OA508: Texas Democrats Flee the State to Stop Republican Voter Suppression Bill

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 508. I'm Thomas. That's Andrew. How are you doing, my friend?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: Doing well. Uh, there is too much, too much too much. I know I say that a lot, but, uh, gosh, we don't even get to get to your top secret Amazing Cosby stuff until Tuesday. I can't wait.

0:01:36 Andrew: We don't even get to the internet's hottest sensation, right? Sanctions against the Kraken lawyers that we turned you on to on Tuesday's episode until next Tuesday. But that's good, because as you'll learn from our follow-up, there isn't going to be any action for two weeks, and so you'll have a full week to prepare, and you'll get to go back and revisit the best comedy in the world uh on Tuesday's episode so

0:01:43 Thomas: Yeah. Oh, you called that, though. I mean, you had people ready to watch that stream, and it paid off for anybody who's a keen listener to the show. Because holy moly I've heard I've heard great things, it's so good that we are going to use it for Law'd Awful, well, not movies, Law'd Awful uh smackdowns of terrible lawyers, what should we call it, I don't know, yeah a lot awful sanctions, well it's

0:02:23 Andrew: Laud awful video presentations of some sort well, but they're laud great sanctions this

0:02:31 Thomas: True they are good sanctions, yeah, a lot awful

0:02:32 Andrew: Is the My Cousin Vinny of sanctioned hearings, yeah

0:02:34 Thomas: Yeah so that's going to be our Law'd Awful Movies, uh, as you can no probably doubt here, Andrew's still traveling, so we're figuring out when all that's going to be, but it'll be very soon, and it's going to be a lot awful, amazing sanctions and I can't wait. But for today's show, Andrew, we've got some other news that we got to go over. So I think we should get to it.

0:02:55 Thomas: So Andrew, Texas Democrats are playing hardball, it seems like, and I don't think we've covered this on the show the first time around. And then now that with the second time around, it seems clear that we need the Andrew Torrez deep dive on this.

0:02:55 Andrew: Let's do it this I'm going to explain a uh a potentially effective tactic and be distinct and in in no way hypocritical from the Democrats' desire to get rid of the filibuster at the national level.

0:03:23 Thomas: I was wondering if you were going to mention that. I was going to mentioned that too.

0:03:25 Andrew: Yep. So it it is a form of hardball, but no harder than, you know, everything that the Republicans have thrown at us across the country over the past 20 years. So let's break down what's going on. First, the Texas legislature, legislature meets for only half the year, right, so specifically their legislative session began on January 12th of 2021 and was scheduled to adjourn on May 31st, right, and because Texas is a Republican trifecta state, right, that they have a Republican governor and they have a Republican House and a Republican Senate, uh, they have an agenda of horror, right and And there was not enough hours in the day in a five-and-a-half-month session to do all the awful things that they wanted to do.

0:04:07 Thomas: Yeah.

0:04:18 Thomas: Let me ask, is one of those in that agenda, I assume they would be figuring out their horrible, ruined by capitalism power grid that everybody's suffering with. Is that one of the things they're fixing?

0:04:29 Andrew: Not only not on the legislative session, but not in the special session that we'll talk about. Apparently, that doesn't rise to the level of do

0:04:35 Thomas: Wow. So, Yeah. So anybody sitting in has been experiencing, no, you know, inconsistent service, all that horrible stuff in Texas, this rest assured your Republican lawmakers are ready to try to prevent people from voting and that's it not even helping you

0:04:47 Andrew: Nothing about it. Yeah, exactly. Oh, but don't just prevent people from voting. Things on the agenda include things like House Bill 1399, which would prevent trans kids from getting medical care. And we're going to talk about some of the other really, truly terrible things that are scheduled for this legislative session. But let's go back to the timeline, You right? Got January through the end of May, but you don't really have to the end of May because you have to have time to introduce a bill. So basically what that meant was that that as a practical reason, the latest date to introduce new legislation was May 13th. And that left an awful lot of horrible stuff still on the table on May 13. And the reason for that is, most state legislatures and like the U.S. Congress, if you do not act upon a bill, if you do not pass the legislation in that particular session of the legislature then you have to start over in the next session, right?

So you haveと rewrite it, you've got to introduce it again, it's got to go back to committee, it's gotta get marked up, you have то have your hearings, you gotta start all the way over. And so even if you have a trifecta, have the problem of there aren't enough hours in the day to ram through everything you agree on.

0:05:16 Thomas: Right oh

0:06:10 Andrew: So on July 7th, Governor Greg Abbott, and again, governor of a state that has intermittent power, announced that he was convening a special session of the legislature to come back and clean up the rest of this horrible agenda, right? And so the first thing you might ask is can he do that, and the answer is yes, he can do that under the Texas State Constitution, Article 4, Section 8. Again, I'm going to read you this, you tell me if you think have not successfully allowed Republicans to hijack elections and we haven't punished trans kids. Oh, and of course on the list is we haven't passed one of them anti-CRT bills, right? If this arises to, it says

0:06:52 Thomas: Yeah that's is that what the emergency mainly was about, I bet you it was, I

0:06:57 Andrew: Section eight, convening legislature on extraordinary occasions. So the governor may on extraordinary occasion convene the legislature at the seat of government or at a different place in case that there should be in possession of the public enemy or in the case of prevalence of disease threat. His proclamation, therefore, shall state specifically the purpose for which the legislature is convened. That last sentence is important because if you then look at what the legislature may discuss, this is Article 3, Sections 5 and 40, it is clear that in a special session they may only debate such bills and resolutions as may be then pending and such emergency matters as may be submitted by the governor in special measures messages to the legislature, right?

0:07:44 Thomas: Mean I feel like this will be served solved by him just being like we got a disease, it's wokeism, and then they just get to pass everything related to that disease

0:07:50 Andrew: Well it's, it's actually worse because, right, like you can specify, and I'm going to talk about the 11 things that his proclamation specifies, right? And those are the only things upon which the legislature can act, so, uh, as you pointed out, uh, electric grid reform? Not on the list. COVID relief? Not on the least. Right.

0:08:09 Thomas: Wow. Oh my God.

0:08:12 Andrew: What is on the list? One, bail overhaul. Now, that would be a good thing. It is described as legislation.

0:08:17 Thomas: Huh. It seems kind of random though, for a, for a special session. What, what's the emergency of that?

0:08:24 Andrew: Well, You think that you look at the precise language that Governor Abbott uses, which is legislation reforming the bail system in Texas to protect the public from accused criminals who may be released on bail. So, right, where while around the country we are understanding the perils of the cash bail system in terms of the disparate impact that it has on criminal defendants, in Texas they want to keep more people locked up in pre-trial detention, which is arguably the very worst kind of detention we have in this country.

0:08:24 Thomas: Uh, yeah, but

0:08:57 Andrew: But in any event, yeah.

0:08:57 Thomas: I, I don't want to slow you down, but that doesn't sound like anything that was in that statute that allow, you know, like what's The Emergency? What's the, how, how can he call an emergency session for that?

0:09:04 Andrew: It question that I cannot answer, and this cuts ahead to, uh, but I'll, but I'm happy to I'm happy to that's

0:09:12 Thomas: Famously, I always ruin your plan. The best laid Andrew plans for an episode.

0:09:14 Andrew: Okay, that's Okay, yeah. Yeah, no, no, it's, is there is a plausible claim for some kind of declaratory relief that the legislature is acting ultra virus in going beyond the powers established by the Texas state constitution? The question would be, in bringing that lawsuit, number one, would the courts look at it at all, or would they just punt on a political question doctrine? And two, like what level of connection, right? Because there are basically two points of disconnect. You could have a bill that does not plausibly meet the things that are on the governor's agenda. And then you could also add, as you're raising, that the governor's agenda does not plausible meet the standards set forth in the constitution.

0:10:03 Andrew: I researched, researched pretty thoroughly Texas case law, and I don't have any guidance for you on that. I think it would be a question of first impression. So, um, that is a potential remedy that's out there, but let's be real, the Texans judiciary is also pretty damn conservative, right?

0:10:21 Thomas: I'm also wondering, while I've already derailed you, is there the equivalent of like the parliamentarian thing that we have going on nationally, where there might be, when it comes to some of these things, like how much you need a quorum or some of these other rules, like, is this related to the emergency thing? Does Texas, do you think they have more of a kind of a rubber stamp type parliamentarian where they can get away with whatever, is or do they have like a good parliamentarian who's keeping them honest on this stuff?

0:10:48 Andrew: Great question that I can only answer half of, so Texas has two parliamentarians that are called upon to interpret the standing rules of the Texas House and Texas Senate. So they do have that check. How independent they are, I don't know. So, for example, and I did do this research, I looked for backstories in the Austin American Statesman to see if there was a situation that was kind of analogous of vote comes up and the parliamentarian said no. I I couldn't find a story on that. So, you know, that's the research that I did. If folks know of stories, we have a lot of listeners in Texas, please, you know, feel free to write in openarguments@gmail.com and let us know because I'd love to know how robust those parliamentarians are. They But do exist. So, that is worth knowing. So, I'm not going to read all these to you.

I'm going to tell you they're all pretty terrible, right? Right. So even when it's listed as let's overhaul bail, that means let's keep more people in prison. Right. You have, as has gotten all the headlines, elections, legislation strengthening the integrity of elections in Texas, border security, the fake moral panic over censorship on social media. Um, there's a bit about, uh, appropriations to the legislature and legislative agencies pursuant to Article 10 of the general appropriations act, that's funding thing that, that may be a genuine emergency as far as I know, uh, family violence protection, uh, which means, um, changing the middle school and high school curriculum about domestic violence, dating, dating violence, and child abuse, but recognizing the right of parents to opt their children out of the instruction, that. Limiting access to school sports teams for transgender students, of course.

0:10:50 Thomas: Okay okay yeah yeah definitely emergency, yeah, can't let any bigotry not be for any length of time in Texas, it's an emergency.

0:12:46 Andrew: Legislation about abortion-inducing drugs, which is a misnomer. Homer. Another technical issue on payment for retired Texas teachers. There was a House Bill 3507 that didn't pass. Whatever. Again, yep, right.

0:13:01 Thomas: Right if it's teacher pay, that's the first one where I'm like, okay, sure, yeah.

0:13:05 Andrew: And that has nothing to do with the controversy. Item number 10, legislation concerning critical race theory. That has already been referred out of committee by the Senate. This has gotten no attention. But again, in continuing our discussion of how the pro-free speech side, and put that in sarcasm quotes, me read directly from SB3. It says, a teacher, administrator, or other school employee may not, in any K-12, counting high school social studies class, may not teach the concept that, and then there are nine concepts that you are prohibited from teaching in the classroom by the party of free speech.

0:13:51 Andrew: I'm going to read a couple of these to you. So, you may not teach, if this bill passes in Texas, the concept that an individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex. You may not teaching the concept of a free speech, distress on account of the individual's race or sex. You may not teach, and this one I really want to emphasize, that meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race. Because, again, we went through in episode 502, in the Macintosh case, how the trope, the positive trope of, of, you know, oh, Native, use all part of Buffalo, that are you deeply embedded in our culture, and that strike you as, well, that seems like a positive, right?

0:14:49 Andrew: Were in fact used as legal support for the arguments that, therefore, Native Americans did not really own property. Okay. So the idea that, like, just because something seems like it's a a positive trait now, that it can't have a history that people ought to know about or begin to question, should be something troubling. Those are, by the way, I picked those because they're the more seemingly facially rational ones that might get quoted on Fox News that your Uncle Frank is going to hear about. I want to read the last two, because this is just lying about American history. So, item number eight, that will become illegal for a high school social studies teacher to teach the concept that, quote, "the advent of slavery in the territory that is now the United States constituted the true founding of the United States," end of quote.

0:15:48 Andrew: Yes, it did. The slave trade, uh, constituted the, I mean, whatever true founding is, I don't know what that, but, but, like, you, you cannot, can you teach the triangular trade route, like, I learned that in my U.S. history class, that is crucial to taking AP U.S. History, I know my son took it a couple of years ago, right, like the the the trade 1619

0:16:11 Thomas: Well, But Again, I yeah, I get it, but, but it's like, this is obviously an attack on 1619 and they, they, yeah.

0:16:17 Andrew: Is mentioned by, by name in this, this legislation. Of course it is.

0:16:20 Thomas: And they're taking That to be like, you know, the 1619 Project, as we've talked about, I've talked about in my show, you know, it's about looking at something through a different lens. It's about looking at rather than looking at, you know, 1776 and all the mythology we all know about in the paintings and the stuff that didn't happen. Well, let's look at like the lens of the founding of this country through when the slave trade started and when the first slaves were brought here in 1619. And it's about looking at it through that lens. Nobody involved in 1619 would tell you that the official founding of America was in 1619. They wouldn't tell you the country began. And that's just like a distortion of what's going on. So, you know, like nobody's teaching that, but, but it is, they are, they do want to teach like how that was very central to the creation of America.

0:17:03 Andrew: Yeah. Of course. Again, right. I bracketed that phrase, that true founding. I think your point there is excellent. How about number nine? Cause this is going to leave no doubt. Quote, it will become against the law to teach the concept that with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to the authentic founding principles of the United States, which include liberty and equality. End of quote.

0:17:24 Thomas: What?

0:17:50 Andrew: Yeah, to say no person, no founding father, nothing at the founding of the country, none of those people, noneof the concepts, none the debates, nonethe principles were racist. None were proslavery.

0:18:08 Thomas: So they want to frame it as though slavery was anathema actually to what the founders really wanted. You, what's actually true is that, you know, the bulk of the founding fathers probably owned slaves, or at least, and probably almost all of them profited off of slavery in some way. And that it wasn't as though, for many of them, there was never any intention that black people would ever have rights, you

0:18:30 Andrew: Yeah that is right. It says that with respect to fundamental American values, right, whatever those are, slavery and racism may not be depicted as anything other than these three things, a deviation from authentic founding principles of the United States, a betrayal of the authentic founding principals of the United States. Which, again, Thomas Jefferson owned slaves, right? Right. In what way can you say, these people insinuated themselves after the fact and then betrayed the principle? Look like it. I defy you. And we have high school teachers who are show listeners to tell me how you can teach the three-fifths compromise as, and again, as objective fact and comport with this instruction. I You grew up with those social studies classes that included, you know, what we called historical revisionism, right? Like, oh, we thought this for a long time, turns out not not that, right?

0:18:35 Thomas: Yeah. Whatever that is.

0:18:46 Thomas: Yeah, yeah.

0:19:32 Andrew: Turns out, remember third grade when you were taught that the Indians brought out maize and turkeys and sat down with the colonists and everybody lived happily ever after and why aren't there... School was a perfectly appropriate time to begin introducing those concepts. And again, the party of free speech convened a special legislative session to To prevent.

0:19:39 Thomas: Yeah all that crap.

0:19:52 Thomas: I mean it's just it's crazy. I feel Like we can't properly express how horrific this is. Introducing laws that say you cannot teach the concept that. Like what should go in that? There's nothing that should go in that law. You can't teach the concept that you can't even be like, hey, there are some people who think X. You can even teach that you came and teach that a concept exists.

By the way, I maybe be part of a good history education to know some of these awfully racist concepts, like, for example, you know the that the south tried to rebrand the Civil War as like the you know the lost cause all that stuff like that's all racist revisionist history, but I would want kids to be taught that that happened. Like on the other, so I'm saying like even stuff that was like racist revisionists history, I would want the concept of it to Be in education to be like, yeah, here's a bunch of people put up a bunch, you know, why all these statues that we fight about are like not that old. They They weren't put in right after the Civil War. You know, they were put in during like Jim Crow and like all these other times later on. I would want those concepts to be taught. So right away, there is no good end to that sentence. It's against the law to teach the concept that, like, there's nothing can go in that spot. That's not awful George Orwell, you know, nonsense, right?

0:20:44 Andrew: Yeah.

0:21:13 Andrew: In a social studies class, right? Like, look, I would want to teach the concept that, all you rights stem from property rights and the best government is a libertarian minimal state, right. Like high school is a good time to begin exposing kids to differing views of the scope of government. And like, you want to teaching them about about libertarianism? Great. You want to teach them about communism? Great, you want to teach them you know monarchies? Of you should. So in any event, you are 100% correct. I can only add outrage to what you've said so I will not.

0:21:16 Thomas: Yeah.

0:21:47 Thomas: And yeah, well, we should. Good. I mean, and this is not, and as you said a minute ago, this is not as though they're trying to pause how things are now, which would already be terrible. This is, oh no, we've come up with a moral panic about a thing we don't understand. Let's dial history class back to like 1950. You know, it's not even like this isn't even critical race theory as you say, like this is just history. Like, you know, It's not Even Really controversial, controversial. It's not, you know, motivated by the new 1619 project that changed how history was taught. It's like, no, you're talking about stuff that is just wrong. You just want to teach incredibly incorrect history from probably the 50s.

0:22:14 Andrew: Yeah, that is right, and that is something I wish we had added. So I'm glad we're saying it here, to our CRT discussion, which is the point of it, being a moral panic is to piggyback the kinds of things you've wanted all along, right? Which is to whitewash American history, uh, and to use the cover of something scary in order to, uh, provide the justification for, for this new legislation. So any of that, um, these are the things that are on Governor Abbott's list, okay?

0:22:29 Thomas: Yeah, well, I'm disappointed that none of the senators were like, also, you can't take the square root of a negative number, I'll get that, I crap out of algebra, it doesn't, it doesn't work. Furthermore, one more, add one more to the list, I before E E except after C, it's wrong, that's net, it does not help, it's, stop teaching it to our kids, we're, they should have added those last two. I'm just saying, Oh,

0:23:18 Andrew: They should have, but so and by the way, um, this special session has no fixed duration, they can last from one second up to a maximum of 30 days, okay, so we've got about 24 days left in this session, um, there is another special session scheduled for the fall, uh, and, uh, governor Governor Abbott can call as many of these as he wants, okay? So I want to bracket all of that when we talk about the Democratic strategy. They can call another session, but this one will end by its own terms in about 24 days, right, the first week of August.

So to recap what we've learned so far, number one, there's nothing good that can come out of this special session. Um, and by the way, as proof of that, uh, they have only managed to pass two bills so far, and they're both symbolic. So Senate Resolution One recognizes November 3rd, 2021, as the Texas Association of Builders Day, so good for you, and, uh, SR2 is in memoriam of Gary E. Bushell, who was former chief of staff to Lloyd Benson, and I, you know, Lloyd Benson was a perfectly fine Michael Dukakis' vice presidential running mate, perfectly fine Texas senator,

0:23:27 Thomas: Huh?

0:24:35 Andrew: No, but you know, not quite.

0:24:34 Thomas: Hardly emergency session type stuff though, was that stopping a disease or but another and I know we've said this, but, like, also this stupid law banning all this knowledge is violates the First Amendment, right? I mean, so this is all an emergency to pass stuff that is blatantly unconstitutional that won't go into effect? Am I wrong? Why

0:24:50 Andrew: Oh, clearly, yeah. No, you are not wrong. Wrong.

0:24:58 Thomas: Can this happen, Andrew, why can they get away with this

0:25:01 Andrew: So as long as your blood pressure is still at its maximum, now is where I'm going to slip in the discussion of HB3, which is the House bill version of the voter suppression law that has already passed the Senate. It's SB1. That bill is the justification for the Democratic walkout, right? But I wanted to provide the background that they're also walking out on all of this other horrible stuff, So, right? HB3 does a bunch of different things, none of which are very good. There's a lot of, like, crediting poll watcher stuff that is designed to make it easier to have people wearing red hats coming in and standing over the shoulders of elections officials. There is a lot language in here about how critical it is to prevent election fraud, which, by the way, it's not, doesn't happen. Um, here's the substantive stuff. HB three would restrict early voting to 12 total hours over two days.

Can't be on a Sunday. Can't start earlier than 6am. Can't end later than 10pm, with the exception of, you get to everybody in line, must be in person, right? So in other words, not much on early voting, and would restrict voting by mail back to the for-cause system, that right?

0:25:11 Thomas: Uh-huh yeah so

0:26:23 Andrew: Is, you have to prove you will be out of the jurisdiction during the election. It includes on voting by email multiple signature requirements. You've got to sign the ballot. You got to assign the envelope. And if they don't match the records, if they, right, all of different ways to try and disqualify mail-in votes. It bans ballot harvesting.

We've talked about that in connection with the Arizona legislation, legislation um there is and that's a more mixed issue, uh, but ballot harvesting especially has a disproportionate impact on Native American reservations, which there are a lot of in Texas, but on the other hand, there are lot of mega churches too, so, you, it, were a banned ballot harvesting bill, we could have a very interesting debate over just that provision.

And I should add that if the bill passes out of committee, if the Democrats had stayed in session, um, there's nothing to stop the majority of Republicans from adding even worse provisions to the bill that have been kicked around, for example, the last time this bill was in this exact form, was debated in the House in May, Republicans added an amendment, a lengthy amendment, that included a political panel that could overturn elections if there were allegations of voter fraud. Yeah. So what did the Democrats decide to do? As you said, they decided to play hardball. Here's the composition of the Texas legislature. Two houses, 31 in the Senate, which is a weird number, I'm not sure how they got to that. Uh, 18 Republicans, 13 Democrats, nine Democrats left, which meant that they still, you only need 21 for a quorum of 31.

0:28:04 Andrew: So the Senate was still able to pass legislation and is in fact still passing legislation. They have a quorum. In the House, there's 150 and it is split 83 Democrats, 83 Republicans, 67 Democrats. So note, by the way, that, you know, we talk about the bluing of Texas. Like these are not huge numbers, right? This is a 16 member advantage to the Republicans in the house and a five Senate advantage to Republicans, right. So we're closing that gap. Um, 61 of 67 Democrats left that through the house under the two thirds level that it needs to have a quorum. And again, we go back to the Texas Rules of Procedure. Rule five, section one says a quorum constitutes two-thirds of the house, so 100.

0:28:56 Andrew: When a quorm is not present, you then go on to section six, says there are only two things you can do if a quorum is not present. You may move to adjourn, right? Go home for the day. Or you may make a motion for a call of the house and the motions incidental thereto, okay? And you're like, well, what the hell does that mean?

0:29:18 Thomas: What does that mean yeah, are we, have to send out the troops, get the bounty hunters, Boba Fett on him

0:29:24 Andrew: So, spoiler, yes, we're going, going to get there? Okay. So there's a cross-reference to Rule seven, Section 11, which says adjourning with us in a quorum, a smaller number of members than a quorem may adjourn from day to day and may compel the attendance of absent members. You're like, okay, well, wait a minute. So here's what's going to happen. If there's less than a, if there's left in the House, the Republicans left in House can only do one of two things. They can move to go home or they can motion for a call of the House and then move to compel the attendance of the absent members.

And the way you do that is Rule 5, Section 8. So I'm going to read this to you because it's delightful. When a call to the House is moved for one of the above purposes and seconded by 15 members, of whom the Speaker may be one, right? So as long as there are 15 people, I guess 16 Republicans left in the House, and ordered by a majority vote, that is majority vote of those present, less than a quorum, the main entrance to the hall and all other doors leading out of the hall shall be locked, and no

0:29:25 Thomas: Sure wow geez

0:30:40 Andrew: Member permitted to leave the House without the written permission of the Speaker. The names of members present shall be be recorded. All absentees for whom no sufficient excuse is made, put a pin in that, may by order of a majority of those present be sent for and arrested wherever they may be found by the sergeant at arms or an officer appointed by the sergeant of arms for that purpose. And their attendance, it goes on, shall be secured and retained.

0:31:07 Thomas: I just can't wait to hear, like, a bunch of, like, doctor's notes that the senators get, you know, like, it's an excused absence, you know, if we all, if we all get a note, they can't do anything, they can send the officers after us, right, I

0:31:23 Andrew: We're going to get there, there. The House shall determine on what conditions they shall be discharged. Members who voluntarily appear shall, unless the House otherwise directs, be immediately admitted to the hall of the House and shall report their names to the clerk to be entered in the journal as present. And I guess it doesn't say we'll unlock the doors and let them in, but I guess that's presumed. So now it says until a quorum appears, should the roll call fail to show one present, that is, there is no quorum, no business shall be transacted except to compel the attendance of absent members or to adjourn, it shall not be in order to recess under a call of the House. So now, looking at that, I want you to understand the brilliance of this hardball strategy.

0:32:09 Andrew: The Texas Democrats have left. Have traveled to Washington, D.C. I believe all 61 have left the state of Texas. Leaves the Republicans sitting back in Texas in a session where they're supposed to be off for summer break, to transact any business or do do anything whatsoever except move to compel the attendance of the absent members. And then when they do that, they've got to go through the rigmarole of locking the front doors and nobody can leave and everything else. And they can't just stop this indefinite summer session. They They may not recess this special session, which otherwise will continue indefinitely for the next month, yeah.

0:32:42 Thomas: Oh Right. Because, so, is it, like, because it's a special session, if they call it quits, then it's done, and the governor would have to do a whole nother one? Is that what it is?

0:33:07 Andrew: That what they could do is they could adjourn until the end of the 30-day period, but then, right, all the Democrats could come back right

0:33:08 Thomas: Ah, yeah. You're not going to have time to do anything, right?

0:33:18 Andrew: Yeah. And they will have passed only those two ceremonial bills that I described. And it does not matter because the Senate is still hard at work. Like I said, they have passed SR3, SB3, excuse me, which is the stupid critical race theory bill we went to in detail. But the Senate can pass any damn thing at once. Right. All of that gets reset to zero once this session ends.

0:33:47 Andrew: Yeah. And on top of it. Right, like so as soon as they fled the jurisdiction, Greg Abbott went on, you know, Texas, went on Lubbock radio to talk to Chad Hastie and said fleeing Democrats should lose any committee leadership posts that they hold. So then State Representative Tony Tenderholt, love these names, attempted to bring a motion to do just that if the Democratic members did not return by Wednesday at noon, but the motion did not proceed because removing committee chairs and vice chairs is against the chamber rules. Rules. So, yeah, you can't sanction. You can't do anything.

0:33:18 Thomas: Oh, yeah, yeah because you don't have a quorum.

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0:38:10 Andrew: Now, they move and authorize the sergeant at arms to compel the return of the 61 missing Democrats? They did. That does not remotely matter, right? Number one, the sergeant at arms is not going to take a bus to D.C. Um, number

0:38:28 Thomas: So we don't Have a Tommy Lee Jones scenario here. I want every outhouse, henhouse, doghouse, whatever. He's not, they don't have like some elite strike force team going out to get all these people.

0:38:38 Andrew: They do not. Uh, and it is not clear that the Texas state sergeant at arms would have jurisdiction to arrest somebody on the streets of Washington, D.C. And, and by the way, that's why a super majority of the legislators went to Washington, D.C., because that's federal territory, right? If they went across the border into Oklahoma, then Greg Abbott could call up the Oklahoma governor and say, yeah, we want reciprocity.

0:39:13 Andrew: Exactly. Extradite them back to Texas. I don't think Joe Biden is going to extradite the Texas Democrats back to Texas. So it's now a game of chicken where Texas Democrats who are in D.C. are waiting out, whereas a number of Texas Republicans have to keep showing up at the statehouse for a session they're not supposed to be in that is interfering with. With, by the way, like the reason that the legislature meets half the year is because the other half the years, some of these people have, you know, part-time jobs, right?

0:39:04 Thomas: Yeah. Yeah. Jeez. Extradition. Yeah, mm-hmm.

0:39:49 Thomas: Oh, I thought that was just a Texas like small government thing. Like, ah, we don't need the government working for the whole year.

0:39:51 Andrew: No, A In fact, the super majority of states have part-term legislatures. Yep. So these people, a, they may have other jobs, b, they certainly were planning to do things like meet with constituents, fundraise, know, all of that. And instead, they got to show up for work. And then any bill they tried to pass, the parliamentarian would be like, I'm sorry, you can't do that. Can we do anything? Yeah, you could move to adjourn. Well, I move we adjourn then.

0:39:58 Thomas: Oh, okay. Yeah wow.

0:40:23 Thomas: Yeah I'm surprised there isn't any, and it's good, there's no, it doesn't sound, sound like there's any nuclear solution for them. There's not like a, okay, well, now we're going to change the rules while the Democrats are gone, and then that'll make it so we can pass stuff.

0:40:34 Andrew: So, nope, They can't do anything. Anything. And, right, the reason I love this as hardball is, as I said, I told you to bracket at the beginning, um, Governor Greg Abbott can put all of this stuff on the agenda for the fall session as well. He could continue to call special sessions of the legislature as long as he wants.

But at some, some point, his own Republicans are going to be like, Greg, buddy, killing me, I gotta show up to work here and no one's here and we're not doing anything and I can't meet with my constituents and it's totally pointless, knock it off. Right? Because unlike the fake filibuster we have in the U.S. Senate, these Republicans, in order to do anything, have to actually physically show up. And then they have to go through the rigmarole of like locking the doors and all that, because, yeah, if they, if they move, this is the beautiful thing. If what I think is likely to happen, and right, and we're recording this on July 15th, is there will be motions to adjourn for a couple of days, right? And then they'll come back and then there'll be a motion to adjourn for a week, and then they'll come back.

And then finally, there will be a motion to adjourn to August 6th, which will be the end of that special session. Now, again, could Greg Abbott, that's Friday, August 6, he could get together on Friday, August 7 and say, I am convening another emergency session of the legislature. Legislature, uh, but then, you know, it's a, uh, it's attractor

0:41:23 Thomas: Oh. All.

0:42:01 Thomas: Right.

0:42:02 Andrew: Chicken race in terms of

0:42:02 Thomas: I will donate to a GoFundMe for these Democrats, travel, like, if it comes that they're, like, we're, look, the first few trips were on us, but we're running out of money with this whole gambit, I will, don't eat.

0:42:03 Andrew: Uh Yeah. Here, here, we will, uh, we will fundraise for that on Opening Arguments. So, yeah, as you see, not even going to make the arguments, right, I'll, we'll do it, Opening Arguments. Right, I think it is crystal clear how the Senate filibuster has been used as a permanent tool of minority obstruction in passing any kind of legislation, and has been used with zero personal cost. Flip that on its head here. We have something that is extraordinary measures, measures, um, and and, and, by the way, like, there is nothing, like, at the end of the day, what the Democrats can do here is make it harder to cram through horrible stuff, which, by the way, I think is part of being a loyal opposition. Would, would I feel differently if it were, right, Republicans in, a you know, in Maryland or California, you, you bet I would, open to that charge of hypocrisy.

0:42:42 Thomas: Yeah. Yeah.

0:43:10 Thomas: Well. What I was going to say is, as you, you kind of already touched on this, this is a very visible thing. So Texas voters, if they don't like this, they see, holy crap. You know, all these Democrats left, like, that gives them the information to either say, hey, uh, you know, I don't want it, I can't, they're not doing their job, I am sure there'll be a lot of campaigning on that by Republicans in Texas, they're not, they don't even show up for the job, dah, dah. Or, B, maybe they're like, well, well, they are protecting, they are going to extreme lengths to protect our right to vote, and I'm going to support them. Whereas, the bullshit system that we have with, you know, Senate in the U.S. Senate is, it's assumed to fail, and nobody has to do anything. Some intern sends an email that says, nah, nah.

0:43:56 Thomas: Nobody knows about it. It's just assumed. Bills are just assumed to failure if they don't have the 60 votes. Nobody has to doing anything. There's no headlines about, you know, Republicans leaving, the, the thing. So people don't like, obviously, everybody, this show, and us, and everybody listening is very in the details of this. Most people, I don't think, are that much in the weeds on what's going on, and they don't even know about this filibuster stuff, or exactly how it works, or when it's happening, or who did what. I think that's a very different scenario if we had this situation in the U.S. Senate where Republicans had to literally flee their jobs to delay these bills, you know, I don't know that I'm saying that's a perfect system necessarily, but at least is one that gives voters that information. They see, oh, you know, Democrats are trying to pass an infrastructure bill, Democrats are trying to a climate change bill or whatever, a voting rights bill, and in order to avoid that, Republicans literally fled.

0:44:49 Thomas: You know, if that were the thing, that at least gives voters the information so that they know what's happening and there can be consequences for that obstructionism. Just a couple of questions. I want to know, you know, I've heard some things I've read that are dangerous. You know, what if one of these one or two or however many of these Democrats gets a sick kid or gets, you know. Could we have a situation where if enough of them have to return for personal reasons or whatever, all of sudden and we get that Tommy Lee Jones, which I think he's from Texas, right? So that's good, it's actually a good reference. At least he sounds like he's from Texas.

0:44:59 Andrew: I endorse that 100% Okay. I think the fugitive was set in Texas. So there you go. So

0:45:26 Thomas: Oh, was it? And I was going to say no country for old men might've been in Texas too. Anyway, one way or the other, someone's going to arrest these people. I don't know how much, I was actually thinking about this too, and I don't know if you'd have the answer, but I don't know what kind of resources the, you know, Texas Senate Sergeant at Arms has. Like, I don't know if he's on the like airline flight data knows like, oh, this Senator so-and-so just came back across the border. So he's a fair game or whatever. But like, how worried are you about that kind of thing? About if, you know, enough, five or six, however many it would be to give a quorum have to return for some sort of personal or job reasons.

0:46:02 Andrew: Here's the thing, it would have to be at this point, assuming full attendance by the six Democrats that that didn't walk out, which is fine, and by every remaining Republican, you would still need to find and track down 11 Democrats. So You know, I did right, I

0:46:20 Thomas: Hmm. Okay. I think odds are pretty good then that they could not have 11 Democrats get caught.

0:46:27 Andrew: I think that's, I think if Tommy lee Lee Jones gets one Democrat, then like the others will start going to safe houses or what have you

0:46:33 Thomas: Oh yeah. Yeah. Yeah. Put on put on mustaches with the glasses and stuff like just find anything they can. This will and should hopefully, if there's still a world, make a great movie someday, especially, by the way, if this culminates and hopefully Aaron Sorkin will be dead. So he won't write it. We get somebody good. If this call me if this goes, I'm sorry, I better cut that. I'll lose all our patrons and listeners. If This culminates in like, you know, the national voting rights bill, any sort of I guess any version. I don't know what's going to pass Joe Manchin's, you know, to his liking, but if something national passes that protects voting rights, that would be, this would be such an amazing chapter in that story. You know, in that documentary series of like, here's what Texas Democrats did. It's, it's really heroic. Like I, I'm just so impressed. And I want to say this too. I know not, not all Democrats are created equally. And, and, you Know, you and I will always agree with that.

0:46:39 Andrew: Oh, that would be outstanding

0:47:26 Thomas: We're not just like a, every Democrat's the greatest by default, but like, this is some good Democrat-ing. And this is a reason to be happy about the party. And, you know, this is the kind of thing that could make you proud to vote Democratic. And I think it's amazing what they're doing.

0:47:43 Andrew: An even better summary than last time.

0:47:45 Thomas: All right. I guess I'll let you off the hook on this segment.

0:47:48 Andrew: Well, I can't wait to tell everybody how right I was, so that's why I'm eager to get to the next one.

0:47:53 Clip: Andrew Torrez is correct, the best kind of correct, Andrew Torrez, you were right, tell your sister, you are right.

0:48:09 Andrew: You may recall, our long-standing listeners, in episode 208, we talked about the lawsuit filed by Roy Moore and his wife, Kayla Moore, against Sacha Baron Cohen. We pointed out that, uh, Roy Moore, of his own volition, was represented by Larry Klayman, and uh, and we predicted that it would not be resolved via motion to dismiss, but would be resolved via an early summary judgment motion. Now, you might be thinking, well, that was two years ago, so you were wrong about the early part. No, we were not. There was a year worth of litigation over whether to transfer the suit from Washington, D.C. to the Southern District of New York, which it was finally in 2019. And then there was a year teeing up the summary judgment judgment motion, and earlier this week the, uh, U.S. District Court for the Southern District of New York ruled in favor of CBS and Sasha Baron Cohen in every respect, which we're going to break down, and, and it was, uh, delightful, so

0:48:32 Thomas: And this is all related to that show, right? Wasn't the America? What was it? Crap.

0:49:20 Andrew: It's called Who Is America.

0:49:21 Thomas: Oh, who is America? That's really funny. I watched that one.

0:49:25 Andrew: I I have teed up 25 seconds if you want to play the clip on the show.

0:49:29 Thomas: Oh.

0:49:32 Clip: They have now used this technology to identify other abnormalities. It turns out that sex offenders, and particularly pedophiles, secrete an enzyme 4-DDHT, which is actually detectable. It is three times the level of non-perverts. So the phrase, sweating like a rapist, is actually based on science. So, in Israel, they have developed a machine that is used in schools.

0:50:04 Thomas: This character is ridiculous, he's got this like unibrow that's like absolutely hilarious, um, okay, that was the critical, um, the interview moment, Andrew, what happened there that we need to know about? Yeah.

0:50:06 Andrew: Yeah.

0:50:16 Andrew: OK. So as you pointed out, right, this is an interview with an Israeli anti-terrorism expert named General Erran Morad. Um and what is astonishing is how long this interview goes and Roy Moore has no idea that he is being Sacha Baron Cohen right like it it begins with a whole bunch about like how Alabama supports Israel and Sacha Baron Cohen feeds him these questions about like right because Alabama is a state in which you've always valued equality right and Roy Roy Moore is like, yes, Absolutely. We're on the forefront of equality. And like all of that's pretty funny. And then there's the clip you just heard, right, in which he says, you know, we've got this pedophile detector. And of course, right, after, and Moore does not, it's I hard to tell without watching the video, but right, he kind of nods along and goes, uh-huh. And at this point, he still does not realize he's being set up, right. He just sits there, uh, answers the question that Sacha Baron Cohen of course brings, he takes it out, he's like, since

0:50:54 Thomas: Yep. Yeah. Yeah I

0:51:26 Andrew: None of us are pedophiles, like, I can wave this over me and nothing happens, and that is

0:51:29 Thomas: Forgot how truly brilliant and amazing. This, this was, what, a I remember watching, I watched this show like episode by episode as it came out at the time, I was just, I was just astonished at the brilliance of it. I mean, it really is that level of thinking ahead and of planning those kinds of pranks that it's not just like a BS, you know, ah, slime, just dump a bucket of slime on. So, you know, like, this, this is something where he keeps him engaged the whole time, as you're saying, like, he keeps him into the interview, believing him the whole time, and does this pedophile detector thing. It's so good.

0:52:04 Andrew: And of course, you know, it starts beeping off the charts when he pushes it anywhere near Roy Moore, and then I think the additional brilliance is Sacha Baron Cohen going, oh, well, you must, did you loan your jacket to somebody before coming on the show? And, and again, Roy Moore sits there and answers questions for another two minutes before finally walking off the set, right. So, so in connection with that, Roy Moore, it really is, made the following bad life decision, which was to hire Larry Klayman. And again, we're talking about Sidney Powell and Howard Kleinhandler. And next Tuesday, we are going to talk about some truly bad lawyers who are going to get what's coming to them. Let us pour one out for the long lamented original OG bad lawyer, Larry Klayman. Who decided to sue CBS for, on behalf of Roy Moore, for defamation, intentional infliction of emotional distress, and fraud in the amount of $95 million.

0:52:24 Thomas: It's so good, oh God, it's so good. It's one of the best pranks ever. Are you telling me CBS owns Showtime? Oh, that's disappointing news. I hate CBS and I like Showtime, so I've been tricked. I've been had, everybody.

0:53:10 Andrew: Yes. Yeah. Yeah, Kayla Moore Roy Moore's wife joined in on the IIED and fraud counts, okay, but not the defamation counsel. And yesterday, the opinion came out, which was everything we told you, which was this was going to get thrown out. We did not have access to the contract that Roy Moore signed at the time the complaint was filed. Now we do. I'm going to link it in the show notes. It's a really interesting contract to read. So let me say, the court's decision was that all of Moore's claims were released by having signed the contract, The contract is incredibly interesting in what it reveals about Roy Moore's concerns at the time, right?

So it is a one and a half page, no, it's just a one page document, and right, it says, this is an agreement between Yerushalayim TV, parenthesis, including its assigns, licensees, parents, subsidiaries, and affiliates, collectively the producer. And by the way, the parent company of Yerushalayim TV is an LLC of which Sacha Baron Cohen is the sole member, right? And the undersigned participant that in exchange for the producer making a $200 donation to the charity chosen by the participant, and allowing the opportunity for the participant to appear in a television series, the participant agrees as follows. And then written in by Roy Moore is Foundation for Moral Law, which is the garbage imaginary charity that, I just want to point out, even when given an opportunity to make a donation to charity, Roy Moore cannot do that, right? He's got to make it to a right-wing lobbying organization.

0:54:00 Thomas: Right. Yeah. Yeah.

0:54:59 Andrew: But whatever, However, Sasha Baron Cohen spent $200, well spent, to the horrible Foundation for Moral Law. Then paragraph four is the waiver. And I just want to tell you again, don't take legal advice from a podcast. Don't ever, like we talked about the sort of potential for trickery. And we made reference in episode 208 to how the producers of Expelled, you really set up a nesting layer of shell companies in order to trick PZ Myers to appearing in Expelled. Right.

I do not want to pause lightly over those concerns. Concerns. I do want to tell you, you are ever called upon, again, don't take legal advice for podcasts. If you're ever called up on to sign a waiver this broad, you should maybe think that something is up. So The waiver says, this goes through subsection R, right? So this is 20-odd subcomponents. The participant waives and agrees not to bring at any time in the future, any claims against the producer or anyone related to the producer involving a failure to adequately compensate participant. Okay. B, failure to use the footage of participant. C, infringements of rights of publicity or misappropriation. D, damages caused by acts of God. E, damages caused by acts of terrorism or war, okay, all right. F, intrusion or invasion of privacy, put a pin in that one. G, false light. H, infliction of emotional distress, whether intentional or negligent. I, trespass.

0:55:41 Thomas: Wow.

0:56:28 Andrew: J, breach of any alleged contract. K, allegedly deceptive business or trade practices. L, copyright or trademark infringement. M, defamation. N, violations of the Lanham Act. O, prima facie torts, such as alleged intentional harm to the participant. P, fraud. Q, breachof alleged moral rights. Or R, tortious or wrongful interference with any contract or business of the participant." In other words, had Sacha Baron Cohen punched Roy Moore in the face, that would have been waived by this particular waiver, right? If Sacha Baron Cohen had treated Roy Moore misleadingly, juxtaposed his name and likeness in any context, I'm not even going to entertain a hypothetical here, but I'm sure you could come up with one, it would all be the same. So in other words, this was perhaps the lightest touch that would nevertheless be covered by this waiver.

0:57:01 Thomas: Yeah.

0:57:26 Thomas: But more effective I I think this is better Yeah.

0:57:28 Andrew: Oh, oh, very much so.

0:57:29 Thomas: Point is he signed such a broad waiver that he never had any chance of winning a lawsuit, is that pretty much, yeah.

0:57:34 Andrew: So Yeah, I told you to put a pin in intrusion or invasion of privacy, because there was only one thing out of this entire laundry list of 23 separate things that you agree to waive that no sane person would waive, There right? Was a parenthetical that Roy Moore decided to scratch out. And that parenthetical, right, again, with bearing his initials RSM next to it as a scratch out, says such as, so, intrusion or invasion of privacy, parenthetical, such as any allegedly sexual oriented or offensive behavior or questioning. That was the thing that Roy Moore decided that he was going to scratch out, and then argued in court, will see, look, like I'm suing because of the sexual oriented oder offensive behavior or questioning." And the judge very rightly said, yeah, but that parenthetical was modifying a claim for intrusion or invasion of privacy.

0:58:28 Andrew: You sued for fraud, intentional infliction of emotional distress, and defamation, and And those are explicitly excluded by H, M, and P. And you could have. The fact that you scratched out part of the invasion of privacy thing says you could have scratched out an infliction of emotional distress. And then we could go forward with this. But you didn't. So congratulations, you lose. Now, you may recall that I said Kayla Moore, Roy Moore's wife, also sued, she did not sign this contract. Now, there is an argument sometimes that non-signatories to a contract can be bind by its terms if they are intended beneficiaries, and I'm not going to get into any of that right now. U.S. District Court for the Southern District of New York then said, okay, so Roy Moore claims super easy to adjudicate. They're barred by contract. We resolve that before considering constitutional questions under what we call the doctrine of constitutional avoidance, right?

In other words, if a court does not have to decide a question of a constitutional right, they won't, right, so as to not get it wrong. And that's a well-known, longstanding doctrine of judicial interpretation. But then I said, OK, well, when it comes to Kayla Moore's claims, she's not a party to the contract.

0:58:59 Thomas: Huh.

0:59:49 Andrew: So we're going to have to look at the First Amendment. And this is the fun part of the opinion. This is the part you will see quoted in the press. But you just need to know that this is not with respect to Roy Moore. Moore, this is with respect to why Kayla Moore cannot claim intentional infliction of emotional distress, uh, or fraud. And the reason is, um, because nobody could possibly have taken this seriously. Right. And This is page 24 of the opinion. It says, "In light of the context of Judge Moore's interview, the segment was clearly a joke, and no reasonable viewer would have seen it otherwise. The segment began with an absurd joke," which, you've got to go back, we'll link the whole thing, it's available for free on YouTube.

1:00:17 Thomas: Yeah.

1:00:33 Thomas: I'm gonna watch it first thing after we're done recording, I want to watch the whole thing again.

1:00:33 Andrew: Oh, it is so good. And

1:00:37 Thomas: So good, you

1:00:38 Andrew: The joke is that the character who does the interview of Roy Moore, General Aaron Morad, boasts about having once killed a suicide bomber with an iPad 4, and then says, "But fortunately, I had purchased Apple Care so I was... I'm fine."

1:00:55 Andrew: Then, right, there's the spliced in news footage of Roy Moore and the very credible allegations of pedophilia. And then it begins the video, right? And the court says, "At this point, it should have been abundantly clear to any reasonable viewer that defendants were using humor to comment on those accusations, rather than making independent factual assertions, or even than remarking on the truth or accuracy of the allegations. The actual interview of Judge Moore then became even more absurd. No reasonable viewer would have interpreted Cohen, in his over-the-top Aaron Morad character, waving a wand that supposedly detects enzymes emitted by pedophiles in the vicinity of Judge More, as stating facts about Judge Moore. Nor would a viewer have reasonably believed that this gadget," "which Aaron Morad also contended was able to detect hidden in tunnels used by terrorists, doubled as a device that could detect enzymes secreted by pedophiles."

1:01:50 Thomas: Don't get more than one tick. Sorry, I'm just still just blown away by Baron Cohen in this. You don't, you get one take. You get one chance at this. And he pulls off the comedy with a wand perfectly. Like, imagine if that wand hadn't worked. That would be terrible. Maybe they could fix it in post. But like, that's how impressive this is to me. Like, I can't believe he pulled this off. It's amazing.

1:01:51 Andrew: Oh, Yeah. Uh, Uh, It's so it's so good, it's, okay, there you go, we were, uh, a hundred percent right, it is a hundred, hilarious, uh, Sasha Baron Cohen can continue to set up American politicians for, uh, for as long as he shall live.

1:02:20 Thomas: Yeah. Well, we'll see if anyone, I mean, even conservatives might wisen up to looking out for somebody who looks like Sacha Baron Cohen. We'll see.

1:02:30 Andrew: With with the, like, Neanderthal eyebrows, oh, it's so good.

1:02:32 Thomas: Yeah. So, uh, I know we're so over time, but I want to ask you like the headlines are saying Sasha Baron Cohen wins $97 million lawsuit. I think it's been kind of misleading. Does he get anything? Does, is it just that he doesn't get sued essentially, or doesn't it any judgment against him? Is he getting any lawyer's fees or anything out of this?

1:02:45 Andrew: No.

1:02:53 Thomas: Okay. So he just played defense.

1:02:52 Andrew: Nope, he just gets the lawsuit going away, that's right.

1:02:55 Thomas: All right.

1:02:55 Andrew: He just played defense.

1:02:56 Thomas: Still better than he, you know, he can afford it.

1:03:00 Andrew: That's exactly right.

1:03:02 Clip: And thank you, Let's go!

1:03:03 Thomas: And now it's time to thank our new patrons real quickly, who will be enjoying that law-awful amazing sanctions soon on patreon.com/law. Join the ranks. We'll shout out your name. Here we go. I'm going to thank Max Schmeling. This one, I really like this one, even though it's pretty dumb. He's not the Messiah, he's Avenatti Boy. Uh, that's uh, it's a reach, but I love it.

1:03:28 Thomas: Chris Weewees, uh, Stephen Whitmer, a future secular mortician, interesting. Olaf, oh, my kids are gonna love that, Olaf finally applied, or, uh, that became a patron, from Frozen. Smokey and Nikita Maslov. Your turn, Andrew.

1:03:27 Andrew: That's pretty good.

1:03:44 Andrew: You to SkullSmithy, to Elizabeth, to Mika! The Above Average Dog. I like, I like how you're, you know, shooting for reasonable expectations there, I... all dogs are really above average. That's Amy Small. Okay. Yeah, Rvnd Michael Bishop Lonergan, Matthew Barnes, Chemists Do It on a Table Periodically, I like that, and "Amidst the mists and coldest frosts With stoutest wrists and loudest boasts," and I wish I could place that. That reference, can't do it. Sorry, brain running on empty at the end of this episode. But I'm sure you will tell us I've missed a great reference. But thank you very much.

1:04:12 Thomas: Huh.

1:04:28 Thomas: That's usually what we both do in this segment is miss good references, but that's okay. Keep trying, everybody. It's fun.

1:04:33 Andrew: Yeah, there we go.

1:04:34 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:41 Thomas: And now it's time for T3BE. Again, if you've only been listening for a month, this is a time where I nail every question every single time. So I think I'm on a four question streak. See if I can.

1:04:48 Andrew: That's true possibly five it's a good

1:04:54 Thomas: We'll see. Yeah, it's a good one. Let's keep it going.

1:04:55 Andrew: One all right Thomas, a truck driver from State A and a bus driver from State B were

1:05:03 Thomas: More of the state A and state B. Okay, huh?

1:05:05 Andrew: Involved in a collision in State B that injured the truck driver. The truck driver filed a federal diversity action in State B based on negligence, seeking $100,000 in damages from the bus driver. What law of negligence should the court apply?

1:05:24 Thomas: Oh, God. All right. I don't know about this.

1:05:27 Andrew: A, the court should apply the federal common law of of negligence. B, the court should apply the negligence law of State A, the truck driver's state of citizenship. C, the, the courts should consider the negligence law of both State A and State B and apply the law that the court believes most appropriately governs negligence in this action. Or D, the court should determine which state's negligence law a state court in State B would apply and then apply that law in this action.

1:05:55 Thomas: That's interesting. What's weird here is I feel like we maybe don't have the diversity thing because got a truck driver from State A and a bus driver from State B, but they were involved in a collision in State B. So I, I can't, I have a hard time keeping this crap straight. I feel like that's not necessarily complete jurisdiction, because the thingy has, well, okay, whenever we talk about these, it's always like where you're doing business and is that a thing? But this is like an actual incident, and I think, because the incident was in State B and the person, the other person's from State B, I, I kind of feel like you wouldn't have that diversity, but all this is doesn't matter.

1:06:41 Thomas: I don't think because even if I'm, I might be wrong about that, but if I, let's say I'm right about the, like, oh, it shouldn't be in federal court. Cause it shouldn't be a federal diversity thingy. That doesn't matter because that's not what we're talking about. It sounds like it's just saying the truck driver filed a federal diversity action in state B based on negligence seeking, and it gives me the hundred thousand dollars in damages. So it's like, you know, greater than 75,000. I think it doesn't matter because if we're not talking about fighting that, if we're talking about fighting the jurisdiction part, then I think we're just assuming it's federal action and we don't, you know? So like, I think all that doesn't matter. I think. But we'll see. So what law of negligence should the court apply? And maybe I'M just wrong. Maybe state A, state B, maybe that'S good enough. I just felt like if it HAPPENED in state B and the persons in state, I feel like you you would just, that's where you would have to sue and it wouldn't be federal diversity.

1:07:33 Thomas: Anyway, I don't think it matters. The fact that it happened in state B, it feels like you would want to apply the laws of state B. Like if, you know, if it's, if its traffic incident in state B, It seems weird to be like, let's apply state C or, or anything, or let's supply state a, you know? Like that's what it happened. And state B so that's weirding me out. Let's see. Okay. See if can make any sense of this. I think this could be the streak ending here. What law of negligence should the court apply? So we're already applying a law of negligence. We're way past caring about jurisdictions and all that, like if it should be in state court. The court should apply the federal common law of negligence? I think that's a solid answer given that we're in federal court apparently. Driver filed a federal diversity action. So I think I think that's good guess.

1:08:19 Thomas: I don't know that I'm 100% in love with it, but court should, should apply federal common law. Okay. B, the court should apply the negligence law of State A, the truck driver's state of citizenship. Maybe, but again, it happened in State B. It doesn't seem right to me, but oh, God, I just don't know. Okay, C, the courts should consider the negligance law of both State A and State B and apply the law that the court believes most appropriately governs negligence in this action. I don't really see how that could make, makes sense. I think C is an attractive distractor. I think C is one, and I could be wrong. I think C is one that you want to be like, "Oh, that seems reasonable. You know, the court can kind of balance, you know, pictures." But like, if one of them is, you know, I can't remember the terms, but let's say one of them is like the negligence per se.

1:09:07 Thomas: Maybe is that one of them? And, you know, State A is like, "Well, if you're at all, if you're 1% negligent, then you're guilty," kind of thing. Again, again, I don't remember the exact terms, but something like this. And State B is like, "Well, it's contributory." That's what, contributory negligence. I don't think a court could say which one's more appropriate. You, it's not like you would judge the outcome and then say which outcome we like better based on, you know. So I, oh, I could be wrong. I'm going to say C is an attractive distractor. I think that's trying to make me think it's reasonable, but it doesn't actually work. I think, oh, okay, D, the court should determine which, which state's negligence law a state court in State B would apply and apply that law in this action? That one is really calling out to me.

1:09:52 Thomas: I think I like D. I like A and D because diversity action is in State D. Either A, the court should apply the federal common law of negligence because we are in federal court, or D, the courts should determine which state state's negligence law a state court in State B would apply and apply that law. And that's a weird way of saying, I think it's just going to be State B's law, but something about that answer makes sense to me.

I think I think it's in line with what Andrews described of like when you're in federal court, they kind of do that where they, they, I don't know, it just, it could be wrong, but I think based on my intuitions it sounds like what they would do. So between A and D, so which do I like better? Okay, is really hard, I, I don't have a strong pick between A and D. I think they both could make sense.

Something about it being like a traffic thingy just really makes me think it doesn't make sense to apply a federal, you know, like standard of negligence, because there's no federal, that like, there's nowhere else that would apply, you know.

1:10:50 Thomas: You're not driving, I guess, in D.C. Literally, if you're driving in D.C., that's the one place it would apply. Maybe I don't know something about that seems wrong to me. I could be way the hell off on this question. I think I am leaning toward D. I think I'm going to pick D. I'm going to see if the coin agrees with me or if the coin's going to go elsewhere. Let's see. The coin disagrees. OK, so it's the coin really doesn't like me lately. So I am going with D. D, the court should determine which state's negligence law state court and state B would apply and apply that law in this action. And the coin is going with A, the Court should apply the federal common law of negligence. I'm very not sure about this one. I think this could be the streak ending, but we'll see.

1:11:29 Andrew: All right. And if you'd like to play Play along with Thomas and the coin taking the bar exam. You know how to do that. Just share out this episode on social media. Include the hashtag T3BE. Include your answer and your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:11:44 Thomas: And that's our show. Thanks so much for listening. And reminder, gosh, we're going to talk all about those Kraken sanctions or as Andrew calls them, Kraken. Do you call them Kraken sanctions or is it Kraken?

1:11:53 Andrew: Kraken, Kraken sanctions. Yeah. But they're only against Terpsichore.

1:11:59 Thomas: Kraken Sanctions or Kraken sanctions is what I'm saying. And yeah. And also the Cosby stuff. We've been waiting weeks for Andrew's, you know, scoop on the Cosby stuff. So I am still excited to see that. And so we'll have to catch you on Tuesday for that episode.

1:12:15 Andrew: Until then.

1:12:16 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:12:50 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.