our Hall of Fame patrons. If you want to be a Hall of Fame patron, just simply pledge $5 or more over on patreon.com/law and they are Roger Metcalf, Danny Rosari, Eli Eli Bosnick, Dave Nichols of Positively Doubtful Podcasts. See, you get your name out there, too. Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Leon Hartley, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall, John Bodley, Heath Enwright, Jeffrey Maynor, The Wayward Willis, and Matthew Maxson, Detective Maxson.

1:07:26 Andrew: Also thank you to Hunter Ash, Michael Kylie Reiser, Jeff S Sakashite Fukasumi Propanic, Philip Stromberg, Michael Schaefer, Zabby Frederick Alstromer, Sammy Conrad Michaels, and our top patron, the Inciting Incident Podcast. Thank you all so much for being our Hall of Fame patrons.

1:07:47 Thomas: Absolutely. All right. Right. Look forward to part two on this and not just part two on this abortion case. That'll be the answer to what everyone has been waiting for. The Thomas takes the bar exam question two. And of course, we'll have another question in there for you. So all that early over on Patreon. Thanks for listening. Thanks for another great show, Andrew. And we'll see you next time.

1:07:59 Andrew: All

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