OA183: Dissenting on the Supreme Court

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 183! And, uh, how you doing, Andrew?

0:01:24 Andrew: I am fantastic. I feel like my audio is rich and vibrant. I'm super happy.

0:01:30 Thomas: We'll see. We haven't... I hope it is. I'm glad you can hear yourself. And I also am, uh... I'm wearing my white shoes and my... I got the whole get-up. I just... we are a white shoe legal podcast here. We are fancy as F. All right. Today, we are going to be talking about dissents in 8-1 cases. What an awesome theme. I love that.

0:01:40 Andrew: Yeah, there are two recent cases that have just both come out at the Supreme Court level. Both are 8-1. Both surprised me, and so I want to see if we can learn some lessons, if you can guess who the dissent is and on what grounds. I mean, we're going to have a lot of fun with us.

0:02:15 Thomas: Well, I was going to make a guess that by, not quite by definition, but it would seem as though a dissent in an 8-2 case is going to have a pretty cranky dissent. You're not going to have a, you know what I mean? I just feel like if you're the only justice dissenting, you're going to be like, "Guys, what? What are you doing?" I feel like it's going to, but we'll see. I don't know if that assumption is correct. Yeah.

0:02:37 Andrew: Yeah, we're going to challenge it. I will tell you, 8-1 is the least common alignment of any Supreme Court decision. It is actually, it's a U-shaped distribution, right? The most decisions are either 5-4 or 9-0, and 8-2 and 7-2 are the least. Yeah. And I'm going to link an article in the show notes that goes through some of the statistical analysis. Because when I was in law school, I was asked that question, and you know, you would sort of think like, "Oh, okay, well, the Supreme Court takes a lot of tough questions, right?" So most cases should be 5-4, and then some will be 6-3, some right, and and it should be, you know, in in relationship to the difficulty of the question. Turns out not remotely the case, and um, maybe we'll get to figure out why. Well,

0:02:42 Thomas: Yeah. Huh. Right. Yeah.

0:03:23 Thomas: It kind of makes it, makes sense to me, actually, because it's like either it's a partisan issue, you know, where we're at 5-4 because there's, you know, the partisanship of the Supreme Court, or it's an issue that doesn't, it's so obvious that everyone's like, "All right, fine." I know, I don't know, kind of, kind of make, make sense to me, but I don't know. Maybe I'm wrong.

0:03:41 Andrew: But part of it is you learn as a lawyer that only hard cases get to the Supreme Court, right? So you would think there shouldn't be that many 9-0, but but it turns out there are a lot, so, there, did, we'll see.

0:03:46 Thomas: Interesting. All right. Well, let's get to it.

0:03:57 Clip: The law breaking down

0:04:03 Andrew: Right, our first case is Collins versus Virginia. Again, these are both uh very very recent cases. Um, this is an 8-1 decision, and let's start off with the fact, the facts are fun, right? So um, begins with a police officer in Albemarle County, Virginia, right, Matthew McCall, and he, he observed the driver of an orange and black motorcycle with what is called an extended frame. I don't, I don't know what that means. I don't know if you do. I know you're a motorcycle GUY. Yeah. But in

0:04:33 Thomas: Don't t know what a motorcycle's extended frame would look like, I guess.

0:04:37 Andrew: Yeah. I don't either. Anyway, orange and Black motorcycle. What what the majority describes as committing a traffic infraction. And what the dissent points out is traveling in excess of 140 miles an hour. So guy zooms past a cop on this orange and black motorcycle, 140 miles per hour. The driver, the majority notes, eluded Officer McCall's attempt to stop the motorcycle. Yeah, I bet. I don't think you can crank one of those Ford Tauruses up to 140. A few weeks later, Officer David Rhodes of the same department saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too.

0:05:23 Andrew: So the officers compared notes. They decided that the two incidents involved the same motorcyclist. OK.

0:05:31 Andrew: Upon further investigation, the officers learned that the motorcycle likely was stolen and in the position in the possession of petitioner Ryan Collins. After discovering photographs on Collins' Facebook profile that featured an orange and black motorcycle parked at the top of a driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street. It was later established that Collins' girlfriend lived in the house and she was renting the house. That may influence your decision, so I will add that parenthetically.

0:05:44 Thomas: Oh, so you're not going to tell me which way it went, and I have to guess. Is that what you're saying?

0:06:04 Andrew: Collins, right? Right. And Collins stayed there a few nights per week. From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered up with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph, and remember, on Facebook he's showing off, he's like, you know, I get on on Facebook, and post here's my right

0:06:06 Thomas: Oh, okay. Yeah. Check out my speedy motorcycle thing that Andrew and Thomas don't quite understand.

0:06:30 Andrew: Yeah right So Officer Roads, who did not have a warrant, exited his car and walked towards the house. He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway where the motorcycle was parked. In order to investigate further, Officer Roads pulled off the tarp, revealing the motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. He gathered the information, took a photograph of the uncovered motorcycle, put the tarp back on, left the property, went back to his car, waited for Collins to get home, asked him a couple of questions. Hey, is that your motorcycle? Yeah, it is. Did you buy it? Yes, I did. Okay, well, you're under arrest. And so Collins was then

0:06:38 Thomas: Wait yes

0:07:19 Andrew: Arrested and charged

0:07:20 Thomas: He bought it, I thought they thought it was stolen. Oh, oh I see it gotcha, gotcha, yeah yeah what

0:07:21 Andrew: No no, he, that's what, that's what Collins said, but he was lying right, like he's got the evidence that, you know, it's it's

0:07:28 Thomas: You're saying is criminals are sometimes not trustworthy, okay.

0:07:29 Andrew: Uh Yeah, this is the uh, the Eli Bosnick cops theory of the law. So he's, he's interrogated by the police officer. The police officer's really, you bought this? Yeah, okay, you're under arrest, um, and so Collins is arrested and charged with receiving stolen property. And here we have two different kinds of exceptions to the Fourth Amendment that are at odds with each other, right? And so, as you know, the Fourth Amendment provides that persons will be secure in their person's places, homes, and effects from unreasonable searches and seizures, and that no such searches will issue except upon a search warrant issued with probable cause, right, there's no probable cause here, we all agree with that. So the first question is, are you secure in your home when it's not your home, right? It's your girlfriend's home. And you're not talking about inside the house, right. You're talking about in the driveway, right, do you have a right to an expectation of privacy for,

0:07:32 Thomas: Right to a covered motorcycle

0:08:29 Andrew: Yeah, for a motorcycle you've covered up on your driveway. And the answer is right. If this were a stack of gold bricks in the driveway, right, the answer would be absolutely yes. There would be no argument about it whatsoever. You have an expectation of privacy for something you stick a tarp on in your driveway. And this provision is called the curtilage exception. So as you might imagine from that word that, you know, just rolls right off the tip of the tongue, curtilage, this is left over from 13th century Saxony law. It's this longstanding principle that says when it comes to the Fourth Amendment, the home is first among equals. At the amendment's very core stands for the right of a man to retreat into his own home and therefore be free from unreasonable governmental intrusion. And to give full practical effect to that right,

0:08:29 Thomas: Interesting, okay ah

0:09:18 Andrew: This court considers curtilage, the area, quote, immediately surrounding and associated with the home to be part of the home itself for Fourth Amendment purposes. Right. So the protection afforded the curtilige is essentially the protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are the most heightened. OK, so that's principle number one in your driveway. There's this curtilage. And that's, we think, key to understanding the Fourth Amendment's guarantee to you being secure in your home against unreasonable searches and seizures. The other side of the coin is what's known as the automobile exception. And it's pretty straightforward.

It says there are two things that we think about when it comes to motor vehicles, right? That there's a big difference between searching someone's house and searching their car because, number one, a vehicle can be quickly moved out of the locality or jurisdiction in which a search warrant must otherwise be sought. And so the ready mobility of a vehicle provides an exception to the other the otherwise legal requirement that you have to get a search warrant, right. And then there's a second provision which suggests that people have a lessened expectation of privacy in their cars because of, quote, the pervasive regulation of vehicles capable of traveling on the public highways.

0:09:24 Thomas: Gotcha well seems straightforward then

0:10:44 Andrew: The court goes on to note, automobiles, unlike homes, are subjected to pervasive and continuing governmental regulations and controls, including periodic inspection and licensing requirements as an everyday occurrence. Police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

0:11:08 Thomas: Right but they don't do that in your house, and

0:11:09 Andrew: Right. True. Right. So that's so that's the those are the two principles that are coming up against each other. The curtilage exception, which says you have an expectation of privacy for a vehicle parked in your driveway and the vehicle exception, Which says, if we're talking about searching a vehicle, you have a lessened expectation of privacy when it comes to your vehicle. We don't want to have a strict requirement that requires officers to because go you could drive that vehicle away, right? And then the evidence would be gone. So if I told you the case is 8-1, how do you think the court came out on this one? The current court, this is two weeks ago, actually a week and a half.

0:11:48 Thomas: This is the, the, the current court we're talking, that, oh, Without a hint, I mean, I, this just feels obvious to me. You don't have a warrant, yeah, okay, you have a little bit less expectation of privacy in your car, but I don't see why that would translate into, okay, so you can just get searched on your own property. I don't think, I really don't think this should be particularly close, and I guess it was 8-1, but I can't wait to find out it went the other way, because I know you've talked about the Fourth Amendment being kind of eroded and stuff like that, so I'm gonna, if Justice Smith were answering, I would say that cartilage exception, you know, still holds, or whatever, or not exception, the cartilage rule, or Whatever, I think that's, that should still hold, Uh, that's, that'm my opinion.

Now, in terms of predicting where this went, I, I mean, I really don't know. If I have to guess who the one dissent was, who's, maybe it went the, maybe went the other way, but one person actually cares about Fourth Amendment rights or something, who would that be? Uh, I'll pick, who are the extremes, it's usually like Gorsuch or Alito or, or maybe it's, it maybe it's like Ginsburg. Ginsberg? How about, uh, how about Ginsberg just for fun?

0:12:26 Andrew: All right now I, I'm gonna, I'm going to do the Monty Hall, uh, I'm doing the Monty Hall, uh, problem here. Um I

0:13:13 Thomas: Every word of what you just said was wrong. No, Star Wars.

0:13:14 Andrew: No no no, the Monky Hall, uh, problem is, uh, I am going to tell you, uh, it was not Chief Justice Roberts, right, so I am gonna open the door, one of the, one of of the remaining doors, uh, and I'm going to give you a piece of information. I'm going to read my favorite line you

0:13:17 Thomas: Yeah. Okay. Why did you just tell me it was not Roberts? What did that have to do with anything?

0:13:33 Andrew: Know, because that's the way to make it the Monty Hall problem, right, like you open the right

0:13:35 Thomas: Oh, just eliminating one so that my odds are better on P.

0:13:38 Andrew: Right, because I'm gonna give you the option to switch, right, so uh, so it's not Roberts. I'm gonna give you the action to switch, uh, and slightly distinguishing from the Monty Hall problem, I'm gonna to read Monty's favorite line from the dissent, which is

0:13:39 Thomas: Yeah, okay. Yeah, yeah. Yeah this is really not going to end up being a Monty Hall problem, but okay, go ahead, yeah that's fine yeah no it's an interesting mathematical uh, uh thing, but anyway, go

0:13:56 Andrew: Yeah I know, I know, but I wanted to reference it anyway because I've missed let's make a deal, right so the, the dissent says in its best line, the Fourth Amendment is neither an ass nor an idiot, the, the court's strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics. So with that in mind, do you want to stick, stick with your original choice of Justice Ruth Bader Ginsburg, or do you want to go for what's in the box and and pick somebody else?

0:14:29 Thomas: What's, what was the first quote, I can't, it was a little muddled, ass

0:14:33 Andrew: The Fourth Amendment is neither an ass nor an idiot.

0:14:37 Thomas: Okay, well, that's... I would be very shocked if that's Ginsburg, so, uh, I will not stick with that. But it has nothing to do with the odds change, like, John Roberts was not anywhere in my guess of who dissented, anyway. So I, I think odds wise, it's not like the typical Monty Hall problem, but so it does seem to be somebody who cares about the Fourth Amendment then. So it seems like it went the way Justice Smith would want it to go. But who, so who cares about the Fourth Amendment, who would write that? I'll just switch to Alito. How about that?

0:15:15 Andrew: I love that because you have switched to, in fact, Justice Samuel Alito, who who wrote the dissent, but it came out the other way. So but

0:15:24 Thomas: Oh, it came out the other way. Oh, wow.

0:15:26 Andrew: You pick you picked Alito. You got it right. Right. So this was 8-1 in favor of applying the curtilage rule and holding.

0:15:26 Thomas: Wow. Okay. No, that's how I said, right? Applying the curtilage rule.

0:15:35 Andrew: Yeah. OK. Yes, this Yes, is this is the moment on "Let's Make a Deal" where everybody dressed as a sheep in the audience is going crazy and like throwing nickels at Monty Hall, all um, you have switched your answer to the exact correct answer, this was an 8-1 opinion, uh, it came out in favor of the, uh, applying the curtilage rule here, uh, and the lone dissent was Samuel Alito, um, and I I want to

0:15:45 Thomas: All right.

0:16:00 Thomas: Oh, I see why we, why we had a mix up though. Cause it does sound like, so if I, if I thought the dissent cared about the fourth amendment, I had that part of it wrong. So what, so I'm curious about the quote then.

0:16:02 Andrew: Yeah Right. Right. So Me too, so let's, so let's get there. Um, so I think, and I'm, I'm going to read a little bit from, from the dissent, because to me, I want to illustrate that this is precisely what, what Alito says in his dissent here, is precisely the kind of legal realism that if a justice on the left had done this would be pilloried as judicial activism. I think, you tell me what you think. Here's what Alito says. "If the motorcycle had been parked at the curb instead of in the driveway, it is undisputed that the officer could have searched it without obtaining a warrant. The principal rationale for the so-called automobile or motor vehicle exception to the warrant requirement is the risk that the vehicle will be moved during the time that it takes to obtain a warrant and that the owner of an automobile has a diminished expectation of privacy in its contents.

0:16:14 Thomas: Me too.

0:17:06 Andrew: We went through that. That's a correct statement of law. So why does the court come to the conclusion that Officer Rhodes needed a warrant in this case? Because in order to reach the motorcycle, he had to walk 30 feet or so up the driveway of the house rented by petitioner's girlfriend, and that by doing that, Rhodes invaded the home's, quote, curtilage, which, you know, you can sort of see Alito's disdain for the word, equivalent to yours here.

This court does not dispute that the motorcycle, when parked in the driveway, was just as mobile as it would have been had it been parked at the curb. Nor does the court claim that Officer Rhodes' short walk up the driveway did petitioner or his girlfriend any harm. Rhodes did not damage any property or observe anything along the way that he could not have seen from the street. But, the court insists, Rhodes could not enter the driveway without a warrant, and therefore his search of the motorcycle was unreasonable, and the evidence obtained in that search must be suppressed. An ordinary person of common sense would react to the court's decision in the way that Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. "If that is the law," Mr. Bumble exclaimed, "the law is a ass, a idiot." The Fourth Amendment is neither an ass nor an idiot. Its hallmark is reasonableness, and this court's strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics.

0:17:57 Thomas: Yeah.

0:18:26 Thomas: So Thomas's assumption at the top of the show that this is going to be a really, what did I say? This is going to be really kooky whenever there's an 8-1 dissent. So far holds up because this is a load of crap. I don't know what in the world he's talking about, but okay.

0:18:42 Andrew: Well, so, so let's drill down on that a little bit, I mean,

0:18:45 Thomas: Possessions were 30 feet to the right, then they could search him. Well, yeah, I mean, there's a meaningful difference between being in the place where you have a right to privacy and not, like, I don't find that to be that compelling of a difference.

0:19:00 Andrew: So I don't know what the way your house is laid out, but I have a driveway, you know, just a slab driveway. It's not covered or anything. And then I've got a spot on a public street, and my wife and I each have a car. And so sometimes we park, usually she parks her car in the driveway and I park my car on the street. But I'm really, other than the fact that my driveway has a tree that overhangs it. And so, you know, like birds will crap on the car if I park in the driveway or whatever. Like, from an expectation standpoint, I'm really indifferent as to whether I put my car on the street or in my driveway. And so Alito's question is, from an expectations standpoint, right, from the history and intent and purpose of the Fourth Amendment, why should we treat the driveway differently than the street simply based on, you know, this arcane rule? What do you say to that?

0:19:53 Thomas: I don't know, I think that we have to draw these lines somewhere. And I think it's reasonable to draw the line at, is this on the part of my, you know, property that is traditionally treated as part of the house? This, you Know, cartilage rule says that this is considered that, and therefore that's fine. It doesn't, I don't think whether or not you or I or non-lawyers know the cartilage, I'm just saying that it's curtilage, right? I know the curtilage rule. I don't think our expectation and how familiar we are with that arcane thing should be the determining factor. I think the law has been interpreted to be that. And so therefore, that's what it is. I know what I mean.

0:20:38 Thomas: I do not think it should matter that a bunch of people might be wrong if they do not expect privacy in their driveway, but they would in their garage or something. Thing. You know, I don't think that should be what determines it.

0:20:50 Andrew: Yeah, no, I agree with you. I was trying to make the best case argument that I would. I think the very easy response to Alito's dissent here is is the response that you gave, which is any principle of law is going to require some arbitrary line drawing. Right. So, you know, suppose we were to extend it. Right. We were to say, yeah, you're right. It is weird that we would treat the driveway different than the street. Certainly a valid response to that. If you are a believer in an expansive Fourth Amendment will be like, and so let's extend that protection to the street, right? Right. Even though it's not technically your property, let's extend it to the street. And then you would have the same 30 foot rule. Right. If all I get home late at night and somebody's parked in my spot on the street, right? My wife's parked In the driveway. Someone's parked. So I got to park around the corner up the hill.

0:21:27 Thomas: Right.

0:21:43 Thomas: Right, well, and but what I would point out, and sorry, I know this is exactly where you're going, but if someone's parked in your spot on the street, your answer wouldn't be, oh, I'm gonna call the cops, they're in my spot. But if someone is parked in you're driveway, you'd be like, what the hell is someone doing in my, like some stranger, you know, there is a very meaningful difference between your Your driveway and the street.

0:21:59 Andrew: Yeah. Yeah. No, that's that's a that's a good point. I hadn't thought about that. I was just thinking regardless of where you you draw the line on the curtilage, you'll always be able to make the 30-foot argument, right? If I'm parked around the corner and I'm just parked 30 feet away, right, we would have no difficulty in ascertaining that I'm now not even remotely arguably on my property, right. But it's still, I'm still just parked three spots down, right. It's still the short walk that Alito goes through. And I don't think there is a good way to reconcile that. And I

0:22:40 Thomas: Yeah, I think He's just looking like it's the same thing where, you, he's trying to make some, what do you say, a mountain out of a molehill or whatever, where it's like, OK, if I drop my wallet on the way into my house, yes, you can search it because I technically dropped it just outside the boundary of my house versus if I dropped it crossing the threshold of my door going into my house. That's only three inches of space that that determines that you can search it versus not. And it's like, yeah, because that's the nature of boundaries that we have to draw. Otherwise we can't, you know what I mean? Like it's not meaningful to me.

0:23:14 Andrew: Agree. I think it's really, really interesting that this Alito decision has virtually no citations. And we, you know, we find that as a common, right?

0:23:23 Thomas: Yeah. This is my disdain for this wing of the court that I know some people were reacting to the fact that we were really dismayed about Masterpiece Cakeshop a while back. But I really think it is, it's frustrating, I don't know what else to say, like the fact that some of these decisions are just not, you know, because of our our politics and because the right has decided to, you know, populate the court with originalists, like it just means that people want to, what I'm trying to say is, people want to treat the Supreme Court like, oh well, it's five four either way, you know, it's going to be a reasonable thing, you shouldn't be that outraged either way, you know, kind of thing. I feel like that's their expectation. And it's like, no, when you've populated it with three or four nut jobs, then, then yes, it's not, you know. It's not going to always be reasonable either way.

0:23:26 Andrew: Right. Yep.

0:24:12 Andrew: I agree. So

0:24:13 Thomas: All right. All

0:24:13 Andrew: There we go. That was our first 8-1 case. Let's see what you think about the second one.

0:24:19 Thomas: Right. I'm excited. This is fun. Fun game. Here we go. Case number two, you

0:24:23 Andrew: Case number two. Again, very recent decision. This is Sveen versus Melin. M-E-L-I-N. And as I was reading this, I giggled because because I remembered watching the Winter Olympics. I love curling. I love watching the curling in the Winter Olympics.

0:24:42 Thomas: And everybody who thinks they're the only ones gone

0:24:44 Andrew: Right, right. And so the Scandinavian team kept screaming out, like, sweep, sweep every time they wanted you to sweep the little brush thing. And so every time I read Sveen, I was saying it in my head as Sveeen, Sveeen. So anyway, there we go. This is the Sveen case. This is also an 8-1 decision. And let's keep it up. Let's just start with the facts, okay? In 2002, the state of Minnesota passed a law, and that law says if one spouse designates the other as a beneficiary, okay, and then gets divorced, then that designation is automatically revoked, okay.

0:24:57 Thomas: Interesting.

0:25:32 Thomas: Right.

0:25:32 Andrew: OK. And so, yeah. So here's the way the law says it. It says the the dissolution or annulment of a marriage revokes any revocable disposition, beneficiary designation or appointment of property made by an individual to an individual's former spouse in a governing instrument. OK. And here under the law, governing instrument includes a life insurance policy, right, along with wills, other instruments. Right. And the idea behind the law is to try and get at the intent of the parties. Right? Generally speaking, we think you may have amicable divorces, but chances are if you divorce your spouse, then you probably don't want them getting the money that they were getting when you were married to your spouse.

And so even if you've forgotten to change your beneficiary on your life insurance policy, that it should be presumed to not go to the primary beneficiary and then to go to The Alternate Beneficiaries instead. And the basis and I should add, the law also provides for the individual to override the provisions of the law. Right. There are certainly some Cases where people get divorced. They're still on good terms. And so you would say, well, you know, you're right. What I still want my ex-wife to be the

0:26:20 Thomas: Okay. Right. Yeah.

0:26:55 Andrew: Beneficiary of this policy. I Still

0:26:56 Thomas: Especially If Kids Involved Like you know, maybe part of the being the beneficiary, you'd want them to have the money to look after kids or something, so makes Sense, right?

0:26:57 Andrew: Yeah Yep Exactly. Right. So, and or even like, yeah, you know what, we're just no longer compatible, uh, but I still respect my ex-wife, and I still want her to be the executor of my estate, right? Like, you know, There, there are lots of reasons where you might do that, but what the law says is we're going to presume that you don't. And if You do, if you're in the sort of rare case where you do, then all you have to do is specify it. And now, here's the case that happened, and you can probably see immediately where the issue is going to be. So this involves a couple, Mark Sveen and Kay Melin, who were married in 1997. That's before the law.

0:27:15 Thomas: Hmm. Okay. Oh.

0:27:45 Andrew: Then 1998, Sveen buys a life insurance policy. He names Melin as the primary beneficiary, and then designating his two children from a prior marriage, Ashley and Anton Sveen, as the contingent beneficiaries. So that's, again, that's a totally standard.

0:28:02 Thomas: Wow. So This Guy I think we're gonna find out this guy's gonna be three or four marriages in by the time, like, this is all said and done.

0:28:08 Andrew: No, it's totally straightforward. This is why I love this case. It's a it's a Totally Straightforward Fact Pattern, right? So he names his wife as the Primary Beneficiary and then says, as you do in a life insurance Oh, and if my primary beneficiary predeceases me, then the contingent beneficiaries are my kids. Right. So if I die, my wife still alive goes to my wife. If I die. But my wife died first goes to the kids.

0:28:08 Thomas: Okay, right.

0:28:34 Thomas: But You Said kids were from even a prior marriage.

0:28:34 Andrew: Right Yeah They Were right But, um, then their marriage ended in Divorce in 2007.

0:28:37 Thomas: Okay Yeah That's What I was saying, he's gonna be on his third one. Okay, I don't know why you said I was wrong about that, but okay. Go ahead, uh.

0:28:48 Andrew: Uh, Well, I don't know that he remarried after that, but Um, Yeah, I Enjoy Being technically correct, it Is the best Kind of

0:28:51 Thomas: Oh, Technicality. All right. You Are Technically Correct I was just being a little funny in how I said third or fourth one, and you ruined my Joke. Go on, okay.

0:28:58 Andrew: Correct All Right. The divorce decree made no mention of the insurance policy one way or the other. And Sveen took no action at the time to revise his beneficiary designations. And then he dies in 2011. And now you have a dispute in probate court. Court. The kids come forward and they say, look, under Minnesota law, we presume that when you've divorced, that that crosses off the ex-wife as the primary beneficiary, and we're the secondary contingent beneficiaries, so the money should go to us. Whereas the wife went to court and she made two arguments. Her first argument was, yeah, this contract was executed in 1998, and the law wasn't passed until 2002, and he never made any motion to, you know, he never took any steps to change the beneficiaries, take me off the policy.

0:29:11 Thomas: Hmm.

0:30:01 Andrew: Could have done that, but he didn't, and so it should go to me. The trial court ruled for the kids, but that was reversed by the Eighth Circuit. The Eighth Circuit ruled for the ex-wife on pretty unique grounds, right, on a provision of the Constitution that's incredibly rare that's called the Contracts Clause, okay, and that is Article 1, Section 10 of the Constitution that says no state shall pass any law impairing the obligation of contracts. So the argument is, uh, for everything going forward, it's perfectly okay for Minnesota to say, uh, you will understand that your contracts going forward after 2002, if you sign a life insurance policy, that will be interpreted in the way that we've set forth, right? So you get divorced, it'll automatically exclude your ex-wife, ex-husband as the primary beneficiary.

0:30:09 Thomas: I

0:30:59 Andrew: But if it's before then, the Eighth Circuit rules, you can't go back and retroactively change a contract that somebody signed prior to the law going into effect.

0:31:09 Thomas: See, yeah, it makes sense.

0:31:11 Andrew: Counter argument back to that at the Supreme Court level is, yeah, you know, it's all well and good to talk about the law of contracts, but when you're talking about marital property, right, when you'RE talking about the disposition of obligations in a divorce, courts get involved with this kind of stuff all the time, right? Right. That it's it's we overturn contracts. Right. If I if I say if I execute a contract while I'm married in a community property state and say, hey, I want 100 percent to go to you, you know, between you and I, Thomas, and then I get divorced. Divorced, right? The court may come in and rewrite that contract anyway, right. It may take it away, take away your interest and say, no, you know what? I didn't have that interest to convey to you because, uh, my 50% of that belongs to my wife in a community property state.

0:32:03 Thomas: That's A Good point.

0:32:03 Andrew: Right. So, and, and we could delve into it a little more, but I think I've given you enough to, uh. To, to, to pick out, to sort of know between the issues. So there you go. You have On the one hand, The interpretation of the Minnesota statute, which is designed to further the intent of the parties by making conclusions about how people would tend to want to treat their former spouses. On the other hand, the contracts clause provision of the Constitution saying, yeah, but you can't do that retroactively. You can do it prospectively. Knowing that the court is 8-1, how do you think it came out?

0:32:04 Thomas: Good Point.

0:32:14 Thomas: A really Hard One, wow.

0:32:44 Thomas: So just, also to review, the first court said kids, and then the Eighth Circuit said of, or the ex-wife, because of the contracts loss, is that what it was? Boy, This is really hard, um, I feel like, but I'm surprised this is eight one because I feel, well, well, it's not, it doesn't strike me as that political a question, so it could be another, my theory that the the more politically charged ones would be the more 540 ones, um, but yeah, I mean, that both sides seem reasonable.

Like the idea that, okay, this is what the law says, the kids get it, versus, well, the law kind of retroactively changes the face of this contract, um, but then also the comeback argument of, you know, well, courts will do that all the time.

Gosh, okay, well, if we're going to go with Justice Thomas Smith, my opinion would be that you should grandfather this in, because you bring up the example of, OK, you and I form a contract and then, you know, it turns out you didn't have that money to give me anyway because, you know, it was due to your wife or whatever.

0:32:54 Andrew: Correct.

0:33:50 Thomas: I see that. But I also think that information was available at the time of the the contract. But if subsequently then a law is passed, it's like, oh no, now this is what will happen when you die. I feel like there's a difference there. Now this is just Justice Thomas Smith. I don't know that that'll be the way the court is thinking, but that's kind of a distinction I would draw. It's one thing to say, yes, courts intervene in these contracts, you know, to make sure things are fair. But it's another, I think, to say you signed a contract that was totally consistent and fine with the information you had at the time. But then like the law changes how that will actually happen. I feel like that's a different thing.

0:34:35 Thomas: You know, like you didn't have that information at the same time. You couldn't have made that determination. So I don't know. It's a I have no confidence in this one because I think it's solid arguments on either end, but maybe once you tell me more about the decision, maybe I'll fall one way or the other. So, but if I have to take a guess, I'll go with Justice Thomas Smith. I'll, I'd go with, he seems like a bright guy. I will, I will say that the Supreme Court upheld the Eighth Circuit's decision, uh, which was in favor of the ex-wife, right?

0:35:07 Thomas: Yes. I will say that. And I will say the dissent, well, okay. Maybe I'm falling into a pattern here, but I feel like the dissent is going to be a cranky, you know, right winger or something, or maybe not, you Know, cause this is a weird one. So who would, who would dissent from that? The nature of this dissent could be, if I'm analyzing this right, which this is a lot of ifs, but if what I was saying was true, the nature of this descent could be essentially like a big government thing. Like, no, the government does have the power to retroactively change contracts. And that strikes me as more of of a lefty thing. So maybe I'll go with Sotomayor. How about that? I'll go with Sotomayor, just change it up. That's who dissented. There's my answer.

0:35:06 Andrew: Yes. Yes. All

0:35:53 Thomas: Hey folks, we're gonna find out if that answer was right in a second, but first, I've got to tell you about our sponsor, Framebridge.com. They make it easy and affordable to custom frame your favorite things from art prints and posters to the photos on your phone. Here's how it works, you go to framebridge.com, you upload your photo from your computer or directly from your Instagram feed, which by the way is what I did.

Let's say you're someone like me who has a million amazing pictures of baby opening arguments Phoebe Smith on Instagram and you want to get some of them framed, use You can use THIS, it super cool. Or if you have a plain old physical item, a non Instagram internet-y thing like ticket stubs, art prints, posters, whatever it is, they'll provide secure prepaid packaging so you can mail it in for free. Figured out, you can preview your item online in any frame style, and you get to choose your favorite or get free recommendations from talented designers if you want to do that. And once you choose, the expert team at Framebridge will custom frame your item in days, not weeks or months, and In days, and they will deliver your finished piece directly to your door, ready to hang.

The best part is, while framing something at a store can cost hundreds of dollars, their prices start at $39 and all shipping is free. Plus, our listeners will get 15% off their first order at FrameBridge.com when they use the code OA. Not only that, they also have a happiness guarantee. If there's any reason you aren't 100% satisfied with your order, they'll make it right.

I am really excited about the three pictures of Phoebe I've decided to frame, one is with me, one's with Lydia, and then one's by herself, I think it's gonna make a really nice little set, and I am just so excited that all I have to do is log into my Instagram and I can just pull the photos over.

0:37:54 Thomas: My answer.

0:37:55 Andrew: Right. I love this. We're going to we're going to play the same game, right? The same Monty Hall game. I'm going to tell you the

0:37:59 Thomas: All right. You're or you're going to illuminate Justice Oliver Wendell Holmes and then ask me if I want to guess again, and I'll say no, because that has no impact on what I'm saying.

0:38:04 Andrew: I I'm I'm going to eliminate Anthony Kennedy, right, this the that right the descent was not authored by Anthony Kennedy and I'm gonna read you my favorite line from the dissent, and and we'll see if you want to stick with your original choice or go for what's in the box. So my favorite line from the dissent, couple lines: "The judicial power to declare a law unconstitutional should never be lightly invoked, but the law before us cannot survive an encounter with even the breeziest of Contracts Clause tests. It substantially impairs life insurance contracts by retroactively revising their key term. No one can offer any reasonable justification for this impairment in light of readily available alternatives." So knowing it's not Anthony Kennedy, you've seen that curtain, we pulled it away, it's a zonk. It's Anthony Kennedy is a donkey being ridden by, you know, whatever, uh,

0:38:11 Thomas: Okay, that's a strong one. That was a strong, yeah. All All right.

0:39:04 Thomas: Okay. So obviously that changes the outcome because it sounds like the person who is crankily mad about this decision was saying, uh, this is definitely unconstitutional and the, that means the majority ruled in favor of it. The kids. And this person is like, you're out of your damn minds. Um, so that changes. So that definitely changes me from Sotomayor, I don't know. That's not that cranky. Let's see. I'm going to go for what's in the box. I'm changing my answer.

0:39:33 Thomas: I'm not confident, but I'm gonna say Gorsuch.

0:39:33 Andrew: All right, you have gone two for two on let's make a deal

0:39:41 Thomas: Wow! Wow. All right. I'm kicking ass at this game. I mean, I got the original decision wrong, but, but, but yeah, no, I feel like I've, you know what, Andrew, I feels like I learned a lot about the justices from you. I feel I've got a certain feel for them. A little bit, just a little bit.

0:39:45 Andrew: Uh right justice Thomas Smith is well, justice Thomas Smith is in fact Justice Neil Gorsuch. This was an 8-1 decision in favor of the kids

0:40:04 Thomas: Oh, wait a minute. This is, I just took a dark turn. Oh man. Okay.

0:40:05 Andrew: Um and And uh, and this one, unlike, I was really, I was trying to throw you a curveball, but, but I can't fool you. This, this one breaks down on, on very, very traditional lines, which I'm, which I'm about to go through, even though it's a one.

0:40:24 Thomas: It's 8-1. What do you mean? Oh, is there like concurrences or something?

0:40:25 Andrew: Right. No, it is. There's there are no other concurrences. The eight justice majority recognizes the jurisprudence of the Contracts Clause. Right. Which says throughout our history that in order to write, even though it says, you know, shall not impair the obligations of a contract. Right. Like the way in which you interpret that under ordinary norms of jurisprudence is the same way you interpret. Right, Congress shall make no law abridging the freedom of speech. Right? Like that doesn't mean, you can't Congress can't pass a law preventing you from libeling someone or, you You know, disclosing military secrets. Right. We say it doesn't count as freedom of speech in those cases. So despite the plain language of the First Amendment, nevertheless, you know, no law doesn't mean no law. And similarly, the contracts clause.

0:40:30 Thomas: Oh, yeah,

0:41:18 Andrew: Right, no impairment. Right. "No state shall pass any law impairing the obligation of contracts." The question is, what counts as impairment? And as the decision says, "From time immemorial, this court has applied a two-step test. The threshold issue is whether the state law has operated as a substantial impairment to the contractual relationship. In answering that question, the court considers the extent to which the law undermines the contractural bargain, interferes with the party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights. If such factors show a substantial impairment, the inquiry then turns to the means and ends of the legislation. In particular, the The court asks whether the state law is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose."

0:42:05 Andrew: And here the majority says, look, this is not a substantial impairment of the contract for a bunch of reasons. Right. Primarily because you still retain all of your rights. Right. It changes the presumption. But you can go back and say, no, no. No, I definitely want to keep my wife as the beneficiary. Right. And this is designed to promote rather than interfere with the party's reasonable expectations. Right. We have no idea here on the facts of this case, whether Sveen wanted his ex-wife to get the life insurance or whether he wanted his kids to get life insurance. Right? Right. We don't know. And so part of what the jurisprudence around the Contracts Clause is meant to protect is to say, look, it would be a problem if you had a specific expectation when you entered into the life insurance policy. Right. If you said, no, I definitely want this to be adjudicated in this particular way. And then the law changes it up on you. Right. Right.

0:42:23 Thomas: That's true. Yeah.

0:43:07 Andrew: But the premise is we don't know that you had that expert. We have to guess. Right. And we're guessing a lot. But you know what? The legislature's best guess here. Right on the basis of people who are accountable to the public is, yeah, you know, what? Probably that the other way is more likely, like typically speaking, people get divorced. They don't want their ex-wife to get the benefit of stuff they want their kids to get.

0:43:28 Thomas: Yeah, and they just like forget to change

0:43:30 Andrew: Yeah.

0:43:30 Thomas: The thing.

0:43:31 Andrew: And they just forget because they've got all a bunch of stuff lying around. And who remembers to go back and change all your life insurance policies?

0:43:32 Thomas: Yeah? Yeah. All right, I'll say this. If the question is, is this law unconstitutional on its face? I'd say well, no, I don't think that but I did think that maybe the grandfathering period would make sense. But maybe that's not the right thing to have been trying to evaluate in this case. Is that right? But then, it seems, oh, okay, right,

0:43:52 Andrew: Oh, no, I think I think that's right. And I want to point out, right, that that there has been, Ithink, unwarranted liberal freak out because it's a Gorsuch dissent. And look, and Gorsuche is a monster. Don't get, you know, let's I'm not recanting that in any way. But I have seen a couple of sources describe this opinion as Gorsuch saying the government can't interfere with contracts at all. And that's not correct. Right. You know.

0:44:20 Thomas: Yeah, that's just as Thomas Smith doesn't think that either.

0:44:23 Andrew: Yeah. You. Well, you and Gorsuch are fishing buddies now.

0:44:26 Thomas: Apparently, we're the same dude

0:44:27 Andrew: So Gorsuch, Says, I'm going to quote him directly. This is page one of his dissent. "Everyone agrees that the law is valid when applied prospectively to policies purchased after the statute's enactment."

0:44:27 Thomas: Now, so, oh?

0:44:38 Thomas: Okay, yeah.

0:44:39 Andrew: Okay, so it is only about

0:44:42 Thomas: I will say this, I mean, I don't think, yeah I'm with you unless I'm missing something. This doesn't seem like that unreasonable of a dissent. I feel like I was pretty 50-50 on this. So, you know, like I really could see it going either way. I don't know.

0:44:42 Andrew: Yeah.

0:44:52 Andrew: I I I think you could, until then you delve into, I think, from a results perspective, you could so Um, it's, I had to choose which opinion to sign on to, I would sign on for the majority opinion for the reasons that I'm about about to explain.

0:44:59 Thomas: Well, let me ask, what would Justice Andrew Torrez rule on this?

0:45:12 Thomas: Oh, okay.

0:45:12 Andrew: But in a vacuum, and again, you know, in a vacuum, I agree with you, right? Like, which is to say, I think it is a close question. And I think it is reasonable to come out the other way on the question of the retroactive applicability. I would have, I Think what would push me over the edge is actually, even without the argumentation in in Gorsuch's dissent, which I can't sign on to for reasons that will become immediately apparent. I think his question at the end, right, which I read to you before you guessed, right? The we should not take lightly the notion to declare a law unconstitutional. I think I would take that and run with it. And I would say, you know what?

0:45:59 Andrew: Like when you're talking about the impairment of contracts, everything the government does that regulates business, that regulats its personal behavior, that is the business of the modern state, could be argued to interfere with contracts in some way. It's an important decision, sure. You don't want a government just invalidating contracts on face. But I would want that not to be read that expansively. And I don't think this would rise to the level of my saying that it's inappropriate for the citizens of the the state of Missouri to say no on on basis, right, you know, on on when we, when we're trying to adjudicate questions of unknown intent, right, when you have questions of known intent, the law doesn't apply, right? If you go back and say, "I want this to cover my ex-wife," uh, then we know your intent, right? You've written it down, so the law doesn't apply, and the law shouldn't apply. Yeah.

0:46:54 Thomas: And you're able to do that when you originally draw it up and just say like, okay, well,

0:46:58 Andrew: And if You wanted to, right? That's exactly right, you could put in, you know, "I want this to go to my ex wife, even if we get divorced." Right.

0:47:06 Thomas: And again, though, that was the problem I have with it is that for these things that were drawn up before the law, there's no way you could have, you could not have known to do that. But the only response is once the law was passed, then you could have remembered to write a note or something. And I don't know. I still feel like that's reasonable to say that, okay, start it going forward because

0:47:17 Andrew: Correct. Right, right. I, I don't I don't think I agree with you. I mean, like I said, I agree with you, I couldn't sign on to this dissent, because this dissident is cribbed entirely from a 1987 law review article entitled, The Contract Clause, a return to the original understanding, disregards, you know, 100 years of precedent in favor of a rule that says, any Any legislative derivation from a contract's obligations, however minute or apparently immaterial, violates the Constitution and violates that clause.

0:47:39 Thomas: Of some of the language.

0:48:01 Thomas: Okay. Yeah. I would not sign onto that either.

0:48:03 Andrew: I didn't think you would.

0:48:04 Thomas: I was not signing onto that.

0:48:06 Andrew: Yeah. But but that's that's why Gorsuch wanted to dissent in this case. He wanted to advocate a robust reading of the contracts clause. I am surprised, given that it's an 8-1 decision, and given that the 8-1 decision criticizes Gorsuch on this particular point, that it doesn't go where I'm about to go. So let me explain the criticism. Gorsuch says the Contracts Clause applies to prohibit legislative interference with existing contracts, however minute or apparently immaterial. And then he says, and the problem is that the justification that the majority opinion gives is that probate courts and divorce courts all the time rewrite property in order to, and rewrite contracts in order to distribute marital property in divorce situations. And Gorsuch says, look, there's a difference between the court rewriting it and a legislature rewriting, two different

0:48:06 Thomas: Okay, there

0:49:12 Andrew: Harms. Only one was meant to be prohibited by the Constitution. And where I'm surprised is that the majority didn't point out that taken literally, I'm sure Gorsuch would come up with some kind of distinction for this, but we have, I mean, one of the most celebrated cases at the Supreme Court level. Not one we've talked about before, but I think we've mentioned it in passing or parenthetically, is a case called Shelley v. Kramer. It's a 1948 opinion. And that invalidated racially restrictive covenants as violating the 14th Amendment. And it's not hard to craft the hypothetical here, right? Right. Now, look, again, that was a judicial decision invalidating contracts under the 14th Amendment. But the hypothetical would be, OK, that is 1948. So it's 1940. The state of Missouri decides that they're going to invalidate racially restrictive covenants. And they pass a law saying you cannot enforce a contract that says, as those did.

0:49:28 Thomas: Is. They always do. Oh,

0:50:17 Andrew: Right. This property shall not be used or occupied by any person or persons except those of the Caucasian race. Gorsuch's reading is that legislatures don't have the power to strike that down. That would be really, really troubling. And again, I'm sure he would come up with some kind of, well, if it's manifest illegality or whatever. But I mean, that's sort of where my mind goes when I think about the government interfering in private contracts. Right. Government doesn't like to interfere in private contacts left or right. I mean, as you pointed out from your initial take on the case, like, this is not a scenario where that breaks down cleanly on ideological lines in in reaching an outcome, because even liberal justices generally like to uphold the expectation of individuals who engage in private contract.

0:51:09 Andrew: And so that's where, when I look at, I mean, the two things that kind of sway me the other way are obviously, are interrelated, right? Are the question of how do we interpret this contracts clause? And in fact, in history, how has the Supreme Court interpreted the contracts clause? They've read it as a more narrow restriction on the power of legislatures. And I would want to keep that up. Right. I would want to maintain the ability for us to say, look, we can affect change both at the legislative level and at and through the judiciary. Should it be, you know, should you have to meet the criteria? You should absolutely have to meet the criteria. Right? Should should me, should you be able to blot obligations on a contract out of existence?

0:51:56 Andrew: No, you shouldn't. Right, so for example, if the Minnesota statute here prevented you from redesignating your ex-wife, right, if it, you know, if it just said nope, sorry, like, we, you know, I don't know, MRAs get in and control the Minnesota legislature and are like, nope, ex-wives get nothing, uh, never, even if you want them to, yeah, I agree with that, that that now you've gone too far, uh, but, uh, but I don't know that I would calibrate, uh, the the question of whether they can do that all the way back at the at the presumption level, yeah.

0:52:26 Thomas: Well, Well, interesting. Now, good, good points. I think it is close, but I see what you mean where you couldn't sign on to Gorsuch's language. And I just want to clarify, Justice Thomas Smith did not use that same language in his ruling, just so we're all clear.

0:52:42 Andrew: When so when is your your next, uh, fishing date with with Neil Gorsuch, your your your new BFF there?

0:52:48 Thomas: The important thing is that I was right two times in a row. That's the important thing. Now, I did need the the Monty Hall help, I guess, but still, but still, OK. That was fun. It was a really cool segment. I enjoyed that. Thank you so much. And now we are going to answer a question from Twitter user Martin at the buttons with a Z.

0:52:51 Andrew: You go

0:53:14 Clip: He who questions training, only trains himself at asking questions. What?

0:53:22 Thomas: Martin asks, I have a legal practice question. How do partners pick law partners? Cough podcast partners. That's they make good question pondered that, question pondered following the OAP re: Avenatti, just curious, do you pick like-minded partners, conversely-minded, split from a wider practice, ETC? Huh, interesting. If I take a guess, I would guess that most of the time it's probably just like your buddy, but maybe not. What do you have to say about that?

0:53:51 Andrew: So Yeah, I I really, I really enjoyed the question. I thought it was a neat way to kind of delve into the way in which law firms are organized, which has changed, uh, drastically in the past 20 years. It's, it's things are different now than they were when this language was, you know, really sort of fell into common parlance. And then, so first, let me answer the question directly, which is law firms pick partners on the basis of people they think will bring more money into the firm as a partner than they will be paid out from the profits of the firm. That's it, that is 100% the criteria, that goes into it. If you are, we have a lot of lawyers who listen to the show, uh, if you are a an associate at a law firm, and you are on the partnership track, as I was, back, you know, then, and and the firm is telling you, you know, well, you know, we make partners for a lot of different criteria, like, they are not telling you their criteria, uh, at will

0:54:34 Thomas: Hmm.

0:54:54 Thomas: So, I should have guessed their criteria is, will this, will this person make us money, basically?

0:54:58 Andrew: This person and make us money, that at the end of the day you need to remember that, right, and look, there are a couple of other things we're going to talk about it

0:54:59 Thomas: Yeah I think I naively I think I very naively was envisioning like a mom and pop, uh, practice where they're starting up, you know, they're like, hey, let's start up a new firm, who do I want to partner with, that's what I was thinking, so

0:55:14 Andrew: It I I say it this way because I was very much in that naive situation, right, as as an associate and as a partner, right, that because they will tell you, uh, and and these are ancillary criteria, right, if if they don't think you can be trusted to talk, talk to clients, run cases, if you're a litigator, try cases, right, then that will also disqualify you. But the overwhelming criteria, to the to the point where I'm comfortable saying it rounds up to 100 percent, because I think those things are encompassed by that, rally. If somebody can't talk to clients, they're not going to bring in any clients and they can't make any money. The overwhelming criterion is an economic criterion. That's why firms do it. Some of the other things that go into it, though, underlie the terminology of referring to law firm partners as partners.

0:56:07 Andrew: And that dates back to the fact that up until about 20 years ago, most law firms were general partnerships. Right. And a general partnership is if you out there have a business with your buddy. Right, and nobody has filed anything. Right? You're not a company.

0:56:36 Andrew: Criteria, the primary characteristics of a common law partnership are that each of the partners is jointly and severally liable for everything the partnership does, and they are personally liable for the partnership debts. And so you could imagine in a law firm environment where that gets you into trouble, right? Because lawyers get sued for malpractice. So now I'm at a big firm and we've just brought in somebody as a partner and that partner gets sued for malpractice. And I don't even know who he is. Let's say we got 100 different partners in five in five offices spread throughout the country. That's that's not a big term. Right. But, you know, we're a midsize firm.

0:57:22 Andrew: We got a bunch of different offices. You bring in this guy. All of a sudden he sued for Malpractice and I've got to pay for a judgment that's executed against him. I'm on the hook for that. So law firms then morphed from being a general partnership to being a limited partnership, a limited liability partnership, or even, as in the case, for example, my law firm, an LLC, a limited reliability company. And the reason behind those moves were to do two things, right? Number one, to make sure that the general partners in the firm were no longer personally liable for the debts of the firm. And you have a professional limited liability partnership in the jurisdictions that permit that, you can actually segregate out the liability of the partners, each for the malpractice of the other.

0:58:16 Andrew: And so that's the whole point in dividing that out, is to try and further protect the lawyers in their individual capacities from professional liabilities made by their other partners. And so as a result, some law firms no longer refer to people as as partners. Some law firms have a multi-tiered partnership practice in which they will call you a partner, but you are not actually a member for purposes of owning a share in the LLC or having a partnership share. If it's an LP or an LLP, they can call you a partner for purposes of how you get to hold yourself out to clients and in court.

0:59:04 Andrew: But but behind the scenes, you're not entitled to any of the equity. So you're basically an associate that they call a partner. And lots of law firms will designate somebody as of counsel. Usually when you're bringing somebody in on a trial basis. If you say, I want to bring in somebody because I'm expanding my practice, as I did with our friend Charone Frankel, that person becomes an of-counsel. They are affiliated with the firm, but not the ownership and responsible in the same way that you would be responsible in a general partnership. So there you go.

0:59:43 Thomas: I think my answer was right because you picked your friend Charone Frankel to, uh, join your partnership, uh, right

0:59:48 Andrew: Well, I think you're right that in a, in a right, when you're thinking about it in the, like, mom and pop, you know, small business, right, like, like the way my firm is run, that that, yeah, the non, those non-economic criteria play a much, much bigger role, um, uh, but typically when you're talking about the general, uh, law firm market, the reason in which you bring in a partner is because you think you're going to make more money with the partner than without, new

1:00:16 Thomas: Makes sense, all right, well, thank you so much for the question, thanks for the answer, Andrew. And now it is time to thank our new patrons at patreon.com/law. Hope you're enjoying it. Yeah, new patron Tuesday. And they begin with Chris Siloff, Bobson Dugnut. Hey, I'm a huge Bobs and Dugnuts fan, but I do want to point out there are other names on that, Super Nintendo game or whatever the heck it was. I took legal advice from a podcast and all I got was a Patreon account.

1:00:29 Andrew: Patron Tuesday

1:00:49 Thomas: Well, then you took the right advice. Brian Wolcott, Michael Blaby, Erica Pullen, Brickman Esquire, McGregor, I have nothing but contempt for this court, Crowley, nice, Jin Hada, Jim Emke, Chris Bindeman, Daniel Stockard, crime is illegal.

1:00:48 Andrew: Yes

1:01:17 Thomas: That one is so straightforward. Daniel and Daniel Marchese or Marchese, one or the other, thank you folks so much for the kind pledges, hmm.

1:01:16 Andrew: It is, yeah And thank you to Sammy Extra, that's even, even more Sammy, Alex, Palle Karlsson, Rethan. I think that's a returning, returning patron Rethon. Thank you. Ahman, Gaelan Brewer, Krista Manny, Kat Volk, a chimp with a machine gun. I'm so glad we have one of those around. I can think of incredible uses for that. Yeah, right. No name, no names.

1:01:47 Thomas: I'm glad they're on our side

1:01:53 Andrew: Rac PTR, I don't know what that's supposed to be, but Rac PTR, Yodel Mountain Breathing Apparatus LLC, our buddy Mark Hofling, uh, James Cordes, and allonymous, I like that, trying to get in the, uh, French accent there, thank you all so much, we couldn't do the show without you.

1:02:00 Thomas: What

1:02:15 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:21 Thomas: And Now it is time to find out, uh, whether the improbable streak continues, uh, whoo, tough Tttbe question, how did I do?

1:02:29 Andrew: All right, yeah, this is, I think we are nearing, uh, 1980 U.S. hockey team over the Soviets, if you can go two in a row. No, wait, um, uh, no, so this question was a car owner who is washing her car on a public street in December, apparently for no reason, uh, violates the local ordinance that prohibits washing the vehicles on a public street during specified hours. And because of that, because she's washing the car, the water forms a puddle that freezes in the crosswalk. Pedestrian comes by, slips on the puddle, breaks her leg. The fact pattern specifies that the statute was enacted to expedite the flow of traffic, right? It's a, you can't be washing your car in the street while, you know, during rush hour, and had nothing to do with pedestrian safety.

1:03:23 Andrew: And then at trial, the plaintiff, the only evidence the plaintiffs put on for negligence was the car owner's admission that she violated the statute. And then, at the conclusion of the trial, obviously, super short trial, both sides move for a directed verdict. And the question is, does the court grant judgment in favor of the plaintif on the issue The defendant violated the statute. Does it grant judgment in favor of the defendant on the issue that there was no evidence of negligence? Or does it throw it out to the jury and say, oh, we're going to let the jury decide? Want to say that the the primary legal issue that this question was testing is the concept of negligence per se. Say. Negligence per se is when, yeah, no, you said you got the exact words.

1:04:11 Thomas: Which I said everybody, thank you 10 points for Thomas okay, right

1:04:18 Andrew: Neglegence per se is, when you violate a law, and that law is a criminal statute, it provides for criminal penalties, not just civil penalties, and and the law was designed to protect against exactly the kind of harm that happened, then that defendant is negligent per se, and you don't have to demonstrate that they otherwise failed to uphold reasonable care in that situation, so you correctly identified the principle, you correctly identify that, uh, this law is not triggering negligence per se, uh, because it it was meant to expedite the flow of traffic and not to prevent freezing, crazy slip and fall accidents. And I love the fact you went back to the fact pattern. We're like, no, wait, that was the only evidence of negligence. So, seems, sorry, seems like the answer should be C, grant the car owner's motion because the pedestrian has failed to offer adequate evidence that the car owner was negligent. And I am pleased to tell you that is indeed the correct answer.

1:04:35 Thomas: Yeah right uh-huh oh, uh-oh You really faked me out there, I thought you were about to say it was something else, wow, yeah no I feel like I This is one of the few that I've ever, I think, perfectly analyzed, I don't Think there's anything that I, like most of the time I kind of fudged something, like I just, uh, I happened to get that right or, or, more often wrong. This one, I actually feel like I understood all of it.

1:05:19 Andrew: You know, you work through this exactly correctly. Yeah,

1:05:40 Thomas: I'm, I'm amazed.

1:05:40 Andrew: I think that's exactly right. I I again, I've got nothing more to add.

1:05:42 Thomas: Wow. Just, they only, and I'm not trying to toot my own horn. I'm trying to say, just goes to show folks, listen to opening arguments and you'll learn about the law. I wouldn't have been able to answer this a few years ago for sure.

1:05:51 Andrew: There you go. Could not. There you get well, congratulations on getting it right.

1:05:58 Thomas: Thank you so much. I am, I am, uh, yeah, I'm going to take just a brief 10, 15 minutes to talk about that and revel in the glory of fame and fortune. No, let's hop in your limited use TARDIS. And, uh. So that's copyright infringement. Sorry. It's a limited use time machine. Maybe we can come up with a lawyer themed time machine, let see, like a limited-use, time uh traveling, uh I What do lawyers use? I don't know. Liquor drawer in their desk. Something like that. And tell us who is this week's winner who we will bathe in fame and fortune, which is absolutely not guaranteed.

1:06:38 Andrew: All right, Thomas, we have an unusual winner this week. It is someone named Brian Ziegenhagen at Zaguriel on Twitter, who says, "I'm on vacation and didn't edit, so I get to participate in TTTBE. The answer is C, because making free public ice skating rinks can never be a crime. Pretty sure it's in our greatest law book, the Bible." So Brian, happy to get the question right, he's never going to be eligible to play again, uh, and uh, and you know, it's a pretty good, uh, pretty good quip. So, this once only, Brian Ziegenhagen is our winner. He already has never-ending fame and fortune, but uh, we're going to give him an extra special shout out on this week's episode. Congratulations on getting it right, Brian. Hope uh you had a great vacation.

1:07:25 Thomas: Thank you so much for listening. And really cool episode, Andrew. I love this. That was fun.

1:07:30 Andrew: Had a lot of fun. I'm, glad you did too.

1:07:31 Thomas: Yeah. Yeah that was that was really fun uh thanks for that and thanks for listening everybody and we'll see you very soon I'm sure

1:07:45 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.

1:08:42 Andrew: Opening Arguments is produced with the help of our editor, Brian Ziegenhagen, production assistant, Natalie Newell, and our unofficial researcher, Magpie. A special thanks to the moderators of the Opening Argument's Facebook community, Natalie, Alicia Cook, Eric Brewer, and Emily Waters. And also thanks to Thomas Smith, who wrote and produced all of the amazing music you hear, which is used with his permission.