OA28: Abortion and Planned Parenthood v. Casey, Part 2

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. I'm Thomas Smith. How are you doing, Andrew Torrez?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: Oh, I'm doing great. You know, I've been stressing a little bit about this exam. I don't know if you know, but I'm trying to pass the bar. Do you have any experience with it? Do you know anything about it? Yeah, you probably don't. But I'm trying to pass it. I am really worried, so I'm a little anxious about that. But it should be good. I think I've studied hard. I think I know my stuff. Let's, uh, so maybe, maybe we should find out if I answered a second question correctly. What do you think?

0:01:50 Andrew: Yeah, well, let's check in. So last week we had the question that involved accident negligence, right? We had the biker who went through a stop sign, went into the intersection and was run over by a driver who was on his cell And so the question, oh,

0:02:08 Thomas: Okay. So I wasn't sure how to answer this. So what I did is I actually recreated the entire thing. So, I had someone ride a bike into an intersection and then I talked to him. Yeah. So. I, know, pending litigation. So I haven't found out yet, but eventually it sounds like I'm going to find out from you first, but I'll confirm the answer later when I go through this in court.

0:02:17 Andrew: Right.

0:02:26 Andrew: So then the question was accident victim, the woman on the bike, was going to move to preclude a defense of comparative negligence, a statutory defense of competitive negligence. Um, and the question was, is she likely to, to, to prevail on that? As usual in a yes, no question, the bar exam gives you four answers. Um, so you have to not only get, uh. The yes or the no correct. Uh, you also have to understand why, um. And our four answers were 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.

0:03:12 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. Or D. No because she, the plaintiff, entered the intersection knowing it was a red light, thereby putting herself voluntarily and knowingly in danger, and she assumed the risk. You guessed A.

0:03:34 Thomas: I would say that C was one that I thought could be right, but I just, you know, that's, that would be my, I would go in order of how I think it would be. It would be A, C, D, and then B, but that's my ordering. So, I want to see how wrong I am. I I can't wait for the correct answer to be B.

0:03:50 Andrew: A. So the answer is, unfortunately, you are wrong, but you were almost right in the sense that that A was the incorrect answer and C was the correct answer. And so let me let me talk about this a little bit. I think this is a, this is a good illustration of this, the kind of question where a year from now, now you're going to get this right because last clear chance is actually a specific legal doctrine. And if you had gone to law school, you would have been able to eliminate A as an answer because the last clear change doctrine is, we talked a little bit about the difference between comparative and contributory negligence when you answered the question, of a hint on that. And contributory negligence is the common law doctrine that says if the plaintiff was responsible for, contributed to the negligence, then the courts kind of throw up their hands and say, eh, we're not going to deal with this, right?

0:04:02 Thomas: Sure. Right.

0:04:52 Andrew: You helped cause the problem.

0:04:53 Thomas: Well, I was curious. Is it always 50-50 or do they just maybe adjust like a penalty? You know what I mean? Like, is it always?

0:05:00 Andrew: Well, that's right.

0:05:01 Thomas: Go ahead.

0:05:01 Andrew: And that's what the move from contributory negligence says, oh, you were a part of this. Forget it. We're throwing up our hands. We don't care. Contributory negligence says, well, why don't we not, you know, if the plaintiff was 1% contributed to the accident and 1% of the negligence, but the defendant was responsible for the other 99%, let's apportion the fault in accordance with the relative responsibilities, Right? So that's what the the move does. So that's a really good insight there.

0:05:29 Thomas: Right. Okay.

0:05:33 Andrew: Um, so but but under the old common law system. And when you think common law, I, I'm not kidding, you should think about like 14th century English codes of chivalry, because plenty of this, yeah.

0:05:44 Thomas: Wow. Yeah, there are a lot of intersections and cell phone driving back then. And just, yeah, all the time they're figuring that out. You

0:05:51 Andrew: But But particularly when it comes to both, um, negligence and to and a property law

0:05:55 Thomas: Were looking at your parchment while you were driving your carriage and you have run over my boy. Yeah, yeah.

0:05:56 Andrew: Yeah Right. And a lot of these principles do go back to the founding of this country. I mean, they go back seven, eight, nine centuries. So last clear chance is a defense to contributory negligence that says if the plaintiff had the last clear chance to avoid the accident and failed to exercise it, that abrogates notion of contributory negligence. But it's kind of an attractive distractor here because it would would have no effect on a statute. So ultimately, what this question is asking, the question is asking, you have a common law notion of negligence per se, and you have a statute in this hypothetical state.

0:06:06 Thomas: The

0:06:52 Andrew: And remember, this is a multi-state exam, so we never look at any particular state's laws, but you can say, what if X random state passes a law? And if X random state passes a law changing the common law from contributory to comparative negligence, then the question is, does the common-law doctrine of negligence per se, that is, when you break the law, you are automatically found to be negligent, right? Does that abrogate the, uh, operation of the statute? And the answer, as you now know, is no, it doesn't abrogate the statute, right? So in other words, um, the way the hierarchy works is common law is operative within a jurisdiction, uh, unless, uh, the legislature gets, gets together and says, well, we want to change this rule because, you know, it was meant to apply to parchment and horses and carriages from 800 years. And we want to change it to something that reflects, you know, what the citizenry agrees to today. And so statutory laws trump common laws, unless the statute says otherwise. So even though this was disguised as a negligence question, it's actually a question of hierarchy of

0:07:32 Thomas: No you know

0:08:13 Andrew: Laws, right?

0:08:14 Thomas: Just to help me understand. And maybe the audience could, you now, given that understanding, could you read C one more time? Okay.

0:08:14 Andrew: Right? C says 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.

0:08:31 Thomas: Well, I'm still confused. I'll have to

0:08:32 Andrew: Yeah. Well, so the question concludes with the plaint she the plaintiff claimed that a a finding of negligence per se prevented the driver, the defendant, from asserting comparative negligence under a state statute? Will the trial court grant the motion to preclude the attempted comparative negligence defense? So, right, Yeah. So the key part of the question is not figure out who's responsible for the accident. The key part of the question, question is, uh, does a common law, uh, determination trump the operation of the statute

0:08:49 Thomas: Oh, I get it now. Okay, right. Oh let me yeah Let me ask you this, maybe this will help clarify. So this motion that she's filing or whatever, will, will, it's according to this answer, it will be denied because it doesn't, the per se doesn't trump whatever the statute thing is, right? But But that doesn't mean that they're not going to say, well, he was pretty much entirely responsible though, right? Like, okay, got it.

0:09:32 Thomas: So this is a pretty technical question. This is one that's

0:09:23 Andrew: Exactly that's exactly right, yeah. Remember comparative yeah it is, this is a tough one.

0:09:34 Thomas: Going to be a little harder for non-lawyers. I mean, I went to Harvard Law. I'm in the top five of my class and everything. But for those non-laws, I'm going to go with Harvard Law, Harvard Law is a good one.

0:09:35 Andrew: Right. Top wait wait Wait, did you say you were in the top five percent of your class?

0:09:45 Thomas: No, no, no. I said top five. Let's get that very clear.

0:09:48 Andrew: Oh, all right.

0:09:50 Thomas: Law'd Awful Movies reference. Everyone go patreon.com/law. Make sure you watch it. I get it. So this is a pretty technical one. I got you, you, you tripped me up a little bit. The bar it's, it's not easy. I'm now, uh, it sounds like I'm 50%. Ooh, man. I went from, oh, changes my outlook a little bit. I went form easy, you know, a hundred percent perfect test. I thought I was getting to now I'm getting an F I need to, I need a, hopefully next one. I can improve my average a little bit, huh?

0:10:06 Andrew: Yeah, I will tell you, I'll be very interested to know experience as we go through. And hopefully as we get through 200 bar exam questions the way I had to take them, thought in doing practice exams and taking the actual bar exam that of the 200 questions, 100 were pretty easy. And it was the next hundred had Varying degrees of difficulty and I sort of learned how to characterize them right Like there are some that are just um deliberately deceptive, there are some, um, employ the device, and we saw some of our uh Twitter responses uh use this, uh, there There were some that employed the device of picking the dumbest sounding answer to be correct.

0:10:36 Thomas: Okay. Yeah. Hmm. Yeah.

0:11:03 Andrew: And then, you know, there are lots of other categories. But I felt like you had a 50-50 shot of getting a question that was pretty easy on the bar. And I'll be curious how you feel about that. I think this is a tough question.

0:11:11 Thomas: Okay. Okay. All right. So I should hope I get at least 50%. Yeah. So you would find you'd count this as a, what's the difficulty level of this question? Do you think?

0:11:17 Andrew: Yeah. Yeah, I would say on a one to a 10 for look for an armature. This is a 10. For a law student.

0:11:29 Thomas: Yeah. Okay. Okay, all right. I don't feel so bad then. Don't feel so about everybody.

0:11:33 Andrew: Yeah, this is this is a seven, right?

0:11:35 Thomas: All right. All right. Fair enough. Well, there you go.

0:11:37 Andrew: So I think you did. I think he did. I think she did. I think I think that you did well. And I think. You had a sense of. You liked a. But. Your second choice was C. And, you know, we should recognize that. So.

0:11:46 Thomas: Yeah. Well thank you. I appreciate that. Alright, it's time to look at our winner on Twitter. By the way, this is quoting and retweeting open args, at open arg, with the best answer of the week. And, Andrew, you've got the winner. Who is it? Yeah,

0:11:50 Andrew: Yeah, our winner this week is Charone Frankel, who, again, I'm not necessarily encouraging people to post ridiculously lengthy answers and screenshot them, but she got it right and went through and I liked her reasoning on all the answers. So that is at C-H-A-R-O-N-E-F, and she interacts with us all the time on Facebook. Give her a follow. She says, A, A, no, because last clear chance is for contributory negligence and not comparative negligence. She was the only person to get that aspect of the trick question right that kind of tripped you up. So then she adds, also, the biker

0:12:40 Thomas: Let's rub that in some more. No, I'm just kidding.

0:12:43 Andrew: Did not raise last clear chance in her motion. So W right there. Then she says, like you, she was tempted to choose B because the question ambiguously suggests that these litigants live in a state where the law does prohibit a comparative negligance defense in a negligence per se case. However, I think this is probably just bad question writing. Maybe the author went to Harvard.

0:13:04 Andrew: Then C, I choose this answer, which was correct. The cell phone violation meets the elements of negligence per se, and to my knowledge, there's nothing in the restatement or whatnot precluding the defense of comparative negligence. That is correct. And D, she says, no, this answer is bullshit for a lot of reasons. So thank you, Sharon. We thought those were terrific answers, and you got it right. I also want to give a shout out to Skeptical Belgorath who answered first A and then C and linked us to Pee Wee Herman which is always fun even if it's not right so shout out to you too

0:13:04 Thomas: Yeah, thanks a lot for all the participation on that. It's really fun.

0:13:40 Clip: He who questions training, only trains himself at asking questions. What?

0:13:48 Thomas: All right we need to get to our listener question for for the day. Now, a lot of people have asked us this. We don't have a specific name because many listeners messaged us this somebody did somebody messaged to me, I think to like notified you. So that's always good. I love when we can answer things that a lot of people are wondering about. There is a news story about Sofia Vergara. And, you know, I already knew this because I just I'm on Sofia Vergaras.

Just I have a Google alert, anything involving her. I'm I'm already there. So I already knew. But for everybody else, sorry, I'm a fan. For everybody else, it turns out her frozen embryos, Emma and Isabella, are suing her. So let me read a little bit of this to get the background for everybody. Sofia Vergara is said to have broken up with her fiance. Hold on. Never mind. I need to call, make some calls. No. After she took him to the White House and tried to get President Obama to pose for a photo with a container of the hot dog topping he invented. What the? One would think, especially

0:14:39 Andrew: What

0:14:48 Thomas: If one were one of the most beautiful and well-paid actresses in the world, that things could not get worse relationship wise. That is weird. This is from Slate, by the way. What What the hell? That was weird. It's a little gossipy. That was before the now ex-fiance, Nick Loeb, or something. I don't know how you pronounce that. Launched a years-long legal crusade over two frozen embryos. That crusade reached an absurd new low this week. Well, we'll decide that. When the embryos themselves sued Vergara in Louisiana. As Page Six first reported, that suit lists them as plaintiffs, Emma and Isabella, and claims that because they have not been born,

0:14:48 Andrew: So

0:15:27 Thomas: Interesting. I think that's enough of my explanation. So I suppose the question would be, do they have standing? Do these embryos have standing? That seems I can attempt my Thomas takes the bar exam answer. I mean, I wouldn't say this is like super open and check, because it's it is interesting to think about if there's money in a trust that they laid out for their future kids, and they were planning to do this, maybe there could be some sort of contractual reason where I could see there might be something here, you know, but in general, I would say as then for them being plaintiffs, I don't it seems pretty crazy to me. I don't know, but let's, let's hear from the lawyer. What do you think?

0:16:10 Andrew: Uh a couple of things here um the first thing I do if if I uh represent a defendant, which I typically do. I do more defense work than plaintiff's work. And my client has received a lawsuit. The first thing I do is I flip the lawsuit over and look at the last page. Okay. And the last stage can...

0:16:30 Thomas: Because you're very lazy lawyer

0:16:32 Andrew: I don't even want to read any of this. No. The last page is useful because it is the signature block of the lawyers that filed this lawsuit. And you may recall we We talked about this a little bit on an episode of Atheistically Speaking of, you gives you some sense of what you're up against. Right. So.

0:16:32 Thomas: And you just assume if you see Saul Goodman or Thomas Smith or anything like that, you know, like, okay, this is, this total BS.

0:16:55 Andrew: Right. Right, yeah. So you flip to there's a 46 page lawsuit and if you flipped to page 46, it is signed by James L. Arubarena, Louisiana lawyer. This lawsuit, by the way, is brought in Louisiana and by the sound legal group, PLLC, Catherine Glenn Foster. And then there's a little parenthetical that says pro hoc vice application forthcoming attorneys for petitioners and plaintiffs. And thought this was a really useful opportunity to sort of talk about how the law gets practiced. So does that pro hoc vice application forthcoming mean?

0:17:38 Thomas: I don't know. I, as soon as you said that I went into like a kind of a coma, I just was like, Mary, yeah, no, no idea.

0:17:42 Andrew: I know, Latin has this effect on people. But basically, this is something I do all the time. I am admitted in Maryland and D.C. And so if I have a client in Indiana who's sued in Indiana, I'm not a member of the Indiana Bar. However, I can argue a case in Indiana by hiring an Indiana lawyer as local counsel, convincing that lawyer that I am not a charlatan or buffoon. And then that lawyer moves my admission pro hoc vice, and that's vice spelled like vice, like Miami Vice, to

0:17:44 Thomas: Yeah. Oh, so

0:18:22 Andrew: Admission to the court for that case. Right. And so basically, then the court, assuming that I am in good standing and I have somebody in Indiana who's willing to vouch for me, the court will accept my admission and it's like I am an Indiana lawyer. Okay.

0:18:39 Thomas: Is this kind of like what happened when I watched the OJ documentary they brought in, uh, didn't they bring in Dershowitz or am I crazy?

0:18:45 Andrew: Yeah. My, my old buddy, Alan Dershowitz. So, um, no, it doesn't matter. It, it, so the rule is to, uh, practice in a state you must be admitted in the bar in that state, or in a particular case, you have to be admitted, uh pro hac vice.

0:18:45 Thomas: Yeah. Yeah, so, is that kind of, like that or is it different when when it's criminal, does it matter?

0:19:04 Thomas: Cool.

0:19:04 Andrew: So, when I look at, at that signature block and I see somebody who is admitted pro hac vice, that tells me that's the lawyer who's driving the litigation. Because there would be no need if it were reversed. Right. If it were Aruba Raina who was driving this case, you wouldn't bring in somebody from D.C. and admit them pro hoc. Right? You know, I mean, you would just take care of it on your own. There's no need to do that. Um, uh, so who is Catherine Glenn Foster? Uh, it says at the bottom, uh she is part of soundlegalgroup.org. Um, interestingly, if you google soundlegagroup.plc or if you go to soundlegalgroup dot org, I, in fact, I'm not even going to tell you what happens when you go to soundleglegal group dot org. Uh, I will allow our listeners to do that because it's hilarious. Hilarious.

0:19:50 Thomas: Okay. Typing it in.

0:19:52 Andrew: If you Google Sound Legal Group PLLC, you get zero hits. It's possible she just filed this a couple of days ago. Catherine Glenn Foster is a columnist. Yeah.

0:19:53 Thomas: I just typed it in Oh, wow.

0:20:03 Andrew: Well, we're not going to tell people. It'll be fun.

0:20:04 Thomas: No, don't tell me. Just do it yourselves.

0:20:05 Andrew: Right. So she's a column. She writes for Town Hall and for the Federalist Society magazine. And, you know, she has legitimate legitimate credentials. Uh, she's got a law degree from Georgetown, which, you know, I won't, disparage I that. Um, but she's not a practicing lawyer.

0:20:06 Thomas: Yeah.

0:20:21 Thomas: Well, we can just say Georgetown is not where Tom Cruise went. So, you know, it's not, I mean, whatever.

0:20:22 Andrew: Um. Correct. Correct, um, so that seems kind of weird, right?

0:20:27 Thomas: So that seems, so is this a publicity thing? Is this a getting attention thing?

0:20:29 Andrew: Yeah, well, oh, and you look at it when you Google Catherine Glenn Foster, what you find is that she's been writing anti-abortion columns For essentially her entire professional life. Right. That's what she is. She Right? Is an anti-abortion activist. And this is a form of anti-Abortion activism. So she's teamed up Aruba Raina. If you click on unfair termination dot com, which I will tell you because it's not nearly as much fun. This is an ambulance chaser.

0:21:05 Andrew: This This is the guy who you see his smiling face on the back of the bus when you're in traffic and you're like, dude, maybe your face shouldn't be on a bus. That's who we have. So we have an ambulance chasing personal injury, a lawyer who is moving in ProHoc on behalf of a columnist who is an anti-abortion agitator. Um, interestingly, uh, this case is in Louisiana. So the last thing that I want to talk about, uh with respect to it is, um, we have talked about the concept of, uh personhood, uh in multiple episodes of Opening Argument. And in particular, the legal doctrine that corporations are legal persons, whereas, know, it doesn't matter sort of biologically. We talked about this in both of our abortion episodes, and we'll talk about this a little bit in today's episode. It doesn't mater biologically when you are a person.

0:21:10 Thomas: Yeah. Yeah. Well,

0:22:00 Andrew: What matters is legally when you have those particular rights that attach. And Louisiana has a statute that has never been challenged in court before that defines a fertilized embryo as a human person. It's the only state in the country to have that.

0:22:14 Thomas: These aren't fertilized though, right?

0:22:16 Andrew: Yeah, no, they are. That's yeah, that's the whole point of the litigation is that they they froze these two embryos and the husband wants custody. And there's kind of weird stuff.

0:22:16 Thomas: Oh, they wait, all right.

0:22:30 Thomas: They're fertilized though.

0:22:31 Andrew: Yeah, they are. So, and people do this a lot, right? Right. Like so, particularly if the mother is in her late 30s or early 40s, you might freeze a frozen embryo, that, you know, there's in the event that like there's some complications in the pregnancy or something like that, that, That, you know, you would be able to go back and try again and, you know, avoid, you know, all of the other hardships that, you know, occur with trying to fertilize an embryo when you're, when you have a potential woman who's, you know, has at-risk factors. So Louisiana is the only state in the country that has a law, it was passed in 1986, that says that embryos are legal persons under the the law.

0:22:31 Thomas: Okay, all right. Weird.

0:23:20 Andrew: And in fact, it makes the same, that the text of the law says, uh, you know, biological persons are blah, blah, and then legal persons include biological persons plus corporations plus, plus fertilized embryos, um, right,

0:23:36 Thomas: Yeah, let me ask you then, okay, let's assume they're people, just for the sake of argument, like let's assuming we're counting the embryos as people, then what would your legal opinion be, let's say, assume that holds up. What would your legal opinion be of the rest of it?

0:23:47 Andrew: Right, so yeah the argument That I would make is that, um, I would move to disqualify counsel, right, and I would look at everything, uh, related to that. Because if they are persons, then the right to bring suit comes with their consent. Right. And so I would say you've showed up and you say, you know, right.

0:24:09 Thomas: Perhaps This is The reason Why embryos aren't persons, but whatever.

0:24:14 Andrew: You know, it might be the case, but like, right, I mean, yes. Yes. So, for example, if you want to say Nabisco is a, you know, is a legal person because it's a corporation, that's fine. But like, I can't go into court tomorrow and be like, no, no. No, I totally represent Nabisco. Well, you knows, where is that? Well, I'd have to have a document that said Nabisco hired me. Which, by the way, Nabisco, if your not happy with your lawyers, think about it. Um, yeah.

0:24:14 Thomas: Yeah. Yeah, man.

0:24:30 Thomas: I, I, yeah.

0:24:40 Thomas: I don't want to go too far down the rabbit hole, but the next thing I think of is like, well, could, let's say someone who's in a coma, let's Say they are wronged in some way. Someone can sue on behalf of them. Right. But is that because they have given somehow through some mechanism, they've given power of attorney to someone else. And that, and, and you would say that the embryos haven't done that or can't do that.

0:25:04 Andrew: And, and, and look, there are default rules if they haven't. Right. So, uh, if you were in a car accident tomorrow and in a coma, then the first thing that would happen would be, uh. The right to make decisions would pass to your wife. If your wife were not available, it would pass probably, again, this is not my area of law. So yeah, right.

0:25:07 Thomas: Hmm.

0:25:24 Thomas: To one of my cats, right. To which do I have to pick one of My cats to do it? Or is it, does it go to the oldest by default?

0:25:27 Andrew: To Mr. Kitty, right. It would go to Mr. kitty and then to your parents and then to actually your neighbor, but only on the left. No, I didn't. So no, but you're

0:25:30 Thomas: Yeah. I was gonna, I was going to take you you seriously for a second.

0:25:42 Andrew: Right. No. No. So there are default rules that apply. This case, right, the default rule. So number one, as far as I know, there are no default rules that apply to embryos. But number two, even if there were, right. You have lawyers ostensibly attempting to represent the embryos for one biological biological parent against another biological parent and how on earth, like, I, I just don't see how you could come to that conclusion, right? Like, because you can't ask them because they're a clump of cells, right. So, you know, how do you know that their interests side with, um, you know? One parent as opposed to the other. So all of this is a really, really good reason. I, again, we flag our biases up front. Both you and I are pro-choice, but think this is a good illustration of why people who engage in stunts in the law, and let me tell you, there is no doubt in my mind, declaring fetuses to be persons in the law in Louisiana is a stunt rammed through by pro-life legislators. And, you know, in a way, I'm kind of happy that it's coming back

0:26:10 Thomas: Yeah.

0:26:22 Thomas: Good point. Hmm.

0:26:58 Thomas: Oh,

0:26:58 Andrew: And biting them in the behind because nobody thought about that. Right. Nobody thought of, oh, look, like if we make something that can't possibly communicate with the outside world and has no intelligible interests, a legal person like I could possibly go wrong. Well, here's what could go wrong, right?

0:26:58 Thomas: That's being exposed. Yeah, yeah,

0:27:14 Andrew: Right.

0:27:12 Thomas: Yeah. Yeah. Yeah good point.

0:27:15 Andrew: So, yeah,

0:27:15 Thomas: Okay, cool. Yeah so, what's sort of the final verdict on that? Do you think, I mean, do you want to make any sort of prediction or what do you think?

0:27:23 Andrew: Let me make a tentative prediction because I'm going to predict that that this gets dismissed. The arguments for The Other Side are Louisiana does have the fetal personhood law. There are lots of reasons to think that a trial court judge, uh might, you know, you might get a very, very pro-life trial court judge who really wants to be out in front on something like this. You know? So there are a whole bunch of reasons that, uh I'm going to give to hedge my bets if I'm wrong. But Um, I think it's likely to be dismissed on the grounds that, that I've described. Uh, but But I have to tell you, I don't feel as confident about that prediction as I did about, you know, predicting that Jill Stein was never going to get a recount in Michigan.

0:27:28 Thomas: Okay.

0:28:00 Thomas: Okay. Okay. Okay. That gives

0:28:01 Andrew: So

0:28:01 Thomas: Us an indication. All right. Cool. Well, thanks for sending that question, everybody. Uh, we certainly like hearing from you and it's really fun when we can answer something that a lot of people have asked in one go. So, uh, there you go.

0:28:16 Thomas: All All right. It's time for our main segment of the day. And that is going to be part two of our discussion of Planned Parenthood v. Casey. So So this is a part two. Last episode, we covered the basics of this. I think you even ended up giving us a bit of the results. You kind of spoiled the results for us. And well, well, you didn't really because we know that Roe versus Wade still exists. So I suppose the spoilers were inevitable. But but this week, I'm excited to hear more about this case in part two. So let's get into it.

0:28:47 Andrew: Last episode we discussed the parts one and two of the plurality holding of Casey, right? So part one says that the court reaffirms the central holding in Roe v. Wade. And it does so on stare decisis grounds, which, you know, we've been over. Part two talks about the constitutional grounding of the woman's right to have an abortion. And And this is an example of the Supreme Court sort of tightening the jurisprudence that that began in Roe and suffered some criticism from right and center that, you know, the language of penumbra of the Bill of Rights seems kind of weird. Right. And so here the court kind of backs away from the penumbra language and says, look, our understanding of the due process clause of the 14th Amendment, which says that no state shall deprive any person of life, liberty or property without due process of law, has a substantive component to it. And that those liberties include more than just the rights that are enumerated in the Bill of Rights.

0:29:03 Thomas: Right.

0:29:56 Andrew: They also include basic personal rights to autonomy, such as the right to get married and, by extension, the right to determine whether to carry a pregnancy to term. And I would recommend if you are somebody who regularly engages in debates about abortion, we're going to link Planned Parenthood versus Casey in the show notes, read part two of the court's opinion. Reading cases can be a challenge, But it really goes through sort of the history of how of we understand in our scheme of interpreting constitutional rights, you know, where this right comes from, because one of the arguments that that that we hear all the time from people in the pro-life camp is, you There's no right to an abortion in the Constitution.

0:30:49 Andrew: And in this case, I think, and look, we've talked about that on this show. So if you're a regular OA listener, you're prepared to handle, it's not spelled out, there's no Amendment 28, you have a right to abortion. Abortion. But I think understanding the court's history on other personal decisions like contraception, like the right to get married, to be able to turn around, you know, to somebody who's made that argument and say, okay, you Know, are you really arguing that, loving versus Virginia was wrongly decided, and that if states want to criminalize interracial marriage, they ought to be Able to do that, right? Because that's what having having a constitutional right means, right? A constitutional right, and maybe we should have said this before, when we say you have a constitutional Right to something, that means no matter how many people in a state want to ban that, they can't. We overturn that, And so without that, we think, well, you know what, if X percent of the population, yeah, yeah.

0:31:38 Thomas: Yeah. Right? If a ton of people want so if so if if not for this penumbra of privacy, and I'm still waiting to get to an umbra of a law someday, but it's just penumbras. Without this penumbra of privacy. If enough people wanted to say, no, black people and white people can't get married. Sorry. Well, then you're stuck. But that's the difference between having a constitutional right and not is that would get struck down every

0:32:10 Andrew: That's Exactly right. Section three of the opinion goes through the stare decisis doctrine. So if you have been a big fan of our last couple of episodes and you want to do a deeper dive into what it means for the court to abide by past precedent, then this is the section of the opinion for you. I think there's some interesting things here, right? So for example, court says, look, part 3a begins with, "The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit." With Cardozo, which is talking about a former Supreme Court justice who was a respected jurist and commentator. "We recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it."

0:32:59 Andrew: And then there's the citation. "Indeed, the very concept of the rule of law underlying our own constitution requires such continuity over time that a respect for precedent is by definition indispensable." There's another citation. "At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was, for that very reason, doomed." Okay, so the court is doing here, I mean, we've talked about how they've already taken one prior shot at Scalia's originalism, but this is another shot, and this is another really good illustration of what I call the mainstream theory of jurisprudence that's on display here.

And again, if you remember from part one, this is Anthony Kennedy, Sandra Day O'Connor, David Souter, at a time in which he was more of a centrist judge, three Republican appointees, three centrist judges articulating a kind of mainstream theory of jurisprudence in which they say, look, if every time a case came to the Supreme Court, we didn't care about precedent And we didn't care about the legal history behind it, then you would never have any kind of certainty, right? Like, and we, and you and I, Thomas, talked about this in question

0:34:16 Andrew: Segment.

0:34:15 Thomas: Single, oh, I was going to say like most episodes. Yeah. Yeah, well, Because it sounds like it's a very important aspect of the law. I mean, it sounds it's something that you need reliability, you need predictability, and it comes up a lot.

0:34:16 Andrew: Yeah, we do, right, because, because again, you know, there's kind of no hard and fast test of, you when you agree and follow precedent under stare decisis and when you decide to jettison it. Right. It's a sort of I know it when I see it kind of test, because certainly there are times in which you look back and say, you know, that there are landmark awful cases, right? Right? Dred Scott v. U.S., which said that slaves were not people and therefore upheld the Fugitive Slave Act. Like, you know, at some point you look back at that and go, all right, the court, you know. Let's get a do-over because we screwed that one up, right? Plessy v. Ferguson, which said that separate but equal educational facilities are perfectly fine. You know, let's get it a do over on that. Rule.

0:35:15 Thomas: And with that one, Some facts on the ground, I don't know if they changed, but more empirical evidence of like, oh, this is just really not equal, like it, that things could change over time too, right? But but what it sounds like, Scalia's method of doing it doesn't really even allow for that. Sorry, I just want, I always want to take a shot at Scalia for not respecting stare decisis. Yeah.

0:35:34 Andrew: Yeah. And and and let me say, you've actually hit on so the case that overturned Plessy v. Ferguson was Brown v. Board of Education, separate is inherently unequal. I believe it's footnote Four. Our legal listeners will flood my inbox and Twitter feed if I have gotten it wrong. I know it's also Footnote Four and Caroline Products, so maybe I have the footnote wrong. There's a very famous footnote in Brown v. Board of Education that refers to empirical sociological research involving, were handed out, and some had white skin. And so, yes, you're exactly right that one of the things that that case is known for is sort of departing from a notion of kind of academic legal theory and saying, well, if the question is, is this equality, let's look at how that actually plays out in real life. And it referred to that social scientific research. And as far as I know, it's one of the first cases, if not the first Supreme Court case, to actually do that, right?

0:35:54 Thomas: Not

0:36:40 Andrew: And this is 1954, so we're not talking about, know, kind of a rich vein of psychological literature before that. And and that was criticized. But but today, I think, is an important factor of how mainstream jurisprudence is done. Right. Like you. If the question is, does this make us equal? Well, it's reasonable for the court to look out and say, well, how does this match up with with our experience in day to day life? Yep. What else is in part three? There is a reference to a case, Garcia v. San Antonio Metropolitan Transit Authority, which is a 1985 Supreme Court case, which tries to put some teeth behind the question of when do we follow stare decisis and when do do we not? Which is if a Supreme Court decision has proven, quote, unworkable.

0:37:26 Andrew: Right. And so the court in Casey says, you know, Roe, is the exact sentence. Although Roe has engendered opposition, it has in no sense proven unworkability. See Garcia representing as it does a simple limitation beyond which a state law is unenforceable. So another ground in which you I mean, we've been talking about when the court just morally has failed us, right? They hold that African-Americans are not people. They hold it's okay to have manifest discrimination in the educational system. But another reason not to follow stare decisis is the court issues a ruling, and in practice, that ruling turns out to be unworkable, right, like it just doesn't, it's hard to follow. Yeah.

0:38:09 Thomas: Practical Doesn't Yeah, okay.

0:38:11 Andrew: Yeah.

0:38:11 Thomas: So?

0:38:12 Andrew: And so, you know, another example of kind of the realist theory of jurisprudence that we talked about is for the court to look back and go, you know what, we did our best. We tried to apply the law here as fairly as possible. We came up with this rule. But as that rule is being transmitted to the actual, to executive agencies, to, you the people to whom this actually affects, turns out that it's not working properly and and so, you know, what we're gonna, we're going to say our bad, do over on that as well.

0:38:42 Thomas: That's another reason, uh, another sort of exception to stare Decisus is that. Okay.

0:38:45 Andrew: Right. Right. So, we won't go further into that, but but that's another aspect of of part three of the opinion. Um,

0:38:46 Thomas: Yeah. It certainly, certainly makes sense. I mean, yeah, if it's not like you still got humans on that court and if they don't, they're not going to predict everything perfectly. And sometimes things might go awry. Makes sense.

0:38:52 Andrew: Part Four is the enduring effect of Casey on the pro-life movement. And so I think it's worth spending, not a ton of time, but a little bit of time on that. And so here's how the court begins part four. From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis, which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset, the state cannot show its concern for the life of the unborn, and at a later point in fetal development, the state's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. Okay, so, and I'm not going to go through all of this, but remember that Roe gave us a much brighter line test.

0:39:49 Andrew: It gave us trimester approach that said, first trimester, state cannot restrict abortion. The woman's right to choose an abortion was absolute. Second trimester, the state can restrict, but not ban. Third trimester, the state can ban. What we saw from the laws passed in Pennsylvania and elsewhere was the way in which states tried to get around that was by passing laws that were not considered either restrictions or bans, right?

0:40:18 Thomas: They just kind of made it a pain in the ass. Right. They had a bunch of ways.

0:40:19 Andrew: Yeah, exactly. And there was no set rule for or what constituted that. What Casey did was got rid of the trimester approach, right? So there's now no distinction between the first and second trimester, effectively. The end half of the second trimester because viability is now, I believe, considered 20 to 21 weeks. And then moved up the the third trimester, which is significantly later than that, to the point of viability and said, OK, viability, the state can ban abortion. Prior to viability. The state can enact legislation so long as it does not, quote, put an undue burden on the woman in seeking her right So now, and this is still the law today, the question is, does the legislation constitute an undue burden on the exercise of that right?

0:41:14 Andrew: And that's why we have things like laws that require abortion clinics to meet the standards of, you the highest standards of hospitals in, surgical centers or the like, right, which effectively, you know, puts, uh, yeah.

0:41:30 Thomas: Yeah, It's An attempt to try to make something seem like a reasonable thing that a clinic would need to do so that maybe it'll get through the courts. But in actuality, it's usually pretty unreasonable, right?

0:41:42 Andrew: And, let's be very, very clear. The intent of passing these statutes is to restrict the number of providers, the number abortion providers within the state, right? So if you require that an abortion provider meet the highest standards for, uh, you know, a level one surgery hospital, well, your local Planned Parenthood doesn't meet that. They don't have to in order to to provide abortion services. But, you know, the the state law would require that or, you know, state laws that require mandatory ultrasounds or waiting periods or like we saw in Missouri with the Satanic Temple legislation requiring that the state read pro-life propaganda at you. And all of these fall into the Casey test of the question is, is it an undue burden? And here, I you think it's worth illustrating. When I was in law school, I was kind of a fan of Sandra Day O'Connor Because she oftentimes really took this middle of the road approach and designed a number of balancing tests.

0:41:48 Thomas: Yeah. What's

0:42:46 Andrew: It's what she's known for as a Supreme Court justice, where, you Casey is like this, where it says, look, what we want to do is we want want to balance the interests of the mother in being able to choose to terminate her pregnancy versus the interest of the state in protecting potential human life and fetal life development. So the question is now becomes, is this an undue burden? Or, you know, in other cases, she'll sometimes say it's a two or three or a four part test, and she'll give, you know, the various criteria coming out of. And so, like, you can see how philosophically that that could be really appealing, right? Yeah, these are all valuable interests. Let's take them all into account. Why don't you take a stab? Like, what's the bad part of doing that?

0:43:30 Thomas: Yeah, I just, I don't know how you would do that. I don't know. It's not, it's, I suppose if, if there was an easy way to construct like such a test, I'm guessing they would have, but, but I like off the top of my head, I can't think of what it would be now. I'm not a Supreme Court justice, but I don't know how you would evaluate that exactly.

0:43:47 Andrew: No, I think that's exactly right. Right, that that the the weakness in the O'Connor approach, and this is something we've we've talked about on the show before, is it does not give you concrete guidance as to when legislation is going to be valid and when it's going to be invalid, right? Like, a trimester approach is really, really simple. You know, if you'd thought through and around sort of creative legislation, right, like if you say, all right, prior to 27 weeks, you can't ban abortion, then then that's really, you know, like that tells you when, you know, a state tries to pass a fetal personhood bill that would ban abortion, that it's going to be unconstitutional, that that provision is going to become unconstitutional. You know, when you say it has to not put an undue burden on the woman, right, what the hell is an undrue burden, right?

0:44:40 Andrew: Like everything puts a burden on the woman. And so now the question is, is that a due burden or is it an undue burden. And, you know, and what constitutes that is almost certainly going to be influenced by the political character of the judges, right? When we're talking about something like the

0:44:46 Thomas: Yeah.

0:44:58 Thomas: But does the fact that you can't Form a standard list or test or whatever say less about, you know, lists and tests and more about maybe that rule to begin with is not very good? I mean, if it were a good rule, like, wouldn't you be able to form a kind of a basic test to be able to evaluate it? Or it just so often in the law just feels like, "Now don't try to define that, just, you'll know it when you see it," or, you know, you kind of, it's a little weird that things end up being that way. This Anyway,

0:44:59 Andrew: Right to an abortion.

0:45:27 Andrew: Yeah. Well, so tell me what you mean by the underlying rule itself.

0:45:30 Thomas: Idea that as long as it doesn't form an undue burden, I feel like you're saying that it of of what passes the test, does that say less about her lists and more about maybe the rule isn't so good. Like maybe just saying undue burden in itself, like isn't, it doesn't, it's not very useful. Like if there's no way you can formulate how, what that would look like without just saying, oh, well, you know, I'll know it when I see it. I, maybe that's not that useful of a rule. I don't know. Don't it maybe seems like a cop-out.

0:45:36 Andrew: Well, so let me put it to you this way. Uh, we'll, will reprise you be the Supreme Court for 30 seconds. Suppose that you have the rest of this opinion of this plurality opinion from Casey to work with, instead of crafting the undue burden test, what, what would you craft? What right? Rule would you come up with that recognizes both the woman's right to decide to terminate her pregnancy and the state's interest in protecting, projecting future life.

0:46:09 Thomas: Uh-oh.

0:46:31 Thomas: Well, why did we get rid of the trimester approach? Was that so bad?

0:46:35 Andrew: We got rid of the trimester approach because it was sort of tethered to a notion of biological viability that the medicine, you know, that the state of medical practice from 1973 to 1992 advanced forward. And so all of a sudden, you Know, it was much more common for late second trimester babies to be born. And I'm deliberately using that phrase because we're talking about a situation of choice, right? And

0:46:39 Thomas: Viability let me ask you this, why not just make, so the trimesters kind of changed because viability changed, but did the rule need to change? Couldn't we have just made it okay, instead of trimesters, since viability is really encroached on the second trimester, let's just get rid of that second one and just have it be what the rule was for the first half and the rule for the second half, or something like that, or whenever viability is.

0:47:28 Andrew: That is the approach urged by John Paul Stevens, who you might recall from the outset.

0:47:34 Thomas: I don't remember who that is, but he's a genius.

0:47:35 Andrew: Yeah. Yeah, he's the 105-year-old liberal on the Supreme Court at the time, who was not part of the original Roe decision, but was one of the two votes that we counted in favor of upholding Roe. And he basically says that. He says, yeah, you can move back viability if you want, but pre-viability, the test should not be undue burden. The test should be strict scrutiny. And I know to non-lawyers, probably to you, you're like, you're replacing two garbage words with two other garbage words. I don't care. Strict scrutiny has a very precise meaning in equal protection law. And what strict scrutiny basically means that you cannot restrict that right at all. It's very, very difficult. To. So if if you and Justice Stevens had gotten your way, instead of the question being this sort of vague, what constitutes an undue burden, it would have been a much more black and white prior to viability, be that 20 weeks, 21 weeks, whatever. Most almost all restrictions on abortion are going to be in constitutionally invalid.

0:48:05 Thomas: Yeah. Okay.

0:48:43 Thomas: Gosh, that is totally what I think it should be.

0:48:45 Andrew: And after almost all restrictions are going going to be constitutionally valid. And it would be much more clear, it would be consistent, and it would sort of mesh with both precedent and ...

0:48:57 Thomas: I Beat it. I finally beat UB, the Supreme Court. High score. I did it, I beat the game. Where are the end credits for the game and some cool music, like 8-bit music?

0:49:06 Andrew: So I agree with you, and so does a Supreme Court Justice. So, excellent work.

0:49:07 Thomas: Okay. Good, okay. But Only one But

0:49:11 Andrew: And I think, well, yeah, right, right.

0:49:11 Thomas: Only One of the three, one, one, one Right is It Yeah

0:49:15 Andrew: Smith concurring. Um, so, good work. So that is the framework with which we are left today, because Justice Smith was not on the Supreme Court. So laws are tested against this undue burden standard, which is more vague and gives states more of an opportunity to infringe upon the right to an abortion without explicitly restricting it. And if you are a pessimist and you are insufficiently happy with the warnings that we gave in opening arguments 23 and 24 about what a Donald Trump appointee or appointees to the Supreme Court could do, Certainly changing the composition of the Supreme Court such that more justices might be inclined to feel that certain restrictions are not, quote, undue is something I would be nervous about.

0:49:16 Thomas: Yeah For what that's worth.

0:50:07 Andrew: Up. Um, that strikes me as very likely that we're going to see, uh, abortion cases. Um we've got the, you know, Texas law that just, that just went through requiring fetal abortions, which is just insane. Uh, we don't have time to talk about that, but, but that's the framework and the discretion is there such that a Supreme court justice can say this burden and is, uh, do rather than undo.

0:50:21 Thomas: I see. Interesting. There's a little bit of a twist. So we start off by saying, don't be worried that Roe v. Wade is going to be overturned. However, it sounds like there's a bit of an of a dark side to that cloud that actually there's still room for interpretation of what's an undue burden to, you change and sort of creep over more more to being sort of the conservative Republican idea of things. Is that what you're saying?

0:50:51 Andrew: That's exactly right.

0:50:52 Thomas: All right. Well, now I'm a little worried. Thank you. Awesome. No, that's good. We should be worried if it's...

0:50:56 Andrew: Hey, we, we we deliver, we deliver what we think the law is not what we wish it were, so.

0:51:01 Thomas: Yeah, yeah, exactly. All right, well, thanks for taking us through that. And that should conclude Planned Parenthood v. Casey. So really cool. Thanks for doing that.

0:51:12 Clip: If you ask a cop if he's a cop, he's like obligated to tell you. It's in the Constitution. Constitution of America?

0:51:22 Clip: So, I should go ahead and ask. You a cop?

0:51:26 Thomas: All right. Here's a segment that it's been a while since we've gotten to do. I'm really glad that we're back to this one. Are you a cop? And this is inspired by Sakashite Fukasumi, who is of of course, a very generous patron of ours. Thank you. He is reacting to Law'd Awful Movies number one, which was The Firm, of course. He says, I just realized the albino, sorry, we may have to explain this. There's an albino henchman in that movie. The albino is actually the perfect murder. Think about it. How are the cops ever going to fill an identity parade? And when they do that lineup that, you know, Cosmo Kramer is going to be in, how are you going to find a bunch of albinos to fill a lineup so that someone can pick him out? How are they going to do that?

0:52:15 Andrew: Thought this was a great question. It exposes the myth, and that is you see this all the time, right? Right. It's the poster for the usual suspects. Right. Right, right. That in order to in order to convict somebody for murder, you have to put them in a lineup and a witness has to pick the murderer out of a lineup. And the reality is, again, not a criminal defense attorney, but the reality isthat all of these things are different devices that are used to buttress witness testimony, right?

So, so the reason you use a lineup is, uh, that if I go to a potential witness and I say, and I put a picture of, uh. The defendant in front of the witness and say, is this the man who you saw hold up the seven 11 or you saw a murder of this person, then I've now primed that witness. I've made a suggestion that could be impeached on cross cross-examination, right? Because the, because the witness is going to look at, I mean, think about it. What would happen if you looked at it? You know, you're going to be like, yeah, that kind of looks

0:52:49 Thomas: Yeah. Yeah, probably.

0:53:19 Andrew: Like that. Yeah. Yeah, okay. Right. That's the guy, And right. So after that became a common cross-examination technique, the police changed their tactics to put folks in lineups and in order to get around the defense attorney saying, well, you know, did you look at anybody else? Could it have been that? And kind of bringing up similar examples. And in fact, in fact, my understanding is that the practice now has moved away from the classic sort of usual suspects lineup type thing to putting a book in front of plaintiffs, right? And you'll have 30 or 40 or more pictures in it, and they don't even have to be similar, but you just kind of put the book in from of a potential witness. I said plaintiff, but strike that. It's a witness, right. You put it in front of a witness and you say, yeah, why don't you look? There are pictures on each page. Keep flipping pages and tell me if you find somebody where it looks familiar to you. And if the witness is able to pick out the potential defendant from the book, that witness's testimony then becomes credible.

0:53:42 Thomas: Right.

0:54:32 Andrew: So all of this is about witness credibility. You do not need to pick a defendant out of a lineup in order to get a conviction in a murder or any other criminal case. Yeah, all of it is just Right. The idea you could you could even prime. Right. Like so you could put the albino guy in a book full of photos. You could put him in a lineup with six non albinos or you could just put the picture under the witness. And and what would happen would be, you know, the defense would try and impeach the credibility of the witness by saying now, you know, were you totally sure? But I have to tell you, you know, again, not a criminal defense lawyer, but as a lawyer who who deals with trying to impeach witness testimony all the the time uh asking the question you you're not actually sure if that's the real is a terrible idea when you have a very very

0:54:44 Thomas: There could be other I mean, they could just be what fingerprint evidence. There Could be whatever. Lots of different ways.

0:55:35 Andrew: Visible defendant because the witness is going to be is going to say well I don't see that many albinos and uh I'm pretty

0:55:41 Thomas: Yeah Yeah, exactly. I was gonna say it's not really you don't really need to pick him out of other albinos it's It's like, no, I know who it was. It was that albino guy. Like, I specifically remember he was an albino. Therefore, it's fine. Yeah.

0:55:43 Andrew: Sure I saw an albino we are gonna get so much hate mail

0:56:07 Thomas: Apologies to albino people. We know that most albino people aren't henchmen, aren't evil shooting people henchmen. I mean, a good percentage are, but we know that, we just want to say, come out and say, not all of them. Okay. All right, well, thanks for that. Thanks for that. Are you a cop? Good to see that segment again. I love that one.

0:56:25 Clip: Oh, no associate of this firm has ever failed the bar exam., No kidding., Thank you.

0:56:31 Thomas: We need our new Thomas takes the bar exam question. We need question three, Andrew. I no know one at this firm has ever failed. I'm very worried about it. So let's hear it.

0:56:41 Andrew: Could still there there are multiple ways to think about this uh you could still go 199 for 200 that's what I would be shooting for. Yeah.

0:56:48 Thomas: That's likely. Yeah.

0:56:50 Andrew: Uh or you could say right now you're uh you're you're going about 50/50. So let's uh let's figure out and let's get you back on the right track.

0:56:53 Thomas: Hmm. I think I could go one and one 99 actually.

0:57:00 Andrew: Yeah, that was it.

0:57:01 Thomas: There's also a chance of that.

0:57:02 Andrew: You're like the rookie who hits the home run and is first at bat and then never.

0:57:03 Thomas: Yeah, the first baton is back in the...

0:57:07 Andrew: Yeah.

0:57:07 Thomas: Interesting.

0:57:08 Andrew: All right. So here we go. A man sued a manufacturer of video and home theater equipment after his home theater started a raging fire, destroying the equipment and part of his home. He sued the manufacturer in federal court. At trial, the defendants filed a motion to preclude the report and testimony of the plaintiff's expert witness under Federal Rules of Evidence, Rule No. 702. The defendants claimed bias, lack of scientific support, failure to conduct testing, divergence of opinion among experts, and that the expert was trained for large commercial fires. The expert had investigated over 500 fires, wrote a book that was used in courses nationwide, and taught a course in forensic fire investigations at a university.

0:57:58 Andrew: Her report ruled out all other possible causes. The court did a gatekeeping review, as required by Rule 702, and ruled that the expert was highly qualified and that she used accepted scientific methodologies in arriving at her opinion. The defendants appealed the ruling. Is the appellate court likely to go against the trial court ruling under these facts? Makes sense? Yeah.

0:58:24 Thomas: I'm curious to hear the possibilities.

0:58:27 Andrew: So, your options are, A, yes, because the charge of bias against an expert witness requires a, quote, trial within a trial, end quote, and that was not done. Okay. B, yes, because whenever the expert does not back up her conclusion with experimental testing, an expert's opinion will be insufficiently reliable to be allowed. Out. Required gatekeeping inquiry and found that the witness was not only qualified and competent, but also used accepted methodologies. Or D. No. The court has absolute discretion in deciding the competency of the expert for purposes of giving expert trial testimony and evidence.

0:58:41 Thomas: Okay, okay.

0:59:16 Thomas: Interesting, okay, so my thought process was my inclination was toward a no answer, and this is, of course, I mean, I'm sure I'm not a Harvard lawyer, but I'm pretty much having to go on my common sense. And the process they described, the question describes sounds pretty reasonable for the, you know, the fact that the expert, they concluded that the expert had good credentials and used and agreed with like other experts kind of agreed and that sort of thing. Everything it laid out sounded very reasonable. So my inclination was that it was going to be a no answer. Now I'm going to, so I'm gonna go with that. Now, I would say C would be answer if it's one of those 100 really easy ones you were talking about, I think.

1:00:01 Thomas: But D is one that sounds a little more technical that I am wondering. If it is D, does that mean that you cannot really appeal based on this particular quality of an expert? Based on this this particular point. Is that what that means?

1:00:17 Andrew: Yeah, that would be. So D says the court has absolute discretion in deciding the competency of the expert. And remember, if the more discretion that a trial court has, the fewer the grounds you have at an appellate court for overturning that that finding.

1:00:19 Thomas: Yeah.

1:00:31 Thomas: To appeal. Yeah. Don't know that I've ever heard of, and it doesn't, doesn't mean anything, but I don't know that. I've never heard of an appeal based on an expert, not quite being expert enough. You know, like, I just don't know. I don't know. You, you know what, I'm going with D, screw it, I'm going with the, I feel like I've never heard of that, I feel like it wouldn't be reasonable, that that wouldn't be grounds to actually appeal something, I feel like there would be, there would be a different way you would go about that, or, or, you know, I don't know, I'm going with D, that's my answer, that's my expert answer, D. First.

1:01:06 Andrew: All right.

1:01:07 Thomas: I can even rank them, but No, it'll be pretty useful, useless.

1:01:10 Andrew: Well, let's no, let'S let'S do that. So you've said D, what's, what's your, your second best answer?

1:01:15 Thomas: I Think while I was leaning no, so naturally my C is probably my second, I can best just because if this is one of those no brainer questions, like you would already, you know, a lawyer would already know, like, oh yeah, it's just C cause they did everything you need to do. And then, uh, A and B, I don't remember the difference now. So what was it?

1:01:31 Andrew: A is the, uh, a charge of bias against an expert requires a trial within a trial, and

1:01:37 Thomas: Oh, yeah, that's kind of possible. What was, what was B?

1:01:40 Andrew: B is whenever the expert does not back up her conclusion with experimental testing, the opinion will be insufficiently reliable to be allowed. All right.

1:01:45 Thomas: Oh, experimental testing. That doesn't sound right to me. I would say, third would be A and D would be a fourth. That's my, so C or sorry. Sorry, D-C-A-B is my order of confidence there. I can't wait for it to be the opposite.

1:01:58 Andrew: All right.

1:02:00 Thomas: But yeah, next week.

1:02:01 Andrew: Well, we will look, uh, we will find out, uh, next week along

1:02:05 Thomas: Yeah, you Yeah, make sure to retweet get on it right away, retweet and quote, give us your answer. And we're really excited to see the ones who got it right, the ones that got it wrong, the one's who are the funniest about it. Some combination of those things might get you a shout out for your Twitter handle on the show. So thanks for participating as always with Thomas takes the bar exam. Yeah, We that does it for today's show. I know that once again, we've got so many kind people to thank. Let's go ahead and thank our new patrons for today. Thank you, Kwisatz Haderick, Maureen Yoder. Thank you, Andrew Cooper. I'd rather remain anonymous. Cool. Well, you're not because I said your name. Wait, wait, wait a minute. He beat me. Beg for my dollar.

1:02:05 Andrew: With our listeners, and oh,

1:02:53 Thomas: Thank you, Steven Milligan. Thank you, Ben, Mick Vag, John Stewart, Jim Webby, Sarah, and Ronn. Thank

1:03:02 Andrew: I We want to thank our Hall of Fame patrons, of course, and those are The Inciting Incident Podcast, Conrad Michaels, Sammy, Frederick Alstromer, Zabby, Michael Schaefer, Philip Stromberg, ProPanic, Sakashite Fukasumi, Jeff S., Kylie Reiser, Michael, Hunter Ash, and thank you to Grand Duke Nile, the Lagomorphile. I have no idea what that means. Matthew Maxon, The Wayward Willis, Jeffrey Maynor, our good friend Heath Enwright, John Bodley, Violet Page Hall, Matthew Vernon, Ian and Allie, Sean Pitti, Geeker41, Leon Hartley, Heather Loveridge, La Bibliotecatrice, Amanda Lipnack, Patrick Fussell, Desecrator, Jim Grove, Steve Sigmund, Dave Nichols of the Positively Doubtful Podcast, Eli Bosnick, the long-suffering, he's at Eli Bosnick, and Dan Irazari. Thank you so much to our Hall of Fame patrons, uh, many of you have been there with us since the beginning, we really appreciate it.

1:04:01 Thomas: Absolutely and I'm very excited as of reporting this we are so close to another goal another another Patreon goal. By the time you're hearing this, we may have already passed it. And that is at the thousand dollar level, we are going to do two episodes a week. Let me tell you a big source of inner struggle just to take you behind the curtain of opening arguments. Andrew and I getting into shouting arguments. Not really. I'm exaggerating. Getting into argument over trying to keep the episodes to an hour. It's actually, it's very difficult to do. In the two episodes episodes a week, we've got lots of great stuff planned. We can do more guests. We're planning on having a guest very soon. Think, sort of our first interview in this current modern opening arguments format. And that's something we could do more of with two episodes a week.

1:04:48 Thomas: We could have more current event type news. We have an episode where we do a segment that's an interview, where we talk to somebody interesting who's doing something in law, or knows about an issue that's interesting to us or to you. So we're very excited. There will be no shortage of excellent content, and we can certainly do Thomas Takes the Bar Exam once a week and keep that up. So we're really excited. Thank you so much for getting us there. And I don't know what else to say. It's amazing. Thank you guys.

1:05:19 Andrew: Thomas is omitting the fact that our support from patrons has enabled him to retire from his job with the state, and so he's going to go full-time, which is really just amazing, so that's really going, going to help make that be possible for him because uh, he does 100% of the editing work on the show, uh, which would not be possible without, uh, without his hard, carpal tunnel inducing work, um, and so, uh, so we're looking forward to that, yeah,

1:05:30 Thomas: Mm hmm. Yeah, absolutely. Yeah. Yeah thank you guys so much. That's absolutely right. It is true that these, these pledges and this surge of support has helped that happen, which is the only way we were going to be able to do two episodes a week. I literally am maxed out. I would not, I told Andrew I can't do that until I quit, because we never thought that you guys would be so supportive and get us there so quickly. But now that I'm quitting my job at the end of this month, we can get those two episodes a week to you pretty quickly. I would, definitely sometime in January. So thanks for that. And, and, and thanks for, uh, for bringing that up, Andrew. It's true, I, I did neglect to, to mention that I am going full time because of you guys, uh, great support. So thank you. And that's it for today's show. We will see you real soon, uh, because this was a little bonus, uh extra episode for you this week. So we'll see you on Wednesday for our regularly scheduled episode.

1:06:53 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.