OA524: Laurence Tribe Thinks Grendel's Den Case Will Stop the Texas Abortion Law. Is He Right?

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 524. I'm Thomas. That's Andrew. How you doing?

0:01:25 Andrew: I'm fantastic Thomas, how are you?

0:01:27 Thomas: Doing great. I am a little mad at our personal friend Merrick Garland for his scheduling preferences.

0:01:33 Andrew: Yeah, that's the only thing intruding on my fantasticness.

0:01:36 Thomas: I wasn't consulted.

0:01:39 Andrew: No, I have told my buddy Merrick, Mayor, I like to call him. He loves that.

0:01:44 Thomas: Of Easttown? Yeah.

0:01:50 Andrew: I've said, please don't don't make massive press conferences announcing major major directions in public policy for the department. Try not to do that on Thursday afternoons. But 2.30 p.m. today, about an hour from now, all we know is that the Department of Justice has scheduled a press conference and that it says media advisory, Attorney General Merrick B. Garland will hold a press conference today announcing a civil enforcement action. He will be joined by DAG Deputy Attorney General Lisa Monaco and Associate Attorney General for the Civil Rights Division Vanita Gupta. Almost everybody anticipates that this is going to be some kind of action with respect to Texas SB8. All I know is we won't be talking about it on our show. And that's

0:02:03 Thomas: And what does he do?

0:02:48 Thomas: Well,

0:02:49 Andrew: Why.

0:02:49 Thomas: I was going to say you could take a guess and then we could do an Andrew was wrong in real time. You know, like the fastest Andrew was wrong.

0:02:53 Andrew: Yeah. Well, then there we go. All right. So I'm thinking I'm Thinking it's SBA. And if you want to know specifics, I think it is announcing that the DOJ will prosecute anybody who will bring one of the civil lawsuits pursuant to SBA under the Ku Klux Klan Act of 1871. for interfering in civil liberties. This would be aggressive and also would fit in really nicely with the theme of this show. So I'm hoping that Mayer is coming through for me there.

0:03:11 Thomas: That's interesting.

0:03:20 Thomas: Wow.

0:03:29 Thomas: I love it. That sounds very very plausible. Um, we may be recording this episode long enough to where we find out if Andrew is wrong and we'll do it live, but that's, uh, that's intriguing. I'm very interested to see how that goes. Uh, especially once the courts start dueling and we get dueling banjos of courts and stuff. Um. That's, that going to be really fascinating, but I would, I hope it's that because I would love, you know, the most aggressive line possible, uh. Against this This terrible bill and this awful Supreme Court action. So, yeah, that would be nice. All right. Well, we're literally staying tuned on that, you and I. We'll refresh our feeds at that time.

0:03:36 Andrew: To where we find out. Yeah, all right.

0:04:01 Andrew: So would I. So, indeed, we will.

0:04:12 Thomas: Okay. We got a sanctions update.

0:04:15 Andrew: We do. I told you I've been waiting for this, yesterday as of the recording of this. So, Wednesday, September 8th, was the deadline for Governor Gretchen Whitmer and the state of Michigan, and also the city of Detroit, represented by represented ably by David Fink, to file with the court their attorney's fees actually incurred in connection with the sanctions motion that was handed down. So we'll get a sense of exactly how much Sidney Powell is on the hook for, um, and I do say Sidney Powell, because, remember, uh, the way that Judge Parker wrote the sanctions memorandum, that liability was joint and several, meaning that they can go after whomever they want, and I would pick Sidney Powell uh, recover the entire amount, which I'm about to tell you what that is, and then force the Kraken lawyers themselves to litigate amongst each other to gain back from the others their respective pro rata shares.

0:05:03 Thomas: Mm-hmm.

0:05:18 Thomas: So you almost would strategically, for us, you want to take it from, like, one person so that they fight the most about it. Oh, man. Oh.

0:05:18 Andrew: Yeah. Oh, yeah. Indeed. Indeed, this.

0:05:28 Thomas: That's that's brilliant, yeah.

0:05:30 Andrew: Yeah, no, this issue actually comes about. I've told you about my long and less than satisfying career in insurance coverage litigation. But that question of whether the insurance responsibilities are pro rata or joint and several is usually the threshold question for how a case is going to go. Right. And so when you're talking about long tail liabilities of the sort that that I used to do, like asbestos pollution, public health hazard, that sort of thing, you're talking about companies that had exposures for 30 or 40 years. Well, over that 30 or 30 year period, they would have had 70 or 80 different insurance policies that respond. Right. And excess layers and everything else.

0:06:16 Andrew: And in joint and several jurisdictions, yeah, the courts are like, yeah we don't really care what we and I shouldn't say we don'T really care. The basis is we want to render the plaintiff's hole first and foremost so they can recover from anybody. And then it's up to the insurers to figure out how to recover by and amongst themselves. And the reason you do that is because insurance companies go bankrupt, are unable to respond. And so the question is, how does that risk of loss get allocated? And so when you have a joint and several rule, you're saying, yep, you know what, we'll let the people who are responsible figure it out. But we want them to incur the transaction costs and them to bear the risk of loss.

0:06:34 Thomas: So.

0:07:04 Thomas: My question was going to be, do they, you know, is there a chance for bickering over these bills, you know, because I, on one hand, I'm like, oh, I hope they ran up this tab, I hope every, every, you know, business, uh, dinners, it's fine restaurants, but on the other hand, it's a sanctions, you know, thingy, like you probably would want to be on your best behavior anyway, because these people are professionals and all that, um, and they're, they're not the Kraken. So, but, but is there argument or, you back and forth about like, oh, is this really this much money? Do they get to like fight? That?

0:07:34 Andrew: They will, but they will lose. So let's dig into it. The entirety of the amounts claimed by the state of Michigan is $21,964.75 in attorney's fees. And if that seems like a low number, that's a very, very low number. Clearly, right, the state of Michigan was not the lead in any of these at any point in the litigation. And so this is consonant with being kind of what we would call second chair in the action. Now, city of Detroit is a little over one hundred and eighty two thousand dollars. That's more like it. And that comes from David Fink and his firm.

0:08:23 Andrew: And well knowing that the Kraken lawyers are going to come back and, you know, check with a microscope every single line item. The affidavit that he signed in support of the sanctions motion sets forth exactly how that number was calculated. So first it says, I'm the managing partner. The city is a longstanding client. I worked at the law department in the city of Detroit in 1977. Then I left. And because of my They would call me up and ask me to take cases from time to time, which, as I've said, I've done a couple of those cases. That's a that's a totally commonplace occurrence. And then it says, before taking on the election litigation arising from the 2020 general election, his firm, FB, which is Fink-Bressig, agreed to charge a reduced blended rate of $325 per hour for all partners, a blended rate of $225 per hour for all other FB attorneys, and a blended rate of $75 per hour for all law clerks and legal assistants. I have to tell you, that is a tremendous discount.

0:09:40 Thomas: Yeah.

0:09:40 Andrew: That's cheaper than what I charge. And it's way cheaper than Fink's usual rate. As an additional courtesy to the city, because of the unexpectedly large volume of work involved in the election litigation, F.B. later agreed to discount all fees by an additional 10 percent.

0:09:48 Thomas: Yeah. Why can't they, but like, couldn't you have had, this is okay, but this is the thing. Couldn't you put in a provision that's like, um, if by chance the guilty assholes, uh, have to pay these fees, then all discounts are waived. Couldn't that be, you know?

0:10:14 Andrew: Could. But courts really do. I mean, one of the few, there really only two bases to challenge the award of attorney's fees in in connection with sanctions or statutory fee shifting. Right. The first is that the rate is too high. And the second is that the hours are padded. Right. And so the padding of the hours, you're going to have to go through this line by line. And and, you know, I can't say that I have matched up every line with every number, but I can say that if you've never seen a legal bill, this is actually a pretty good introduction to what a legal Bill will look like. You'll see something like, you know, January 23rd, 2021, and then it has the name of the lawyer, and it says, review of draft reply brief on Rule 11 sanctions, 0.5 hours. Well, you spend half an hour reading over your reply brief before it gets filed. OK.

0:10:34 Thomas: Yeah. It seems

0:11:14 Andrew: And then You have the associate under it, which says preparation of draft reply brief, review of email messages regarding the research supporting the reply brief, email to the partners regarding the draft reply. Six hours. Well, you know, yeah, that that that also seems very plausible. Right. On the same day that the senior partner is like, "Hey, I'll take a look at that when it's filed." The associate is like, "All right, I'll work my ass off and get, you know, get this done." We could bring Morgan Stringer on to maybe attest to this dynamic a little bit. My point is that will sometimes see when numbers get large in attorney's fees cases, right? Right. And those, like I said, are typically either sanctions or statutory fee shifting, where the court will say, well, you council's usual rate is X. This exceeds, you the customary rate in the jurisdiction. So we're going to knock it down by, you Now, some sort of arbitrary number.

Usually you'll see repeatedly, like you'll just get kind of a point seven five multiplier or something like that. So this, I think I think Judge Parker is going to look at it and award the full amount. The other thing that I will I will point out and I love is that Fink's breaks down the fees by the classes to which they apply.

0:11:15 Thomas: Pretty reasonable.

0:11:43 Thomas: Yeah.

0:12:34 Andrew: That is, the trial court defense, of which the fees are $39,999.37, the appeal, of which the fees are $26,077.50, yeah,

0:12:49 Thomas: All I can think about is the Ghostbusters scene where they get catch the first gut Slimer, and he's they're trying to tell the guy in the hotel how much it's going to cost now, trapping and something that's on sale today. So that's going to cost you two, two grand, two big ones.

0:13:01 Andrew: We can put it back.

0:13:05 Thomas: Yeah, I had no idea it would be so much. I won't pay.

0:13:08 Andrew: And then the amount of time spent litigating the sanctions proceedings, which is $116,116 and 87 and a half cents. So the point, and I am sure this will not be lost on Judge Parker, who may make this notation in her order, had the Kraken lawyers abided by the Rule 11 safe harbor sanctions provision,

0:13:32 Thomas: Yeah would have saved yourself a hundred and sixteen thousand dollars looks like, oh, okay sorry two of them, yeah well

0:13:38 Andrew: 142,000, right? Right. Because they would have they would have withdrawn at the time. It would have also been some at the end of the trial court defense. But there would have been they

0:13:47 Thomas: Or wait no you would have just saved the whole thing, right? Because you never would have gotten sanctioned to be, yeah yeah not

0:13:51 Andrew: Would have never gotten it. But but but the but the point is, is that the City of Detroit incurred an additional hundred and forty five thousand dollars in legal fees because they refused to pull the proceedings. And that's this is a very good way of the of the court being able to quantify precisely the amount of harm that was done. You had a nonsense case that should have been dismissed, that nobody should have had to have spent a nickel defending. We would have given you the first $40,000 is on you. But the next $140,000, that's your fault. And you have wasted the court's time. You have multiplied proceedings beyond necessity. And it's time to pay up. Now, folks are already saying, yeah, well, well, know, Sidney Powell can crowdfund that.

0:14:23 Thomas: Enough

0:14:39 Andrew: Yeah, but remember footnote 85 from the sanctions order encouraging every disciplinary body to take a look and see, are they fundraising off of this? Because if they are, you really ought to consider disbarring them. So, you know, like I said, may not make a big deal for Sidney Powell. I think her days of practicing law are over, that you know, she's just full on in grift mode. Um, hopefully it will end the careers of, the people a little further down the chain who, you know, it's their first day.

0:14:37 Thomas: Money, yep it's no, so are there opportunities for more money, is is it other other jurisdictions that are gonna get in on this, okay yeah

0:15:18 Andrew: Oh yeah. Oh yeah, I would say every, I mean, we know that there are pending, uh. Sanctions motions in Wisconsin, for example. So, uh, I expect that other jurisdictions will follow suit and, um.

0:15:31 Thomas: Hopefully they pad the bills a little more

0:15:33 Andrew: I cannot in good conscience, uh, encourage an attorney to to pad his or her bills

0:15:33 Thomas: In Wisconsin hey okay, I'll let me rephrase hopefully they put a lot more really well-paid lawyers on the job to make sure they're doing their best possible work work. Work overtime hours on it. Cross the T's, dot the I's.

0:15:42 Andrew: Yeah yeah I look, if these were, if this had not been David Fink, if this had been Covington and Burling, I can promise you that there would have been another zero on the end of this. Um and and again that's not you, I mean that in no disrespect to, you to my former firm, that that's how you litigate it at C&B. Right. Like it was, this is bet-the-company litigation. And when we say bet the country, we mean, you know, Microsoft or Exxon Mobil. And so, yeah, get get another associate in here to run down, you know, the history and read and summarize all one hundred and thirty seven cases on this tiny little point, complaint, because you don't want to be blindsided by anything. So I do not, I do not want to be heard as saying that that is bill padding. It is just it's another part of strategic litigation. And and it's clear to me that, you know, I'm, you know, Thinks Thinks firm is a little bit bigger than than the law offices of Pietro Torres, but a lot smaller than the places where I've been.

0:16:06 Thomas: No kidding.

0:16:57 Andrew: Right. And Right. You can see them working very, very lean. Two Right. Partners, a couple of associates and and one paralegal for for a case the size of this. Yeah.

0:17:06 Thomas: Those Krakens got off cheap. Yeah, they got off. They should have. I don't like it. I wish they... Hearing all those discounts hurts my heart. Those should have been waived for the Krakans. Discounts. There should be a little fine print. Discount's not available for assholes who ruin the legal profession.

0:17:15 Andrew: Yeah.

0:17:24 Andrew: That we could do. We could cut a little disclaimer that's like legal discount not available in the event of insurrection.

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0:21:12 Clip: Down the law, down the law.

0:21:16 Thomas: Andrew, now is the segment where we talk about a thing, a thing I've never heard of, going to save Texas. What is Grendel's Den? Uh, is this like a Final Fantasy dungeon, uh, and, uh and or Dnd, maybe? Um.

0:21:30 Andrew: It is it is a Beowulf reference. Grendel's Den is a delightful, longstanding now, I think, 50 plus years of operation dive bar basement dive bar in the best sense of the word in Harvard Square, a place that I have patronized on numerous occasions, including the last time I was in Boston. I had a client meeting and they were like, yeah, let's go to Grendel's Den. It's a great place to go, get some food, get a beer. Outside of Grendle's Den is a brass monument that's on a rock. And it is, as far as I know, the only dive bar in America that has a Supreme Court opinion outside outside its bar.

And that's because of a case argued and won at the Supreme Court level in 1982 by Lawrence Tribe called Larkin called Larkin versus Grendel's Den. And the Grendel's Den case involved what was at the time Section 16C of Chapter 138 of the Massachusetts General Laws, which provided that premises located within a radius of 500 feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files a written objection thereto. So Grendel's Den, back in 1977, I have no idea how this was working. Right. Like, apparently it was just a restaurant and they applied to get a liquor license to get it, a license to to to sell alcoholic beverages.

0:21:31 Thomas: Uh. Hmm. Wow.

0:22:14 Thomas: Over.

0:22:26 Thomas: Beers. In the. Bar. No, not that. Okay.

0:23:18 Andrew: I'm guessing it was probably just beer and wine at the time. And they were adjacent to the Holy Cross Armenian Catholic Parish. And so they applied for a liquor license. The Holy Cross Armenian Catholic Parish said veto, and the undisputed evidence below was that would have otherwise been granted the liquor license, but for the Catholic Church veto. So being located, one of the nice things about having a dive bar located on the Harvard campus is that you don't have to go very far to look for a good lawyer.

0:23:53 Thomas: Yeah. There's probably several at the bar. Hey, who wants to take our case? We just got denied. Several drunk lawyers. Yeah, sure. We'll do it.

0:23:55 Andrew: Did it entirely possible. And one of those possibly intoxicated lawyers at the time was the world's greatest living constitutional law scholar, Lawrence Tribe, who took the case. They went to trial, the district court held that that very clearly violated the establishment clause. And also, there's a side discussion about antitrust law that I'm just going to completely skip because it's not important. Then, the state of Massachusetts appealed that to the Intermediate Appellate Court. They reversed on the establishment clause, but affirmed on the antitrust clause. Well, then that was reheard en banc. And then the en banc appellate court said, no, no, this definitely violates the Establishment Clause grounds.

0:24:48 Andrew: And then that went to the Court of Appeals. Court of appeals said that question was really under the lemon test, whether this has the direct and immediate effect on advancing religion. In any any event, wound its way to the Supreme Court. And the Supreme Court very clearly decided the Grendel's Den case on the basis of the Establishment Clause, right? It said, and I'm going to read directly from the opinion. However, 16C is not simply a legislative exercise of zoning power. As the Massachusetts Supreme Judicial Court concluded, 16 C delegates to to private non-governmental entities the power to veto certain liquor license applications. Now, I'm going to digress from the opinion for just a minute here. It is that quote that Professor Tribe cited in an op-ed to Boston newspapers yesterday apply to Texas's SB-8, right? So you can see how this

0:25:00 Thomas: I remember that test.

0:25:49 Thomas: Okay,

0:25:49 Andrew: Was in the Boston Globe. Right. Look, in my case, they said the problem here was that you took a state power and you delegated it to a nongovernmental entity, the power to veto liquor license applications. Well,

0:26:04 Thomas: Well, well wait, but also wasn't it that it was a church? So therefore the establishment clause or would it have been fine for it to not be a church.

0:26:13 Andrew: Answer is the case. The very next lines say this is a power ordinarily vested in agencies of government. Right. Then it says it makes your point. This is the Supreme Court making your point, we need not decide whether or upon what conditions such power may ever be delegated to non-governmental entities. Here, two classes of institutions to which the legislature has delegated this important decision making power. One is secular. Right. Remember the whole the school could veto it, too. Right, but one is religious.

0:26:25 Thomas: Oh, good. For them.

0:26:42 Thomas: Right. Right.

0:26:46 Andrew: Under these circumstances, the deference normally due a legislative zoning judgment is not merited. Right so in other words, they did not decide whether the delegation to the schools was an impermissible delegation. As far as I can tell, after this decision, Massachusetts changed the law. So there was never a judicial determination on whether the school thing would have been valid or invalid. And the rest of the case is about the lemon test. Right. It says, yeah. Right, we got, remember, you know, our sadly soon to be departed.

0:26:59 Thomas: That.

0:27:21 Thomas: Test. That doesn't exist anymore. Yeah.

0:27:23 Andrew: Yeah, lemon test, we go through the three part. Right? Right. First, does it have a secular legislative purpose here? The parties conceded that there was a secular purpose, that it wasn't just to benefit religions, but that, you know, you could argue that you would want to not have a certain level of density of alcohol serving establishments. And that would be irrespective of whether that was religious or secular, whether that's a great argument or not. Remember, under the Lemon Test, you only have to win one out of the three of these. And the other two prongs were its principal or primary effect must be one that neither advances nor inhibits religion. And you can see how that might be a close call. That was debated in the case.

0:27:24 Thomas: Yeah.

0:28:10 Andrew: Case. And then finally, the statute must not foster, quote, an excessive government entanglement with religion. Well, as the Supreme Court notes, asking a church, hey, should the government do this thing or not, click the box, Y slash N, is as entangled as you possibly get.

0:28:18 Thomas: Yeah. It's like handing over the keys to to a church, they get to like be in charge.

0:28:33 Andrew: In fact, that is what the Supreme Court's said. Section 16C substitutes the unilateral and absolute power of a church for the reasoned decision-making

0:28:41 Thomas: Me and this Supreme Court from this era are just we're just clicking, you know, we just have an understanding with each other.

0:28:43 Andrew: Yeah yeah for substitutes for the reason decision-taking of a public legislative body acting on evidence and guided by standards. This challenge statute thus enmeshes churches in the processes of government and creates the danger of political fragmentation and divisiveness on religious lines. Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the the Constitution. So, yeah, you and the Supreme Court were correct. That's the Grendel Sten case. This, I think, Lawrence Tribe made of made the rounds yesterday and other folks sort of parroting the argument. Not. Again, you subject to the caveat that Lawrence Tribe has and will forget more about constitutional law than I will ever know. This is a reach, I I think this is not uh a good argument. Um, I think it's not a good argument because there are so many better arguments about why SB8 is unconstitutional. Right, it contains plainly ex post facto provisions in it, right.

0:29:46 Thomas: Yeah. That's what I was going to say. Actually, the law already invalidates the law. You know, there's a, you don't need another magical thing. We already know that this is unconstitutional on its face. Prima faci, me and the the Supreme Court, we agree we're both equal in our law abilities. Anyway, prima facie, it's already invalidates itself. We don't need another one weird trick. Like, it just seems weird to me. Why are we even going that far? I think we all know the stupid thing is invalid. I guess, is this like, maybe he's trying to argue specifically on the weird enforcement thing? Because as we've discussed now, you know, a couple of times, Sometimes, the only reason, I guess, that this Texas law is still in place is that you took something blatantly unconstitutional, as you said, Andrew, you added in another thing that's like weird.

0:29:52 Andrew: Yeah.

0:30:38 Thomas: And then they're like, well, I Guess that makes it fine. That makes 100% fine. We can't do anything about it. And so maybe is tribe just trying to go after that, that weird thingy to say like, Well, no, also, also that's unconstitional. But it sounds like that's not even a good argument because it was it was a church that was the problem, not just that it delegated power to some randos. Right.

0:31:00 Andrew: Um, I think you have exactly identified, you know, what he's trying to do, uh, and you know why he's trying to get that that strategy in there. Right. This is this is aimed at severing out that that additional component. And I guess the idea would be if you sever out that component, get a quick determination at the state level that that part of the statute, the private enforcement part, is unconstitutional, then you could go back. Right, and seek an injunction against SB eight and say, look, the only reason the Supreme Court refused to intervene is now gone. So let's let's give this another try. So, so, again, I don't object to the motivation, but I will say and thought it was worth not only distinguishing Grendel's Den, but making the affirmative case that I, the vigilante, I want to be super clear about this.

0:31:58 Andrew: Obviously, SB8 is horrible in every possible way. I mean, we did a show almost in tears about it, right? It's a terrible idea. It is grotesquely offensive. It violates constitutional rights. Don't, and the vigilante bounty hunter part is disturbing in the extreme. But I don't know that just the private enforcement component standing by itself is a problem. And I will add that although, there are you some distinctions, putting individual private lawsuits in charge of vindicating public rights is actually a progressive tactic from the 1940s into today. Right. There are a couple of different ways to go about this. But one of them.

0:32:25 Thomas: Mm hmm. Huh. I mean, progressive in the 1940s is not like super progressive now.

0:32:50 Andrew: But what I mean is a longstanding way of saying, hey, if I can't get the government to go out and vindicate my rights, why don't I incentivize general public to do that for me? Right. And there, if you think about when we have cases that that involve taxpayer standing, that involve what I have called private attorneys general, even in federal courts, right, with limited concepts of standing. The Right. Key case on this here is a case called Newman versus Piggy Park Enterprises, and it's about the Civil Rights Act of 1964, and it says when the Civil Rights Act in 1964 was passed, it was evident that enforcement would prove difficult, and that the nation would have to rely in part upon private litigation as a means of securing broad compliance with the law.

The title to suit is thus private in form only. When a plaintiff brings an action under that title, he cannot recover damages. If he obtains an injunction, he does so not for himself, but as a private attorney general vindicating a policy that Congress considered of the highest priority. So I, we could do a separate deep dive into the concept of private attorneys general. But but I want to, I want a pat on to that a little bit. And I wanted to give a call, callback to one of our first episodes to go viral, right, episode 25 on Jill Stein's recounts. Right? And you may recall that this was the

0:34:17 Andrew: Day before Thanksgiving.

0:34:17 Thomas: She was a total fraud. Yeah.

0:34:19 Andrew: Yeah. Yeah, this was And that's why. Yeah.

0:34:19 Thomas: Yeah, yeah. And that's why Trump was never president. It was good. She did a great job, yeah.

0:34:34 Andrew: And I went out and had to go explain, you know, to our lefty audience, please do not give money to this grifter and fraud. And and I got kicked out of a group called Lawyers on the Left on Facebook, which was fun. I wonder how that group's doing these days anyway. Anyway, but the reason that I was confident that that was going nowhere is that I looked at all three states' recount laws, and Michigan had a traditional standing requirement, right, which says that you must be aggrieved, and aggrieve means you have to have suffered an injury. You can't be seeking the recount on it on the count of someone else. And so by definition, it didn't matter what was going to happen in Pennsylvania and Wisconsin. Michigan was goingto kick the recount.

And unless you won in all three states, that wasn't going to be enough to overturn the election. So this is nonsense. It's not going anywhere. Has zero probability of success. If you're giving money, it's just going tobe stolen by grifters. And it was I put an asterisk next to Wisconsin, as I noted in that episode, Wisconsin law five point nine zero, subsection to create standing.

0:34:42 Thomas: Yeah. Oh.

0:35:41 Andrew: And it says any candidate can petition for a recount. It did not have that aggrieved language to it. And so, in fact, Jill Stein was able to filed for and got a recount in Wisconsin. Trump gained votes as a result of that recount. So yay, Jill, good job spending our money. Um, but the important part there was that what, what I treated as a footnote in episode 25, I now want to bring into the main text here in episode 524. Oh man, it should have been, we should have done this on Tuesday. It would be exactly 500 episodes later. But any event, 499 episodes later, I want to go back to that pin from five years ago. That's a rusty old pin.

0:36:20 Thomas: Wow. That's a rusty old pin. I don't even remember about

0:36:30 Andrew: Moral of the story is

0:36:33 Thomas: Give your money to Jill Stein. Hmm.

0:36:34 Andrew: Don't give your money to Jill Stein. But also the standing doctrine stems from the U.S. Constitution, which says that our federal courts have jurisdiction only over, quote, cases and controversies. Right. Which means you have, among other things, that you have to have a a personal stake in the outcome, and you have some relief that the court can give you in connection with your alleged wrongdoing. States don't have that requirement, right? A state could say, our courts are going to start issuing advisory opinions now. It's highly unlikely that they would do that, but they could. There is no similar cases and controversies requirement unless that's written into your state constitution.

0:37:23 Andrew: And in some cases, it is. So as a result, the state's ability to create standing, statutory standing, is virtually unlimited. And so just like the state of Wisconsin said, you know what? We'll let any candidate request a recount, right? If you're in the process, you kind of know about it. And even if it didn't really affect you personally, We're going to say you have the right to bring a lawsuit. And that gets back to SB8. It is very, very clear that the individuals who are entitled to bring a lawsuit under Texas SB8 have suffered no personal injury, right?

0:37:34 Thomas: Yeah.

0:38:03 Andrew: Other than somewhere, someone is having an abortion.

0:38:03 Thomas: Knowing about the holocaust of children.

0:38:07 Andrew: Yeah, right. Yeah. And Yeah. That would be fatal if SB8 were a federal law. But the fact that it's a state law, I'm not convinced that that is a fatal defect for the reasoning that that we just went through. And I don't... look, I don't say that again because I like the law. I say that because I want our eggs in the right basket. I want us to be raising the smartest, the best, the most efficient answers that will get this law overturned as quickly as possible. And while the roving gangs of vigilante bounty hunters is the most terrifying aspect of SBA, I don't know, they're all it's all pretty bad, but is a terrifying aspect of S.B. eight. I am not convinced that that is constitutionally defective as a matter of law,

0:38:07 Thomas: Yeah. Yeah. Yeah.

0:38:56 Thomas: Well, again, it's totally irrelevant because the here. We know that the other thing is totally unconstitional. So but we're nitpicking to try to see if the thing that doesn't matter is unconstituted. They already have shown that the court is fine with allowing a blatantly unconstitution law to take effect. They have shown that they are going to do that. So like, what are we doing here? We got to pack the court. We gotta do, you know, like extreme measures. Am I wrong? Nope.

0:38:57 Andrew: Right.

0:39:21 Andrew: You are not at all wrong in any way. So all I am saying is that I am not persuaded that we can get swift and just relief from the courts. And I think that makes the urgency of getting on the line to mansion and cinema even even more urgent. That Right. And that when folks say, again, behind Professor Tribe, we share the same aims. But I think if you read that Boston Globe op-ed, you know, you might be thinking, oh, OK, great. Well, you know, we're gonna get this knocked out in a couple of weeks and it's going to be fine. It's not going to be fine. And we are looking for effective ways and things that we can do both legally and socially. And we'll continue to to report on that on this show. So so that's that's Grendel's Den, the long and meandering tale that starts in a delightful, dank little bar.

0:40:01 Thomas: Yeah.

0:40:20 Thomas: So a ragtag team of adventurers in Grendel's Den, like a mage and a monk and a warrior and whatever the classes are in Dnd, I don't remember, but uh, they're so there, you tell me they're not gonna go on a quest and save us from from this uh Texas abortion bill. That's too bad. It would have been would have been a good story.

0:40:39 Andrew: I do not believe they will. No. Yeah, I agree.

0:40:47 Thomas: This episode is brought to you by WordTune. Folks, every year, U.S. businesses waste over $400 billion because bad writing causes confusion, misses the mark, or just takes too long to get to the point. On the flip side, better writing also helps enhance brand perception, improve internal communication, and strengthen relationships with critical partners. Better, faster writing means better business, which is why your team needs WordTune for teams. Going way beyond simple spelling and grammar correction, WordTun is the only AI-powered writing tool that writing suggestions that help anyone achieve clear and compelling writing. It is the ultimate writing tool to elevate your entire team's writing instantly. I was wondering how a writing tool could possibly do this, so I gave it a try.

0:41:34 Thomas: Right. I have WordTune on in my browser. It's integrated into Chrome for me, which is super cool. And anytime I'm writing anything, could be show notes for the episode, could be a post on social media, whatever it is. An email, by the way, it helps respond to emails a little faster. It feels like having a real-life editor sitting next to you whenever you need it, which is fantastic for me because I need a little help with my writing. WordTune helps me to be more efficient in my writing and publish better work. So when can your team use WordTune? WordTune improves performance on any project. Everything from internal emails to press releases, sales outreach to customer services support and so much more. You can use Wordtune anywhere you're writing online, including Google Docs, Slack, Outlook Web and WhatsApp.

0:42:21 Thomas: App. You can try WordTune for free at wordtune.com/opening. Are you looking to elevate your entire team's writing? My listeners can get a discount for their team today at wordtune dot com slash opening. WordTune improves writing efficiency up to four times. Better, faster writing means better business. Start writing with WordTune at wordtune.com/opening. All right, Andrew. And we got some news from down under the Facebook.

0:42:45 Clip: WOAH-

0:42:56 Thomas: It Really wasn't, it really wasn't at all. It was probably insulting and pathetic, but that's fine. Uh, but put another shrimp on the barbie and let's talk about this lawsuit involving Facebook, the Yeah, Australia.

0:42:54 Andrew: Nice accent. That was that was that's

0:43:11 Thomas: A place where, I don't know, I guess law still happens, to the extent, you know, nothing's happening here regarding this kind of stuff. Is something happening in Australia? Wow.

0:43:03 Andrew: A knife. So law does happen. And and yesterday, the Australian High Court decided a trio of cases leading off with Fairfax Media versus Voller. And essentially, it answers the question, what would the legal landscape look like without Section 230 of the Telecommunications Decency Act? Right. So as we know, in the United States, Section 230 immunizes those who are large scale media providers on the Internet, not just ISPs, but anybody delivering content over the Internet from, among other things, defamation related to the content that they have broadcast over the internet. Net. And has no such law. And again, you know, the rumblings on the right to to to take that away. What would that look like?

And the answer, as is always the case with idiotic right wing backlash, is, you Know, be careful what you're asking for, because you might get it and so right. That's Fairfax Media versus Voller. So here are the facts. These are large media companies. These are the largest newspapers and media outlets in Australia where those media companies created, operated and maintained public Facebook pages. Right. And then they would post on their Facebook page hyperlinks to their news stories. Right, this is. And again, right. MSNBC, Fox News, right, like all media companies do this. They use social media to drive you to their stories. And Right. Then third party Facebook users left comments on the Fairfax Media Facebook page on those posts.

0:43:22 Thomas: Oh. Yeah. Yeah.

0:44:22 Thomas: And

0:45:13 Andrew: Those third party comments were defamatory. So then the question is, can you sue Fairfax Media for putting up the Facebook page that brings out the trolls that that put, you know, slanderous, libelous, defamatory comments in the section.

0:45:33 Thomas: Here? No. Question, it would just be like, no, obviously not, right? However, in the upside-down world where snakes and spiders will kill you at every step. So

0:45:34 Andrew: No, yeah, Section 230, that's it, go home. In the upside-down world, 19 of the 20 most deadly animals are found in Australia. And in addition to that, the standard, as articulated by the high court, is that anyone that contributes to the publication of defamatory matter is a publisher, a person who has been instrumental in or contributes to any extent to said publication. The court goes on to say all that is required is a voluntary act of participation in its communication. And here, right, setting up the Facebook page saying, no, come on, comment, engage with us, right. Be a part of, you know, the social media experience that that was enough for for Australia to say, yeah, you're publishing it.

0:46:32 Thomas: They needed to, like, moderate the comments and delete the comments to not be liable?

0:46:37 Andrew: And I'm going to talk to you about that in a minute. First, the media companies made an argument that I think would have some chance of success in the U.S. courts, and that is the innocent dissemination defense, right? We've talked about that before. That is, you should treat me like the bookstore, right. I'm not publishing. I'm just making stuff available. Available, um, and here the Australian high court said, yeah, uh, that case involved a circulating library. You're not a library the quote "defense" and, and you can see, I mean, they put sarcasm quotes in it. "Also came to extend to persons who conducted the business of bookseller or messenger. These were lesser subordinate publishers, not primary publishers. They could not take advantage of the defense. The defense could be described as one special to distributors." So, meaning that, yeah. Yeah.

0:46:40 Thomas: All

0:47:25 Andrew: Yeah. That whole innocent dissemination thing that that's available if you're a bookstore, if you're a publisher, not if you're a media company setting up a social media page. And then no. And then we have your argument, right, which is and I'll read from from page 17 of the opinion. By the way, super jarring to read an Australian high court opinion.

0:47:36 Thomas: Right. That didn't work. You have to start from the top and not the bottom. I'm no, I'm just kidding.

0:47:57 Andrew: It goes from right to left. When you flush it, it's, yeah. No, but intermingled with Australian sites are citations to English law, which, okay, I can understand that. And there's a random citation to a New York case from 1931 called Ostrow versus Leith. It's just smack dab in the middle there.

0:48:00 Thomas: Yeah.

0:48:16 Thomas: What? So anything goes down there, down under, you could just cite any country's law.

0:48:23 Andrew: I apparently I it was it was just I looked at it and I was like, wait a second. And that says, as the eminent Cardozo has stated, surely Benjamin Cardoza did not have like an Australian half brother who was also a judge. And then I and I was like, no, yeah, that's Ostrow versus Leith. One seventy-five Northeast five oh five. So anyway, leaving that aside, the argument was not to the point of the appellants having been publishers is the fact that the appellants had no control over the facility by which the Facebook service was provided to them and Facebook users. The comment function was a standard feature of the Facebook service, which the appellants could not disable.

It was not possible for them to delete all comments in advance, or they could have effectively hidden all comments posted by Facebook users only by applying an extremely long list of common words as moderated words. So basically, they made that argument. They were like, look, man, you know, we just stuck Facebook on here and Facebook is the one that does all the commenting. And yeah, you know, yeah. Could we moderate every single one? I guess. But like that

0:48:25 Thomas: Wow.

0:48:47 Thomas: Weird.

0:49:31 Thomas: Yeah,

0:49:31 Andrew: Would take a lot, man. And the Supreme Court was like, it would take a lot. Man is not a great argument.

0:49:32 Thomas: Wait, really? Our Supreme Court said that?

0:49:42 Andrew: No, no, no. The Australian High Court said, yeah, no, nope.

0:49:43 Thomas: Oh, okay, I thought we were talking about that New York case thingy. Okay, sorry. Yeah

0:49:46 Andrew: Yeah. No.

0:49:46 Thomas: That makes sense.

0:49:47 Andrew: That was from 1931. It was definitely not about Facebook. So the uh the the court in examining the factual record said the primary judge found that over 15 million Australians are Facebook users. Appellants, that is the media companies, chose to operate public Facebook pages in order to engage commercially with that significant segment of the population. The primary purpose of the operation of each Facebook page was to optimize readership of the newspaper, whether hard copy or digital or broadcast, and to optimize advertising, advertising revenue, right? That all seems correct.

Each appellant provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments. Indeed, primary judge found that the existence and number of comments from third-party users is an important, and more probably than not, the most important aspect of the public Facebook page, as it affects the Facebook algorithm and increases the profile of the Facebook page and the consequential popularity of that page, thereby increasing readership and augmenting advertising sales, and then concludes with this: having regard to those findings, the appellants' attempt to portray themselves as passing and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of Facebook functionality, the appallants bear the legal consequences. So, so there you go, in upside, Upside down land. Maintaining

0:49:48 Thomas: Oh,

0:51:09 Andrew: A Facebook page.

0:51:09 Thomas: And And society crumbles and it's like that's what I love about Americans is like any any we we tend to think, especially conservatives, tend to have the mindset that like the way we do it is the only way to do it. And if you varied from what we do by a fraction of an inch, society would crumble. You know, if we offered free health care, it would just be the worst. And we know it could ever do that, except, you know, every single other country that has the kind of money that we do. But yeah, so, I is this fresh off the docket? I mean is there room, is there time, should I be careful? Is there time for society to still crumble after this?

0:51:45 Andrew: Hi. It's only been 24 hours. So so there's been time. But look, that is it.

0:51:47 Thomas: Yeah. Tell you, I haven't heard from anybody in Australia in that time, so it's possible it's all gone. Wiped off the map. App.

0:51:54 Andrew: It is. But that is exactly right. That, this provides us the opportunity to look at an alternative mechanism. And see what happens. And I And think that will give us the ability to compile actual data that we can use in having discussions over things like Section 230, which, you know, again, as we've, we've talked about it, the knee jerk Republican proposal of dismantle it is obviously ill informed and stupid. That, that doesn't make everything in the Telecommunications Decency Act. That doesn't make the scope of it like a good decision by any means. Right. Like there is still robust reasons to debate whether we should have something like Section 230. And this will, will give us some, some facts to go alongside the theorizing.

0:52:46 Thomas: So it sounds like this would actually force people who are going to operate a page of some kind on Facebook to actually moderate, right?

0:52:54 Andrew: Yeah. Like, you know, we do.

0:52:56 Thomas: Yeah. I was going to say that doesn't seem that bad. Dogs and cats living together or dingoes and kangaroos.

0:53:04 Andrew: Dingos and koalas living together. That's

0:53:07 Thomas: I, dingoes and koalas living together. Mass hysteria.

0:53:12 Andrew: And we had the opportunity to cover, I love, uh, occasionally when when folks will send us uh international news that that I can parse out. So if I have done any violence to uh Australian jurisprudence, I'm sure our listeners will let us know, but uh but there you go?

0:53:29 Thomas: Gonna get a lot of emails from snakes and spiders being like you got this detail wrong of our court. Um, all right, well, that was fun. Yeah, let's see how that that goes. I I, still Don't know. I feel about that section two 30. It seems like everybody on every side is for it and against it. So it's hard to, you know, there's, you can find anybody who's for it or against it on either side of the political spectrum. It's, seems to not follow along political lines necessarily.

0:53:52 Andrew: I think that kind of epistemic modesty is really the right approach. Think Right. It's a complicated question. It's a law that was written at the time when the Internet was very, very different than it is today. And and I think saying, hey, in general, we probably probably do want to to have some level of cutoff um but is the cutoff uh properly at uh only the person making the comment I, you know, who knows, right?

0:54:05 Thomas: Yeah, yeah.

0:54:22 Thomas: Well, I'll tell you, I'LL TELL you this, you know, maybe even thinking of it in terms of just Section 230 is not like maybe what we ought to be thinking of, and I'm sure people are, is just let's write a whole new bill, like let's let's let's tackle this, like, in given the state that the internet is in now, let's look at the facts on the ground now and write a hole, you know, suite of legislation about what should be going on, rather than just pinning everything to this one section from whatever, 20 something years ago, right? Right? 25 years ago. Is that the way to go?

0:54:22 Andrew: Yeah.

0:54:53 Andrew: I It might be, although, you know, passing legislation is passing legislation.

0:54:57 Thomas: Yeah, I'm sorry. I meant to include hypothetically in a know, a Senate that wrote laws. I mean, we kind of are writing laws. And this, how does Joe Manchin feel on this? We don't know. So who knows?

0:55:06 Andrew: All of our laws are now subject to How does Joe Manchin feel about this?

0:55:10 Thomas: Yep. It's true. How does Joe, it's true? Has anyone asked Joe Manchin how he feels about 230? Okay.

0:55:16 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:55:22 Thomas: And now it's time for T3BE pork test time, right back to the porkage. Uh, Andrew gave me a nice reprieve of having normal questions for, you know, a while, um, and now we're back to extreme porkage. So here we go, extreme porkage edition.

0:55:38 Andrew: Thomas, again, another Black Acre question. O, the owner of black Acre, wanted TO get rid OF his land, Black Acrer, and move somewhere warmer. But he still wanted to preserve the landscaping of the beautiful property.

0:55:40 Thomas: Oh, for real?

0:55:51 Thomas: Mm-mm.

0:55:51 Andrew: So O drew up a deed of conveyance to her daughter, A. The deed stated the following: to A, for so long as she does not remove any of the trees or flowers, and if she does, then I have the right to re-enter.

0:56:07 Thomas: Well, I'll tell you, they're creative in their naming of random plots of land, but they're kid names. Let's name our kid A. Okay. Done. We're done here. Here. But what should we name parcel? You know, nine zeros. Oh, name that black acre. We got to come up with a cool name for that.

0:56:18 Andrew: This This is the 13th century Saxony view of the difference between parcels of land and women So Yeah, A gladly accepted the deed and managed O's property nicely for a few years, but soon she decided she didn't like the large oak tree in the front yard. She decided to have it removed. At the moment the tree was removed, what interests did O and A A, have in Black Acre, respectively?

0:56:28 Thomas: Yeah. Way more valuable than people.

0:56:52 Thomas: What?

0:56:52 Andrew: Okay? Yep. So,

0:56:53 Thomas: So, I mean, it's clear that you've found, black, you a hundred hardest black acre real property property questions to stump your co-host who shouldn't be good at the bar exam.

0:56:55 Andrew: I promise you, question 245 will not be a Black Acres question. Promise. Okay. So, A, O has a right of entry, and A has a fee simple determinable. B, O is a fee-simple, and a has nothing. C, O as a right-of-entry, and has nothing, Or D, O has a right of entry and A has a fee simple subject to a condition subsequent.

0:57:07 Thomas: Sure.

0:57:34 Thomas: Well, I'll tell you, I at least think I have a guess on this one. We'll see if I talk myself out of the right answer as I have been doing lately. What I think is interesting too is that the gender is different in different places of the question. So it says, O wanted to get rid of his land, Blackacre, but he still wanted to preserve the landscaping of the beautiful property. O drew up a deed of conveyance to her daughter A. So that's, that's interesting. I don't know if I'm supposed to read into that, this is like a tricky, like, ah, it was actually two different O's, um.

0:58:03 Andrew: What the bar prep folks consider diversity. They went back and converted half of the hymns to hers, but they forgot.

0:58:05 Thomas: Yeah. Yeah. Oh boy. I. Bet you that's right, I bet you that's right. O drew up a deed of conveyance, and I can't remember if the base unit of conveyance is just fee simple, is that, like, if you just give someone, here's the land, no strings attached or anything, is that just fee sample, I think it is, um, but with the condition that if you do not remove any of the trees or flowers, and if she does, then I have the right to re-enter.

Now, I don't know, and I don't hope it doesn't matter, because it's real property, I don know if that means like literally like I get to enter the property, like I just waltz in, or does Does that mean I actually get to, read, like, I own, I get to move back in and I own it. That's what I don't know, but that's fine.

I, so it's saying at the moment of conception, of deconception of the tree, what interest did O and A have in Black Acre, respectively? Okay, so let's go through the answers, which O, right of entry, semicolon, A, dash, fee simple, determinable. So I don't know what that means. Fee simple, determinable. B, O, fee, simple, A, nothing. So I think I can eliminate the nothings, I think. Because if, based on how it's going, if you say, okay, I have the right to reenter. Well, what if she never reenters? Are we really to believe that A has zero interest in Black Acre? Like, what is she doing?

Does, yeah, sure, she has the right. Well, she never exercised that right. Does nobody own Black Acres? Nobody has any. So I think B and C, I think, are easy eliminations. I think because B is O fee simple, A nothing. C is O right of entry, A Nothing. I mean, there's probably some weird porkage way that I'm wrong about that.

0:59:50 Thomas: And actually, she doesn't have any rights or something or interests. But merely giving O the right to reenter, I don't think you could say that that gives A zero interests. Because the question is, what interest did O and A have? Have. Having A have zero. Again, like you're just giving them the right to reenter. If she never does, I still, I think that means A has something. So that's why I'm leaning toward A. I'm strong on A and D. And I think I'm going with A because, or sorry, I'm think I'm doing with D because D is O, the right of entry, A, fee simple subject to a condition subsequent.

1:00:27 Thomas: Or, well, gosh, it's condition subsequent. Yeah, no, that sounds right. Or or is it A, O, right of entry, A, fee simple, determinable, determinible, fee, I think I'm just going to go with D because it sounds like the most, it's subject to, well, condition. This is where I talk myself out of the right answer. It's my favorite part of show. Actually, I might be talking myself outof the right answer here. I think fee simple subject to a condition, condition, because now it's no longer a condition. This is why I'm talking myself out of D. Now it's not longer condition, I don't think, unless you describe, oh, just taking back the property as a condition. But that doesn't, now that I think about it, that doesn, it seems like fee simple subject to condition subsequent sounds like what A had before the tree was removed and then the condition happened, fee simple determinable, but does that sound right, what, just because I love the tradition of.

1:01:25 Thomas: Talking myself out of the right answer at last moment, I'm gonna go with A, I think D, D, actually, fee simple subject to a condition subsequent. Like I said, I think that sounds like what A had before the oak tree was removed. Because that's condition on condition that you don't do such and such. But now that O has right of entry, it seems like she would have something else. It seems like A would have, you know, rights or interests not subject to condition, but like some other fancy word that I don't know that would mean until somebody else takes it back, and maybe that's what determinable means, um, so that's why I'm going with A, I hope it's D so that I talk myself out of the right answer again, um, so I'm between A and D, let's see what the coin thinks. This would give me a solid one for the coin to beat me on. Nope, the coin keeps agreeing with me. I don't know, I don't.

1:02:15 Thomas: Why that is, um, so the coin agrees, we're both on A, my other answer is D, final answer.

1:02:21 Andrew: All right. And if you'd like to talk yourself out of the right answer or or maybe not, who knows?

1:02:22 Thomas: Or. Maybe. I talked myself into.

1:02:26 Andrew: Or into The right answering. Yeah, there's lots of, lots of possibilities there. You know how to play along with T3B. Just share this episode on social media. Include the hashtag T3BE. Include your guests, your reasons. Therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortune not guaranteed.

1:02:26 Thomas: The right. One and.

1:02:42 Clip: And thank you, Let's go!

1:02:44 Thomas: Now it's time to thank our new new patrons at patreon.com/law. And just a note for next, for Tuesday, we're doing the divide out thing. That was the solution. So Tuesday show will be that first one that is divided out for the Hall of Famers, but not all famous today. It's new patrons and it's my turn to go first. Make sure to pledge on patreon.com/law if you want all the goodies, add free shows every episode and edit that gives you the bar exam first every single time before the patron and thanks in case, you know, some people like skipping those. Some people love hearing them either way. And also a lot of movies coming at you very soon. So here we go. Thank you to Notsuperstitous Littlebitstitious. That's a great Office quote. I'm a little stitious.

1:03:28 Thomas: Gerrard Winter, Aaron, Danny Dawson, Elizabeth Strom, Marc Riddle, Puddums Champion and the Ryan family and your turn, Andrew.

1:03:38 Andrew: And. Thank you to Grant Manthey, Lisa Werner, Kent Quirk, for, for Suicide Prevention Month, please read the roadmap to the ideal crisis system at the National Council.org, I'll have go check that out, DrJKL, Raul, Bunnywithaswitchblade, and Person #42, thank. You. All. So much, yeah, yeah.

1:03:59 Thomas: Oh, finally we've collected the first 41. I'm excited to finally have person 42. We'll keep going.

1:04:05 Andrew: It's. It that. That completes the set. Oh yeah, well, there'll be expansion packs, so. There you go. And.

1:04:09 Thomas: Yeah. I Can't wait to buy those. And that's our show, looks like we didn't have the Merrick Garland announcement in time, Andrew, or so.

1:04:21 Andrew: What we have is filed September 9th, 2021, 21-CV-00796 in the U.S. District Court for the District of Columbia, a case captioned United States of America v. State of Texas. So, you know, who knows? I am busily trying to refresh on Pacer to see what's going on and what's actually filed. We just don't know right now. Thanks. Thanks, Manchin, we'll.

1:04:54 Thomas: What's Manchin, so you.

1:04:55 Andrew: Be on top of it.

1:04:55 Thomas: A. Good old Manchin, um, you checked, so you were able to see, so you didn't see like the press conference, but you see on the. Back end.

1:05:02 Andrew: I. See.

1:05:02 Thomas: Where. Something.

1:05:03 Andrew: That. There. Is, I see that there is a case that is opened, yeah, I, I have. Not seen the press conference, I.

1:05:07 Thomas: Is. Okay. Interesting.

1:05:09 Andrew: Have not seen. Any documents, I don't, what's going on yet.

1:05:12 Thomas: All. Right, well, it looks like definitely, uh, well, let's say Andrew's right, though, Andrew is right, that's.

1:05:18 Thomas: Way to end. The episode, um, thanks so much for listening, we'll see you on Tuesday.

1:05:18 Andrew: Well. Yep.

1:05:22 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.

1:05:56 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.