OA72: Body Slamming Journalists PLUS Political vs. Racial Gerrymandering

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. This is episode number 72. I'm your host Thomas Smith, sitting over there to my, we'll say left, is other host Andrew Torrez. How are you doing, Andrew?

0:01:30 Andrew: Does any, does anyone ever really get to your left, Thomas? Right, oh yeah, no, good point. Yeah, you've been bolstering your conservative cred lately. Anyway, thank you for having me on the show. I appreciate it.

0:01:32 Thomas: Besides Dan Errol, yeah, oh good, yeah well we'll see how it goes and see if we want to continue doing it, But this is your audition for the show, we will see, Mr. Torrez, how it... No, we've got a great show for you. This is week two of our new responsive format of recording Thursday and me working my ass off to edit and get it right to you guys. And I think it's so great because we've got, like, I'm looking at the screen here, we got three or four really pressing relevant questions that we're answering. And I'm just excited. I can't contain it. Sorry.

0:01:46 Andrew: Yeah.

0:02:13 Andrew: Me too.

0:02:13 Thomas: That said, we've a little listener question from one Anna Bosnick, whoever that is. No, just kidding. Anna Bosnick is a super special guest on Law'd Awful Movies number seven. And she asks, what is habeas corpus? Because if you listen to our intro, you you you know, you might not have the right idea about it, well,

0:02:34 Andrew: Yeah, Anna joins us on Law'd Awful Movies number seven, where we do Legally Blonde, which, uh, I think has been our number one most requested movie for Law'd Awful Movies, uh, we are very excited, we had a lot of fun, uh, Anna is fantastic, um, and she had a serious question, right? So we've got the little clip in our intro, which is obviously just, uh, hilarious gobbledygook, it has nothing to do You.

0:02:57 Thomas: You're Saying that's not accurate, I thought due to habeas corpus, you're not. Wow.

0:02:59 Andrew: Yeah, it has. You're in a common law marriage and have to turn over the dog. No, that's just.

0:03:01 Thomas: Okay. I'm glad you're answering this before I got the bar question on habeas corpus and turning over dogs. Oh.

0:03:06 Andrew: Yeah. Habeas corpus is one of the only Latin words I recognize. It means to have the body right. Corpus being being body. And it is a holdover from British law. And it means that at any time when you are being detained, when you are in custody of the state, you may petition for a writ of habeas corpus that says you are Being unlawfully detained. And if you are able to demonstrate that, then the state has to set you free. And the reason that we have that, I mean, you might think like, well, you have criminal appeals and stuff like that.

0:03:15 Thomas: Hmm. Yeah.

0:03:48 Andrew: But remember, we have talked a little bit about, like, abolishing the the forms of action and how the law has liberalized over time so that you don't have to plead the exact right thing at the exact right time that used to sort of kick you out of court. Habeas corpus was meant to short circuit that, right? It was meant to say, look, regardless of where you are in the appeals process or how you've pled it or what the charges are, if the state has you in custody, if the government is exercising control over you, you always have the right to petition for a writ of habeas corpus to be set free. So it's one of these kind of fundamental bedrock principles that animates the country. That being said, standards for granting a writ of habeas corpus have been steadily eroded over time.

0:04:34 Andrew: And I want to read you a little bit from the Supreme Court court case of Herrera v. Collins, 506 U.S. 390, 1993 case. And I want to read you from a concurrence by our friend Justice Scalia. In Herrera, what you had was you had a person who was incarcerated for murder and somebody else confessed to the crime, right? So you would think that would be pretty good grounds for granting a writ of habeas corpus. There's this other guy that the state is going to put away for this murder. Therefore, I'm innocent and I should be set free.

0:05:11 Thomas: Seems Straightforward. Yeah.

0:05:12 Andrew: Right. Yeah. Six to three decision, six to three, mind you. The Supreme Court said, no, that's really not good enough. And I want to read you a little bit from Scalia's opinion. We granted cert that this is a concurrence. Right. So he He was in the majority. But this is a, uh, the Supreme Court needs to be extra clear on this, right? He said, "We granted certiorari on this question to decide whether it violates due process or constitutes cruel and unusual punishment for a state to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be, quote, actually innocent. I would have preferred to decide that question, since, as the court's discussion shows, it is is perfectly clear what the answer is. There is no basis in text, tradition, or even in contemporary practice, if that were enough, for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." So there you go. That was sort of the status of the law up until a couple of years ago,

0:05:13 Thomas: Yeah. In In the Majority I take It Wow. Yeah.

0:06:17 Andrew: Where the Supreme Court kind of backtracked on that a little bit in a case called McQuiggin versus Perkins, in which Ruth Bader Ginsburg authored the 5-4 majority opinion and said actual innocence, if proven, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, blah, blah. So in other words, the Supreme Court has since said actual innocence may be a factor. But if you were thinking, I have evidence that I didn't do this, that I am completely innocent, that that would be an automatic guarantee to the right of a writ of habeas corpus, you'd be wrong. It's kind of shocking. So that sort of serves, obviously we can't, we could do a whole episode just on habeas Corpus, but, and maybe we will.

0:07:04 Thomas: I was gonna say I I have A Lot of questions But Uh, yeah, but but not but This is Just meant to be, all this is Meant To Say, go Listen To Law'd Awful Movie seven on patreon.com slash law yeah

0:07:06 Andrew: Yeah. So this is to whet your appetite. Yes, exactly. Which is slightly less informative, But a lot more funny. So, yeah, it

0:07:19 Thomas: Awesome all

0:07:22 Clip: He who questions training, only trains himself at asking questions. What?

0:07:29 Thomas: Lots of people have been asking this hot off the presses Andrew Torrez last night I think or maybe yesterday during the day sometime but last night this was all breaking uh Montana Republican Greg Gianforte was charged with assault. And I actually was kind of following this along on Twitter. It's interesting the time we live in where like, I followed it, the people I follow were right on this. So I got the reporter's initial tweet, which kind of downplayed the whole thing. He was like, yeah, he broke my glasses. And then they released, they had audio of it.

0:08:01 Thomas: And accelerated to the point where it's like even the Fox News reporters who were there actually finally decided to step up and report the news. And they said, yeah, we were there. He body slammed him, he punched him. And then he, so like there's clearly, I mean, it was so bad that even Fox News reporters were willing to report that a Republican had done something wrong. So he was charged with assault that evening, I think, or maybe this morning, one or the other. The vote is like, like, I think it's like today.

0:08:32 Andrew: Is it is today.

0:08:33 Thomas: Yeah, the vote is today. So a lot of people are asking about this. Tell us, Andrew Torrez. And by today, we mean today, you'll probably maybe hear this tomorrow. So the vote happened. I don't know. But anyway, Andrew, What are the implications of being charged with a crime as you're just about to be voted on here in a special election? What if he's convicted later? What are all the implications on the actual seat that he's running for? Yeah.

0:08:43 Andrew: Yeah.

0:08:59 Andrew: So so the answer is states, by and large, have discretion to set the criteria for office as they see fit. As from taking office, even if he is arrested and serving a sentence for assault. This is a misdemeanor charge, so it's not likely that it would carry significant prison time. But even if it did, right, even if this were murder, as far as I can tell, there is nothing in the Montana statutes that prevent you from assuming office for being convicted of a crime in the pendency between when the vote takes place and when you assume office. Um, so, you know, that it would make it a challenge for him to execute the office. Um, but, but no, like the the the consequences here are going to have to be political rather than legal. And

0:09:24 Thomas: I feel

0:09:59 Andrew: And and I would.

0:10:00 Thomas: Like I you just tell us this so often I might as well just record that and then anytime anything happens, oh, Trump murdered a guy in the middle of the street, political instead of legal. Sorry.

0:10:08 Andrew: Well, look, Look. And there's the answer. I mean, we were, we did get a question about this. So I think that's worth revisiting. As our guest, Professor Randall Eliason, made clear, the historical prohibition on arresting a president is because the arrest would interfere with him executing with the president and executing the office. Right. Right. So, you know, that applies to crimes committed before office, during office. You know what? The prohibition is on, you know, marching into the Oval Office and hauling out the president in leg irons. So. Yeah. Right. Like, that's still, that is still the case that, what our founders envisioned was a system whereby being a crook was was considered an impediment to being in public office and not, and not a qualification.

0:10:09 Thomas: Yeah.

0:10:59 Andrew: So I will point out that the Missoulian, which I presume is a newspaper in Missoula, Montana, endorsed Gianforte and withdrew its endorsement this morning. He said the Republican candidate for Congress not only lost the endorsement of this newspaper Wednesday night when, according to witnesses, he put his hands around the throat of a reporter asking him about his health care stance, threw him to the ground and punched him. He should lose the confidence of all Montanans. So, you. This is deep a red country in Montana. Most of the polls show Gianforte up by between like 10 and 15 points. But but these special elections could be pretty volatile. So I suppose we will know by the time the show drops what what the result was. But if I mean, it looks like Gianforte is going to win. And if he wins, this is not you know, don't don't be reading Occupy Democrats story. We're not going to be able to remove him from office and run a special, special election. And, you know, it just means.

0:12:03 Thomas: We can't just put Hillary in the seat. Is that what you're saying? Yeah. This

0:12:05 Andrew: Yeah, right. Bernie Sanders will get to be the congressman from Montana.

0:12:08 Thomas: One weird rule. Yeah. So, well, I, I make that joke, but that was, that was, uh, the The Huffington Post published this, "one weird trick and get Bernie Sanders in the presidency." And it was actually an article about people needing to be more skeptical. And saying this is not true. So just to clarify on that. But anyway, I think just to throw in a quick, Thomas note here that doesn't have much to do with the law. But for 20 seconds here, what I find really disturbing about this is the way that this, this is, feet, like Republicans are just taking this right into their narrative. And like, if you look at Laura Ingram, who is a big Republican voice, she said, "Politicians always need to keep their cool." I know what you're thinking, that sounds great, but I'm sure there's a but coming, right? "But what would most Montana men do if body slammed for no reason by another man?" Can you imagine can you imagine a someone, gosh.

0:12:09 Andrew: Yeah. Right.

0:12:58 Andrew: What? What? So she's so she's calling the reporter a sissy, basically.

0:13:02 Thomas: Yeah. Exactly. So that's where, that's where key Republicans come down. By the way, here's another one, Tim Graham: "Let's ask why on earth a House candidate in Montana should have to answer questions from a reporter for a British newspaper." It

0:13:06 Andrew: Exactly. Yeah.

0:13:17 Andrew: Yeah, right. Exactly. Why should a candidate for public office stand for questions about his stance on health care? I agree. Like, just choke and body slam.

0:13:28 Thomas: Yeah, it's disturbing. And it goes to what we've talked about a lot, which is the just decline, the in trust in institutions. And there's a real war on journalists in the Republican Party coming from them. And it's disturbing to see people blaming the victim like that. I mean, he's just tried to ask a question about the CBO score on the new Ryancare, Trumpcare, whatever, the HCA. And you can hear the audio. I mean, it's as simple as that. It's not as though there's some deeper thing to the story. So very disturbing. But I just wanted to throw that in there because I found it just truly awful. And I And I couldn't help it.

0:13:37 Andrew: Yeah? Yeah. Yeah. No, I'm I'm with you. And we have talked about about this. I mean, obviously, you know, this is one of these. It's it's breaking pretty, pretty late, even on our new schedule. I don't think we can retroactively influence the election. But but yeah, no, I I agree with that 100 percent.

0:14:17 Thomas: Right. Yeah. Yesterday, Montanans, get out and vote or something. I don't know. All All right, so let's get to our main segment for the day. One of your favourite topics, and I'm probably in a bad way, I guess. That's one of your sore spots. You've long said that gerrymandering is the most pressing political issue we face here. It'll kind of solve everything else eventually, or at least be a good starting point to solve everything else. We've got a lot of people asking us about this case. It looks like it's Cooper and it looks like that maybe the Supreme Court has struck down a few instances of gerrymandering, which sounds like good news to me. Why don't you tell us about this and see if I'm right to be optimistic about this?

0:14:49 Andrew: I Yeah, you are. This is a very, very interesting opinion, um, largely for the the dissent that I'm going to get to, um. This is a little bit different, uh, in that it, um, this case really exposes sort of the tension, uh, in how difficult it is to make a constitutional one person, one vote arguing for gerrymandering. When, so we covered this topic on episode 54 of Opening Arguments, we talked about political gerrymandering, right, which is taking a state that has a 50 50 breakdown politically and engineering, so you have the maximum number of safe districts for one party so that certain states wind up being disproportionately red or blue, even though their their populations are 50 50.

0:15:59 Andrew: North Carolina is one of those states. North Carolina is a darn near 50-50 state, and yet it is 9-3 historically in terms of congressional districts. That is 9 Republican, 3 Democratic. And part of what enables that strategy is what we talked about in 08-54, the packing and cracking, right? Which is you take one or two districts and you You fill them so that they are overwhelmingly full of your opponent political parties, members, and then you dilute the rest of them throughout the remaining districts. So in North Carolina, 12 congressional districts, nine of them have been Republican, 56 percent or higher. OK, so and yet the state is like fifty to forty eight Republican. Right. I mean, it does not.

0:16:05 Thomas: Really? Yeah. Yeah. That's some brutal gerrymandering.

0:17:00 Andrew: It Is. But this case is interesting because it it comes squarely against a principle that was enshrined in the Voting Rights Act as part of the Civil Rights Movement that was designed to encourage states to create majority minority districts. Right. Which is to say, after Reconstruction, after the Civil War, you had what, what states were doing, particularly in the South, were spreading African-Americans out so that they would be 40 percent of the registered voters in a district. And you would have three or four 40 percent African-American districts. And then you would nevertheless have all of these deep

0:17:00 Thomas: All

0:17:46 Andrew: Southern states that had no African- American elected congressional officials. Right. So so it really is. So under the under the Voting Rights Act, states are required to draw majority minority districts if three conditions are met. OK, so first, a minority group must be sufficiently large and geographically compact, such as to constitute a majority in some reasonably configured legislative district. Right. So think about any of the major metropolitan areas in the United States would would pass that part of the test. OK.

0:17:53 Thomas: Right. So that's sounding like an interesting balancing act, huh?

0:18:26 Thomas: Okay. Hmm.

0:18:26 Andrew: Second, the minority group must be politically cohesive. And that's a really interesting point. Like one of the things that we talked about in the 2016 election is a lot of the data about the Hispanic vote, for example, just says Hispanics. But that aggregates together Cubans and Cuban expatriates who tend to be politically conservative, right, like Marco Rubio's district has a lot of of of Cuban expats in it with, all other Americans of Hispanic descent who tend to to be more to be be more liberal. So when you look at the, you know, Donald Trump got, you know, 8% of the Hispanic voter, whatever percent he got, it's slightly surprising that that number was not zero.

But it's less surprising when you realize that it includes some traditionally conservative groups. OK, so second criterion, minority group must be politically cohesive. Third criterion is that the district's white majority must vote sufficiently as a a bloc to defeat the minority's preferred candidate, okay? And you can then understand that from a historical basis, right? So if white people are like, well, I don't care about, you know, that particular, you know, what a minority candidate's political party is, I'm just voting for the white guy, then you would need to have majority minority districts. But if white Democrats Democrats would rather vote for a black Democrat than a white Republican, as is largely the case in many areas, then the rationale for creating these majority

0:18:33 Thomas: Okay. Ah.

0:20:09 Andrew: Minority districts no longer holds sway. Way Make sense? So,

0:20:13 Thomas: Kind of. This is, I didn't know all that went into this, and I'm, I'm, I have to admit, I'm struggling a little bit, so, To,

0:20:20 Andrew: So, Historically, that's what, uh, the law, the Voting Rights Act, required states in the south to create, uh, districts that had 50.1% percent African-American population, uh, in areas that met those three criteria, right? That

0:20:36 Thomas: That's interesting. So they had to, like, vote together, they had to be a a kind of homogenous political group in order to be considered. That's just, so, I, I had no idea. That's really weird to me. And how do they decide that? Like, and do they have to decide that every so often or?

0:20:37 Andrew: Yeah. Right. And And And so the idea was Yeah. Well, It's, it's kind of on a case by case basis. Yeah, that's Exactly right. But, so the idea there is, if that was the court's way, in the legislature's way, of ascertaining whether there was, because we've talked about how difficult it is to ascertain legislative intent, right? That goes back to our friend, the City of Hialeah. Like, it is very, very rare that you have a President Trump who says, "I want to keep out all the Muslims. Rudy, tell me, tell me how to keep up all the Muslims." Right? Like, so you didn't have, right, legislatures in the Jim Crow South didn't say, OK, we want to make sure that the blacks don't get in." Right, that they thought that. And so what they did was, you know, crafted these kind of districts, and they're like, "Well, let us increase the African-American population in this district to 42%." Percent.

0:20:53 Thomas: Yeah, right. Yeah.

0:21:38 Andrew: And that's and then and then the African American candidates would lose 58, 42. Right. So Voting Rights Act said, "No, stop that." If, if, if these three conditions are met, you have a geographically contiguous minority population, they are politically largely well aligned, and there is a demonstrated history that the white majority votes against them regardless of their political beliefs, then you need to come in and make a majority minority district so that we actually have representation in Congress that somewhat reflects the actual population of the constituent states. Right.

0:21:43 Thomas: Yeah. Okay.

0:22:16 Andrew: Like it's ridiculous that, you to look at history and then say, oh, gosh, like there are no African-American congressmen from Alabama. Right. There are an awful lot of African-Americans in Alabama. Right. So so that was the whole point of the Voting Rights Act for this section five of the voting rights act. Now, flash forward to today that justification, what Republicans in North Carolina did. And this is not I am reading from the Supreme Court decision. I am not imputing negative motives.

0:22:25 Thomas: Yeah.

0:22:45 Andrew: Right.

0:22:44 Thomas: Here we go.

0:22:46 Andrew: Yeah. They said, OK, what we're going to do is we are going to take traditionally African-American heavy districts that have been voting overwhelmingly Democratic. Democratic, and we're going to add more African-Americans into those districts. Right. We are going to pack those districts, and what they said was we want to pack them because we believe we are going to be required to comply with the Voting Rights Act. And so we've got it. This is only, there were two congressional districts in North Carolina, District 1 and District 12. We're going going to talk about the significance of there being those two separate districts. The evidence was crystal clear for District 1, which includes the city of Durham, North Carolina, that they publicly said it was 43 percent African-American.

0:23:35 Andrew: And they said, yeah, no, we need to redraw this to make it 50 percent African American to comply with the Voting Rights Act. That was totally disingenuous because they knew that the Voting Rights Act did not apply to District 1 and it It didn't apply because of that third prong, because even though it was a substantially minority district, it's 43 percent now. It was voting Democratic on orders of 70 30 in the last dozen elections.

0:24:06 Thomas: So they're trying to, oh, they're using that as a false pretense to pack a district even more that was already Democrat. Okay.

0:24:07 Andrew: Right. Exactly. Exactly right. And and the Supreme Court said, yeah, when that this violates the Equal Protection Clause. And critically, this is an this is the eight oh part of the decision. OK, so this is being reported as a five three decision. It is. But it is only five three with respect to District 12. With respect to district one, all eight judges agree with the following logic, which which is if a district is not subject to the Voting Rights Act, right, has the same kind of history as District 1 in North Carolina, and that is readily apparent, then saying I want to create a majority-minority district then becomes classification on the basis of race, which, as we know from our previous discussions on the Equal Protection Clause of the 14th Amendment, invokes strict scrutiny and is almost always struck down. And the,

0:24:27 Thomas: Oh. Oh, they split it up and Okay, quick question,

0:25:13 Andrew: Yes.

0:25:13 Thomas: You said 8-0? I thought this just came out, but this was one that was in the works before Gorsuch was uh confirmed?

0:25:20 Andrew: Yeah, this was heard in the October term of 2016. So it was heard in the fall before Gorsuch was on the court.

0:25:21 Thomas: Okay. Okay. So there's no catching him up to speed, like if he missed when it was heard

0:25:29 Andrew: Yeah. Yeah, when you miss oral argument, you know, you don't get to borrow, you know get to borrow the tapes and like, you know, study on the weekends and come, yeah, No. Not there for it. You're not there. You don't get to vote? Uh, no, good. That's a great question. I wouldn't, I wouldn't, I wouldn't have known to have said that. So, um, yeah. So the factual findings are, uh, District One was, quote, "an extraordinarily safe district for African-American preferred candidates" in the closest election during the period that was, uh, studied by the court. Uh. The African-Americans candidate of choice received 59% of the total vote. In other years, the share of the vote garnered by those candidates rose to as much as 70. These landslides occurred because the district's white population did not vote sufficiently as a block to thwart black voters' preference, right? So,

0:25:30 Thomas: Okay okay Got it, I didn't know that, I wasn't sure Yeah, yeah, okay right.

0:26:17 Thomas: Right.

0:26:17 Andrew: Evidence is very clear, you do not need to stick more African-Americans in this district to

0:26:22 Thomas: Yeah. So That, that was, when you were explaining to me, that was initially a little confusing, like I didn't realize that was part of it, but now it makes perfect sense because it stops this very thing. Okay.

0:26:23 Andrew: Okay. And I am going to include the map of districts 1 and 12, uh, we'll maybe use them as the cover art for this for this episode. They are as ridiculous as you would imagine. District one kind of looks like a jellyfish. There's a with tentacles pouring off of it. District two is looks like a cobra. Right. It has a, you know, kind of snake head and then this thin line that travels along along the highway. Um, why is this case significant? So, um, case is, a uh. Five, three alignment, which is the four sensible justices on the Supreme court plus Clarence Thomas, uh which

0:26:34 Thomas: Oh, Good idea Oh,

0:27:10 Andrew: Is really, really weird. Um and, uh and Clarenced Thomas writes a concurrence. And We a concurrency says, I agree, I concur in the result, But I want to amplify the reasons whereby I am reaching that result. And Clarence Thomas wrote a three paragraph concurrence that says, I join the opinion of the court because it correctly applies our precedents under the Constitution and the Voting Rights Act. And I want to emphasize our clear error standard, which, you know, defers to the fact finding made the lower courts. We have talked about that. Then there is a three justice dissent, Alito, Roberts and Kennedy. And I want to explain

0:27:11 Thomas: All Right. I

0:27:53 Andrew: The significance. Yeah.

0:27:53 Thomas: The 80s movie villain, uh, block of

0:27:55 Andrew: Right.

0:27:56 Thomas: The, yeah, right.

0:27:57 Andrew: There are things that I am very, very concerned about in this dissent. And chief among them, this will not surprise you, is that Anthony Kennedy joined this dissent. The dissent, because as you will recall from our OA54 gerrymandering episode, Anthony Kennedy has expressed serious towards crafting a one-person, one-vote right to not live in a gerrymandered political district. And the defense that is offered, so the dissent says, yeah, we agree on District one, right? They concur with the majority's analysis with respect to District 1 because in District 1 there is clear testimony that says we were trying to create a majority-minority district. In District 12, the evidence is mixed, okay? There are some statements that are to that effect, but the dissent decided that they were going to review those statements and give more deference to the state's other hypothetical explanation. And what is that other hypothetical explanation?

0:28:09 Thomas: Right. Yeah, So,

0:29:06 Andrew: Here's Here's the court's explanation. Here's that the dissent says. This problem arises from the confluence of two factors. The first is the status under the Constitution of partisan gerrymandering. As we have acknowledged, quote, politics and political considerations are inseparable from from disticting and apportionment, and it is well known that state legislative Majorities often attempt to gain an electoral advantage through that process, citing Davis versus Bandemer, which we discussed in a way 54 partisan gerrymandering dates back to the founding. And while some might find it distasteful, our prior decisions have made clear that a jurisdiction may engage in constitutional political gerryandering, even if it so happens that the most loyal Democrats happen happen to the state were conscious of that fact.

0:29:53 Andrew: The second factor is that racial identification is highly correlated with political affiliation in many jurisdictions. This phenomenon makes it difficult to distinguish between political and race-based decision-making. If around 90 percent of African American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters. And then here's another quote. A legislature may, by placing reliable Democratic precincts within a district without regard to race, end up with a district containing more heavily African- American precinct but the reasons would be political rather than racial.

0:30:32 Thomas: They're saying, let me see if I can summarize it and let me know if I get it wrong. They're saying political gerrymandering, totally cool. We're good with that. Because black people typically all vote the same, it might look like it's racial gerryandering, but really it's just political gerymandering which we're cool with. But doesn't that go against what you said in the Voting Rights Act? It

0:30:54 Andrew: You've correctly summarized what the argument is, so I'm curious where you think that goes against the Voting Rights Act.

0:31:00 Thomas: Well, I thought the Voting Rights Act laid out those categories, like, for what gerrymandering, and it's if you're, right? Or am I, I don't get it.

0:31:09 Andrew: Yeah, the Voting Rights Act applies if those three criteria apply. Right. So if you have geographic location, they are roughly politically aligned and you have the white candidates don't vote for the minority candidates, then the state is required to create a minority, a majority minority district. That so it doesn't apply at all because districts one and 12 are 40 in the 40s of African-American voters. Right? Fit. Majority would be 50.1 percent. Right, they have always they have historically been in the forties. And yet they have historically elected African-American candidates. Does that make sense?

0:31:14 Thomas: Right. Oh, okay.

0:31:54 Andrew: So in other words, you don't have to add more African- American voters to districts one and 12 to elect African- American candidates.

0:31:55 Thomas: Yeah, I think I misunderstood it. So, what, I guess, okay, maybe I'm confused. So what's the difference in your your mind between District 1 and District 12, is it?

0:32:09 Andrew: The only difference for purposes of understanding the Supreme Court decision is that in district one, the Republican lawmakers that were redrawing.

0:32:17 Thomas: It was just what they said.

0:32:18 Andrew: Redrawing yeah it was what they said, that's exactly right. In district one they said, hey, the voting rights act applies here and we have to make this a majority black district. That's a near direct quote and they were and they were plainly wrong and they knew they would have been wrong and in in district 12 they wised up and they didn't say- they, they did once, uh, but so they first said yeah, no, the voting rates act applies here too, then somebody said ixnay on the owning rights. And so, seriously. And so they started giving alternative justifications.

0:32:19 Thomas: They just, that's it. Oh, and they were wrong about it. They were plainly using it. I gotcha. Oh,

0:32:51 Andrew: But one of the things one of the things we've seen right with Trump is that, you know, when you start talking about legislative intent, you you run up against this problem whereby, you know, political officials want to communicate to their hardcore constituents. Yes, that's right. We're keeping down the you know who's so that they don't come into our, you You know what? But but the more you know, the dumber your constituents are, the more explicit you have to be and the more implicit you are, the easier it is for the court to say, oh, well, look that, you know. That seems pretty direct to me.

0:32:51 Thomas: And that's the only difference. Wow.

0:33:24 Thomas: Right. But what about the part where they talk about political gerrymandering? Totally fine. What about that? I mean, because it really, it sounds like that's what they're talking about. That's what I said to me.

0:33:26 Andrew: Yes, that is exactly what the dissent says. And it is very troubling to me now. Look, Supreme Court justices work really hard. We don't know to what extent that, uh, you Know, Kennedy's clerks looked at that. There are lots of reasons that Anthony Kennedy might have joined on to this opinion. But it is troubling that he would join an opinion that says political gerrymandering is just fine. And It's particularly troubling because this is not just something Samuel Alito cooked up because he's a monster, even though he is. Uh, this was argued by the state at every level, right? Like their defense to racial gerrymandering was, "No, no, no, we're not doing this for racial Yeah, it and look, there's an aspect to which they might be right, right? Like, because these are political hacks and and so their their defense was, "Yeah, we we are not trying to dilute uh the African-American vote throughout North..." We're trying to dilute the Democratic vote

0:33:56 Thomas: Yeah. Oh, it just looks like racial gerrymander. Yeah. Yeah.

0:34:32 Thomas: Yeah.

0:34:32 Andrew: Throughout North Carolina. And just so happens that, you know, blacks tend to vote Democratic. So we stuck them all in this district. Know, we are fortunate that, you know, they were incautious enough in both of these, you know, that that there are sufficient public statements that, you know, allowed the Supreme Court, you know, to reach the result that it did. But but the idea that there's no way that Anthony Kennedy was not aware by signing on to the dissent that he was joining an opinion that the defense was it's perfectly OK to minimize the Democratic vote in North Carolina. And so if you are trying to read the tea leaves, in my view, the case for optimism, you a sharp turn downward.

0:34:32 Thomas: Yeah.

0:35:18 Andrew: Doesn't doesn't in my mind doesn't go to zero. But but but this is.

0:35:21 Thomas: I guess on the bright side, I mean, even when you add another monster in Gorsuch, it's still only four monsters. Hopefully, I mean

0:35:27 Andrew: Yeah. But Kennedy's the swing vote. Right. That's the point. So, you know, we

0:35:28 Thomas: Yeah oh wait, but you said he went in the, but he went in the descent

0:35:34 Andrew: Remember Gorsuch. Gorsucha also took no part of this case.

0:35:35 Thomas: No I, know, I know it was five three so wouldn't it just be five four is what that's all all I'm saying

0:35:40 Andrew: Right. But Thomas has been very, very. Remember, Thomas joined the majority in this case on these facts. And Clarence Thomas has dissented, joined with Scalia's argument in Vieth.

0:35:46 Thomas: Okay so you're saying he's he's hanging by a thread here, like he could go the way, so next time it could be five four the other way

0:35:53 Andrew: Oh, yeah. Thomas is not hanging by a thread when this comes up as a political gerrymandering question. Thomas will vote that political gerymandering does not violate the Constitution.

0:36:05 Thomas: Boy I was trying to maintain optimism but you killed it, you're right, I'll

0:36:08 Andrew: No, I know. Well, And and and I like, I like the fact that this is this is a case that has, and rightly so, for people who live in North Carolina districts one and 12. Right. Right. So this is a good short term victory with respect to those two North Carolina districts. But this is very, very ominous in the long term, in my view.

0:36:32 Thomas: Shoot sad stuff, yeah, I see what you're seeing, boy. We'll have to keep an eye on, do it, you do know any other cases like these pending coming up, but anything to keep an eye on in this respect? Yeah.

0:36:41 Andrew: Yeah, there are there are several cases that are pending, one in Wisconsin that has a that's on a unique procedural track. So it is going to be heard by the Supreme Court in the fall. Was really hoping that the Maryland case might get there first because that fact pattern may be more enticing because Maryland involves Democratic governor and legislature redistricting Maryland to prioritize Democratic votes as opposed to, you know, red map.

0:37:14 Thomas: So maybe they'd be stuck with that if they if they went that way, yeah, okay, yeah

0:37:16 Andrew: Right. And I would have liked to have seen that come up in that context. But I think we're going to get Wisconsin first. And Wisconsin is one of these red map cases, right? Like it is, it is Republican Germany. You know, look, we have said this before, it bears saying again, both both parties participate in this equally. Uh, it just so happens the Republicans won more state houses, uh, and more governorships during the last census and the difference between 2000 and 2010 is the difference, you know, is a significant difference in computing power, and now it is trivially easy to just, you know, type in the parameters. You know, actually, I think there's a web app where you can do this, right? You just type in the parameters, uh, and it will spit out, you know, here's how to have the the highest number of safe Republican districts. That program is called Red Map. And again, you know, it's an accident of history. If the Democrats had won in 2010, I am sure they would have had Blue Map and, you know, we would be looking at all of these from from that perspective. But

0:37:27 Thomas: Right oh yeah yeah yeah I

0:38:18 Andrew: Yeah,

0:38:18 Thomas: Mean, it's easy for Democrats to say now when they're kind of disadvantaged by this, but it would be nice to see some sort of objective standard to to just police everybody for this, you know, so that it's and neither side.

0:38:26 Andrew: That's exactly that is exactly right. And I want us to be, you you know, out striking the forefront of that look like it is ridiculous that Democrats won more votes for the House of Representatives in each of the last three election, three congressional elections. Make sure I'm getting that right. 2016, 2014, 2012. Yes. And yet the Republicans control the House Of Representatives, right? Like the whole point of having a House of Representatives is that the Senate is supposed to be six-year terms, more considered political independent judgment, more partisanship, as we might put it today. And the House is supposed to be reflective and responsive to short-term changes. And if we had a House of Representatives that was responsive to the wishes of the electorate, It would look very, very different right now, uh, with a president whose approval rating is in the 30s, and uh, and that's the way it's supposed to be, and it and it it isn't right now because uh, members of Congress are far more concerned with losing in the primary than then they are concerned with losing in the general election.

0:39:30 Thomas: Yeah.

0:39:38 Andrew: So, yeah.

0:39:38 Thomas: You know, Attaching onto that, not a topic for this show, but I wonder how much them knowing there's a propaganda machine in Fox News and other right-wing outlets that will sort of protect them from any sort of political fallout. I wonder if that's part of it too. Like, it's not just the gerrymandering, it's kind of both those things, but just thinking out loud.

0:39:58 Andrew: Yeah, no, I think that's, I don't disagree with that. I do want to say this Cooper v. Harris decision, we could get into some of the intricacies that are also at issue here. You know, we just don't have the time for it. In my view, you I wanted to go through the tension between the Voting Rights Act and the, you know, salutary effort to create majority minority districts and how that's being used, to achieve political ends and that tension we did. I want to talk about the significance I think that this case has going forward when you're trying to read tea leaves. So I think we hit both of those. But if there are further questions, you knows, send them send them our way at but openarguments at gmail.com.

0:40:14 Thomas: Yeah, yeah, absolutely. Well, thanks for taking us through that. I'm I'm depressed as usual, so let's move on. All right. Okay, Andrew, another listener question. Gary Myers asks, I have a question about the rights that corporations have as a result of being people. I'm particularly interested in whether or not the Fifth Amendment right to not incriminate oneself would apply to corporations, and what are the implications either way? That is an excellent question. I am guessing the reasons he chose this, Andrew, has to with Flynn, maybe the fact that he pled the Fifth Amendment in response to the subpoena that we that we talked about last week? I'm guessing that's why you picked this, but this is an excellent question because, you know, as we know, corporations are people, my friend. So, do they

0:40:53 Clip: The law breaking down

0:41:36 Andrew: Yeah.

0:41:36 Thomas: Have a Fifth Amendment right?

0:41:38 Andrew: I have, I, I, first I want to give a special shout out to Gary, because I have had this question in the hopper since before, uh, the recent events

0:41:46 Thomas: Oh, I think you're giving a shout out to you is what you're saying.

0:41:50 Andrew: No, I mean he was prescient in in asking a question that, uh, the last part of it is, what are the implications either way, and, uh, I would have had to have answered that in the hypothetical. I now don't have to, because the Senate Investigatory Committee has said they are going to attempt to subpoena records, corporate records, that will respond in part to the subpoenas to which Michael Flynn declined to answer and asserted his Fifth Amendment rights.

0:42:01 Thomas: Yeah, it's very, let

0:42:18 Andrew: Uh, but yeah

0:42:18 Thomas: Me, can I give a guess? And this is, this is nothing to do with the law or or anything. This is just me and my personal wishes. Can it please be true that corporations don't have Fifth Amendment rights? Please. Can they not have...

0:42:20 Andrew: Go ahead it is in fact true that yeah, that corporations do not have, uh, Fifth Amendment rights, uh, this has been, this has been well established for a century, although you know, again, if Trump is able to make three more originalist appointments to the Supreme Court, you know who knows

0:42:32 Thomas: Oh, thank God. I was going to say, it Scalia's agenda that he was just about to get to. He was just about to give corporations Fifth Amendment rights.

0:42:47 Andrew: Yeah early 20th century case, uh, Hale versus Henkel, um, it is clear. So when we say corporations or people, my friend, what we mean is that there is a distinction between being a legal person and, you know, being a natural person, right? So when you are a legal person, can be for purposes of sort of any number of rights that can be conveyed out. So this is an example from British law. This is a shout out to our British listeners. To represent a runoff entity for Lloyd's of London. And there was a requirement for Lloyds of London for earlier policies, pre-1986 policies, that those policies could only be underwritten by a real person in interest. They could not be underwritten by the name component, could not been underwritten a corporate person.

0:43:43 Andrew: Now that's been changed for reasons that are not remotely important to the show. But what it means is that when we designate someone as a corporate person for a purpose, those purposes can then be defined by the law. And saying that corporations are people for tax purposes, for example, doesn't mean that inexplicably, like the Supreme Court determined in the Hobby Lobby case, that now corporations apparently have a First Amendment right to have religious beliefs. That's never been the case in in our nation's history, um, and certainly, uh, you know, prior to 2014, uh, corporations did not have, I mean, it would be absurd to talk about a corporation having a religious belief right. Corporations are not, uh, uh, church goers. They are, yeah yeah

0:43:59 Thomas: Hmm. Yeah. Yeah. Boy, back when things made sense, it would have been absurd to talk about it that way.

0:44:29 Andrew: They are profit centers, right. So, um, and similarly, uh, the Supreme Court has made clear that even though corporations are, uh, legal persons, uh, that, you know, that's a fiction, and you figure out which rights attach to those legal persons, and, uh, and and the Fifth Amendment does not attach, which, uh, you know, good, uh, there are lots of other rights that shouldn't attach to corporations, right, because look, you and I have made this very very clear, right? Look, we are capitalists. I strongly believe in the capitalist system, uh, I am not a socialist, uh, I don't believe that you, you know, the worker should seize the means of production. I think it makes plenty of sense to say, when you are going to have a business like, say, you know, a podcast business or a law firm, that, you know, you would want, you would not, you would not want to be in a position where people have to choose between having the protections of a corporation from a liability standpoint versus having the tax treatment for the business. Right.

0:44:31 Thomas: Yeah.

0:44:47 Thomas: Good. Whew.

0:45:14 Thomas: Yeah. Yeah,

0:45:31 Andrew: So

0:45:32 Thomas: And I think what bugged me about the straw man back in the day about this was, like, there's so many reasons why even a staunch liberal would want a corporation to be a person sometimes. Like you'd want to be able to sue them. You'd want be, you'd you want to able to form some sort of contract. Like there's, it's not as though the only functions, and correct me if I'm wrong, Andrew, but it's as though the only, the only benefits of corporate personhood are like right-wing capitalism kind of benefits. You know, like there's plenty of, there's many, many benefits to plenty of ways, plenty of downsides to it, right?

0:46:01 Andrew: That's exactly right. And I would add, matter how far left you are, I would think you would want to create an environment in which people who have a good or service have the opportunity to to sell that good or service, right? Like even if you want to tax it, you want to regulate it, like that's fine. But you want, and, and there's some things where, you know, you would say, right, like obviously the most corporate friendly environment would be, you know, corporations pay no tax, right. Well, you know. Okay, you can go too far. But one of the principal reasons for corporate personhood is so that if you start a business, you can start a business and you can say, um, I, don't ever want to put my house and my family at risk by starting this business.

0:46:17 Thomas: Mm-hmm. Yeah.

0:46:50 Andrew: Right, I, I want, I want, if my, if my business causes harm to someone, uh, it will satisfy its debts and it will, you know, uh, if, if we're sued, you know, if I start an ice cream parlor and someone, you know, day one someone slips and falls, I don't have any insurance, they sue my ice cream parlor, they can, they can put the ice cream parlor out of business, we'll pay, you know, whatever it is we have to do, uh, but, you wouldn't want in that case for people to be paranoid that you, uh, know, you could pierce through, uh, the Ice Cream Parlor business and take their house and, you know, all of that. So, so so corporations are people, but but they're not people like you and me, they're different. Different kinds of people.

0:47:22 Thomas: Makes sense to me. Yeah. Yeah, they're better looking. No, but what about the specific consequences of this? So are they going to try to subpoena the it comes To my mind, that maybe some of these records that the court wants, or that the investigation, you know, wants from Flynn would be corporate records. So this is, this sounds like a way they're going to be able to get their hands on some of this, because Sounds like he was likely doing this work as a soul prop or something.

0:47:54 Andrew: Yeah. And so what the corporation is going to do is then assert the various defenses to some of those documents that we have talked about in kind of ordinary, in the ordinary course of business litigation. So, for example, they could decline to produce some records because it is unduly burdensome. Right. If they are if there are millions of records to search through, they could say, hey, look, we're not a party to this. You got to make this a more narrowly tailored request. They could refuse to produce documents that reflect attorney client work product or attorney client communications. Right. Right. So if there is a lawyer providing advice in the context of this business record, they could refuse to produce it. They could refuse the discovery of admissible evidence. So they can raise all of those objections. But

0:48:16 Thomas: Yeah, right, good.

0:48:55 Andrew: What they can't do is they can't raise Flynn's objection. They can't say, from a corporate perspective, we are concerned that these documents would be incriminating of our corporate personhood and therefore refuse to produce them on those grounds. So, yeah, good, right.

0:49:12 Thomas: But I think this is just so great because last week we talked about Professor Elias and said, yeah, he might try to plead the fifth on this, and we talked about it, and sure enough, he did.

0:49:12 Andrew: Right.

0:49:23 Andrew: Yep, I, we saw that coming. And I want to emphasize, I this is a really good point to do that. One of the things that Professor Eliza said that I thought was really crucial to understanding this investigation as it's going to unfold he said, "Look, the the special prosecutor is not going to immunize Michael Flynn immediately." Right. Like that, that would solve this problem. If you granted Flynn immunity, then he would no longer have a Fifth Amendment right to assert. He would have to produce the documents because they could no longer be used to incriminate him, because he's got immunity for any crimes related that are potentially related to those documents. And I asked, as a non-criminal attorney, I said, "Well, yeah, why wouldn't you just immunize him immediately?" And what Professor Eliason said is, "Hey, look, this is an investigation, right?"

0:50:10 Andrew: Like they're going to go out, they're gonna conduct as thorough an investigation as possible and see if they can make the case without him. And, you know, and if they can't write six months from now, a year from now if they can't make that case, then you go back and immunize Flint. Right. But if you can make the case without him, why allow somebody who is guilty of a crime to have a get out of jail free card?

And I thought that was a really it was an excellent point. And it is it is the caution with which I want people to as they're following, you you know, the daily breaking news on the investigation of Trump to remember that a special prosecutor is a lawyer like me. They are thinking about this in terms of building a case. And these cases typically take years to get to completion. Now, this is going to move more quickly because of the political pressures. But it is still going to take a year. Right. It is still gonna take many, many, many, many months before the developments start snowballing. And we retweeted a thread on our Twitter page. Twitter handle is at OpenArgs, as you should know, that I thought did a nice job of summarizing it, but basically said, look, Republicans who are attempting to distract from this are going to start having as their talking points like, well, where's the investigation? Where are the results? Where's

0:50:57 Thomas: Yeah, yeah.

0:51:32 Andrew: The evidence of the crime? And the answer is, you know, we're five days in, right? Like, don't expect that kind of evidence. And we should make sure on all sides that we have an appropriate understanding of, you know, what is this process like? It is a thorough, laborious, painstaking process. It's part of why one of the things you want to look for in a good lawyer is attention to detail. And it's going to take a long time. And there will be, you know, developments. But the fact that you haven't heard about something for three days, you knows, is not an indication that there is there or there isn't anything there. And if you're on the left side of the aisle, you should not expect that, you you know, Donald Trump is going to be impeached, you know in June, like like that's not going to happen. It this is this is a this is A lengthy process. So I thought that was a good point.

0:51:37 Thomas: Yeah, well, I thought That's good, because my impression from Law'd Awful movies was that you just get Trump on the stand, and then you ask him a series of quick questions, and he says, "All right, I did it. I colluded with Russia. You got me. Is this supposed to be some sort of crime?" And then he cries, and then the judge is like, case dismissed.

0:52:37 Andrew: My boyfriend is Greg.

0:52:40 Thomas: Law'd Awful Movies, everyone. And the judge just says, case dismiss. Everything over. Go home, everybody. All right. Yeah, very important. That is something to keep in mind, though. Definitely. I like that Twitter thread that you referenced. It's going to take a lot of time. We all want an easy quick fix to this and a bag of Russian money. It's just not how these things work, unfortunately. And as you've said time and time again, Andrew, political pressure is really, I mean, the political solution should be what's happening if we didn't have political cowards in the House and Senate. So we're kind of stuck.

0:53:17 Andrew: Yeah.

0:53:17 Thomas: All right. Well, it's our favorite time of the week. Ah, what a good time of the week. This is Top Patron Friday. I want to take this time to point out that we are so close to our next goal, which is that Q&A, that extra bonus Q&A with listeners every month. So we are super close. That is awesome that you guys have even gotten us this far. I'm just so happy about that. Thanks so much for supporting the show. And speaking of, credit Credit is due to our top patrons, Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Amanda Lipnack, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall, Heath Enwright, Jeffrey Maynor, The Wayward Willis, Detective Matthew Maxson of the Odd Atheist Friends Podcast, Dave Lovely, Danny Baker at Combat Nonsense, Charone Frankel, host of the delightful podcast, Habeas Humor, Squick Thinger, Ian Ryan, Matthew Hillier, Aaron Grady Smith, TV Is My Girlfriend, C6, Sarah Hunter Ash, and Torsten Skerv. Thank you guys so much. Absolutely.

0:54:25 Andrew: Yeah. And thank you to Adopt a Homeless Pet and Opposed Declawing and Ear Docking, Philip Stromberg, The You Are Here Sci-Fi Audio Drama. Thank you to RJ, Happy EMS Week 2017 Radio. And again, if you want to use your Patron names to have a an ongoing war with your boss over who listens to Opening Arguments, we we entirely support that. Thank you too to Thomas's Missing Feet, to Stephen Boyd, that's at DJ Empirical. Thank you to CampQuest.org, CampQuast.org. CampQuist.org. Thank you to Torsten Pihl of Prosperity Karma. Thank you too. JT loves his hubby, Logan. Thank you. The Squaring the Strange Podcast, John Bodley, Esquire, Kaylee Reiser, Sakashita Fukasumi, who I want to point out has changed his name to Kanji characters just to try and throw us off. Uh, Michael Schaefer of Reason Real Estate, the Electronic Frontier Foundation at EFF.org, The Netsec Heathen, Jessica Wilson, Mark Smith, Thomas McCormick, Dang Griffith. Thank you. Special thank you to Frederick Alstromer, who apparently we forgot to thank last Friday, so uh

0:54:53 Thomas: Oh.

0:55:03 Thomas: Sneaky. Oh.

0:55:39 Thomas: No. Double. Thank you, Frederick Alstromer.

0:55:40 Andrew: The Yeah. The patron's so nice we're going to thank him twice. Fredrick Alstromer. Uh, thank you to Revan, Michael Rops, Melissa Alexa McCool, Conrad Michaels, and of course our top patron, Zabby. Thank you all so much.

0:55:43 Thomas: Yeah.

0:55:54 Thomas: And a lot of you, by the way, have uh little pronunciation hints in your your names. I encourage that. Thank you for doing that. That's really helpful. You can send us an email, but we might forget. If you put it right there in your Patreon name, we're guaranteed to get it right. So thanks to those who've done that. It's very useful.

0:56:12 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:18 Thomas: All right. And just coming off the high that was Top Patron Friday, I was on a mountain peak, and now I'm back down to Thomas Eliminates Two Answers From The Bar Exam Friday. So here we go. My streak is intact, though. My elimination streak is intact, so Let's see if I can keep that going.

0:56:35 Andrew: Yes, yes It is. Okay. All right. Uh, this is, uh, this is a recreational marijuana question. So, uh, I have no idea if that's going to give you an advantage or a disadvantage Yeah. Not For Me Either

0:56:46 Thomas: Nah. Yeah. Hate To Say it not a Not A Huge recreational Smoker, but I'll Channel my inner stoner and see if I can figure This out.

0:56:48 Andrew: Yeah. Yeah. I Think We have a couple folks that we could, uh, if you need to phone a friend, or um Here we go. Question number 25. A vehicle operator was driving on a highway at night. His girlfriend was in the passenger seat. They were returning from a college night class. She was smoking marijuana, blowing it out the open window, and not sharing it with the driver. There's, I'm sure there's some sort of some sort of etiquette about that.

0:56:58 Thomas: What A Jerk Yeah, that's All The point of the question is like, is She not being nice? Yeah.

0:57:19 Andrew: Right. A The Biggest jerk. Uh, no, the driver fell asleep, causing the car to veer off the highway and go into a ditch, where it landed upside down. Both the driver and the passenger were seriously injured. She, I guess that's the passenger, sued the operator for negligence. The operator filed a counterclaim asking for damages against the passenger by arguing that the passenger was herself negligent by smoking weed and causing him to fall asleep. Is the court likely to grant the passenger's motion to dismiss the counterclaimed? Okay, so procedurally, passenger pothead sues the driver who falls asleep. The driver then responds to to that by filing a counterclaim, which You can do, right? You can answer the lawsuit and say, oh, I deny all this, but also I have a lawsuit to bring against my pot-smoking friend here for getting me high and causing me to fall asleep. Is the court likely to dismiss, and then not present in the fact pattern, but a clear predicate to the question, then the passenger pothead moves moves to dismiss, right? Is the court likely to grant The

0:57:25 Thomas: Hmm. Okay, right.

0:58:11 Thomas: And We don't, it doesn't even tell us what her grounds for dismissal are. Okay, interesting.

0:58:38 Andrew: No Doesn't Doesn't say, but but we know motion to dismiss means failure to, here is, is going to mean failure to state a cause of action for which relief can be granted, right? So now here are your choices. Yes, because the passenger was not actively participating in a joint enterprise and did not do enough to contribute to the cause of the accident?

0:58:42 Thomas: Okay. Okay. Hmm. Oh.

0:59:02 Andrew: Yes, because a vehicle operator is always liable and a passenger cannot be made liable for the driver's actions under any circumstances. C, no, because the driver has properly alleged a joint enterprise situation where the passenger is liable for her share of the negligence in causing the accident. Or D, no, because the passenger was was breaking the law, making her negligent per se. Sure.

0:59:29 Thomas: Very interesting question here. Um, so in terms of Thomas Eliminates Two, I I would say B is a firm no, because there's no way, again, I think this is, we've learned, uh, that that always always and never kind of absolutist language, usually wrong. I was going to say always wrong, but then that in itself would be wrong, and then we'd get into a loop, but usually wrong, because I can't imagine that if a passenger hits the driver with a baseball bat or something, that the, nope, sorry, operator of the vehicle is always liable, so I've got to think that's nonsense. I would say that the two that are really, uh, looking good to me is A, yes, not a joint enterprise, and C, yes, it is a joint enterprise, because I feel like if those are, I mean, those kind of go together, so that would test, I'm just, I'm just doing a little test logic, like if you're trying to remember what qualifies as a joint enterprise, then it makes sense that those would be the two you'd be looking at.

However, it's, it's, you know, it's possible theoretically that D, which was, you know, because the passenger was breaking the law, they're negligent per se. It's possible that that would erase all that. But so then I want to turn my mind toward D in that case. So does that sound right? So I would say that that can't be right, because if somebody's in the, I don't know, in the backseat of the car,

1:00:05 Andrew: Okay.

1:00:53 Thomas: Forging some documents or something, you Know, doing some, some crime, just breaking the law in any way they're in the the backseat, I don't know, littering or something, you know, it doesn't make sense that they would be negligent per se. So, I'm going to eliminate B and D and say it's got to be A or C. And for this one, it seems like you wouldn't throw this out because the driver has properly alleged joint enterprise. I mean, I do not know the details of properly alleging it, but that seems right to me because it seems like you would need to look at the case and say, well, let's get an expert in here. Does smoking in the passenger seat while the person's driving, does that cause this?

1:01:38 Thomas: It seems like he would need evaluate that because there could be facts either way that might decide that. So, for that reason, I'm going to say C, that the driver properly alleged a joint enterprise situation.

1:01:50 Andrew: Uh, and we will determine whether Thomas has properly eliminated two answers from the bar exam and or gotten the correct answer on Next Tuesday's episode.

1:01:59 Thomas: I'm not even thinking about

1:02:01 Andrew: You're not even trying to anymore.

1:02:01 Thomas: That anymore. I don't even care. I threw in the the correct answer, guess, just to let everybody know to guess A, just to give you an indication, you know, just point everybody else out. I don't even care. Doesn't even matter. I'm going for Thomas eliminates two. I'm starting the Thomas's last chance, or second chance law firm.

1:02:10 Andrew: All right. Yeah. Well, if you would like to guess A, then the way to do so is to play along on Twitter. Take our announcement tweet, re-quote it, hashtag TTTBE and guess the answer A, include your reasons therefore, you could guess something else, uh, but we will choose from among the winners who have guessed A on next Tuesday's episode, and when we do that we will give you a nice shout out, read your reasons, and we'll all have a lot of fun at Thomas's expense. Yeah.

1:02:33 Thomas: You're just telling people, yeah.

1:02:49 Thomas: Yeah, Andrew's not even hiding anymore. He's just like, yeah, it's A. No, or is it? You guys have to answer, because if everybody guess is A and I turn out to be right, aren't you going to look foolish? I will remind you all, there is a time sometime in this test, I don't remember when, when I've gotten the right answer. I don't, I know it's happened because my score is not zero. So, all right. And if you'd like to play on Facebook, of course, share and dot, dot, and do all that good stuff. You know how to play the game. It's super fun. It's one of my favorite parts of the show, even though it's incredibly embarrassing and humiliating, but still, it's fun. Right, Andrew, I think that does it for For today's episode, lots of relevant, timely news. I'm just, I can't stop being enthusiastic and excited for this new format. I hope everyone's enjoying it as much as I am. And thanks to Andrew for getting that up-to-date info for you guys on pressing issues within a day. It's awesome.

1:03:05 Andrew: And Thanks to Thomas for asking the right questions and editing the hell out of this to make sure we can get it out within a day. Now, this is, uh, this is this good fun. I love this format going forward, and, uh, I think, I think our patrons, I think are listeners, I think everybody has said, uh, they're, they're happy that that we're able to, uh, to, to, be responsive, uh, in a more timely fashion.

1:04:01 Thomas: I love it. And don't forget to check out Law'd Awful Movies number seven with Anna Bosnick. Lots of fun. That's over on patreon.com/law. Don't miss it. Coming up to a theater near you very quickly. It'll be out before our next OA episode. That's my pledge to you guys, but it'll be out soon.

1:04:12 Andrew: Yeah. That may be, uh, it may be my favorite Law'd Awful Movies that we've done. It was really, really good, um, and we disagree on, on, oh, anyway, I won't give stuff away. There's good stuff.

1:04:26 Thomas: Yeah, there's some few. Oh, a new. Oh, no, no guys. A new character is born. Oh, gosh. This one was great. Yeah, you don't want to miss this one. I'm not going to give it away. You know, it was really funny. Maybe we may end up adopting it as a recurring show character. We'll see. All right. Thanks for listening, guys.

1:04:44 Andrew: Okay. That's it. Yeah.

1:04:46 Thomas: We'll See you next week.

1:04:54 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.