OA Bar Prep with Heather! T3BE28

Transcript

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

0:00:47 Thomas: And welcome to Opening Arguments. This is Now, a moment, Heather will be on to give us the answer to question twenty -seven, and of course I'll announce the winners. We got some good winners this week. Lots of participation, super cool. And then we'll question 28 going and then we'll do those usual shout outs for new patrons and for Hall of Famers. So that's the agenda this break, which you can avoid by going to patreon.com/law. We'll be right to it. Right. So before I throw to Heather, we kind of skipped over what the question was pretty quickly. So I want to just read it because it's short. That way we're all on the same page. So last week's question was Congress passes a law regulating the wholesale and retail prices of, quote, every purchase of an automobile in the United States, end quote.

Strongest argument in support of the constitutionality of such a statute is that, A, taken as a whole, the domestic purchases and sales of such products affect interstate commerce. B, the United States Constitution expressly authorizes Congress to pass laws for the general welfare. C, Congress has the authority to regulate the prices of products purchased and sold because commerce includes buying and selling. And D, Congress has the right to regulate interstate transportation and the importation of products from abroad.

Just wanted to get that all in there since it was short. And also, I probably should have included this last week, but Heather had some funny commentary after I attempted to answer it that I'm going to put in here. Okay, now I'm throwing to Heather and I on the answer for question 27. Here you go.

0:02:14 Heather: I'm sorry, but what's funny is that you obviously can't hear any of this, and I have to keep myself muted because I'm that person who, on a Zoom call, uh, be I have to mute myself because I like gesticulate wildly and talk. Right? And so, and so I'm so glad that I do because while you're talking, talking about, I'm, I'm like reacting and it's so funny because a lot of times you're like, we'll laugh at the same time about stuff, which you don't know, right? And so but anyway, yeah, yeah.

0:02:35 Thomas: That's so funny. You're like, the listeners, maybe hopefully they laugh sometimes we'll see.

0:02:42 Heather: I think they'll have a lot.

0:02:45 Thomas: Remind us, what was this question about? Well,

0:02:47 Heather: Was that question about Congress passing a law about the prices of buying cars in the U.S. and were thinking this is a constitutional law question. Would you remind me why it is that you thought this was a constitutional lot question?

0:02:59 Thomas: For one, it's asking the strongest argument in support of the constitutionality of such a statute is, and then it gives you the option, so I mean, that's a, a tip, it's off right there. I think I,

0:03:07 Heather: Absolutely, and I'm so glad that you pointed that out because, because that's exactly the first step that you want to take is try to identify which of those seven MBE topics that this question falls under. And that's exactly it. And you hit exactly on the big tip off for the question. So it is a common law question. Great work narrowing it down. Next step that we'll do is we'll try to figure out, we'll two more steps to try to find out what exactly this question's testing is on to make our job a little bit easier. So one of the things that that bar exam tests on when it tests constitutional law is it likes to test on the three branches of government, uh, so which you had to guess which branch of government it was testing, isn't, yeah, right, well,

0:03:39 Thomas: What? Are they Okay, I think it's the judiciary. President's in there somewhere, but not really. And the Supreme Court, that's it. Those are the three branches of the government.

0:03:53 Heather: You got two out of three right, that's

0:03:54 Thomas: Yeah. What? The judiciary in the Supreme Court? Damn it. Okay. I can't remember remember where the other one is. Racism? Is it racism?

0:04:03 Heather: The one that's buried in there that rears its ugly head from time to time, but we've got, got the federal judicial branch which talks, uh, about the federal courts and the Supreme Court, as you mentioned, so you got that in there, uh, the executive branch which also covers the president, and we've got the federal legislative power which covers Congress, so you had to guess which one which one would you think it would be, and that's why, why I like this question is because it starts off with Congress passes a law and then, so right away I'm like, oh, I know exactly where to go I always have questions like that that give these really big hints because it makes our job a lot easier as the person navigating the question, and

0:04:14 Thomas: Sure. Oh, sorry. It seems like this is a a law that Congress was passing. You would think it involves Congress?

0:04:34 Thomas: Yeah. Yeah. I would agree with you if the ultimate thing that got the question right right, was can you tell me what the sentences say in it, then I would be all for it, but I still feel like there's a lot of work I had to do after that, is all I'm saying, okay,

0:04:56 Heather: There's a ton, we've got one more step, and I, and I promise this one will help narrow it down a little bit more. So when the bar exam tests like this and they're testing the three branches of government, what they do, oftentimes within each branch, is they're tested, uh, power that the branch of government has, and the limits on those powers. And so there's a finite group of topics within each. And so that's kind of how we're going to navigate this question is trying to figure out which power of Congress is attesting. You, well, had mentioned one as you were working through the question. Do you remember what power that you had mentioned while you're working through the question?

0:05:09 Thomas: Yeah,

0:05:30 Heather: Pretty

0:05:30 Thomas: Use the word plenary power, but I don't think that's, is I thought that meant you can pass laws on whatever you want, like if you have plenary power, right, or

0:05:37 Heather: Much, have exclusive power to pass laws in a particular area. So they have plenary powers to pass legislation as it relates to a specific topic, or under, so, so here they have plenary powers, um, as it relates to the commerce clause. Yeah, you did a great job identifying the commerce clause as one of those, uh, that, um, has to pass laws, right, they pass laws under the commerce, and then there's two other ones, um, other powers in which get tested pretty frequently, um, and these are also known as enumerated powers, meaning that the Constitution gives Congress explicitly in the Constitution the power to pass laws, right, you happen to know, I'm just, just throwing it out there, do you happen to know what the other oh, that

0:05:50 Thomas: Okay, right.

0:06:09 Thomas: This is so embarrassing uh can they regulate, uh, do, wait, don't they have to, do they have to declare war, or how does that work, is, is it something involving war?

0:06:21 Heather: Comes up too, uh, comes out as well, yeah.

0:06:22 Thomas: Oh, we're just talking about like their planet, passing powers. Oh, mean, this one mentioned, uh, exporty stuff. Is that one of them?

0:06:25 Heather: Comes up under the commerce clause itself, surprisingly.

0:06:31 Thomas: Oh, it does. Oh, okay.

0:06:33 Heather: Yeah, it's part of the umbrella, and I promise we'll talk more about, I promise you, you'll know more about the commerce clause than you ever dreamed of in just a minute.

0:06:36 Thomas: Oh, and then I'll forget it all. Yeah, totally. Okay, Um, what are the other things that, oh, this is going to be so obvious. What Uh, is it? I can't remember.

0:06:47 Heather: That's Okay, um, I don't think a lot of people are familiar with this or know it unless they're reading the Constitution, are they, like, keeping their back pocket all the time? So, I remember because part of when I was in law school, I feel like the most that I learned about the Constitution was really when I wasn't, law school, because in school you spend such a bunch of time reading it and rereading it, there's so, so, so many clauses, like, built in, and you're like, which, which ones, which, what does it mean, um, so the ones that come up that are most tested in the bar exam, and aside from the commerce clause, are also the taxing clause and the spending clause. And taxing is really just referred to, I know everyone's like, I don't know about tax, but it's really about bringing money into federal coffers.

0:07:06 Thomas: Yeah. Right.

0:07:21 Heather: Right, and spending is just about spending federal monies, um, in the way that this can come up in ways, and we can talk about this in a little bit, is sometimes will use its spending powers to accomplish things it can't do when it can directly regulate under the Commerce Clause.

0:07:34 Thomas: Yeah, yeah. So like a lot of like, hey, if you're going to accept federal money, federal grant money for this university, whatever, something, you have to, know, you have these following criteria. And that's a way of trying to, like, legislate stuff that it can't.

0:07:46 Heather: Because if it can pass law under, let's say, the spending power, it'll try to do so under the Commerce Clause power. With that, we're trying to narrow down, is question, is Congress trying to pass a law under the Commerce Clause, under taxing clause, or under the spending clause? And if you had to guess which one do you think it would be, yeah, you're exactly right, and if somebody was reading through this question and they weren't really sure, I always say to you, can always kind of pop down to the answer choices because sometimes the answer traces can give us a really good idea. And you had highlighted too as you were reviewing some of the answer choice, some of the language, right, like buying and selling, affecting interstate commerce, importation of products, more broad. And that's all very commerce clause language.

And so that's all telling us too, that's also trying to give us all the hints that this is a question testing the commerce clause. And that's where our mind should be kind of heading towards. Then we can just hop in, if you'd like, to talk a little bit about the rule for the Commerce Cause and how we'll use that to navigate the question. The Commerce Clause, Congress has, that's that word, plenary power to regulate commerce among the states.

Can regulate the channels, instrumentalities, or the substantial effects of interstate commerce. But like any good lawyerly related thing, we take that really complicated word and we're going to break it down. So you have ever heard heard of this thing of channels of interstate commerce? Yeah,

0:08:03 Thomas: Seems commercey to me, I don't really understand how it'd be taxing or spending. Okay, all, channels of interstate commerce, I can't remember, remember, oh,

0:09:03 Heather: Okay, channels are just where commerce occurs, like highways and waterways, and that kind of thing. Yeah, so Congress can regulate, um, past laws relating to just where commerce occurred, right, so that might be it, like a speed limit on an interstate highway, right, then it also will regulate the instrumentalities of interstate commerce, things, right, to facilitate is the way to think about it, also, right, talk about this as people or goods in interstate commerce, but I like to refer to this as the, the planes, trains, and automobiles part of the rule. Sorry, that John Candy movie is my favorite. I just think about they can regulate that part of like, in trucks, you, I think of big semi-trucks and how much they can haul across state lines. That's usually how Congress might pass a law related to that. Other thing is that they can really regulate things that substantially affect interstate commerce, right? And that might not be clear to try to understand what is the substantial effect thing.

It really breaks down, the Supreme Court's told us it breaks down really in one of two ways. What does that mean? Things that are economic in nature and then things that are non-economic. So things that are economic and you can kind of mention this are things that kind of include buying and selling, right, those things that's really quintessential, right, when that's the case what the court has told us is that we can aggregate those things if we want to, right?

And this is this case that's really well known. God, every lawyer who's been through law school in the last, like, I don't know, 50 years or more has heard of this case called Wickard v. Filburn.

0:09:06 Thomas: Yeah, okay, right. Wow.

0:10:20 Heather: It's the wheat farmer case. This guy who's a wheat farmer, and he was trying to buy and sell wheat, right, the court was like, I'm gonna regulate you, and what's a little bit more complicated than that, um, he says you can't, um, but they said we can, um, because listen.

0:10:32 Thomas: They must have been really mad at this one guy.

0:10:35 Heather: They get mad at a lot of individuals, um, including this old lady, I call her the old lady, she wasn't an old lady, she's a pot grower, but that's On a yes. Is another commerce class case, um, what will happen is this, uh, by himself, uh, wheat farmer, his buying and selling of wheat didn't substantially affect interstate commerce. Every individual wheat farmer across the the country, buying and selling. If you add that all up together, right, has an impact on interstate commerce, right? That's what we think about when we think about kind of aggregating or adding together, was a part of one of the answer choices that kind of gets at that, and you hinted at it as well.

0:10:40 Thomas: Yeah. Right. Yeah.

0:11:05 Thomas: I mentioned that previous question that I, I think it did kind of turn on that, it was about taking all the dry cleaners together, um, a whole versus just like this one, one that is like, oh no, we fully exist in this state, nowhere else, but that was when I mentioned that, is that the same concept or are you saying that's slightly different? Yeah.

0:11:21 Heather: That's exactly it, and I was really glad that you mentioned it. But yeah, I think you were saying, even with that example, it was all in the same state. Yeah,

0:11:28 Thomas: That's the example, yeah, it was all in this, that problem was, it was, oh, we're just a little, uh, we're, we're Justexan through and through, we're in Texas, we're dry clean Texans, we only dry clean Texas people, and they were trying to get out of the law on the question, but it seemed stupid because the law was about minimum wage in dry cleaning places everywhere. So yeah, you can take it together and that has an impact on interstate commerce, even if this one dry cleaner doesn't.

0:11:53 Heather: And that's Exactly. Because even in that instance, Congress can regulate things that are intrastate, which are within a state versus among the states, because they can add it when it's, you can't see me doing this. I'm like making this hand gesture of like, I still don't know if there's a map in front of me. And there's like, I'm Like, oh, look at this state.

0:12:08 Thomas: Yeah. That's great for you, Heather. I'm sure you're really enjoying. Yeah, well,

0:12:09 Heather: Exactly. My fake map and my like hand gesturing. Yeah. That's exactly it. So why don't we take that? And then why don't we take what we know a little bit about how Congress can regulate the Commerce Clause and then work through some of those answer choices. Pretty early on, right? Congress has the right to regulate interstate transportation and the importation of products from abroad. Can you remind us why you said no to D? You're

0:12:36 Thomas: I think it's a great question. It was one of those things that might be true, but not correct for the answer. Like maybe Congress Congress does have the right to regulate interstate transportation, as you said, but I didn't think that regulating the wholesale and retail prices of every purchase of an automobile was necessarily regulating interstate transportation. Now, maybe I'm wrong on that, but it just didn't, it seemed like that was more of a secondary. It didn't seem like that's what the law was doing to me.

0:13:00 Heather: Completely right, especially because you're right that this is a true statement, but a wrong answer choice, so you eliminated got it for the right reason. Yeah. And I'll expand on that just a little bit too. Um, you also had mentioned at the time that, uh, the fact pattern said nothing about imports, but that the answer choice did, and that was also one of your reasons for eliminating it, which is exactly correct as well, right? There was we have a mismatch between the fact patterns and the answer choice. Oh, when we have that, that's also a good tip off that it's probably a wrong answer choice.

0:13:07 Thomas: Good. Mm -mm. Right.

0:13:26 Heather: So to your point about it being a right answer choice, what I'll say is this. Constitution says that Congress has the power to, quote, regulate commerce with foreign nations among the states and with the Indian tribes. So that actually tells us that Congress does, under the Commerce Clause, have the ability to regulate imports from abroad. So again, that's a true statement, but for the reasons that you mentioned, not our best answer. Is out, and you eliminated it for the right reason. So hopefully you feel a big win there.

0:13:48 Thomas: Wow. We'll see.

0:13:54 Heather: Look at C. It says Congress has the authority to regulate the prices of products purchased and sold because commerce includes buying and selling. So you were kind of back and forth with A and C on this one. You had talked about, you like this was not true. Can you expand a littlebit on?

0:14:07 Thomas: Well, At first, I was... Well, prices, if you just ignore the context and look at just that sentence, "Congress has the authority to regulate the prices and products of products purchased and sold because commerce includes buying and selling," I don't think you would say that's true, because there, the crucial of interstate commerce, I didn't think, like, just because because commerce includes buying and selling, therefore Congress has the ability to regulate it, because I feel like that would just be Congress has the to regulate commerce, not interstate commerce, with that, like, modifier on it. So that's kind of what I was thinking there, but I don't know.

0:14:08 Heather: Oh, that's absolutely right. This answer choice is too broad. That's exactly why it's the wrong answer choice for just the exact reason that you identified. C is out. Great, now it's down to A and B. Right now we're looking at B, which is that the United States Constitution expressly authorizes Congress to pass laws for the general welfare, and you said no to this one as well, right? I

0:14:42 Thomas: Yeah. Okay.

0:14:56 Thomas: Yeah. If that were true, you could just justify any law based on that, but curious to find out if that was a good elimination.

0:15:03 Heather: Think that was a really great answer, um, because also you started to identify something that's really important, which is that it's it kind of conflates part of the actual Constitution, a wrong answer choice, because it kindof reminds us of language that we've heard as part of the Constitution, but it kindoff mischaracterizes it, right. It sounds, it can sound kind of right initially, but then when you start to delve into it, you're like, that's not right for the reason that you identify, right, which is that then Congress could pass any law it wants under under this clause.

0:15:17 Thomas: Yeah. Yeah. Yeah.

0:15:31 Thomas: You would think. Yeah. Unless it's like, we want to make things worse. And then like, well, you can't do that. That's the one. If you intentionally want to do that, then you can do that too. If you want to, you want make things worst, then you can pass that law. Every other law. You're good. I feel like Republicans would do it, but that's just me.

0:15:45 Heather: I don't think you're alone. The Constitution says that Congress shall have the power to lay and collect taxes, duties, imposts, and excises, and then this is the clause that this kind of gets at: this, "to pay the debts and provide for the common defense and general welfare of the United States" clause. And since it's all together, what it's trying to say is that as part of basically its spending power, it can provide for their general welfare, which is really taken very broadly, just to say that it can pretty much spend for sort of not just literally welfare, but any reason - this kind of has a rational, they call rational basis, but like any kind of reasonable reason that Congress kind of comes up with, it can be a reason why it's spent. That bar is really low. Congress can come up with a good reason basically and spend for it. But it's not something that's separate, like it can't just pass a law for for the general welfare. That's like a mischaracterization of that.

0:15:47 Thomas: Right.

0:16:16 Thomas: Like literally welfare. Oh, it's only in how it spends money? Gotcha.

0:16:39 Heather: Yes. So that's part of why that's wrong. So this book comes up in the bar exam a lot as a wrong answer choice, because it just sounds just right enough to get it wrong. So you did a great job eliminating that one. So then we're down to the last one.

0:16:46 Thomas: Yeah, yeah. I can't wait to hear why A is wrong. It's actually no answer is correct to this one.

0:16:56 Heather: They're all incorrect. And that was the goal.

0:16:57 Thomas: Yeah, and I lose.

0:17:00 Heather: Did an really good job too, I thought, is you kept going back to the call of the question when you were looking at this answer choice. Which is always such a approach great to these questions because that's what you're doing. And I think it can be easy to get lost with these questions. And also when the difficulty is really high, it's trying to remember what's my task, right? So I think that was a good way that sort of redirected you back to the right answer. And you also focused on the first clause here, which is taken as a whole, right.

0:17:24 Thomas: Yeah.

0:17:25 Heather: This was a clause that was trying to get you to think aggregation and adding together. Other. Is trying to say, hey, purchase of a car in the United States, even though they might be in separate places, if we add them all together, they have a substantial effect on interstate commerce.

0:17:40 Thomas: It just seemed like this was a pretty obvious one, and I was just really worried for a trick. And so I did my trick detection, which is certainly not perfect. But I think I nailed this one. It wasn't a trick. It was just A.

0:17:52 Heather: Right. It was just a, and a lot of times too, the trick is that if you've done enough of these questions, you start to second guess yourself and think,

0:17:58 Thomas: Yeah. No, that's the 100% of the trick. Absolutely.

0:18:00 Heather: Yeah. It's the overthinking, but you start to learn to trust the questions and say, listen, I've done enough of these by now. I know the tricks and I know how to navigate them effectively, but that takes time and experience.

0:18:11 Thomas: I was going to say, yeah, sure. Someone could say that. Yeah,

0:18:12 Heather: Yeah, You did a great job navigating this question. Because though it's just three short lines, me, the length doesn't dictate the level of difficulty the

0:18:23 Thomas: Well, I I nailed it. Answer A was the correct answer. So Apparently, with that one, yeah, a little redemption from last week. And it looks like I am now in the new era. Oh man. Are you ready for this? 14 out of 23, 60 .87%. Right on that 60 % margin. I'm trying. That's my goal is to try to hit 60 and it sucks to be very close to that precipice at all times. Pressure for me personally, for no one else.

0:18:49 Heather: The pressure is certainly not coming from me, questions

0:18:52 Thomas: I know you're like, like trying to give me participation trophies in the question, you're like, so you, you read it really well, man, champ, you did it, and I'm like, okay, yeah, I need to do better than just reading the question, that's my, I hold myself to a high standard, yeah

0:19:07 Heather: They are, so they genuinely are very hard, like I feel like when I'm looking at questions like these, ones are, they're super hard because specifically they write stuff like those answer, answer choices are tough because they write them with the expectation, have to write trap answers, right? They have answers that people will fall for to get wrong. And I'm not saying that there's people at the NCBE that are like, ha ha, yes, we hope you get this question wrong.

0:19:27 Thomas: Oh No They are, they are, I'm saying that, you don't have to say it, that's

0:19:36 Heather: Be told, the thing that I struggle with the most in testing was always multiple choice questions, and the, I, for me, was when I took the bar exam, I started working on this job and they were like, hey, you have to start giving workshops and teaching multiple choice, and so I had to start learning how to do it so well that I had, teach other people, and so I, I wasn't that great at navigating them even as a student, and it's really something that I've had to become extremely adept at, at the bar exam, and so, like, I just, I don't ever Want You to think For a second Like

0:20:01 Thomas: So Funny No Yeah Well But I'm coming, remember, I'm going from a different end Which Is That's obviously why I need it to be multiple choice because I'm not a lawyer, so, so I couldn't generate my own answers to anything. That would be really hard. I would have to know legal stuff. So no, right. Well, now it's time to see who our big winners are this week for T3BE 27, for answers on Patreon, patreon.com/law. I'll always pick a winner from there because, hey, they're the patrons. They get special treatment.

That's how it goes, in terms of playing along, I think I'm just going to have to say the subreddit is the best place to do it. Maybe until we get some other their social media figured out. Apprentice of Adventure and others have gone over reddit.com/r/openargs because each question sets it all up, and it has the rules, and it has no, just really cool. So I think if you want to play along and you're not a patron, go to that subreddit.

I think that's the best place to do it, and that's what I'm going to to pick winners from for the time being, this week's winner over on Reddit is actually kind of a makeup pick. So apparently someone did get it right last week, and I missed it, because it was really only one Redditor, that is Jaeger von Koss. So they did get it right last week, and I missed it.

So I think they're getting a makeup shout out, that works because they also got this week right. So Jaeger von Koss this week said, I'm going with answer A, cars are often produced in one place and then sold in another, the commerce clause, FTW, for the win, for U-Haul's sake. Jaeger von Koss, two in a row at least. And I wanted to give you a little makeup shout out because I missed you last week.

Sorry about that, as for patreon.com/law, we've got a lot of good winners. Almost everybody got this one right, wanted to give a shout out because because there was an answer that both, both got it right and was just super complimentary, Heather, so I want to read that because Heather is great. Father who art in heaven, hallowed thy kingdom come, thy will be done, and Michael Cohen sucks, which is a great name. They answered, I'm going with answer A, interstate commerce rules everything around me.

I'm loving the new reboot of T3BE because, one, Heather is awesome. I think her contributions are going to change this segment from watch Thomas have the football pulled out just before kicking it yet again, to here's how to actually get better at thinking about law stuff, which is super useful to me, in addition to being entertaining. I love the way the quote from the firm leads into Thomas's banger theme song.

I get all pumped every time, so I'm glad T3BE is its own episode again, was just so nice. I wanted to read it. I really appreciate that. Thank you so much. Our father who art in heaven,

0:20:02 Heather: Yeah That's True Thank

0:22:22 Thomas: That's a great name. Right. Well, after this break, we'll get to question 28.

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0:25:20 Thomas: Now let's have our question uh will be question Question number four under the new Heather era. Excited. Let's see if I can apply what I've learned.

0:25:26 Heather: Right, thanks. But I just have to say thank you for giving me an era. This is, you've just made my year. Thank you.

0:25:30 Thomas: Oh, yeah. It's a good era. It's my favorite T3B era. No offense to Matt whatsoever, but it's been really fun. I'm I'm excited.

0:25:39 Heather: Thank you. Well, I'll get started with a question. Woman brought suit in State A Federal District Court against the company she worked for, claiming that it had failed to promote her on account of her gender in violation of a federal employment discrimination statute. The woman is a citizen of State A, the company is a corporation incorporated in State B with its head, I know we, its headquarters in State C, and with most of its employees working at the office in State A, where the woman works S

0:26:04 Thomas: And sexism is a citizen of states. No, I'm just kidding. Of all states, actually. So that were OK.

0:26:08 Heather: Always Relief sought by this, uh, constituted solely a $46,000 in back pay. Months after the company timely filed its answer, and while discovery was still pending, company made a motion to dismiss the suit for lack of subject matter jurisdiction. The federal court grant the motion? A, yes, because the company is a citizen of several states, one of which is the same as the woman's state of citizenship. Yes because although there is diversity of citizenship, the amount in controversy requirement is not met. No, because the woman's claim arises under federal law. No, Because the company waived its objection by failing to assert it either in its answer or an emotion made before it served its answer.

0:26:27 Thomas: Of course OK, so this is interesting, because I've noticed these questions under the Heather era, often it's like, all right, I think I know the thing going on here. And then all the answers, you know, not that I don't think you're writing these questions that I know of, although if you are, that's kudos. But all the answers are like, oh, damn, those are all pretty plausible, though. Like, I feel like I know the issue, but I could see this going either way. All right.

So I, famously, have done done enough bar exam to remember that we need, I think we need diversity jurisdiction plus $75,000 or more. There's also the idea that if it's just a federal employment statute, a federal statute, then you're just in federal court at all, I thing. Anyway, I don't think you can, I'm pretty sure that goes first, Ithink. Like, I dont think to you have the in controversy the diversity jurisdiction and also federal law, I think the federal law thing kind of goes first.

So let's see, let's go back over it. Suit and State A, so that anytime you see State A, you know this is probably going to be one of these questions, uh, pretty much, unless it's like, where did we bury the survivors, uh, it's going to be one of these federal district courts, um, so, so she brought it in federal court of a federal employment discrimination statute. I feel like that tells you all you need to know there.

I think this is trying to trick me into thinking that the amount consisted solely of $46,000. See, it's trying to really emphasize to me that it's less than $75,000, and also got the other issue of two months after the company timely filed its answer, and while discovery was still pending, the company made a motion to dismiss the suit for lack of subject matter jurisdiction.

This, this feels like no, only no, but hell no, I don't know why they would not have subject matter jurisdiction, but also the added component of they could have complained a lot earlier than this, so I guess it could be a question of like, will that matter.

So A, yes, because the company is a citizen of several states, one of which is the same as the woman's state of citizenship, so I think if we're not talking about federal law, if we were talking about state law, then that actually would be part of, because it, um, I think it would be a part of, if you do have like citizenship in in several different states and at least one of them is in common, I'm pretty sure it gets a little confusing with multiple parties or whatever.

But I think, it I think as long as they have one in common, I think then you're in state court, because I think the deal is like federal court doesn't want more stuff. I'm pretty sure it's like rule usually is like biased, slanted toward trying to get stuff out of federal court, I thing. And then B, yes, because although there is diversity of citizenship, the amount in controversy is not met, that's definitely wrong, just because I don't think there is diversity of citizenship.

Citizenship, let make sure I actually got that right, so she brought suit in State A, is a citizen of State A, and the company is a corporation incorporated in State B, with its headquarters in State C, and most of its employees working and at the office in State A, where the wouldn't work.

So I think if we were not just going based on the fact that it's federal employment law, so I'm pretty sure it just has to be federal court, um, I think my best answer would actually be A, because although the amount in controversy is not met, I actually don't think there's diversity citizenship. I would choose A before B, I believe. All right. C, no, because the woman's claim arises under federal law. Yeah, that seems like the no -nonsense answer to me.

Federal law, federal law is federal law, I don't, I think that's how it works, unless I'm really missing something, could be. D, no, because the company waived its objection by failing to assert it either in its answer or an emotion made before it served as answer. And I think that's also true. So that might be like another true thing. I think if they, they were going to complain and they had merit, I think they would have had to do it earlier.

I don't think you do it after you respond to the complaint. I think you have to do it before. So I think D is going to be one of those like true -ish answers, but still not right. Right. I'm pretty sure if they're violating federal law and you're suing for a federal violation of federal law and federal employment discrimination statute, I think you're just in federal court, man. I think that's how it works. I think it trumps everything else.

And so I'm going to answer C, final answer, but maybe I'll figure out like if I'm somehow mistaken on that. Let me make sure that I pick. Yeah. What would be my second best answer? Well, shit. Actually, now I realize it, assuming I were mistaken on on that, I think I would have to answer D next, because I think that you, I don't think you can, hmm, let me think if I have any accessing database of barely any information on this.

You would need to remove it before answering. I do also know that federal court doesn't want stuff. So like, is there going to be some, is there going to be some exception? Like, is their, or not exception, but like, is the rule going to be that you can still actually remove to court, like late in the process. Months after the company timely filed its answer. I'm not sure how much this matters.

Cause again, I I'm pretty solid on C, but just in case, and just to talk about it, I do think maybe there is a chance that it could come later because like, could there be something, something you discover during the process that would, like, just generically, not necessarily in this lawsuit, but in any of them, that would give you more, like you would need in order to say, ah, this is actually a state court thing.

Like if that's possible, then I imagine the rule is going to allow you to remove to state court later, like you don't know what that discovery would be. Hard to pick a second best. I think if I'm wrong about C, going to go with D. Yeah. No, I do think you need to make this motion sooner. So final answer is C. Second answer is D. I'm pretty sure it's C. So I have a lot of writing on this second chance answer.

Because when I'm inevitably wrong about C, I want to at least get that second chance. So that's why I was debating that maybe longer than it seemed was strictly necessary. But there you go. Final answer C, second choice answer D. Right, you know how to play along. Go to either that subreddit, so that's reddit.com/r/openargs, and find the post, or if you're a patron, go to patreon.com/law, find the posts for this episode, and do your answer there.

I will pick one winner at least from each. Luck and happy answering. That means there's only two things left to do. First, to thank new patrons at patreon.com/law. We are still catching up from the deluge. We're going to get up through February or so. Soon enough we'll be caught up and it'll be current. But that'll be less fun because it's not as many. But that's okay.

Thank you to Blue Violet, Knott, Beattie, Beatty, William Curran, Peter Olson, One Trillion Toms, Cohen DeBruin, Donna Dietrich, Of The Sun, Michael Young, We Can Feed Everybody, or We Can Feed Everybody, maybe,

0:33:19 Thomas: Tina McCormick, Andrew Coleman, Girl, Earl, Clausen, Emiliano Jordan, Zach, of Wands, Cassandra Hall, Monroe, Nick Nick Moor, Scott DeBruni, Brad, Dan and Jordan, how do you make your brew, parentheses Sees Coffee. Chris, Kokenauer, Peyton, and Denise Iglesias. Thank you so much, new patrons, again, for coming at that crucial time. It's the reason we're here today. Then, of course, I got to thank the Hall of Famers, the all -time greats at patreon.com/law. are at the $5 level and above for at least a full month, we're on the second quartile. I'll begin with thank you to I .T. Coyote, J. Zachary Pike, author of Orconomics and other funny fantasy books, Nick, unfrozen caveman lawyer, with cold hamburgers, J.V. Swartz, Nick Fish, A Negative Phenomenon, my swipe keyboard does result in misspellings, so there's T-H-E-I-R-S that. (You Gotta) Fight For Your Right (To Ex Parte).

0:34:26 Thomas: Hey, wow, cool. You were also the T3B winner.

0:34:36 Thomas: Hmm, interesting. Oh, great. Now I have to go back to changing my name every month. Yes, you do. Right, that's our top patrons. And that's our show. Thank you for pledging at patreon.com/law, and we'll see you next time.

0:34:50 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:35:07 Thomas: Although, I'm realizing now, the now of the new format, this is in the middle of the show, I'm just realizing, so I need to probably read you, uh, okay, so