OA Bar Prep With Heather! T3BE33

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 Bar Prep with Heather, also known as Thomas Takes the Bar Exam. We are answering question 32 and finding out who our big winners are. Then, of course, Heather will be posing question 33 for us. And then we'll round it out with a patron thanks. Much fun will be had by all. Hey, you might have noticed the new Opening Arguments artwork. I The same genius who has done basically all of my shows, who did the original OA artwork. Amazing, and I really appreciate his work, and to have kind of a nice, clean of the page here and a new look that still honors the old one is something different. So, with that said, after this brief break, get to the answer to question 32 with Heather.

0:01:33 Thomas: Right, Heather, and now it is time for the answer to last week's question about the long bygone era when things could be done about corruption. Not sure that exists anymore. It might be a dated book, who knows when this answers this question is from, but we'll pretend that still corruption is a thing people have a problem with. So, us, what was the fact pattern here?

0:01:55 Heather: This was about the Department of Transportation having some, possibly some corrupt individuals in the ranks, and the Senate committee conducting investigation into that corruption. And there's also a law where there were three of those Department of Transportation agents where their names were in the law. We're trying to to figure figure out whether or not the law that has the name of the three agents from the Department of Transportation, whether they can challenge that law for its constitutionality. So, constitutionality, let's take a peek and see here. We can walk through the question. So, I think, would you mind reminding us what type of question that you thought it was?

0:02:28 Thomas: Law.

0:02:29 Heather: And you would be correct. Anytime that we have, like you've said before, anytime we have a question that asks us about whether or not something is constitutional, that's exactly what it is. It's testing us on the constitutionality. We're trying to see what category that it's in, and this is a of question that thankfully doesn't come up too much on a bar exam, called prohibited legislation. A whole category of that.

There are a couple of types of questions in it, and there's usually maybe one that comes up on a Bar Exam, so I thought this would be kind of a fun one to pick, and then we'll go through it. Typically we'll go through the rule first, um, then we'll approach the questions, but since, uh, if I did that this time, we would just kind of spill the beans right from the get-go.

Uh, so instead we're just gonna walk walk through the answer choices one by one until we get there. Does that sound like a plan? All right. So let's take a peek at answer choice A that talks about whether the agents could be removed with or without cause. Your instinct here was to say that it was irrelevant, right? And then it shouldn't make a difference. Is my memory correct?

0:03:29 Heather: And

0:03:29 Thomas: Yeah, it seemed like it's an attractive distractor. It's like, well, no harm, no foul. Like, sure, maybe there might be some problem hypothetically with passing this kind of law. But hey, these agents could be removed with or without cause anyway. And the added complication that this is Congress and Congress ultimately is in charge of like this kind authority, I think, if I have that right, delegating any of this authority to the executive branch. So like, in a way, I was worried that you could kind of argue that Congress is like the ultimate boss. So this is their way of firing them. But I feel like that's all a stretch because like, even if they can be removed without with cause, one thing I said is like, yeah, but there's only my boss gets to do that. It's not like anybody can remove me with or without cost. But, I don't know. How is that logic? Does any of that make sense?

0:04:13 Heather: You were right to think that it was just overall that this kind of answer choice was irrelevant, plus, and we have a little bit of support from the that says they're employment-permitted removal with or without cause. And so when we get to the answer choice that kind of repeats that, it doesn't really get at the main thing that we're trying to figure out, which is whether or not this law is constitutional. It just kind of repeat the fact for the fact that doesn't tell us whether or not we're... Does that help us to answer the question about whether or not this laws constitutional? And the answer to your point is it doesn't really tell us that. And so, and here, um, to answer your question a little bit about the interplay between Congress and the department, there's thankfully, that's not really an issue here, it comes up in the question, so we don't need to worry about that too much, so it doesn't have to get that complicated, if that helps any. Yeah.

0:04:52 Thomas: Yeah, I just thought it was one of the complicating factors, but, uh, perhaps it ends up being irrelevant, but again, from someone who doesn't know all the answers, it's, it'S a thing to consider. I don't know.

0:05:09 Heather: And luckily here, luckily is not the way in which the question is trying to make it more challenging for you, so sometimes this can, it can feel a little bit more challenging because I think it does that, it's like it tries to get you to think about those kinds of things to try to get you to second guess yourself, but you were right from the get-go, you were thinking exactly the right thing to think that it's irrelevant, if that helps. So A is incorrect, so just for the right reason that you identified, so relevant. So that brings us to B, which was, if I remember your second choice answer, did it says no because the statute does not subject the agents to criminal or penal measures, and you had talked talked a little bit about feeling like losing a job might be punitive, right? Well,

0:05:36 Thomas: Yeah.

0:05:48 Thomas: Or, or if not that, being um, banned from federal employment seems like a penalty, but I didn't know. Again, I try to pick the second best answer being like, Like, I still think it's wrong, but I'm trying to think, like, if I'm wrong about something, I try to pick something I might be wrong about, and it's hard to pick the most plausible thing. I was just okay, maybe if the thing I'm remembering is about criminal stuff, then I guess you could say this isn't exactly like a criminal penalty. I guess I don't know what you would call it, but maybe, maybe, I guess, I'm not sure, maybe it is a criminal penal. But I don't know. That was where I was thinking, like, if I'm wrong, maybe it'll be because this isn't like convicting them of a crime. Exactly.

0:06:24 Heather: But you are right to think that there was that penal element that this is considered a punishment. Because like you were thinking in that mindset of, is someone from federal employment, is that a punishment? In the scope of this, then the answer is yes, right, definitely.

0:06:35 Thomas: Mm hmm. Yeah. Makes sense.

0:06:40 Heather: That's definitely the case. And so here, although it theoretically doesn't subject them to maybe a criminal punishment, we definitely here have that penal measure that's part of the answer choice. And someone from employment is definitely punitive in this Sort of situation. So although it's a really good answer choice, it's not best answer here. We take B out of the running. Now we're down to C D, and D. Yes, because the statute constitutes an ex post facto law or because it's a bill of attainder, are our last ones.

And you did a really good job working through that, because I you pointed this out also, which was that it's not uncommon for language, to be, or vocabulary, to be part of these answer choices, and to kind of work through them.

And the law loves a Latin phrase, uh, in these kind of answer choices, and so you did a really good job of working through, uh, that Latin phase to determine whether or not it was one you were going to choose or one that you were going to get rid of. So, um, told my students a lot of times, if you see a Latino phrase in there, you either know the answer or you don't, um, so it's a common wrong answer choice because, uh, so attractive.

It just, a lot of times it feels smart, it feels good to look at that answer twice and want to pick it. Remind us what ex post facto means.

0:06:52 Thomas: Mm mm. Well, I thought it meant passing something kind of after the fact and saying, OK, the thing that you already did is illegal and then trying to get someone in trouble that way, which I think is I that I'm a little bit hung up on is, I mean, we probably do this all the time in certain ways. Like, there's things that weren't a crime and then we're like, wow, that should be a crime. And so then you make it a crime, but I think the difference is that you can't, like, actually get the person who did it on that thing. But does that make it an ex post facto law? Like, I'm a little confused on that terminology, but I do think that it does have to do with that, like after the fact, passing a law for retroactively punishing something.

0:08:30 Heather: You're exactly right. Way it fits, they typically have to fit into one of two categories. There are laws that criminally punish conduct that was lawful at the time it was done, or the increased punishment for crime after it was committed. They generally don't apply in civil cases, so we're talking generally about crime. So they usually have to do one or the the other, right? So maybe, um, of what you're saying, you kind of can't go back to look in the past and try to make it, and make something a crime. So, like, let's say, for example, you do something lawful at the time that you do it, and, uh, then it later becomes a crime, you can't they can't like go back and get you in trouble for that later, that's not something. However, if you do the thing, uh, dann it's illegal at the timing you do a second time, then it's fair game, right? The, the first Time, that's so much

0:09:13 Thomas: Yeah, to just quit while you're ahead, I think. Um, exactly because, um, if somebody, okay, let me put it to you this way.

0:09:14 Heather: Yeah, Does that help answer the question that you had about the retroactivity? Yeah.

0:09:25 Thomas: This is a, probably a minor logical point, but that's just how my brain works. I have to like know these things. Let's say I paint a fish and the whole world is like, "I can't believe you painted a fish. That's a really weird thing, Thomas. What we're going to do, we're gonna pass a bill that says nobody can paint fish." Selfish, it's not like that's a problem because you're just passing a law or whatever. So I think where I'm getting hung up is, would that be a quote-unquote ex post facto law because it's about past behavior? Wouldn't you need it to for the law to be that, wouldn't the law also have to be like, "And arrest anyone who's ever done that"?

0:09:25 Heather: I Say Oh Yeah, I see what you mean.

0:10:04 Thomas: So It's Just About it being something that wasn't a crime and now it is, because that's like pretty much every criminal law is going to be something Something like that. But it's somewhere, somehow in the statute, in would it have to like specify that it, that is effective? We're going to backdate this, check, you know?

0:10:04 Heather: Yeah, yeah. That Was always that's always my understanding of how, um, that part of the ex post facto law works, is that it would have to go back and kind of try to capture, more to your point. Yeah.

0:10:30 Thomas: Okay. Yeah. I would have to be like anyone who's ever painted a fish is guilty.

0:10:35 Heather: I think we'd all be in trouble then, that would Be like Listen, it's

0:10:38 Thomas: Who among us? It's trying the, to get the people in trouble after the fact. Key That's there.

0:10:43 Heather: That was always my understanding of that part, where we're trying to criminally punish conduct that was lawful at the time it was, you know, I mean, trying To That's always my yeah my read. Oh

0:10:49 Thomas: Yeah, Yeah. Right. Well, that's not what we're doing here. Cause it, and also like you could almost interpret it as that, but then I pointed out that it, like, it says it was illegal at the time. Like, so if it was legal at the time, then there, there already was a law about it.

0:11:03 Heather: And a lot of times, too, one of of the underpinnings of, is criminal law is that people know I theoretically, I always do this in quotes is that people are know about what things are crimes and what Are not, like So that you can follow the law, or that you can choose, listen, to follow or not follow the lie, your own, your own discretion, right? And I think that's also part of, like, what's kind of captured in that as well. It's like people should be on notice, essentially, eventually.

0:11:13 Thomas: Mm -hmm.

0:11:26 Thomas: Ignorance is not an excuse apparently, but I guess there must be some burden of that, like it was some reasonable person standard or something, like Ignorance is non-excuse or whatever for breaking the law, but if there was a law that nobody knew about, then I feel like it'd be hard to be like, all right, well, can't hold people accountable if there is no way to know it was illegal at all. Yeah.

0:11:46 Heather: Then leaves us with D, right?

0:11:47 Thomas: Right, I'm feeling pretty good then, there may be a way, I was still wrong, but considering D was my answer, I'm, uh, fingers crossed. Yeah.

0:11:54 Heather: Our bell if a taintor. No, what is one of those weird phrases in which it doesn't really make any sense and it doesn' t have any life outside of, it doesn'' t have life outside the law.

0:12:00 Thomas: Yeah, Yeah, There's not like, like some other context that a tainter gets used, you know, like, "Can I, Oh, I'm getting a taint with my friend next week." And then, so I would be, it's like a tinder. What the,

0:12:15 Heather: Well, I was looking it up too to see, like, like, is there any, are there any context clues? And there's really isn't, to really hard. And so sometimes with these questions, the best way to get through them, and I think, and you did this really well, was process of elimination. Because again, some of these questions you just can't get there any other way, and this is definitely one of those. And so that's what a bill of attainder is, is, um, a legislative act that declares a person or group of people guilty of a crime and punishes them, typically without trial, right? Here, when we're keeping people from government employment, right, that's considered, like we were talking about a little, a minute ago, that's consider punishment under this rule, and You identify that perfectly, right, by saying earlier they were named in the statute, right? Identifying them specifically in that statute, and then keeping them from government employment falls under the idea of a bill of attainder, and that's considered prohibited legislation, making it unconstitutional, and that is how we end up with D as our answer choice. I

0:13:08 Thomas: And that's how these mob bosses got off the hook. These Maybe they are responsible. These three agents are responsible for the fentanyl crisis in America and Heather wants to let them out the hook. So just that's what I'm getting from this. Yeah, so a bill of attainder is what it is. And hey, I got it right. Yay. Big old celebration.

0:13:21 Heather: Champion it Is.

0:13:33 Thomas: I think you threw me a softball after getting, you know, just to cheer me up again.

0:13:37 Heather: An ex post facto and bill of attainment, those are not easy things to navigate, working

0:13:41 Thomas: The Tainter. I think there was a part of my brain that kind of remembered, like, I think the word for this thing is weird. And so that was enough to be like, yeah, I feel like I'm going to have to do this again. I think it might be weird because otherwise, like you say, a tainter doesn't really doesn't sound like the thing that it is.

0:13:54 Heather: I tell you what the impetus was for this question, so

0:13:56 Thomas: It that we needed another question and this was the only one? It wasn't that.

0:14:01 Heather: Was that but um, but because I had had this, like, set aside, like a couple weeks ago, one of the ways in which I chose this question was because it reminded me a little bit of what was going on in the news not that long ago, which was, uh, the TikTok slash bite dance uh, and with, um, trying to pass a law to divest yeah

0:14:19 Thomas: That is a good point. I should have thought of that myself because it not just as you say that. It's like, oh, yeah, the bill that specifically is going to say that TikTok has to either be sold or be whatever. That does seem like a thing that is targeting a thing by name. Is this a bill of attainder?

0:14:38 Heather: That was in the back of my mind, I think, as soon as I was hearing about the news when they were kind of saying, "Oh, you know, we want bite dance slash Tiktak to divest." I wondered this is how my lawyer brain works, and I think pretty much any lawyer will think, that "What's the text?" And so I Went straight to The text of the that I read it to myself, and I I saw that TikTok and ByteDance were specifically named. So then Like feelers were like pinging around and going, "Oh no, is this a bill of attainder?"

And certainly what I found was that when ByteDance and TikTok were suing, of the things they sued over was saying this was an unconstitutional bill of attainer. And so I was like, "Okay." And so the interesting thing is that the Supreme Court basically determined there's three parts, or three pieces, determine whether or not something is a bill of attainder. Has to apply with specificity first. Has to impose punishment, and it has to do so without a judicial trial. And all of those requirements has to be satisfied before a court will strike it down as an unconstitutional bill of attainer. When

0:14:52 Thomas: Mm hmm. Hmm.

0:15:39 Heather: We're looking, right?

0:15:39 Thomas: Kind of sounds like it might check the boxes there. Yeah.

0:15:43 Heather: When I look at the law and it says specificity, it says such as TikTok. And then it says provided by ByteDance. To me, that's looking pretty specific.

0:15:48 Thomas: Yeah, now Now, is there anything about this being a foreign entity that matters? Do you think?

0:15:58 Heather: That's a good question. It doesn't seem to be the case based on the requirements, um, seems to not, it'll seem to hinge on, at least with the bill of attainder analysis, it'll hinge on those three parts, and entity won't apply to this, maybe to some of the other things that um, Dance and TikTok are suing over that might be more applicable to the other legal issues, but definitely not to this one. And here, like I said, with the specificity to what we were talking about, I mean, the names are in there, but on the, the other hand, likely happen is the government might say, well, we said such as TikTok.

0:16:29 Thomas: Yeah.

0:16:29 Heather: We didn't say only TikTok, right? That might be their argument.

0:16:30 Thomas: Yeah. Yeah. And that's kind of how I mentioned it in the question. And ultimately, I'm glad I didn't get too distracted about it. But I mentioned like, oh, they could ban the behavior and then be like, such as people People who may fall into this category are this guy. And then that might be a different thing.

0:16:48 Heather: And you had made a good point of saying a lot of times the way that laws get around this is to ban the behavior and not the person. And, that's a lot times how they can kind of get at that stuff of without that requirement.

0:17:00 Thomas: It's interesting because all the talk around this bill has sure not been about the behavior. It's been about The Company. I mean, it's about what they're doing. Obviously, it is like, oh, there is a security problem. And I don't really have any opinion on this, you to revolve around a lot of like classified information, so I don't totally have an opinion, but saying that aside, it does sound like, uh, of Congress are very much being like, ban TikTok, you know, it's not like, oh, we need to ban all things that do the set of things. And I wonder if that would play into it. I'm curious how they're gonna make that work if it needs to be more about the behavior. I guess, guess, guess they just have to come up with a bunch of the reasons why TikTok is bad. Are you going to mandate that it be sold? That's a weird thing too. How's that going to...

0:17:07 Heather: Yeah.

0:17:44 Thomas: Any business that does these things has to be sold to another... I don't know.

0:17:44 Heather: That's a tough one. And and that goes to the imposed punishment, right? I mean, it's hard to I would say, imposing a punishment, there's a really strong argument on the part of TikTok and ByteDance to say that, that forcing the sale is an imposition of punishment, Right? Someone says you have have to sell your business. Thomas, you have a business.

0:17:51 Thomas: Absolutely. Yeah.

0:18:04 Heather: If somebody tells you that you have to sell your бизнес, what would you say?

0:18:07 Thomas: I would consider that to be them imposing some sort of thing on me that I don'T want.

0:18:13 Heather: Lot of times too, what the law will say is that they'll say, listen, the determination of whether we're imposing punishment is really complicated and it's fact -based, right? That can be a difficult determination. Sure. And so the government will likely say we have to do really fact - based investigation to determine whether or not that's going to be the case. So lot a of times to determine whether or not something's bill of attainder and imposes punishment, that's gonna look a lot like something that's criminal in nature, like criminal penalties and that sort of thing. And so since this is a sale of a business that's not looking a lot like criminal penalty, and so on the face of it, might they also argue that doesn't look like a criminal punishment and therefore it isn't. However, when when you're talking to a business, again, they have a really strong argument, at least on their to say, we're a really successful business. We're a successful business in the United States and telling us we have to divest means, that's a criminal punishment.

0:19:05 Thomas: So what do you What's your takeaway from this? Like, do you think this is a bill of attainder or do you think it's not? Or do You think they'll have to adjust whatever this language is to avoid this problem? What's kind of your view on that?

0:19:16 Heather: The two things. So first off there, it's past the House. So that's where it's at right now. That's the progress where it is at. That is a good question. I'm not sure it'll depend. I think part of it will also depend on this last part, which is without a judicial trial, um, know, I think there's going to be some stuff about um that falls and some there might be some technicality related to that. I a lot of people when we look at these requirements, a lot people look at that and say listen, uh, a business, a really successful business to divest, their name is literally in the bill. And then there's no actual trial. To a lot of people on the face of that, it's very much a bill of attainder.

0:19:48 Thomas: Yeah, Yeah, sure seems like it.

0:19:55 Heather: Yeah. And dann to say otherwise might, like, there's a technicality there and say, oh, well, if it doesn't meet those requirements, we're talking about technicalities. And then we're getting into the things that people hate about the law and lawyers, right? Um, so I think that if it doesn't meet these requirements then we're kind of, we're looking kind of looking at it that way, if that makes sense. Um, so we'll see.

Um, there's a case, uh, Nixon versus Administrator of General Services, that's a leading case on bill of attainers, but there's not, like, you don't go to law school and learn a lot about this, is what I'm saying. Um, so there's like a ton, and so this, this should be interesting. And I'm really curious to see how this develops in this area.

But I will say, when I did hear about them, trying to pass a law about, listen, to your point, they keep saying bite dance, they keep seeing TikTok over and over and ever when they're talking about this law, it's hard to really kind of separate those two things, you know, from each other. So my kind of goes to this, you

0:20:48 Thomas: Yeah.

0:20:48 Heather: Know, to Bill of Attainers. So for

0:20:49 Thomas: All right. Well, that's interesting. I'll have to keep an eye on that and see. Going to pay attention to how they're talking about it, because I think part of me just assumed like I I did wonder at first, like when this first was introduced, it did seem like, wait, can they do that? Because I did have some vague memory that you can't like target stuff like that, as you saw in the question. Question, but I think I assumed if all the smart people in Congress, and I don't mean everyone in Congress is smart, but all the few smart people in Congress that were talking about this, it didn't seem to be a concern that I was like, oh, I guess it's not. I just assumed like someone's on this, right? There must be somebody in Congress has thought of this. So I assumed they must have structured it in a certain way. But yeah, I have to admit, I just kind of assumed that and I didn't really look into it. So that'll be something to keep an eye on.

0:21:35 Heather: Sure.

0:21:37 Thomas: I always tell people, hey, you can answer both on Reddit and on Patreon, and the reason is because it is a patron perk to get to answer on the Patreon, have a better chance of maybe your answer being picked. It's also really cool to answer on Redit and have the robot track your score. And today marks the first time this actually made a big difference. And so I actually had picked my Reddit answer winner.

And then I go to look on Patreon and the same person had answered there. So I was like, oh, this is perfect. I will switch and pick their patron answer as the number one. And then I get to pick a different one as the Reddit winner. I think it's a, it's fantastic. It worked out the best for everybody. And so my first, I'll say most everybody got this right. I actually thought a decent amount of answers. Decent number of answer B. And I kind of, I see the draw of that one. I think that the idea that it needs to be something criminal, I think to me, again, not a lawyer, that was kind of like a plausible guess.

For the most part, everyone got this right. Everyone got D. Just say it's because I helped. I loosened it. My winner on reddit .com slash r slash hoban args is oddly underscore Todd. Oddly Todd, who says, "Going with answer D. Don't really think this is an ex post facto law. As Thomas says, you can't just pass F this guy laws. As a non -lawyer from the context that's what a bill of attainder is." Yeah, that's kind of also what I did. So Oddly Todd, you're in good company and you're this week's Reddit winner. And now this week's Patreon winner, patreon.com/law, is Tony Glavnik, who answers D. "Don't put people's names in a statute unless you're naming it after them, hashtag bill of attainter

0:23:13 Thomas: Yeah, fantastic work. Congrats to both our big winners and way to go, Tony, for answering in both. Right, we'll get to question 33 after this break. Right, Heather, coming off thrill the of victory. Time for another question. Let's see. Let'S see if I can get back on to losing. The

0:23:32 Heather: A devoted soccer fan. His favorite team was playing in the finals of the World Cup, and he had incredible tickets.

0:23:38 Thomas: I already love this.

0:23:40 Heather: As he was leaving for the stadium, his wife called him from their home. Was lying on the bed, disoriented, and she had run out of insulin again. A diabetic, she in danger of slipping into a coma unless she received an insulin injection within the next few hours. Unwilling to miss the match, Tim

0:23:48 Thomas: God.

0:24:00 Thomas: Oh God, this is, this is horrible, this is so bad. Okay, I mean, it's the World Cup, like, it is the World Cup, she's Okay, yeah, she should have bought her insulin. Okay, that's, who's diabetic, is it him or her? Yeah, yeah, compromise, that's a sign of a good marriage right there.

0:24:09 Heather: Committed to stop by a pharmacy on his way back from the game and get insulin for his wife.

0:24:30 Thomas: This is an absurd question and I love it, let's go, okay, it's

0:24:31 Heather: Unfortunately, The match went into extra time and a penalty kick shootout, and traffic was heavy leaving the parking lot, so Tim found his wife had died when he returned six hours later. Which are the following crimes, if any, has Tim committed? A, murder. B, voluntary manslaughter. C, involuntary manslaughter. Or D, no form of criminal homicide. So

0:24:43 Thomas: Okay, oh This is a weird one, this is, is a weird one. Well, we can all agree that Tim's the worst and this is incredible, this is a, this fact pattern, I hope is not based on anything real, but you never know, uh, it is the World Cup, it is a World Cup, disoriented. So, so basically, if your spouse, now, I know this is interesting because classic Seinfeld rules, we don't owe like a certain amount of duty to a stranger. Like if you're a bystander, you don't have to like save someone who's being attacked, that kind of thing. Like if it's your spouse, I wonder if there's gonna be like a different sort of duty of care here, if that's the right word. Never thought about that. And I wonder if legally that, that makes things different here. So basically, his wife calls and she should, I mean, she should call 911. First of all, that's kind of on her. Also, she shouldn't have been married to this guy.

0:25:52 Thomas: Sorry, I don't want to victim blame, but like this shouldn't have been in this marriage, I'm just saying. But she, so she's disoriented and she does, she's run out of insulin and she basically, she, her husband and is like, "Need my insulin." Now, what's interesting is it doesn't say...

Says unwilling to miss the match, Tim committed himself to stop by a pharmacy on his way back from the game, but I like, it's been a little dodgy there because it doesn't sound like he told his wife he would do it, like it'd be one thing if it was like, "Hey, I'm dying and I need the antidote," and then you're like, "I will get that for you," and then you don't do it, I feel like that definitely might be something versus if you are like, "Okay, information received," and then you like commit yourself, like, "I better get the antidot to save that guy from being poisoned or something," thing I weird, like it seems a little artificially worded that way so that he didn't like make a commitment to the wife, which I feel like might, you his level of culpability, I suppose, but I guess I'll, you know, you always got to go with the question, the question ever states that he like told her he would do it, just says Tim committed himself, himself.

Unwilling to miss the match, Tim committed himself to stop Biopharmacy on his way back from the game. So a little weird. But I think, I worried because we've talked about not fighting the question, but the question is not saying that he promised her he'd do it, if that matters. I feel like it might, it could matter, but okay, he's just committing himself to stopping Biopharmasy. So for all the wife knows, he might not do it? I don't know.

Or does it mean he committed himself to her? He was like, "All right, I'll stop by on the way back." I don't know. Either way, wife, I think you should have called 911. That should be your next call, or the call before this, but whatever. And blame, it is, I thinks, relevant to the question of how he could be.

I mean, if you ask someone for help and you' re not sure they' re going to give you it, feel like you probably need to do everything you can't, take matters into your own hands, but I mean, she's disoriented. So is there going to be a special duty of care to someone who is your partner who is disoriented? Like maybe she couldn't remember the number for 9 -1 -1. Going to be interesting. Okay, the match goes long, so she dies, which is just insane.

This, I can only laugh at this, insane question, I'm sorry, it's just insane. Side, did he commit... a Did he commit murder? I don't think you could say murder, because by the letter of the law, it's always like, I think murder is an intent crime, and there's nothing, again, we can't fight the question, the question doesn't say he wanted her to die, and the question usually does tell us that, the question's usually like, you know, this husband wanting his wife to to die, and don't have that here. Think we can rule out murder. Voluntary manslaughter, voluntary manslaughter, involuntary menslaughter. No form of criminal homicide.

Mean, just looking at the words, you would think like, well, involontary mans slaughter. He didn't really intend to do it, but by action or inaction, someone died, and so that's like just plain english wise I feel like C is where we're, we're getting to, um, I, I think it's probably murder, I'm between bc and D, and they go kind of in descending seriousness here, manslaughter is a little bit, I'm wondering if I can talk myself into just C or D, you know, and kind of just eliminate amb I'm trying to think of how, how, as I go down the list of seriousness, voluntary manslaughter, it, I mean, it sure doesn't really feel, it just feels like negligence to me, it just feels like, you should have just done this, you know, you should have gotten the insulin, that's what you should've done.

There's nothing in the question that's like, well, he, you to maybe send her into a coma, but then he didn't want her to die, something that would be like a voluntary, you, voluntary manslaughter is different, than it seems to me it would be different than murder.

It would be like, oh, you didn't plan to murder someone, but you did, like, plan to hurt them maybe, and then you accidentally killed them, and so, like, you're, you're voluntary in that you were intending to do something bad to them maybe, but not, it's short of your motive being like your mens rea of murder, that kind of thing. And I, I just don't think there's anywhere where I could get to voluntary manslaughter here.

The only thing, the only thing would be, as if we have some additional duty to someone who's like super vulnerable in a state like this, we know, cause I mean, you can make that argument, like the information he had was she's disoriented, and he right now might be the only way, because, assuming she can't call 911, like maybe she's just so disoriented that this is the only thing she could think to do, could be that he knows he's literally the difference between life and death for this person, for her, for his wife, so therefore, any action other than kind of saving her life, that rise to the level of voluntary manslaughter?

I'm just trying to see if there's any argument for B, B, like, maybe that, like, if there's an argument for B, I think it would be something like that. Don't, like, know how good of an argument that is. C, involuntary manslaughter, I mean, again, that seems like the strong one, strongest one. And D, no form of criminal homicide, think I'm between C and D, and so is this involuntary manslaughter, is this no form of criminal homicide, I'm not sure how the law treats this.

I mean, I think if it was like your kid, then like, yeah, know if you'd get convicted of murder, but you'd at least, maybe it at least be super, super duper, almost murder, if not murder, because you have like a duty to, you after your children, and now does, does, does being married to someone with a condition like this give you an obligation kind of to that level?

Okay, if someone on the street is like, "Hey man, I need $20 to buy my pills, otherwise I'm going to die," passing by is like, "No, no, no, sorry, not going to do that," don't think they are guilty of murder or manslaughter or anything, I don't think, but being in this kind of relationship in this circumstance where, mean, you can be basically near certain that if you don't do something, she's probably going to die, unless she was able to, you know, call someone else or get to someone else, does that change things, fact that he had incredible tickets factor in?

He had mediocre tickets? Analysis, also, again, there's no act that he did to, like, he didn't cause the diabetes, he didn't hide her insulin, it's all, I think it's, this question is very careful, it seems to me, need to all be like negative action or whatever, like not doing things, you, like he didn't do this and he didn't do that, and it's hard to be like, it's not even as though he caused the situation to begin with, like somehow ran out of insulin, and only thing I'm worried about is if just this, the circumstance of it being his wife and her having this condition, leads to like a different kind of duty of care.

Kind think I, between C and D, I'm just going to go no form of criminal homicide. I think this is one of those, like, yeah, I, this is like, obviously the worst thing in the world, but I don't really, I don't really know how it could be criminal, per se.

Like there's so many, there's some many ways that like should have been prevented to begin with that aren't his doing that, I think it would be, don't I know, it's, it's psychopath behavior, don't get me wrong, I think he, he's guilty of being a psychopath or a sociopath, but is he guilty of criminal anything?

I, I think D, I dunno, I, this is going to sound crazy, but I think the answer might be D, I'm going with D, and my second chance answer, is, in a weird way, I almost want to pick B, D is my second answer, just cause like voluntary man, so now I'm between C and D, I'm between C and D, and I'll go with D, final weird answer. Wow, I cannot wait to hear the answer to this one.

0:33:18 Heather: Next week people will tune in for your relationship advice podcast. Thank

0:33:23 Thomas: Yep. Tune in to my, yeah, it's my relationship advice. Buy your own damn insulin.

0:33:30 Heather: You.

0:33:30 Thomas: Manage your own insulin supply. That's all I have to say. Certainly don't, if you're married to this sociopath, a keep good eye on your insulin, Lynn. I'm just saying. Yeah. Oh boy. All right. Well, everyone knows how to play. Go to the subreddit, reddit .com slash r slash open args. Put your answer there. And the better place, the best place is patreon.com law, of course, but you can do both if you're a patron and I'll pick a winner from each next week and we'll see who's better at marriage than I am.

0:34:05 Thomas: All right, everybody, thanks so much, Heather, and, uh, looking forward to hearing the answer to this one.

0:34:14 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:34:23 Thomas: Now it's time to thank the new patrons at patreon.com/law. Still in May, though, as, so, you know, we got, we got some time till we fully catch up. But, uh, gonna thank another, uh, 30 new patrons from then. Thank you so much. Too, I've put way too much thought into my patron name, and this is what you get. Brooke, parentheses, evil.

0:34:46 Thomas: I don't know why that's so funny. It's just like a little helpful, like, oh, my name is Brooke, oh, I'm evil, like, parentheses, Brooke. I don't know if I'm taking that the right way, but that was was really funny.

Daryl Hanson, subbed for victory, queer nerd, Rev Linz, Nestor Kohler, Kevin McKinney, Carl Otterson, Mel 101, Matt Johnson, Michael McElroy, Christy Crabb, huh, that's coincidentally some, like, alliteration and back -to -back Michael McIlroy and Christy Crab, am I in a cartoon, or, we're saying, Benjamin Beaver and Stephen Snake, but we do have Mantis Toboggan next. Maybe I am in the cartoon. Mantis Taboggan, I love that one. John Eschavesti. Regina Calabresi.

M68 Ken, don't know if that's supposed to, like, be like a license plate where it actually says something, but it's M68. Ken. Quid Pro Quid. Yeah, yeah. Amanda Evans. Mark W, please stop belittling me. Marcus Bulborb. Sandlin. S .Y. and Leisure Sex Toys, oh, is that an advertisement, or just you're just a fan of them? Crow. Gregston. Cyborg Collective. And Oliver Kreitman. Thank you so much, new patrons from May, you're amazing.

It's okay, now it's time to thank the hall of famers, the all -time greats at patreon.com/, these are the folks that pledge at that five dollar level for at least a month, and we're on the third quartile, three out of four, and so thank you, too. I love the goddamn Cranberries and Matt and Tom at the same time, and not in that order, but the Cranberries are, they're not my favorite band. Simpson. Love the extra episodes. Out, the QueerinCryptography Conference at cryptography.lgbt.

0:36:32 Thomas: Liberals own guns too. Support root cause mitigation, not ineffective gun control. A lawyer, but I play one in court. Dot dot dot. Delighted you call whatever you're using now, swipe, even though the original is defunct. I had the good fortune to work on swipe, I don't know if that's for another show or what, but cool. Stormy Decisus says, visit sharebandbooks.com, definitely, I say that too. This isn't a Patreon name, and I'm not reading anything right now, I just personally think Legal Eagle is so handsome. Mark Schultz. The Cincinnati Kid. Bob Loblaw's Law.... Podcast. Philly basement bar is in need of a very strong drink. And edgy veggie. Thanks so much, top patrons, you're the best, you really do make the show happen, join their ranks, patreon.com/law. All right, that's our show, looking forward to another Rapid Response Friday, I think there's a lot to rapidly respond to these days, and, uh, we'll see you on Friday.

0:37:24 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.

0:37:41 Thomas: Out the Queer in Cryptography. Check the Queer in Cryptographic Conference at Crypt... Check out the Queering... Wow, that is hard to say. Check