OA551: Trump May Out of Office but His Federal Judges Are Not

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 551, and what a delightful new intro you just heard that wasn't that great. We do this bit every time, but it's fine. We The funny thing is, I don't think there has been a Simpsons for a while unless I'm misremembering, but yeah, no, it's still funny. How are you doing, Andrew?

0:01:28 Andrew: I especially love the Simpsons reference. I I'm great. How are you, Thomas?

0:01:40 Thomas: Doing well. Looking forward to the breakdown. Today's show is about why having the presidency really matters because for many reasons, a major one being judges. And Trump got to appoint record numbers of federal judges and they're doing damage. They're out there doing damage and we're going to cover it because it's very important. But I had a quick procedural question for you, Andrew, that I imagine other listeners may have wondered about. I saw in the headlines, now this is, of course, Tuesday's show, little bit old, four-day old news or so, something like that, that the Senate, it says it rejected Biden's vaccine vaccine mandate for businesses. And it's Manchin and Tester joined Republicans to or reject the vaccine mandate. But my question was, how did that not get filibustered? I thought thought we had a filibuster.

0:02:04 Andrew: Sure.

0:02:32 Thomas: So it passed 52-48. And then I thought like, oh, well, because Republicans wouldn't have tried to filib... I don't know. I thought I worked it out and then I didn't work it out. So I just wanted to get the procedural answer there. How was whatever this was allowed to pass without a filribuster?

0:02:32 Andrew: So it is a great question. And the answer is something we actually discussed on the show four and a half years ago in opening arguments, episode 61, in which we discussed Newt Gingrich's contract with America and the Congressional Review Act of 1996. And that act provides that there are certain measures that that can begin in the Senate that have a limited time for debate and therefore are not subject to the filibuster. Filibuster, one of them is repealing regulations, right? And it's got to meet the requirements of the CRA, uh, but this does. Um, and so, uh, by the way, this is yet another kind of blueprint if we ever get into a position where we can pass legislation again, uh, to filibaster proof your legislation. Um, if you specify the amount of time for debate and then say you can't extend end debate no matter what, uh, then you don't, you have a filibuster. Um, yeah, thanks,

0:03:03 Thomas: Oh, Review Act. Oh, wow.

0:03:15 Thomas: Wow. Wow, yeah. Wow. Wow.

0:03:50 Andrew: Uh, thanks, Newt Gingrich. Oh, yeah, we've been saying that for, you know, four and a half years,

0:03:52 Thomas: No kidding. Well, we also, probably I need to repeal that Congressional Review Act, right? Well, I guess it helped us during Trump, but yeah. Oh, wow. Who would have thought the old Newt Gingrich weird Congressional Review Act thingy would be the answer? I was really wondering about that. I thought it was going to be a question of like, you know, the Democrats let it through and then who knows? Okay. So that's a very straightforward answer.

0:04:08 Andrew: It it's it's almost as if there has been a systematic Republican effort to take over the government, uh, and rule in counter-majoritarian ways that's been, uh, in effect for, uh, three decades.

0:04:15 Thomas: Yeah.

0:04:26 Thomas: Yeah. Well, asked and answered. I appreciate that. Now let's get to the really awful Trump judges and the damage they are causing

0:04:26 Andrew: Yeah.

0:04:35 Clip: Chief Justice of the Supreme Court. What great men he would join. John Marshall, Charles Evans Hughes, Warren Berger, mmm, Berger.

0:04:47 Andrew: So I've got two contrasting or complementary stories here. The first involves Ninth Circuit Justice Lawrence Van Dyke. I just want to piggyback on what you've said. Trump crammed through more than 250 federal judges who serve for life. Many of them, as we have documented, are Justins and Corys, that is, individuals in their 30s and 40s with no real world or limited real world experience who've been selected.

0:05:18 Thomas: Don't even know what motions

0:05:19 Andrew: Selected, no, uh, who were, rated as not qualified by the American Bar Association, thus leading Republicans to call the American Bar Association a, you know, series of partisan shills or whatever, uh, people who were selected solely for their ideological bent, uh, and that ideological bent is hard right, member of the Federalist Society, uh, with a thumb on the, the scale towards, you know, Justin Walker, 37, uh, now on the U.S Court of Appeals for the District of Columbia Circuit, um, with that in mind, it is worth pointing out, um, maybe this is on my mind for reasons that if you follow the Opening Arguments Twitter account, you will know, of the many things that Joe Biden is doing that, okay, it's not legislation, but it is nevertheless the less appreciably making this country better in a real and material way, and that is nominating judges

0:05:19 Thomas: In lemonade are.

0:06:08 Thomas: Yeah,

0:06:08 Andrew: To the federal bench

0:06:09 Thomas: Which Not just having Joe Biden having 50 senators. Correct. So that's vital. As much as we, you know, we all, the man we love to hate, Joe Manchin, we don't get any of these judges without Joe Manchen. Isn't that right?

0:06:14 Andrew: Yep, absolutely um that is 100% correct, right, and just illustrating this, uh, Joe Biden has nominated 62 individuals and has submitted them, uh, to the Senate, the Senate has grudgingly confirmed 28 because McConnell gonna McDonald, right, I so what he can do is, uh, drag out, uh, scheduling of hearings we

0:06:39 Thomas: Well, what is it McConnell can do? As the minority, though. So, like, did we do this under Trump? Did we start trying to actually slow Trump down?

0:06:50 Andrew: We, tried, uh, but if, uh, you're asking are Republicans better at at breaking things than the Democrats, Republicans are better at breaking things than Democrats.

0:06:58 Thomas: All right. Well, OK, next time there's a, unhinged you despot in power, or let's get let's adopt some of that Republican skill.

0:07:01 Andrew: Yeah 100% So for example, illustrations of how you do this is whenever there is a call to proceed to waive any particular procedures and proceed with the consensus, right, one senator can stop and be like, "Nope, not going to proceed. I demand that you read this out in its entirety. I demand that we proceed with 30 full hours." And this is really part of key of the delaying tactic is that in addition to the judicial appointees, Biden has been making assistant ambassador, ambassador, you know, to lower Uzbekistan. And like, I'm not suggesting, Mr. Ambassador, know, you serve an important role. Almost all of these throughout history, although they are required to be confirmed with the advice and consent of the Senate, when it comes time to hold a hearing, the ambassador for lower Uzpekistan, what happens is you go to the the appropriate Senate committee.

0:08:04 Andrew: You move for unanimous consent to waive the hearings. Everybody says, yeah, yeah. Right. That's fine. And then you just proceed to a vote. And what Ted Cruz and others have done is demand the right to a full 30 hours of hearings for the ambassador to lower Uzbekistan and other. And again, that just it just clogs the calendar. So, yes. With an an asterisk. Those are part of the techniques you use to gum up the works. But remember, Republicans will always have an advantage here because for Republicans, gumming up the work is part of the objective. And for Democrats, even Democrats. Even under a, you know, fascist, criminally insane monster like like Donald Trump, you still want to do things because you care about the people who are actually suffering under Donald Trump.

0:08:51 Andrew: So you come together to do thing like pass the COVID relief acts, even though they were sort of grossly imperfect. You do things like vote unanimously to extend the debt ceiling, where, again, you just recognize you're not fighting on a level playing field. That in mind, I want to add, it's really worth, important, of Biden's 62 nominees and of the 28 that have gotten through, um, most of these are historic nominees, we we do this segment, I know you listen to clean up on all 45

0:09:15 Thomas: Yeah. Yeah. Yeah. I listened. I hear it on cleanup. Yeah. They're all, they're amazing. It's great nominees.

0:09:21 Andrew: We it, they are, um, astoundingly diverse, uh, the majority of the nominees have been women. Many are people of color. Many are intersectional. Right. Are women of color? We have the first LGBTQ circuit court judges on the Second Circuit. These are truly progressive individuals being put into positions of power that matter in the judiciary. And if you just want to close your eyes and and stomp and scream and say, you "But Biden hasn't done X, Y or Z," like, there's plenty of stuff Biden hasn't done. There's plenty of stuff that we're disappointed in that he hasn't. But it is not accurate to say that he's done nothing, or that. Yeah.

0:10:01 Thomas: Well, and again, it's not accurate to say that because because, this 50 vote slim majority, if you can even call it that, because Manchin isn't really a Democrat in a lot of ways, means nothing. You know, people, we raised a bunch of money for Georgia and we barely won those seats. And it was, it was amazing that we did and it mattered so much. And I just, I hearing people talk about how, what was the point of that? Why did we even vote him in? Nothing happens. It's like, yes, all of this is literally because we got to the point where Joe Manchin is the 50th vote for us.

0:10:34 Thomas: None of this would be happening. None, none of these judges and these things matter. They're not as shiny. They're not as attention-grabbing because the effects are attenuated. You can't immediately see why, but this is the stuff that when we aren't on our game, and when we don't do this, Republicans are always doing it and they are always gaining that advantage, and so it is key that we elected those two senators from Georgia to give us those 50 votes. It's incredibly important.

0:10:33 Andrew: Yeah, I right. So now let's talk about the Trump judges that we need to offset. And the first one I want to talk about is Lawrence Van Dyke. And to kind of set the want stage To make a reference back to the Ethan Crumbly case that we talked about on Friday's episode. And I told you to put a pin in and now it's Tuesday so we can finally pull that pin out. Yeah. Remember that at the scene, not only did Crumbly have a nine millimeter Sig Sauer SP 2022 semi-automatic pistol, but he had three 15 round magazines, plus the gun itself stores seven rounds of ammunition, right, and had fired, uh, at least 30 shots, uh, investigators at the scene recovered more than 30 shell casings, um, and so, uh, one of the very, very narrow things we've talked about on the show, the communities have tried to do in light of school, uh, shootings and and other involving the proliferation of dangerous firearms is, okay, um, Antonin Scalia made it impossible, uh, thanks to D.C. versus Heller ban to the Sig Sauer SP-2022 automatic pistol, can we at least ban high-capacity magazines, and right?

0:11:16 Thomas: Wow.

0:12:04 Andrew: So California, like Maryland, like a bunch of different states, banned high-capacity magazines, defined as over 10 rounds, and right, way back in 0847, we talked about the Fourth Circuit case that upheld uh Maryland's ban on high capacity rounds, a case called Colby versus Hogan, and we said, look, like, this is a potential model for, uh, gun control despite, uh, D.C. versus Heller, we, we described it, you know, playfully in the notes as, "Is this the case that could overrule D.C. vs. Heller?" Obviously a Fourth Circuit case can't overrule the Supreme, Supreme Court. But if you listen to the episode, you will hear us describe that case as providing a kind of the playbook for how to have common sense gun control in a post Heller universe. Well, California's ban on high capacity magazines made it up to the Ninth Circuit.

0:12:54 Andrew: It was then before a three judge panel of the Ninth Circuit, which had two Trump appointees on it, and found to one that the high capacity magazine ban violated the Second Amendment in light of D.C. versus Heller. So the Attorney General of the state of California, Rob Bonta, petitioned for review en banc of that decision. And the end of November, November 30th, the Ninth Circuit issued its en banc opinion in Duncan versus Bonta, which overturned the panel and which said, high capacity magazines are precisely the kind of thing that you can ban even in a post-D.C.v. Heller universe, universe, um, you it kind of does, doesn't it? So that, uh, opinion drew a couple of dissents, um, a uh we

0:13:39 Thomas: That all makes great sense. I was going to say, end of story. We all went home. Fantastic job.

0:13:47 Andrew: All went, uh, somewhat, uh, well-measured, uh, dissent, uh, from, uh, the panel judges who were overturned, and then an unbelievable 40 odd page rant from Lawrence Van Dyke. The first question you might ask is, who is Lawrence Van Dyke other than a Trump nominee?

And the answer is a dangerously unhinged 49 year old lunatic that that Trump elevated to the Ninth Circuit despite him being ranked as not qualified by the American Bar Association, and I want to read what the ABA said about Lawrence Van Dyke as a warning, and then we can read some parts of his dissenting opinion. So this is a weird one because, right, usually the ABA, uh, when they rate qualified, not qualified, uh, they take that very, very seriously in light of, and very narrowly.

Like so, right. For example, Justin Walker, when he was elevated to the federal bench to but, for one of the districts of Kentucky, he got a not qualified rating from the ABA because of his utter lack of trial experience. When six months later, he was then elevated to the D.C. Circuit, he got split a rating, which included a minority rating him qualified.

And basically, they emphasized that the skill set that he had, while making him completely unqualified to be a trial court judge, actually made him somewhat more qualified to be be a circuit court judge, right, in terms of being a law professor, uh, is better preparation for the kinds of legal review questions, uh, that you get then for, you know, managing a trial, like, could you imagine Justin Walker managing a criminal trial, right, like it would be a joke, um, mean, he hasn't, he's never taken a deposition, right, so, you know, the idea that you could try a case in in front of this judge would just be be would laughable.

0:15:40 Andrew: Lawyers would run roughshod over him. In any event, sorry, that's Justin Walker is always a sore spot.

0:15:45 Thomas: We're not big fans of Justin Walker.

0:15:47 Andrew: Not a huge, not a huge fan. But my point there is usually the ABA focuses very, very narrowly and gives the benefit of the doubt to the candidate in terms of academic and professional qualifications. You may infer a reason for this buildup. I'm going to read you From their letter, which we will cite in the show notes. So first, how did they compile this report? Ranking him is not qualified. The formal report is based on 60 interviews with a representative cross section of lawyers, 43 judges, 16, and quote, "one other person," end quote, who have worked with the nominee in the four states in which he has worked and who are in a position to assess his professional qualifications.

They include, but are not limited to, attorneys who worked with him and who opposed him in cases and judges for whom he has appeared at oral argument. The evaluator obtained detailed background materials such as more than 600 pages of publicly produced emails involving and/or written by Mr. Van Dyke. News reports of Mr. Van Dyke had been interviewed and articles and opinions written about him. Mr. Van Dyke is a highly educated lawyer with nearly 14 years of experience in appellate law,

0:16:03 Thomas: Oh, my

0:16:53 Andrew: Including one year as a law clerk, an associate at a law firm, solicitor general for over five years, first in Montana, then Nevada, two states in the Ninth Circuit where he would serve if confirmed. The committee was tasked with balancing Mr. Van Dyke's accomplishments. Okay, so all of that with the strong evidence that supports a not qualified rating. Mr. Van Dike's accomplishments are offset by assessments of interviewees that Mr. Van Duke is arrogant, lazy, an ideologue, lacking in knowledge of the day-to-day practice, including procedural rules. There was a theme that the nominee lacks humility, has an entitlement temperament, does not have an open mind, does not have a commitment to being candid and truthful. Some interviewees raised concerns about whether Mr. Van Dyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community.

0:17:41 Andrew: Mr. Van Dyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community." So now with that in mind, if you go to the reason that Duncan versus Bonta, part of the reason that Duncan versus Bonta is a 170 page opinion is the 37 pages of Van Dyke's dissent, which begins at page 143. And again, I want to tell you there's a reason why I read you the ABA's report, because that is exactly what you got. So this is not normal. We need to continue to call this out. And conservatives, you know, who might agree with the approach, need to understand this isnot how judges should write opinions. So at the beginning, unfortunately, however else it might be described, our court's second amendment jurisprudence can hardly be labeled angelic.

0:18:34 Andrew: There's a little intro quote about if judges were angels. Anyway, possessed, maybe by a single minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed. First, the majority of our court distrust gun owners and thinks the Second Amendment is a vestigial organ of their living constitution. Those views drive the circuit's case law, ignoring the original meaning of the Second amendment and fully exploiting the discretion inherent in the Supreme Court's cases to make certain that no government regulation ever fails are laughably heightened Second Amendment scrutiny. If the Second Amendment is ever going to provide any real protection, something needs to change. I have some suggestions which I offer below. After first discussing some of the flaws in the majority's analysis of this case, until the Supreme Court requires us to implement a paradigm shift, the Second amendment will remain a second class right, especially here in the Ninth Circuit. So, yeah. Now let's break this down. Your oh, my God, is absolutely appropriate.

0:19:18 Thomas: God.

0:19:37 Thomas: By the way, I think that's, doesn't Clarence Thomas always say that? Catchphrase.

0:19:41 Andrew: Yeah, is. And containing the direct appeal again, we are used to this from politically minded litigants who say, hey, Why don't we tee up a case so that, you know, the conservative Supreme Court can smack it down? For For a dissenting judge in the Ninth Circuit to say, "Hey, Supreme Court, you better intervene here or I'm going to continue to be losing," is a level of, like, the fact that these folks have been put into an environment in which they can say the quiet part loud now. Right. In which they are not required even to pretend that what they're doing is a rational evaluation of legal principles. But just say, know, Second Amendment cases are not winning a lot in the Ninth Circuit. So Supreme Court, you might want to, quote, "require us to implement a paradigm shift." End of quote. You know what that means. That means take up a gun case and tell us that take up this case and tells us that that we're wrong. Direct us to the contrary.

0:19:50 Thomas: Yeah.

0:20:40 Thomas: By theway, the Paradigm we're already in is nuts. Knots, they already paradigm shifted in 2003 or whatever the heck it was with D.C. b. Heller. Like, we're already in the conservative wet dream paradigm of Second Amendment and this guy is like, nope, not enough. Oh.

0:20:55 Andrew: Yep. By the way, DCV Heller only 2008. Yeah. I know it seems like forever, but like, yeah, it's it's DCV. Heller is, you 13 years old at this point. Not. Yeah, It's been forever. The motives of of fellow judges, uh, is another thing that, again, I don't want to say you can never do that. Um, there's certainly times when it needs to be called out on an individual basis.

0:21:05 Thomas: Wow, yeah. Sorry.

0:21:21 Thomas: Yeah, Sotomayor needs to do that in every dissent for the rest of her career.

0:21:25 Andrew: But But to do so in a in a blanket way, uh, that is, um, sophomoric. And and again, this is not the way in which the judiciary is is supposed to work.

0:21:33 Thomas: No. This is a circuit court, like, don't right, I I mean, you don't get to be like, I think the Supreme Court should change the law, so therefore I'm voting the other way on this, but they haven't changed the law yet.

0:21:46 Andrew: Yeah. And And again, the the gravamen of the argument is when I look at our panel opinion cases on the Second Amendment post Heller, they all uniformly uphold the restrictions. Well, and literally that's the argument. The header. It's header number one is the majority takes our circuits heightened scrutiny to a new low. Right? And again, as typical of this guy's bombastic writing. But there's a very obvious explanation for it. And that is in light of DC versus Heller, the kinds of gun control laws that have passed have been the kind of minor gun control loss that can pass DC versus heller. So I certainly think that like you could make an argument if California were banning. Uh, semi-automatic assault rifles. You Right. Could say kind of seems like you're not really listening to what the court had to say in D.C. versus Heller. Right, that would be a fair argument. You Right. Would then, you know, come back and say, right, we think Heller was wrongly decided and we want to tee up the question at the Supreme Court for whether Heller was wrongfully decided. That would be one potential argument.

You could say, I think this fits in under the military weapons And paraphernalia exception to to D.C. versus Heller that was articulated in the Colby versus Hogan case. But those would be the kinds of cases that give rise to some aspect of the argument that says, well, regulations always win under our test. Well, the regulations always win because literally none of the regulations that have passed, that have been reviewed by the Ninth Circuit, have banned a category of weapons.

0:23:30 Andrew: None of them have done the thing that D.C. versus Heller said you can't do. So therefore, it is not particularly surprising that subsequent state actions that fall far short of banning handguns, right, banning capacity magazines, there are literally zero cases from the Supreme Court on guidance on high capacity, high capacity capacity magazines that just aren't. And so, uh, to say you you have, uh, come out and you always protect, uh, gun rights is not, is not well reasoned. So, right, footnote 8 on page 158 says, uh, the majority defends our undefeated 50 and 0 record against the Second Amendment by pointing out that the states in our circuit simply have more restrained gun control laws than the states in other circuits.

0:24:16 Andrew: True. While the majority is apparently serious, this claim can't be taken seriously, given that our circuit's jurisdiction includes states like California and Hawaii, which have enacted many of the most aggressive gun control law laws in the nation. The majority's failure to comprehend that reality underscores my point that something other than objective and impartial application of the two part test is driving the outcomes in our Second Amendment cases. So you go.

0:24:43 Thomas: That's Justin's and Corey's for you.

0:24:44 Andrew: Yep. That is Lawrence Van Dyke. Everybody who had any chance to interact with him said, boy, if you put this person on the Supreme Court, they will not listen. They will not evaluate things fairly. They will be rude. They they will lack humility. They have an entitlement temperament. They will short circuit through the law. They're in a lazy ideologue who's arrogant. Guess what? This is exactly what the ABA was warning us against.

0:25:12 Thomas: Yep.

0:25:12 Andrew: And you know who does not have a history of nominating judges to the federal bench who get a unanimously not qualified rating from the American Bar Association? Our current president. It

0:25:24 Thomas: The scariest thing. We've seen with the transformation of the Supreme court that no longer, if ever, can we just laugh these idiots off? Once you get a critical number of them, then their unhinged rantings become the law of the land. It's a game with such high stakes. You

0:25:44 Andrew: Is, and again, in a case involving banning high capacity magazines, I just want to read you the closing paragraph, right, 169 to 170. "If ever, if ever there was a case study illustrating Madison's concern, concern about evil lurking under plausible disguises and growing up from small beginnings, it is our circuit's Second Amendment jurisprudence. In the 13 years since the Supreme Court ruled in Heller that the Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation, which it does, our court has trimmed back that right at every opportunity to the point that now, in the nine Western states covered by our court, the right to keep and bear bare arms means, at most" and that's italicized "you might get to possess one janky handgun and 2.2 rounds of ammunition and only in your home under lock and key. That's it. That's ridiculous. And so I must respectfully dissent."

0:26:40 Thomas: Oh respectfully dissenting. I missed the respectfully part.

0:26:43 Andrew: Unhinged. That is unrelated to the law. You can have as many spiffy, super cool handguns as you want, you can have as much ammunition as you want. You know what you can't have? A device that makes it easier for a kid to take the gun out of your nightstand and go into, go into school and shoot up his classmates.

0:26:50 Thomas: Yeah, it unbelievable.

0:27:03 Andrew: Yeah, there you go. And and as you point out, this right is at descent now, uh, but it, um, is the kind of thing for which, uh, we need to remain vigilant because because folks like this are waiting in the wings to be the next Supreme Court nominees. And, know, you the Supreme Court, as it presently stands, is in a position to look down and go, "Oh, hey, yeah, this is this is one of our buddies, and look at it, he's he's telling us to intervene in this case." Um, that doesn't if that doesn't motivate you to act, I don't I know what I can do. Hey, it's that time again, time for me to do an ad for Moink. Look, you know, I love Moink Box. Usually I get on and talk about their bacon because their bacon is seriously delicious, but y'all know that already. So I'm gonna talk about their salmon on here because their salmon is seriously delicious.

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0:29:39 Thomas: Well, I think we have some more motivation to act. So let's talk about our second judge here.

0:29:42 Andrew: Do Yeah, um, this goes to illustrate kind of the flip, the side, right, which is this, um, is, the many respects, uh, the exact opposite of the dissent that we just talked about, uh, from Lawrence Van Dyke. This is a majority ruling, so this is now the law. This is Louisiana versus Becerra you hear that, Javier Becerro? You may be able to infer that this is the injunction that was entered by Judge Terry Doty in the U.S. District Court for the Western District of Louisiana, also a Trump appointee, enjoining, blocking the Biden administration's COVID vaccine mandate from going into effect. COVID vaccine mandate would would have applied to private employers with 100 or more employees.

0:30:32 Andrew: And when I say the exact opposite, I mean, we had warning that Lawrence Van Dyke was coming. Terry Dowdy isn't an obvious lunatic. He's 62, right? Not 35. He has had lots of previous experience. He was rated well qualified by the American Bar Association. He is confirmed 98 to nothing. So no indication that we were dealing with a dangerously unhinged lunatic here. And yet I will cut to, I will not, leave you in a state of mystery for very long. Um, this opinion and order in joining the Biden vaccine mandate from going into effect, uh. Is terrifying. It rests on crediting the weight of two witnesses in particular who were relied upon by the plaintiff states that challenged this.

0:31:25 Andrew: Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, They put forward two experts to testify against the vaccine mandates. Those experts, Jay Bhattacharya and Peter McCullough, are conspiracy theorist lunatics, anti-vaxxers, people that have been laughed out of every sensible court in this country. And yet in evaluating the weight of the evidence, opinion in in joining a very sensible mandate says and this starts on page 25, says the evidence that the government relied upon in rejecting that alternative is not provided. It.

0:32:10 Andrew: What does it mean by that alternative? I'm going to read this to you word for word because otherwise you would not believe me. Quote, "The rejection of natural immunity as an alternative is puzzling." Natural immunity is the immunity of people who have been infected with the COVID-19 virus. In rejecting this alternative, the CMS mandate stated, "While a significant number of healthcare staff have been affected with COVID, evidence indicates that the infection-induced immunity, also called natural immunity, is not equivalent to receiving the COVID-19 vaccine." Thomas, I want to share a fact that you probably know, that is, natural immunity is not equivalent to receive the COVID vaccine. Vaccine, it

0:32:50 Thomas: Yeah, something I know. That, I cannot convince my family of, by the way. For some reason they're dead set on, like, "Oh, we already all got it." By the way, weird that they all got it and I never got it. Weird, they're in a small town too. I wonder what could account for that, that in a place with no population, they still got The thing, and I didn't, maybe it's because I listened to the science, not, this is not to impugn anyone who who got the virus, but just to say that had way more advantages in terms of not getting sick and living in a tiny town, you know, with nobody around. Uh, and they still got sick, uh, listening to science matters. Um, yeah, I can't, I kan't convince them. I've tried to convince them to get their shots and they're just like, well, we already got it. So we don't have to. I love to the premise of

0:32:51 Andrew: Yeah. Oh. I

0:33:28 Thomas: Like, what's the downside though? Like you, the downside is you got a little poke. It'S a, I don't get it. I don'T understand. Why are we all children? Why is everybody children? They don't want to go get their shot, I'll Give them a lollipop. Okay, will that work? If I give them a lollypop afterwards, will my family go get their shots?

0:33:38 Andrew: I I I Sure. Hope so, that that would be nice. Um, but yeah, so so this opinion says, uh, your covid vaccine mandate didn't consider, uh, what if people are just immune now from, uh, the fact that they've had covid, uh, and why on earth would you think that a vaccine would be better than, uh, just, you know, having covid? The answer to that, by the way, is the the scientific data, right?

0:34:08 Thomas: Yeah.

0:34:08 Andrew: Like But like the data are clear, that unambiguously, from every source, that you are far less unlikely to be affected with covid if you have the vaccine than if you have previously had covid, uh, and by the way, uh, that that it is a measurable increase in the degree of likelihood of reinfection if you've had covid and yet you get the vaccine anyway. Anyway,

0:34:08 Thomas: Yeah.

0:34:30 Thomas: It's crucial to be familiar with the science to make these decisions, because if you can put up that counter argument, oh, what if you already got it, you couldn't you also say any number of things, oh, well, what if he took a bunch of vitamin C, like, then you should be fine, right? So therefore, you can't have this mandate, you know, like, you need to be, this needs to rest on the science, in somewhat order, to make a coherent ruling. Don't you think? My

0:34:52 Andrew: So this opinion, then, rereading that line, the quote-unquote, these are sarcasm quotes, "evidence that CMS relied upon in rejecting that alternative is not provided. The declaration of Dr. Jay Bhattacharya, director of Stanford University's Center for Demography and Economics of Health and Aging, disputes the assertion that natural immunity is not equivalent to receiving a covid vaccine." Right. And then it goes through, describes his studies. "Plaintiff states assert that those studies overwhelmingly conclude that natural immune immunity provides equivalent or greater protection against severe infection than immunity generated by covid-19 vaccines." Now, it is true that Jay Bhattacharya has said that. Jay Bhatacharya is a professor of economics and medicine.

0:35:35 Thomas: God, oh.

0:35:36 Andrew: He has both a Ph.D. and an M.D., right? He has been an early vocal opponent of coronavirus lockdowns dating all the way back to 2020. So in March of 2020, when right, we were canceling our live show, for example, in a March 24th opinion piece in The Wall Street Journal about Acharya questioned the severity of the virus, stating that universal quarantines would not be worth the cost of the economy, social life and population health. Authored a study, the Santa Clara Antibody Seroprevalence Study in April that suggested that coronavirus infections were up to 85 times higher than scientists originally thought. And if you're thinking that seems like a weird thing to do for somebody who's anti-quarantining, anti-social distancing, anti lockdowns, that's because if infections are 85 times higher than natural immunity would be 85 times high. Right.

0:35:37 Thomas: Okay. Right.

0:36:32 Thomas: Yeah, again, my family made that argument too, they way back then, they're like, oh, I think everyone's already probably gotten it, you know, that virus I had in, you December of 2019 was probably it, so therefore we shouldn't do any of these things. That was, that an argument among conservatives at

0:36:45 Andrew: That study was thoroughly debunked. Andrew Gelman, who you may recognize a statistics poli sci professor, I think the authors of the paper owe us all an apology. I think they need to apologize because These were avoidable scripts. They're the kind of scripts that happen if you want to leap out with an exciting finding and you don't look too carefully at what you might have done wrong. Basically, the numbers and the evidence did not support it. Nobody thinks that this is a valid study. And, by the way, they failed to disclose that a wealthy conservative donor, the founder of JetBlue, had paid for the study in its entirety. That is a affiliations, there, right? Was no legitimate scientific reason not, not to cite your affiliations. Um, when President Trump said that groundbreaking therapies had caused the U.S. fatality rate for covid to drop 85 percent from April to September, the source of the data was Dr.

0:36:59 Thomas: God.

0:37:44 Andrew: Dr. Jay Bhattacharya. By the way, that number was not attributed to groundbreaking therapies. Right. Because the only therapy at the time was convalescent plasma. Right. But rather to more testing, improved protection measures in nursing homes. This is somebody who is not a good faith interlocutor, not a a good faith advocate with respect to the science. This is somebody Who is repeating conservative talking points. So what's the other evidence relied upon in this again, this is a district court judge. So his opinion goes, it's not he's not a minority on a panel. His word is now a nationwide injunction. Additionally, the plaintiff states provided evidence in the declaration of a Dr.

0:38:30 Andrew: Peter A. McCullough that COVID-19 vaccines do not prevent transmission of the disease among the vaccinated, or mixed vaccinated, unvaccinated populations, and that mandatory COVID-19 vaccines for hospitals do not increase safety for hospitals or hospital patients or employees. There is a a particularly, uh, egregious misrepresent, and by the way, all of that is just false, right, uh, of note, Dr. McCullough declared that the Delta variant of SARS-CoV-2 accounts for 98.9% of the present cases in the United States, United Kingdom, and Israel. By the way, that's true, I didn't know that, right, and this is an illustration of, I mean, it's probably, probably no longer true now with the Omicron variant entered. Right.

0:39:09 Thomas: Yeah. McCrown is taking over that.

0:39:11 Andrew: Like variants like this is the way evolution works, like variants spread amazingly quickly through a population. So the Right? Argument is Delta variant. This was true two weeks ago. Delta variant is 99% of the present cases. And because the Delta variant is not adequately covered by the vaccines, you shouldn't do it. But notice the weasel words that are used here. This is this is within the opinion itself. He stated that the Delta variant is not adequately covered bythe vaccines.

0:39:14 Thomas: Yeah. Yeah. God. It's pouring rain outside and my umbrella is a couple inches smaller than I think it should be. So don't have an umbrella. No umbrella. Don't allow people to have umbrellas, Andrew, because it's slightly small. It's going to live a little less protection.

0:39:54 Andrew: In you you could not be more correct on that. Right. Like that is the the correct analogy. Again, notice that in order to avoid perjury, it says that the Delta variant is not adequately covered. Even if you're fully vaccinated, you may still become infected with COVID via the Delta variants. That's true, right? It's not 100% effective. But according But to the CDC, it's over 70% effective against the Delta variant.

0:40:18 Thomas: Yeah. Well, what's this adequate standard that you're making up? How would you even define that? What would be adequately?

0:40:27 Andrew: I have no idea. It's just it is just repeating conservative Fox News talking points that don't stand up under the slightest bit of scrutiny. Right. And that is then shoehorned into the standards for granting an injunction, which, usually you we focus on likelihood of success on the merits and irreparable harm. I want you to think about if if you were trying to enjoin a rule that that would otherwise allow to go into effect a nationwide requirement that those working at large companies be vaccinated.

Fascinating, um, think about the argument you would have to make for that being in the interests of the public, right, because remember that is again little used, uh, in a lot of our cases, kind of third prong here, but how in the world, right, when you say that the prongs three and four are, what are the balance of equities, do they, you know, how do they weigh on each side, uh, and is granting the injunction in the public's interest, um, I want you to invent in your mind what that argument could possibly be, and I promise you, you will not arrive at the argument that this opinion comes up with. Oh,

0:41:18 Thomas: Mm-hmm.

0:41:43 Thomas: The prong that I feel like is, would be the most successful there is the irreparable harm. I mean, viruses if, aren't things that you can be like, well, well, we let it spread a bunch for a while, but it's okay. We'll just make up for that later. It's like, no, it's actually critical to get it to spread as slowly as possible, and it's not really a reparable harm to delay that.

0:42:01 Andrew: I, this is equally stupid, so let me read you the paragraph and a half that this is, is it devoted to explaining how an injunction meets the criterion of irreparable harm? "Being deprived of a procedural right to protect its concrete interests by violation of the ADA's notice and comment requirements is irreparable injury. The plaintiff states will suffer irreparable entry by not being able to enforce their laws, which have been preempted by the CMS mandate, by incurring the increased cost of training and enforcing of the CMS mandate." By the way, not irreparable harm, like costs are the definition of things that are reparable. "And by having their police power encroached, the plaintiff state citizens will suffer irreparable injury by having a substantial burden placed on their liberty interest because they will have to choose between losing their jobs or taking the vaccine."

0:42:51 Andrew: "Additionally, the health care facilities and suppliers will be burdened with the task of tracking and enforcing the mandate or else face the loss of Medicare and Medicaid funding." That's a minor aspect of, but there you have it. The irreparable harm is, number one, states will not be able to enforce bans on vaccinations, states, right, like Florida, that are trying to kill their citizens. And number two, that people will suffer irreparable arm because they will have to choose between getting a vaccine and going to work. Never minding, by the way, that the Supreme Court precedent is very, very clear that getting a vaccine is not, not a choice that you have, and is a reasonable police power that states may deploy during emergencies. That power is totally clear, has been clear for over 100 years. So there was your argument on irreparable harm. I, can I read the public interest one? Because it's even more bonkers. The public interest is served by maintaining the constitutional structure and maintaining the liberty of individuals who do not want to take the COVID-19 vaccine.

0:43:41 Thomas: Yes, please. Right. I should have actually tried to predict that because that is what I would have said. Yeah. The greater good is in not being forced to take a vaccine, obviously.

0:43:54 Andrew: This this interest outweighs the government's interests. It is very important that the public interest be taken into account before allowing the government to mandate the vaccines. I, I'm almost at a loss for words. This is the definition of things that courts should not consider. Because if something is harmful to the constituents, then you have a natural remedy for that. Right. Which is you vote out the person who did the thing that was harmful to you. Mean, and I, right, say that not because that's the world's best argument, but because that's how courts approach this question when they are honestly inquiring as to as to the public's interest versus the private interest. Every time you get an injunction, you've stopped the government from doing a thing that they wanted to do.

0:44:42 Andrew: I mean, it's just it is it is so obvious that that this judge said, well, I'm going to block this, and I'm going to block it because I've been weaned on a diet of Fox News and fed a bunch of nonsense. And I'm going to cram it into injunctive relief standards that just patently don't apply. So there you go. If, if you're wondering, is there a thing we can do about this? Yes, there is a thing that we can do about it. It is a thing that we are doing as quickly, as expeditiously as possible. And if you would like for President Biden to be able to continue to nominate judges to dilute down the likelihood of getting this lunatic judging your case, then it's kind of important that we maintain the Senate.

0:45:23 Thomas: Well, the Senate for this, but also we got to maintain the House. We got to do it all. Otherwise it's all going to fall apart. All right. Well, that's scary, Andrew. Not a fan of these judges, I think. I rate them... Not qualified isn't enough. I write them crap. Can I do that?

0:45:36 Andrew: It love it, I wish the ABA had a standard below not qualified, right, so it is well qualified, qualified, not qualified, and then I think we add, uh, level four, you crap, or Justin's and Cory's, that's, that're but

0:45:39 Thomas: Assholes. Yeah. Like a third category. Yeah, okay, Justin's and Cory's, yeah, oh my god, no, an insult to real judges that should be the fourth, fourth option, was it, yeah, insult to actual practitioners of the law.

0:45:54 Andrew: Yeah, I agree, I agree, but Here's the thing. You would not have been able to discern that about this judge prior to issuing this opinion. There's absolutely nothing in Dodie's history, in his academic credentials that would lead you to believe. Right. Like, look, it was super obvious to me, you know, why Justin Walker got to be on the D.C. Circuit. Right. He's a dangerously unhinged partisan who's 37, seven toady to, like, had a, like I said, he was 62, uh, he had a long private career, he was elected in 2008 to the fifth judicial district in Louisiana, um, he received the citizen lawyer award from the Louisana State Bar Association in 2015, um, like I said, he was an assistant district attorney for for more than two decades, 1995 to 2008. not not somebody that screams political appointee that's, being you elevated for to the federal bench know, to, to pack us with lunatics.

He was confirmed 98 to nothing. Right. Yeah. So is how deep it goes. Right? And if you want to, mean, to me, The explanation Right. Is right. Trump supporting Republican who's 62 probably weaned on a steady diet of Fox News and has just, you court because you see that as right. You were calling out the the conservative talking points that just sort of effortlessly flowed out in this opinion, kind of terrifying. And and it shows us, you I'm glad we have a Democratic president, but it shows US all the work that we have left to do.

0:47:07 Thomas: Yeah

0:47:33 Clip: Andrew Torrez is wrong, wrong, wrong.

0:47:36 Thomas: All right, just enough time here for some quick Andrews, uh, and and Thomas's were maybe wrong. Baseball law. Here we go.

0:47:44 Andrew: Yeah. Oh gosh. We've gotten a lot of great reaction to the, uh, to the baseball law episode. Um, I did, I'm not going to call this a was wrong because, uh. I made a deliberate choice to omit from what already became a very, very long segment. But W.J. Moretz wrote in to say that I didn't talk about the qualifying offer. He's right. I made it. It was in my notes, but I made choice not to not to go there. But because I think it but I think it is indicative of a larger point that I make. Make. And that is in talking about how baseball players are labor. They're the people who provide the work to make the product, which I thought we made abundantly clear. In talking about the structural conditions, right? Like, example, I didn't say this. I thought it kind of went without saying.

0:48:31 Andrew: Imagine if there were only 30 law firms in the country, right, or there are only 30 podcasts, right, like, and Thomas and I have to submit our demo tapes to you know, uh, you know, to to slate every week and be like, I really hope they'll, they're going to use three seconds of our audience, right, like you're already in a market that where is, uh, incredibly oligopolistic, right, it's it's down to just 30 teams, uh, and you you're a shortstop, a team doesn't need a shortstop, right, it's functionally even less than that. But one of the things that we didn't talk about, of which the qualifying offer is, are things that seem intuitively fair when you're talking about baseball that nevertheless impose negative externalities on the free market selling of your labor. Let's think about it this way. There are, and I got to talk about the mechanics of the qualifying author because I think it's going to be gone from the next CBA, but think about this in in the baseball context.

0:48:37 Thomas: What a world that would be.

0:49:25 Andrew: You, right, have a team that you follow, and they have a couple of free agents who are about to leave, and they sign with other teams, right. And I think it is pretty much accepted as an article of faith, uh, that you think that there should be two, that the qualifying offers serve both these purposes, that there should be sort of two responses to that. The first is there should be some kind of compensation to the team that loses their free agent, right. Because hey, you've just gotten worse. So, uh, competitively, we want to incentivize a way to help make you better so that, you know, your team doesn't become one of these terrible teams that then no one watches, right, and and secondly we think there should also be some kind of disincentive on a team, let's say it rhymes with the Yankees, uh, from just going out and buying all the free agents.

0:50:19 Thomas: Wait, it rhymes with the Yankees? I don't know what this team is. The Schmankees. The Tankies.

0:50:19 Andrew: Right yeah yeah yeah, Yankees Also rhymes with Yankees, but um, right, so I think both of those things you asked, kind of the average sports fan, right, like we should stop, you one team from buying all, all the free agents, and if a team loses a free agent, they should get something out of it, um, that seems intuitively plausible, but

0:50:42 Thomas: Well, I don't know about the losing a free agent, getting something out of it. I don t see that necessarily because, well, maybe I' not understanding something, but isn't that just when a contract runs its course?

0:50:44 Andrew: Well, You you could take that position, but but the current status of of baseball law is such that if if your would-be free agents receive uh a qualifying offer, and that qualifying offer is um an amount that is the equivalent of the average of the top top 125 players in baseball, so it's like 19 million dollars this year, so it basically a consequential free agent, and they're tagged with the qualifying offer, then two things happen. Number one, the team, the Yankees, that signs your free agent has to give up a draft pick, and the team that loses a free agent gets a bonus compensatory draft pick. And all of that, a that is long winded way of saying, as as as W.J. points out, that those are market externalities that that depress a team paying you what you're worth.

0:51:38 Andrew: Right. Because now a team, if they want to sign you as a free agent, they have to be willing to pay you not only the economic value that they think that you are worth. Right. As a contract. But they haveto pay that. Plus, theyhave to pay the negative cost of losing their draft pick. Right. And we know we have a good economic model of what a second round draft pick is. It's millions of dollars. Right.

0:51:44 Thomas: Mm-hmm. Mm-hmm, mm hmm.

0:51:59 Andrew: So in other words, your salary is now depressed even further as a result of being a qualifying free agent. And there are numerous kind of structures like this within baseball that depress your market value even when you become a free agent.

0:52:04 Thomas: Right. Mm hmm. That's interesting.

0:52:15 Andrew: So I thought that was super worth going into. And then, uh, very last thing, um, I want to explore this because I know so little about, uh, soccer, uh, but Gareth Winchester wrote in to say that you were wrong, that there are salary caps in European football. Um, I don't know how that operates, because Manchester United seems to be the Yankees of football, right? Like it, it, Gareth says, uh, Thomas says that you can spend just as much as you want on your football team, proper football, that is not the version of rugby with padding that the U.S. insists is football. I love the debate between, you soccer and the NFL.

0:52:16 Thomas: Yeah. Yeah, We

0:52:49 Andrew: To which for

0:52:49 Thomas: Can all agree that football is a terrible name for American football, actually.

0:52:53 Andrew: American football.

0:52:54 Thomas: Yeah. Like

0:52:54 Andrew: Yes, it is. I Right. Think we can also agree that, if you American football, the average score were one to nothing, that probably it would be less popular than it is, But in any event, it, um, Gareth says, "For the past decade, Europe's governing football body, UEFA, have something called the Financial Fair Play. Under this, teams are limited to what they can spend on players, with the intention of ensuring that teams don't end up bankrupting themselves in a failed quest for glory. If they don't comply, they face fines, as well as bans from uefo run competitions, e.g. the Champions League." Uh, he then notes, "Unfortunately, while they've handed out punishments, some teams have have successfully challenged them in the courts. A good example that is early 2020, Manchester City were handed a two-year ban, but the Court of Arbitration for Sport" by the way, I would be an outstanding candidate to be on the courtof arbitrationfor Sport "overturned it a few months later."

0:53:02 Thomas: So Then it sounds like I'm right, then, that there isn't, effectively. But I'm going to say a couple things. For one, the article I read probably predates that. Like, honestly, it could easily be more than 10 years old. Like, there's a lot rattling around the old brain of mine. Uh, could be a dated thing. Um, for two, I did a little googling of this. There's a lot of different leagues. I, and maybe I should have clarified, I didn't mean to suggest that every single soccer league in Europe doesn't have a salary cap. I'm seeing mixed results about different leagues. There's several different leagues, I don't see that most of them have salary caps. But anyway, it also sounds like this email is being undermined by itself. I mean, doesn't it sound like it?

0:53:52 Andrew: It Yeah.

0:54:17 Andrew: Well, I think it's I think it's a good, honest dinner email. Right, it is. Yeah, that there are these restrictions out here, but, uh, you know, sometimes they don't play out in practice. So I thought that was a good bit of nuance. It's worth I'm going to look into it. And, you know, maybe our maybe our listeners want to look Into it as well.

0:54:21 Thomas: Yeah. Yeah. Yeah. And it even said the function of it was more about them not going financially bankrupt, which I think is interesting. So let it suffice to say they don't have the kind of salary cap that, know, hockey has here, for example.

0:54:44 Andrew: Yeah. And again, I want because it was it kind of weird that people a couple people have written in to ask about this. Like, do not have time in this segment. It would require a lengthy discussion. I am not in favor of salary caps. I thought I said that pretty clearly on the show. I'll say it again right here.

0:55:00 Andrew: I think salary caps are a bad idea. Yeah, yeah.

0:54:56 Thomas: Yeah, yep. I said I was. Andrew is not. I'm in favor of that. But I aren't you in favor Of a salary floor, perhaps?

0:55:07 Andrew: Am in favor of a salary floor

0:55:07 Thomas: Yeah. OK, I could go for that, too. That that would be great. I like both.

0:55:08 Andrew: Yeah yep And I really like, when I should be clear about this, maybe this was what seemed to undercut, I like the NFL's revenue sharing model. I'm not saying that I like all aspects of the Nfo model, a couple folks wrote in to say, like, NFL contracts suck, NFL, the Nfll players union is way worse than MLBPA, right? There, they're way weaker. Uh, the NFL has prevailed in ways, uh, in court that are embarrassing for the Nfo players association. Um, and the most obvious one there is right, like, baseball contracts are guaranteed, NFL players contracts are not, uh, even though, you know, the NFL is, I, uh, think objectively far more dangerous.

0:55:20 Thomas: Well, Aren't they open to negotiation? Because I believe there'll be portions of guaranteed money, won't there be, an NFL contract?

0:55:52 Andrew: Yeah. Yeah, I'm painting with a super broad brush. You are. You are correct. We get more emails on that. But but but they are not guaranteed in the way that baseball players contracts are guaranteed, which is, you know, if if Justin Verlander breaks his hip tomorrow, then, you know, he's he still gets the entirety of the 50 million dollars that the Astros paid him.

0:55:57 Thomas: Okay. Sure. Yeah. Right. Notably, Though that would push downward on salaries, like, you would, you would price that in as a team, you. Like, that would reduce the amount you're willing to pay, not, you know, but it also is probably worth it to the the player to have that guarantee, rather, know, and give up some amount of money for that. Someday.

0:56:23 Andrew: Yep. Sorts of complicated economics. So that's why I'm glad we tackled it.

0:56:36 Thomas: We got to have a conversation about why you aren't in favor of salary cap, at least in some form, I just don't understand it, I don't get it, I think it makes the sport so much better, but, uh, all right, we'll we'll leave that for another day.

0:56:44 Andrew: All right. Right.

0:56:46 Clip: And thank you, Let's go!

0:56:48 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. I believe we're on the second quintile of December. Let's get right to it, um, thank you to Praise Be Unto Hamilton, Horse Two is Stormer, a sweet and kind Icelandic gelding who's convinced everything is trying to eat him, he does his best, I don't know what you're talking about, but it's cool, three appointees by an and imbecile were enough. Yeah. I think that's a play on the generations.

0:57:07 Andrew: Three generations of imbeciles are enough, yeah, Buck Buck versus Bell I

0:57:17 Thomas: Yeah, yeah. Not sure I feel about the joke, but I see what you're doing there. Yeah, right. Budget Botanist on Fiverr suspects you all killed your pandemic plant purchases, I forgive you. Please. Are plants supposed to survive for a long time? Oh, I thought you just buy them and then they die and nevermind. Please offer any suggestions for a podcast that would read my Patreon name weekly, asking for a friend, uh, Philosophers in Space, if you're a top tier patron, there you go. Sparkle Donkey will host a fully stocked Patron pre or post show event for charity at our tequila lab for a Seattle live show, God, I can't wait for that

0:57:54 Andrew: I have to say, I, I have been an ambassador for Sparkle Donkey, uh, I keep telling people who are like, well, I don't really like tequila, I'm like, you should try Sparkle Donkey, like, it's really, it is really good stuff, I mean that sincerely. I

0:58:08 Thomas: Do you make any interesting margaridas with it, or is it just more of a sip it on its own thing?

0:58:12 Andrew: I think, the the Blanco is, uh, is great in margaritas, I like, got, I got a good recipe for you.

0:58:16 Thomas: Thanks to Fred Dread, Gruthius, a gender-fluid, multi-class, dual-wielding, blade-lock fighter. Listener Thomas F., the creeping existential dread in the back of your mind. I? I like My Porked Streaks, paired with At Casa Agria and At Emperor's Brewery Beer. Lee Sharp, GDT, says, everyone knows that the police can arrest you without, page 202, your consent. Maritime Laws, Freedom Menu. Benghazi and the Buttery Males. Storm, the fort teaser for Hall of Fame shout outs. Supreme Court justices. Well, it says Supreme Count justices should have 18 year term limits and should. And so should Conrad Michaels. Les dos, les bien, fabulo. I reject your democracy and substitute my own. Sidney Powell. Well, that's the the famous Mythbusters quote, right?

0:59:03 Andrew: Well, There's your problem, that's

0:59:05 Thomas: I love Mythbesters.

0:59:07 Andrew: That was always My favorite quote, not uh, the reject your reality and substitute my own, but uh, there's problem, I say it all the time, but it's just I'm the only one that makes laugh, but yeah, it uh is a Jamie quote, anyway thank you to Jennifer, Jennifer Tchaikovsky, Edgy Veggie, Adam Borachoff, D&D Minus Cameo question mark. We have legal advice, if ye have coin, do not take legal advice from a coin. Lit Associate. Oh, all right. Evie Huntington, Harvard alum, no hood. I would also like to congratulate Angus the Corgi. I watched him win in 2019 and cheered on his 2021 title defense. Corgis are the only reason to watch dog shows, I will say it, I'm to get so much hate mail, I'm kidding, kidding, I'm kidding, I just love corgis. Elect Thomas Smith president, American Honky-Tonk Bar Association. Brian K, I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability, I guess I am a forte teaser. Torsten, Two Sheds, and Two Wolfies Peel,

0:59:10 Thomas: Mm hmm. Was that Mythbusters? Oh. Oh, okay.

1:00:08 Andrew: Alpha Kenny Body, Angry Mac Face, The Books That Burn podcast, currently reading the Brooklyn Brujas trilogy by Zoraida Cordova, Penelope is glad Sidney got sanctioned for Terpsichore, Pablo Escargo's heroin snails, I just really love the idea of a snail on heroin, and Murray Gregerson. Thank you all so much, we love you, your Hall of Fame support directly makes the show possible.

1:00:35 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:00:42 Thomas: Right now it's time for t3be answer time. Uh, how did I do on this question? Nervous.

1:00:48 Andrew: Right, Thomas, this was a man owns a house, uh, his second step is wobbly, he's thinking about fixing it but doesn't have a lot of time, so puts up a sign that says, "Use caution, wobbly step could cause injuries," uh, invites his neighbor over, uh, and she's elderly, she sees the sign, she's like, yeah, I can tough this out, uh, steps on the step, uh, and, uh, causes, causes her to slip, uh, she had a recently broken hip, uh, it rebroke, uh, so if she were to sue the man for negligence, who would win?

Uh, you did the thing that I love, which is, uh, you eliminated both, uh, of the neighbor answers and went with, uh, the man, you're like, yeah, this is not negligence, no way. Um, uh, and you accepted, uh, C and D, and, and I will tell you, not, neither, uh, A nor B are correct, so Uh, so So, quality eliminations, the question then is, is, it's not who gets to win, but on what grounds does the man win? Because he did not breach a duty that he owed to the neighbor, that's C, or was it D, the man, because the neighbor assumed the risk that she may fall, you went with D, Thomas.

1:01:51 Andrew: I gotta tell you, it's C. Yeah, no, I'm a little, so, so this is the, the truly, I mean, you deserve praise for this, because the analysis that you went through, I think, was exactly correct. Right. You were like, hey, it seems like the man, the property owner, has done enough. And I took down this direct quote while you were giving your answer, which was you invite the neighbor to the house, you do have a duty to them. And that is exactly correct. And that is sort of the key to understanding how this comes out. That is. We talked about in the episode, you know, in the elements of negligence, right? And the first is you have to have a duty to that person. And the second is you then have to breach that duty to that person. Well, what is the duty that you owe to folks that you invite to the the house. And the duty that you owe to them is to advise them of any potentially dangerous conditions. You even said, and

1:01:31 Thomas: Oh, okay. Uh oh. Ah, damn. Yeah. Yeah. Yeah, I,

1:02:44 Andrew: I love this, you were like, it's a wobbly step. It's not a lava pit. That's correct, right? Because one of the duties you oweto anybody, right, is you have strict liability for unreasonably dangerous conditions.

1:02:44 Thomas: You're right.

1:02:54 Thomas: Right. If for super unsafe. Yeah yeah.

1:02:57 Andrew: Yeah, you have to correct all those. But when it comes to things that are risky, you have to warn them. So this is one of the very few cases we get this a lot, we get questions about, like, what good does a sign do, right? When you post up "no solicitors," uh, does that stop... No, that does, you know, when you post, "If you ring this doorbell, you agree to, you know, uh, pay me five hundred dollars." And no, that doesn't do anything. But but here, posting the sign actually does uh fulfill the duty, the that you have to somebody that you invite over to your house

1:02:57 Thomas: No, that's a good point. Right. Oh, God, yeah.

1:03:11 Thomas: Mm-hmm. Yeah. I absolutely should have gotten this. You're totally right. I blew it.

1:03:30 Andrew: Yeah. And, by the way, that is invitee, different, that is someone with a non-economic interest, right? So the standard is higher if it's an ice cream shop, right? You can't just say, hey, you might, you might slip and fall, uh, you actually have to, uh, you have a heightened duty to those that you have yeah, a

1:03:42 Thomas: Right. Youre right. It was all there. I did all the work and then just kind of tripped at the finish. I tripped over a loose step on the finish line.

1:03:52 Andrew: Step but why is it not assumption of risk? Um, two, two answers for that, and and they they both basically stem out of the idea that if you've eliminated, if there is no duty, if you, if you fulfilled that duty, that is 100 percent than the cause of negligence fails because you failed to establish that. Whereas assumption of risk is an affirmative defense and it usually operates in a comparative negligence scheme. Right. Like you would figure out, OK, well, what part of this activity, what part of the negligence are you now responsible for as the defendant having assumed it? So it's not as good.

It can be 100 percent, but it's not as good a reason to for why somebody is likely to win, because you can have assumption of risk and still lose. Right. Like the thing about classic example is, assumption of risk. I participated in a boxing match is a defense to he assaulted me. But it's not a defense, too. You know, he used ice to weigh down being, you wrapped up, and then, you gave me a massive concussion, gave me injuries that I didn't uh consent to uh because um they were not disclosed. So um, that's why uh C is a better answer than D.

1:04:04 Thomas: Yeah, right. Mm-hmm. Mm Mm-hmm. Right.

1:05:06 Thomas: Totally. No, I right when you started to lay it out, I got it. I blew it. Should I answer to see? Well, I'm not the big winner this time. So we'll have to go to the Twitters to find out who is the big winter of Thomas takes the bar exam this week.

1:05:19 Andrew: Well, Thomas, as a testament to how difficult this question was, we got answers A, B, C and D, probably with a preponderance, if not an outright majority, being D. I think you were just that persuasive. Of course, the real answer is C. And this week's winner is Mad Political Scientist, who says T3BE is C, the duty of care would only exist in a commercial context. Anyway, want to come on over to the Thunderdome for a spot of tea? I think I'll pass. Say hi to Master Blaster for me. And congratulations, Mad Political Scientist, on being this week's winner. And everyone, let's give them a follow. That is at njordan79, at n-j-o-r-d-a-n-7-9 on Twitter. And congratulations, Mad Political Scientist, for being this year's this winter.

1:06:08 Thomas: And that's our show. Thank you so much for listening. We'll see you next time.

1:06:12 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.

1:06:45 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.