Advisory Opinions - Big Law Has a Liberal Bias (Live from Vanderbilt University)

Episode Date: January 23, 2024

Sarah and David brave the tundras of the Vanderbilt campus to discuss left-leaning bias in pro-bono cases before diving into the details of Fulton County DA Fani Willis’ possibly salacious hires. The Agenda: -Left-leaning bias academic study -Trouble in paradise for Fani Willis -Top 10 tips from an Indiana Law Clerk -Defining “colorable” and “to cabin” -Alec Baldwin and new standards for Hollywood sets -Chevron listener question -Live Q&A Show Notes: -Pierson v. Post Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. You ready? I was born ready. I was born ready. Welcome to an Advisory Opinions Live at Vanderbilt University Law School. David, we're in your neck of the woods. We are. I just mounted up my trusty four-wheel drive, braved mountains of ice, and got here. This has been a great time for me, Sarah, because people mock me

for having this incredible off-road vehicle when I'm a writer and before that a lawyer. But A, if you live in the South, you know that a Ford F-150 is almost issued to every lawyer. And the other thing is, they're just really fun to have even if you're just going to Kroger. But when the snow falls, Sarah, that is our time. Well, look, I forgot to buy my three and a half year old, the brisket snowshoes this year. And so he has been wearing cowboy boots in the snow. And the pictures are awesome, but it does appear that we were more prepared for horses than we were snow. Perfect. Well, that's both. I will also note that the cab dropped me off in the wrong place. So I had to kind of hike through campus. And clearly at this school, y'all do not know that you get snow or ice or something because none of it has been shoveled. There is no salt.

And it has to be nice as the law students to like really see tort law in action. You should just leave your cards sprinkled at random around the campus because... There were girls in like skirts

and ballet flats just ice skating down some of these hills. It's crazy. It's crazy. Okay. So we have a fun little pod. A little side pod,

I would almost call it. Lots of potpourri to get through. We are going to start with a new academic study on law firm bias that was recently published in the Harvard Journal of Law and Public Policy, brought to our attention by one David Latt of Original Jurisdiction. Then thought we'd talk a little bit about what's going on with Fonny Willis, the Georgia state prosecutor in that Georgia state case against Donald Trump, several other defendants related to January 6th. One of them, Mike Roman,

filed an interesting motion. So we'll get to that. The Indiana federal law clerk who has been putting out tips on LinkedIn. We're going to go through some of them. It'll be a real agree, disagree. I teased it on the pod last week. David has not seen the tips. So this is going to be fun. Maybe some Alec Baldwin? Baldwin. New charges filed there. And a quick revisit on Chevron with a listener question. And I obviously forgot some of the saucier details about Pearson v. Post because I got a lot of law students writing in that I left out their favorite quotes. So yes, I'll go through and we'll just read all of Pearson v. Post for the ending of this podcast. And that will end the podcast. Literally, not just this episode, but like the podcast at that point. All right, David. So Derek Muller, he's a professor at Notre Dame, published this piece and it's called Ideological Leanings in Likely Pro Bono Big Law Amicus Briefs in the United States Supreme Court

because law professors are not allowed to have good titles for things. But he's come up with something kind of ingenious in my view, which is instead of looking at the donations that lawyers give at law firms to determine bias or, I don't know, vibes or something, instead he had this idea to judge law firms' political stances based on their pro bono amicus briefs. So for those listening, remember, amicus briefs, that's when you're not actually representing one of the two parties. You're sort of jumping in there. It means friend of the court. And there's sort of no reason to do them. Just kidding for all of you lawyers out there who are screaming that I shouldn't have said that. Amicus briefs are when you have some other group or interest that you want to raise to the court

oftentimes. So why should this have anything, tell us anything about law firms? Well, the idea would be if law firms are doing something pro bono, meaning for free, it is probably because they want to do it. They think it represents their law firm in some way, or at least that law partner who's doing it, the associates who are working on it, etc. So if you're doing it for free, and it's an amicus brief, and so there's not a whole lot of upside to you, as in you're not going to get an oral argument out of it at the Supreme Court, things like that, then we're really getting down to some nuts on where these law firms actually fall and what they're interested in in the law and where they stand on the law. Okay. So first things first, how did he judge what was pro bono?

Because the law firms don't tell you. And this is going to be interesting because basically he says that, and this is in footnote 23, for those who are following along at home. Footnote 23 is where the real juice comes in here. He's basically going to look at everything that is a nonprofit organization and put that into the pro bono category. But for you actual lawyers listening out there, you may already see a problem in this because trade organizations are technicallyprofits, but they're almost always paying clients. They're still going to be for this professor because he didn't want to make subjective judgments over what was likely to be pro bono and not. He's going to consider those all in this pro bono pot. What's the only problem with this? The trade organizations, because they're A, more likely to be paying clients, means the law firms may not be representing their own

interest in that. And B, they're going to be far more likely to skew conservative. The other note on the pro bono client thing with the nonprofits is political parties, also are nonprofits, also tend to be paying clients. Although that one I don't think skews liberal or conservative because both political parties are likely to be paying for work. Okay. So drum roll, what did it find? Well, if you take all the amicus briefs, it was 64% were liberal, 31% were conservative, which actually- Surprised me. Surprised you the way, meaning it was closer to even.

Much closer than I thought. Don't't worry it gets far less close to even um so in the highest salience cases that's going to be the abortion cases the guns cases the religion or lgbtq cases uh it was 93 percent liberal five percent conservative and don't forget what i just said about trade organizations. Right. That's the stuff. That's the good stuff right there. That's what I would have expected. Yeah. Here's what I also found fun. He broke it down by law firm. So for instance, Paul Weiss filed 13 amicus briefs. 100% of them were conservative. Congratulations, Paul Weiss. Of only one, two, three law firms were below 50%, meaning they had more conservative amicus briefs than liberal.

It was Mayor Brown, Baker Botts, and Troutman Pepper. This is only looking at the AmLaw 100, by the way. So we're only looking at the top 100 law firms. Jones Day, who many consider to be the conservative law firm, was 52% liberal. So even Jones Day, the super conservative Jones Day, is filing more liberal amicus briefs than conservative. All right, David, what have we learned? Well, I mean, it's one of those studies that confirms, for example, that the sky is blue. But the more interesting question to me is why? That's the really interesting question.

I love to see something that you have. All of your senses are telling you all the anecdata is pointing in one direction. It's good to get actual data. So the actual data confirms everything from my entire life experience as a lawyer. So it's nothing about it is surprising, but the why I think is interesting. So the why is partly inevitable as a result of the ideological composition of elite law schools. And then it's partly also a product of social pressure that can be combated. So the part that's inevitable is if you look at the legal profession in the United States, the legal profession in the United States is left of the general public. So just as the community of lawyers is to the left of the general public.

This is actually true, for example, in the JAG Corps. Like the JAG Corps in the Army was a hotbed of latent Obama support when I was there, very much out of the mainstream of the rest of the military. So the legal profession leans to the left of the U.S. population. The law professor population leans to the left of the legal population. The elite law student population leans to the left of the law professor population, and the elite law professor population leans to the left of the elite law student. So you're getting a sense here that the more the error is rarefied in the legal profession the more progressive it is and so what that means is if you've got these am law 100 law uh law firms who are recruiting from

the top law schools they're going to be recruiting from a a pool of people that skews not just the left of the public but to the left of the legal population itself. So that none of this surprises me. If you're getting a representative sample of elite law students in AMLA 100 law firms, this is what you're going to get. But here's the interesting point. I don't know how many of you guys have ever been in like a pro bono committee meeting. I used to be on the pro bono committee. And what was fascinating was the social dynamic. So number one, the actual lawyers who are on the pro bono committee tend to be the more activist lawyers. So, and they're going to be, if it's representative sample, they're going to be

activists on the left. Then the other thing is what a lot of firms have done is they use these amicus briefs to give younger associates some good brief writing experience. Who's volunteering to do that? Again, a lot of the activists in the law firm. And so they're also pushing it to the left. And then you go, what about the lawyers on the right? That's where the social dynamic comes in. If there's five of us in a room and one of us is conservative, it's challenging. It's challenging. And so, but I'm a little bit contrarian. The instant somebody says, you can't do that, the first thought I think is, I'm doing that, which cannot always be a good

thing, guys. That can be a very bad thing, but that's my temptation. I have a contrarian temptation. And so when I would be in these meetings and they would say, this is our position as a firm, I would say, now, why is that the case? And I would very much press to have equal access to pro bono resources from the right as people did from the left. And there was a little bit of discomfort with that, but ultimately I was able to practice a number of really fun pro bono cases very much from the right, but it took standing up to the majority of the people in the room to do it. And so one of the things I've told young conservative lawyers is

this is a good training ground and this is a good opportunity to assert some intellectual independence. Don't be a jerk when you do it. Don't be a jerk about it, but go ahead and have the gumption to assert some intellectual independence even in this environment. some intellectual independence, even in this environment. And my experience was people could recognize that I had just as much right to file an amicus brief as they did, and everything worked out fine, at least for me. But what I would say is, this is an interesting component of being in a minority, is how much does being in an intellectual minority silence you without anybody telling you to be silent? Okay, I want to offer some pieces of pushback and see what your response is. One is, what if this is more client-driven? What if the law firms are responding to at least

the perceived interests of their clients, a la what we may or may not have seen in the Kirkland-Paul Clement divorce? Oh, I think some of it is client-driven, but this predates, my experience of this really predates the rise of what you might call the activist client. The client who's going to say, I don't want to have a law firm where a lawyer has represented the NRA. Like, this predates that, the activist client, I think. The second point would be something like, and I don't know if this is still the case, but the idea certainly back in my day was that the conservative law students, sure,

some of them are going to be vocal, but a lot of the conservative law students are just going to go to a law firm to make money, to become a highly paid partner. And yeah, they're not going to like flim flam around in the pro bono space because that's not getting them closer to their goal. The same reason that they don't, you know, do a summer at the public defender's office and they're not on whatever like housing clinic at the law school. And so there's also going to be a bias in that. The same one we see in the types of law students who then pursue jobs in higher academia basically conservatives want money liberals want to change the world and therefore when it comes to the pro bono committee

or otherwise uh you're just going to attract more liberals into wanting to do pro bono work because the conservatives are busy with said money that's a really good question and this is here's where i think i've come down on this. If you have 100 people, 20 are conservative and 80 are liberal, which would be a rough breakdown of an elite law school. Might be more like 10, 90, 15, 85 or whatever. Maybe here at 70, 30, I don't know. But if you have 20 people who are on the right and 80 people who are on the left. In my experience, left-leaning law students are very much like right-leaning law students in the proportion of them that are just, leave me alone, I want to go get a job. Their politics are to the left, but their profession

is, I want to be an antitrust lawyer. I want to be an intellectual property lawyer. Yes, but 75% of 80 students is different than 75% of 20 students. Bingo. Math. Yeah, math. So the entire universe of conservative law students at Vanderbilt is not in this room. Every conservative is not here. But I would say a disproportionate number of activist-minded conservatives are here.

And so that was my experience in law school was I was an activist-minded conservative, and I had a lot of sort of right-leaning classmates who would never say one thing ever. I was always left hanging out to dry, twisting in the wind. And then after class, like three people would come up and say, hey, thanks for that. Well, don't say it now. I mean, come on. But I think in both populations, there's a majority who are more interested in law as a profession, just as this is how I make my living. And there's a minority who are interested in law as a cause. But because of the way the math works, it's always going to be more left-leaning people. Okay, so let's spend just a couple minutes then on, regardless of the cause, this is for the Amlaw 100. This is the 100 top law firms.

There's an enormous skew. Yes. And particularly in those high, basically, the more likely the case is to be seen as politically relevant, the more likely it's going to skew wildly to the left. How does that then affect the actual practice of law? I mean, maybe we could argue that amicus briefs don't really matter in the highest salience cases. The Supreme Court is going to decide what they're going to decide. So in some sense, like, thanks for the letter, but no thank you. But if that bias exists, and we're seeing it so starkly in those cases, what about the cases that are getting far, far less attention, but that, you know, a nonprofit interest is

not going to get that representation from a top 100 law firm because it's a conservative interest? Yeah, I mean, I think that's correct. And I also think that just sort of zooming out that all of this bias is actually bad for the legal left. And here's what I mean by that. Whenever you're in a group think environment, it's bad for the group thinkers. You know, I'll just give you a great example. Recently, so I wrote a column, we had a good conversation about Chevron in our last podcast,

and then I wrote a column on Chevron for this weekend. And I would say people were a little mad about it. You have no idea that the Chevron doctrine had such love, like such so much loyalty attached to agency deference. But people were mad about it. And the interesting thing was, a lot of them, it was pretty clear to me, were utterly unfamiliar with the arguments against it. They were only familiar with the left-wing caricature of the arguments against Chevron.

So the caricature argument against Chevron is, you don't like Chevron because you don't like expertise, or you don't like the government. So anything that you're against Chevron because you're inherently mistrustful of experts, and you're against Chevron because you just want fewer regulations. Well, I don't know that that's

necessarily the outcome of ending Chevron would be either a fewer regulations or less expertise. But I do know that one of the thing outcomes of ending Chevron would be less power to one branch of government and more power potentially heading towards a more democratic branch of government, which is Congress. And there's a pro-democracy argument against Chevron. And it was very plain to me that this is something that's like wrote on the right. Everyone who's looked at this issue knows that argument. And it was totally new to so many people. Like, wait, what? You're making a democracy argument about show? Wait, I'm the pro-democracy person here. And so I do think what we have seen is that in these groupthink environments, people are just not even exposed to some of the higher

quality arguments on the other side and are not well equipped to respond to them. And it's a problem for the legal left. And again, if you take this piece about the pro bono amicus briefs, this is really just so we're trying to figure out where these law firms lie. I don't really care about the amicus briefs or the pro bono ones for that matter. But I think it probably tells you why so many of the newly popping up conservative boutique firms are doing so well. We have yet to see one fail. I mean, knock on wood, because that's how I eat. But there was a new spinoff just recently. Pat Cipollone and Kate Todd and all of those guys are now doing their own thing. Recently, Pat Cipollone and Kate Todd and all of those guys are now doing their own thing. Very successfully. I mean, not just commercially successfully, but very successfully in outcome as well. Yeah.

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gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay, let's move on to Fonny Willis. So I want to talk about the facts in this case, but in truth, we don't know the facts of this case. This is the prosecutor down in Georgia. The thing that will be interesting about this conversation, I think, is if we sort of take the facts in the worst light possible for Fonny Willis and then sort of back up from there and like, well, what if the facts are this and what if the facts are this? So with that in mind, one of the defendants, Mike Roman in this case, who, David, I know you'll be shocked to hear, I know Mike Roman quite well

and I have worked with him on many campaigns. I have a wonderful memory of Mike and I being stuck in Florida for so long that we both had to admit to the other one that we were simply out of clean underwear. And we went to Target for the purpose of buying underwear. We only had one rental car. So it was like this mutually agreed upon eye contact pact of like, you go your way, I go my way, buy the underwear, get it in a bag. I don't need to see what kind of underwear either of us are buying. And then we'll meet back at the front of the target. That's a good professional way of handling the situation. Of how to buy underwear with a coworker on the road. And if you're wondering why we didn't just

do laundry, you don't know the places that we were staying at. In fact, we talked about this, the worst hotels that we've stayed at. So we were going to have a whole conversation about this. And sorry, this is a bit of a tangent. But I mean, I'm going to crush David at this game because I've stayed in multiple hotels where the bathtub was next to the bed on carpet. Not just once. Multiple times. But have you stayed in a motel? So already I'm beating you because I said motel.

I've stayed in motels. And you just said hotel. Anyway, so have you ever stayed in a motel so sketchy that every door had been caved in by the police? I mean... I don't know, David. The hotel was on... I mean, the bathtub was on carpet. I know.

I know. Do you know how gross that is? Have you fully contemplated that? You might win on filthiness, and I'm going to win on meth residue. So... Anyway, Mike Rowan filed this motion alleging that Fonny Willis, the prosecutor in the case, was carrying on a romantic relationship with one of the special counsels that

she had hired in this case. She's hired three special counsels. They're private attorneys who are coming on in a capacity to help bring this public prosecution against these defendants. The allegation goes something like this. She brought this person on. She's paid him $630,000 of Georgia taxpayer money. And then he has, in turn, taken her and her family on a variety of trips, including to Napa Valley. There was a cruise that left from Florida, I think. There were maybe four trips that were listed. Yeah, not work trips. Yes. Not work trips. Note, it's not clear if they shared a room on any of these. They acknowledge that they don't have independent evidence for alleging this relationship. It is

coming from a divorce proceeding where most of the proceeding has been sealed. That divorce proceeding, as you can imagine, has now gotten even uglier. The ex-wife is now sort of getting in on some of this action. Fonny Willis's office has lightly threatened, is that a term that we lightly threatened? Yeah. To bring obstruction charges against her alleged boyfriend's ex-wife for-

Current wife, soon to be ex, right? Yeah, I guess. I guess, yeah. Anyway, I'm not quite sure where that stands. Alleging that she is obstructing the prosecution. Woof. Not a good look. No.

Again, I just want to be clear. I can't emphasize enough how much these are all allegations. But what I want to talk about is, let's assume the worst version of this is true. How does that help Mike Roman? That is a really good question. And I think the answer lies in some quirks of Georgia law. So the question would be, should Fonny Willis be disqualified? Is selection of a new prosecuting attorney is actually a bit of a chore. And in some circumstances, it has taken a year plus. Or it may not happen, or a new prosecutor may decide to drop the charges

against some defendants, may decide that 19 was too many, may decide to reweigh the evidence differently. It's not only delay, and Mike has young children, so delay is always good, but it's also just a new set of eyes. And if you're being prosecuted right now, the new set of eyes can't be worse. Right. If you're in this situation,

only your general view is if you have an aggressive prosecutor has really put forward a maximal case and you also really want this thing delayed because you think delay could actually extinguish the case and there's a reasonable reason to believe that um only good things can happen for the defendant by raising problems with the prosecutor and so the really interesting question to me is under these fat under the facts as alleged is there a case for disqualification? And that is a really interesting question because what would be the basis for disqualification? Normally you have a disqualification for violation of a longstanding legal rule, or you have a disqualification for reasons that you've done something that has prejudiced the defendant. So has her affair prejudiced the

defendant? Assuming it's true. Again, these are allegations. Has her affair prejudiced the defendant? Now, in ordinary circumstances, you would say, what? Wait, what? I mean, people fall in love on prosecution and defense teams, you know, whatever. People fall in sex even more often. on prosecution and defense teams, you know, whatever. People fall in sex even more often. David's turning red. David doesn't know about this stuff yet. Anyway, people fall into all kinds of things. And the, ordinarily, that's not anybody's Correct. So, for instance, if you had already been working at the office, you know, think, we'll use Jack McCoy. Jack McCoy has been working at the office for a long time, as has Claire Kincaid. And then later on, Jack starts sleeping with Claire. That's going to have... These are the Law & Order characters, right? Yeah, obviously.

They're not that young, David. It's been a while. It's been a while. Okay, I'm sorry. For those who have really loved Law & Order, Jack and Claire are the preeminent love story of a show that had no character development whatsoever. True. Okay, so Jack and Claire start sleeping together. There's nothing any defendant's going to be able to do about that. Right. I want to offer a different spin on the facts.

Okay. Jack is at the office. Claire doesn't work there yet. Jack starts sleeping with Claire. She works somewhere else. But Jack wants to bring Claire into the office because this would, you know, Claire doesn't make a lot of money

and he's going to be able to pay her out of a different pot of money that he personally will benefit from. But he can't hire her into the office unless there's a reason to hire her into the office and to pay her a lot of money so jack comes up with a huge high profile case that will require having extra outside attorneys that will need to be hired and need to be paid a lot of money so that he can benefit financially. And so he hires Claire Kincaid and pays her roughly $630,000 that is actually going back to him, Jack McCoy, as the affair continues. And that Mike Roman, the defendant in my Law & Order episode now, is the reason that they can take on the money.

In your hypo, the case exists for the affair. So in other words, I would think that's a heavy lift to try to argue that you're going to have a prejudice to the point of disqualification. You'd have to do a lot of work to show that a case filed under these facts exists for an affair. I think that's a hard hill to climb. Let me give you an easier hill to climb. The easier hill to climb, and this is one I'm trying to figure out the actual underlying facts on here, and I have not been able to figure it out, is, look, the reality is she violated Georgia law on hiring a prosecutor, a special prosecutor. She's allowed to under Georgia law, but she has to jump through specific hoops. She did not jump through those hoops. That is a violation of the law for which the penalty should

be her disqualification. And that she hired three special counsels, and this has nothing to do with how many she's sleeping with or not. Right. That she just, she didn't do the right, she didn't hire them in the right way. Therefore, she has to step down. Maybe she didn't hire him in the right way because she was sleeping with him, but it's irrelevant.

It's irrelevant. The relationship is irrelevant. The relevant factor is, did she do what was required legally when she hired this individual? Because one other argument is actually prejudicial to the prosecution, which is, wait, she hired somebody who wasn't an expert because she was sleeping with him. Well, that's good for the defendant, man. And there's some evidence of that, right? He's never actually worked on a felony case of this size or magnitude, gone to trial, etc., etc. So from the defendant's standpoint, he's like, bring on the B team, you know, but...

What about the money issue? Yeah, the money issue. She paid him this amount of money because she knew that she was going to get a $40,000 kickback in terms of gifts and fancy vacations for her family. Oh, that would be clearly misconduct. And again, having nothing to do with the sex, for instance. Right. It would be nothing, but that would be clear misconduct. And to be clear, there's no evidence of anything like that. There's evidence of joint vacations. There's no evidence of a direct kickback. Well, we'll call that the direct kickback. It's just there's maybe no evidence that there was going to be an

agreement. If I hire you, then you take me on fancy vacations. Right. But maybe you could have evidence of an understanding that, of course, he was going to take her on fancy vacations. I still think it's a super, super heavy lift to get disqualification by saying the case exists for the affair. That's a super heavy lift. The much lighter lift is we exposed shenanigans unrelated to the other shenanigans. Lots of shenanigans, only some of them are legally relevant. Can I offer one more shenanigan? Sure. Threatening the ex-wife with obstruction charges, I think, could actually be misconduct. Your boyfriend's ex, or current wife, even worse, threatening your boyfriend's current wife with obstruction charges because she is filing something in a divorce proceeding.

Because she's pissed you're having an affair with her husband. Yes. And you threaten her with jail time? This is a lot. That's just borable in my view. There's a lot of badness swirling in the air here. And yeah, it's just the, but what's difficult is parsing out what's the moral badness from the legal badness. So true.

Yeah. Such is always the case. All right. I'm ready to ask you about some federal law clerk tips. Okay. These have been posted on LinkedIn. He says he is a federal law clerk with private practice experience at all levels of state and federal courts. He is currently

in Fort Wayne, Indiana. I'm not going to use his name because I'm not looking to like blow this guy's place up because I think this is fun that he's doing tips for people practicing. He's a permanent clerk. He's not like a just out of law school clerk as best I can tell. Okay. So he's on tip number 15 so far, but we're going to go back to start with tip number 10, David. Okay. Tip number 10. Most legal writing tips are BS. I review dozens of briefs a week. 90% are unremarkable. 5% are really bad. 5% are really good. All get the same review on the merits. Every minute you spend worried about passive voice, headers, or whatever else the drafting

gurus are peddling is a minute you could have spent researching proofreading or working on another case if you want to gild the lily be my guest but believe me it's not improving your clients chances of success at least not at the trial court level so you know immediately i like cringed hated it but I want us to like, Meridian on this for a second, take a deep breath. Because I'm cringing right now. Does he have a point

that 90% are going to be in that it's totally acceptable? He's not saying turn in bad work. He's saying, you know, as long as it's in that median group, you're fine. Does trying to get into the 5% of great trial court briefs or motions work, is it worth it?

Yes. I agree. I just, I do agree. I know, yes. I totally agree it's worth it. But he is right about a very important thing. And that is the vast majority of the motions that you work on,

the vast majority of the cases that you work on, the vast majority of the cases that you work on aren't that close. Like, they're not that close. So, there's a greater margin for mediocrity. So, the more of a slam-dunk kind of case that you have, the greater the slam dunkingest case. The John Morant slam dunk case of cases that I had in my legal career was when somebody tried to argue that and actually meant or. And so that was an actual case that I spent quite a bit of time on arguing over whether the word and meant or. And you'll be relieved to know that and still means and. At the end of the day, we won that. And still means and. Could I have kind of turned in just normal briefs? Sure. Okay, sure. But a lot of what you're doing as a lawyer is you are developing a reputation. You're developing your reputation for judges, and you're developing a reputation. You're developing a reputation for judges, and you're developing a reputation for clients. And the one thing that I had an absolute priority

for is I wanted every judge I ever practiced in front of to know that I had done my freaking homework on this case, and that he could count on my assertions about the record, and also that if my client was going to lose, he wasn't going to lose because of me. And so I had an absolute commitment to excellence, which clients also need to see, okay? Because this might be one of a hundred cases for you, but for most of your clients, it's one of one for them.

It's like a doctor. You don't go to the lawyer when everything's going great. You're going to the lawyer generally because someone's coming after you or you feel like you need to come after somebody. And in that circumstance, they want their lawyer to approach them just like you want your doctor to approach you. By the way, this reminds me, we have a baby in this room, and this never occurs to me more than if you have a baby and you realize that your life has fundamentally changed that person's life who was just born. They exist now in the world, and that doctor's going to go do that 15 more times today. It's a wild realization. And that baby, why don't I make babies like that? My babies wouldn't do that for a second, let alone.

We're 40 minutes into this podcast and haven't heard word one from that baby. This is officially our youngest advisory opinions fan. It's true. Five weeks. I've already met the baby. Five weeks. Yes. Okay.

Well, they do kind of just sleep at five weeks, I guess, except mine who just screamed. But some babies I hear sleep. Okay. So I agree with everything you just said. Here's where I think maybe he and I are just talking about different things because you'll know he talked about gilding the lily. Well, to me, that's the exact opposite of what any writing tips would tell you to do. Good writing in the legal context is clear writing. It is actually having as few words as possible

conveying the meaning as clearly and concisely as possible. So if you're gilding the lily, quote unquote, you're not doing good writing. That falls in the 5% of bad writing to me. Yeah, that's an interesting point because if there is such a thing as try hard legal writing. Yes. Where you can-

Wherefore out thou bring this claim of heretofore unrecognizable words. Yeah. Well, there's that legalese weirdness, but there's also the I'm trying to move you in some way. Whereas I think the best legal writing, the best legal advice or the best advice I got about it writing in general came from a retired federal judge who said, write with regret and not outrage, which I thought was really interesting. He said, because look, judges are constantly fielding angry arguments and they've learned to tune out the emotion, that the emotion is not swaying. What is swaying? Clarity, clarity. And a lot of times our outrage can ruin our clarity. And so a lot of the legal writing that I've seen

that I think is where someone, when I think of try hard legal writing, I think of legal writing where it's very obvious that the writer is trying to generate an emotion in the judge. And that's where you can get very try hard. That's where you can get very gilding the lily. Some of the best legal writing is a legal writing where a judge doesn't even think about the legal writing at all because they're absolutely lasered. They absolutely get your

argument. Okay, next tip, number nine. Facts are more important than law. This is hard for me to type. When I was a practicing lawyer, particularly at the beginning of my career, I thought I could out-analyze any set of facts. I was wrong. A well-developed fact pattern will beat a well-researched brief nine times out of ten. This is especially true if your case goes to trial. But your ability to research can improve your facts. Know the controlling case law before you file, if you're the plaintiff, or before your answer, if you're the defendant. Use that case law to drive your discovery. Come to summary judgment with facts custom-built for the law. You can make your facts law-proof. You can't make your law fact-proof.

I agree with that 100%. I think that's great advice. Yes. We talk about this all the time, right? Bad facts make bad law. Maybe don't bring that case. Your facts are so bad. Or, you know, if you're a Second Amendment advocate, you should be absolutely upset that Rahimi was the case that the Supreme Court took as the next case. Or that if you really love Chevron, the fact that the Supreme Court take a

case where fishermen are being excessively burdened with weird fees that have nothing to do with the expertise of the agency versus actual Chevron, which was over, what's the definition of a stationary source in EPA regulations, which is wheelhouse expertise stuff. Who pays for the fishing observer has nothing to do with agency expertise. So yes, the facts, guys, this is one of the best pieces of advice given on this whole podcast, actually. Because if you guys want to be trial lawyers, and some of you do, one of the first things I had to learn is facts, facts, facts, facts, facts. And it's very true with the judge. And it's, of's of course i mean the jury isn't making legal determinations but i had this thought that the the judge is sort of this platonic white robed ideal who can separate facts and law no judges are people too judges are people too and you want a judge to want to rule for you okay

i was going to stop there but this is actually the best tip so i want you to be prepared for the best tip of the whole lot and really it's a tip anywhere on a plane on the acela train in the courtroom tip number seven we hear. If you're involved in a proceeding, either in the courtroom or on the phone, court staff can hear everything you say. The microphones are exceptionally sensitive and all proceedings are live streamed to a television, in the library, and to the clerk's office. If you're in the courtroom and you say something, someone probably heard it. Similarly, if you're on the phone, it's being broadcast into the courtroom, where the judge almost certainly is. When the courtroom deputy says the judge will join you in a moment, this is not a time to chat with opposing counsel.

Judge is already on the bench waiting to start the hearing. If you need to speak privately with your co-counsel or client, mute your phone, turn off the nearby microphones, or go into the hall. Trust me. Oh, the things I've heard in the last five years that people thought were said outside the hearing of the court. That's actually terrifying. I'm right now going to try hard not to think of anything that I've said because I know I've been rather frank and candid in federal courtrooms. This is a very small example and not totally on point, but for one of, in my early days at the Department of Justice, this last stint, before Rod Rosenstein had been confirmed as the Deputy Attorney General, I did a little off-the-record meet-and-greet with all of the DOJ reporters. And it went pretty well, you know, whatever. And we get in the elevator afterwards to all go downstairs.

And one of the reporters who was from the New York Times, but whose name I will not say, said, man, that guy was a real asshole and did not see me in the elevator, did not know who I was. Yeah. Yeah. And I was like, noted. Extreme caution in courtrooms. Yes. I was like, noted. Extreme caution in courtrooms. Yes. All right. Alec Baldwin has charges filed against him related to the shooting on set

where he uses a gun that he is told does not have live ammunition in it. That appears to be agreed upon by all parties. What's not agreed upon, he says he never pulled the trigger but cocked the gun back when that released. It fired a bullet and killed a woman on set. He's being charged with manslaughter.

Does this have legs? Is it going somewhere? It has legs, but... Okay, so think about it like this. If I have a gun and you've handed it to me and you say, it is not loaded. I promise you, it is not loaded. And I point it at one of the fine people in this room and pull the trigger and it was loaded and they're hurt

or killed. I'm going to jail. Even though you promised me that it was not loaded, pointing a real live gun at a human being and pulling the trigger is enough negligence all on its own to make me responsible for consequences that flow and here's the but yeah yeah okay in a movie you're pointing guns at people so that's the but but it wasn't the scene to look you're saying that it's everyone's job who handles that gun to confirm for themselves that the gun is not loaded. 100%. And to know the difference between live ammunition and dummies and blanks and each types of those that you should have that as a thing before getting on set, for instance. You know what I do?

When I'm in a gun store and the shop owner hands me a gun. I know I'm in a responsible place. They'll clear the weapon in front of me. So I will see that the weapon is cleared. If he doesn't clear where he shows me the empty chamber and the lack of a magazine, I will clear the weapon. So in front of him, so that he knows I know what I'm doing and all of this. And so if you have been handed a weapon

and you have not seen visibly that it is not loaded, it is your responsibility to confirm. Now, so that is to me, you know, another of the, so there's two issues. The first one I raised was pointing a gun at somebody, which is ordinarily, you just don't do it. But in a movie set, you do. But he wasn't actually filming a scene.

We've got to practice the scene. But he's not shooting the director in this. She was telling him which way to shoot. I mean, look, I just think it's, what an incredible series of events that have to occur for someone to be killed in that fashion because still no one seems to know how the live ammunition got in the gun.

And even if you were pointing a gun on set and it went off, what are the chances that it's actually faced at someone in a way that's going to kill them? And I feel terrible for Alec Baldwin. Like I'm not, you know, people online have made fun of, I feel, I can't imagine living with that. But that's the reason

why you check a weapon every single time. But this will be a new standard for Hollywood sets. You're going to have to teach any actor who's handling a gun how to handle the weapon, how to know the difference

between the different types of ammunition that could be in the weapon, because you are handing them a weapon with ammunition in it. It's not like at the gun store where it better be empty. I can tell empty versus not empty. You're actually going to have to tell the difference between a blank and a live round. Yeah. And so you're going to have to be schooling all of these, you know, sometimes dumb, dumb

actors. No, they can. So my view on this is if you are holding a firearm, if you can't tell the difference between an empty or a full magazine, or if you can't tell the difference between an empty or a full magazine, or if you can't tell the difference between a dummy round and a live round, you should not, that steel should not touch your hand. You have criminal responsibility. If you're holding a firearm. Yeah. Well, we'll see. Okay, real quick,

we have said that we're going to define terms for every podcast, at least until I start forgetting to do this. We got some requests from last time. The term colorable, having a colorable argument. David, want to take a crack? I would say non-embarrassing. Non-sanctionable. Non-sanctionable, non-frivolous.

You've got real arguments behind it. Yeah, okay. Yeah, yeah. I'm not embarrassed to make this argument is the shorthand way of saying it is I have a colorable claim. And when you say you have a colorable claim, it also kind of implies that you aren't necessarily going to win. I would say if I told my client you have a colorable claim, I would advise not bringing the case. Right. It's sort of the opposite of preponderance of the evidence. It's that below

50%, uh%, at least. Okay, and then to cabin an argument. Confine. Yeah, limit the argument. Limit, yeah. Rifle versus shotgun. Right, yeah. Okay, quick revisit of Chevron.

We got an interesting question that was like, David's all, you know, why are we deferring to agencies on their expertise? Doesn't he want there to be some deference, for instance, to military experts in theaters of war? So, hmm, it seems that he just doesn't want us to defer to the expertise of, you know, experts that aren't him.

Bum, bum, bum. That was not actually- I'm putting words in the listener's question. That's a much nicer question. Yeah, I was going to say, that was not the tone of the question. But it's the a much nicer question. Yeah, I was going to say, that was not the tone of the question. But it's the tone of my question. No, it was a really good question.

What about expertise in the military? And I spent a lot of time thinking about it because one of the things that... I don't know if we have any current or former military in the room. Okay. Well, you know, the military is run by regulations. And everybody, the fastest way to become a lawyer is actually to enlist as a private in the military and live in the barracks.

Because you become a barracks lawyer and there's no one more expert on law in general than a barracks lawyer in the United States military. That is how much the regulations matter. It's ludicrous how many regulations there are. And people will actually fight with their commanding officers sir respectfully fm 27 11 subchapter i mean because the regs run the military um but the interesting thing is the vast majority of those regs have little or nothing to do with arcane military expertise um what what is

the proper way to wear a uniform um what is the proper procedure for military justice and interestingly enough congress historically has actually been pretty qualified to regulate the military because there's been a disproportionate number of former and current military in Congress. Is Lindsey Graham still a colonel in the Air Force Reserve? I think he is. So he's a, literally he was an Air Force judge while he was also a senator. So the gap between the military and Congress is a lot smaller between the gap between Congress and say determining what should be a stationary source for emission standards. And so the military is actually quite susceptible, I think, to congressional oversight. And the areas in which most expertise is necessary are actually areas where there's the likelihood of legal challenges infinitesimally low. Like if you're putting together

what is the training regimen for gunnery in an M1A2 main battle tank, there's a lot of expertise there. I'm not sure where your cause of action is if you disagree with how to aim, you know, and how to, which ammunition to utilize and what circumstance. But, which that's generally not a matter of regulation anyway.

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Real Canadian Superstore. Take control of your phone plan with Chatter Mobile. Score big with nationwide prepaid plans from only $15 a month on Canada's number one prepaid mobile provider, Chatter Mobile. Visit ChatterMobile.com for details. All right, last up, I should have noted on Pearson v. Post, correction, it was the New York Supreme Court, not the U.S. Supreme Court, but I got a lot of complaints that I didn't quote to y'all from the dissent. And there is some discussion in the historical world that uh the dissent by justice livingston is actually meant to be you know he wrote it for his buddies basically like

back at the club but it is a delight so at one point um i'll just read some and mind you he's in the dissent right so uh we got pearson v post stands the idea that first in time is first and right but that the wild animal has to be you know something has to change you know it's still a fox out there and you're just two random dudes um one woman uh after giving birth to a baby well before the due date dressed her baby in a full fox onesie and said, this baby proving that first in time really is first and right. So good for her.

That's some real law student momming there. Here's now the dissent. Hence, it follows that our decision should have in view the greatest possible encouragement to the destruction of an animal so cunning and ruthless in his career but who would keep a pack of hounds or what gentleman at the sound of the horn and at peep of day would mount his steed and for hours together or a vertical sun pursue the

windings of this wily quadruped if just as night came on and his stratagems and strength were nearly exhausted, a saucy intruder who had not shared in the honors and labors of the chase were permitted to come in at the death and bear away in triumph the object of pursuit. Whatever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundreds of years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. I like the saucy intruder. Saucy intruder.

But I have to say, as somebody who likes to sleep in late, the sound of the horn and the peep of day does not vault me out. No. All right. We're about to turn to questions with our time remaining real quick david we were talking before the podcast about whether uh sort of the armchair quarterbacks have a better uh knowledge of sports or politics and you came up with a a fascinating thesis that it will now keep me up at night which is that actually the knowledge of the armchair quarterbacks in both sports and politics.

Or the ferocity. The ferocity, rather, is the same. But the actual knowledge in sports is higher than the actual knowledge in politics so that the gap is greater in the political field between people who are all online saying their thoughts on crosstabs in the polls and how to run a ground game in New Hampshire versus people who have thoughts on Travis Kelsey's touchdown.

Yes. So, and this is like not even a frivolous conversation for me because I think that one of the things that's just ripping us to shreds is people are extremely angry, fero the top uh ready to confront their opponents operating under absolutely absent or wrong facts um you know some of this we've talked about for example you've got a bunch of people out there chanting from the river to the sea palestine shall be free no clue which river no clue which but by golly, they can say that pretty darn emphatically, you know. Or just a conversation I had recently, somebody stated with absolute conviction that

Ashley Babbitt was murdered. This was the protester, the rioter on January 6th who was shot by an officer. Absolute conviction that that was a murder that had not been prosecuted. And it took like 30 seconds of talking to him about the law before he realized, oh, no, no, that wasn't a murder at all. But before that moment, total conviction. But the same person, I guarantee you, if he had total conviction that Travis Kelsey shouldn't be playing, that Travis Kelsey was on the downslope, would be able to respond with 90 minutes straight of statistical analyses of competing tight ends.

Okay, but can we agree that touchbacks are a stupid rule? Oh, I hate that rule. It's a real stupid rule. Yeah. Okay, we are going to open it up to questions from you guys. So let's hear them. This question is, how do I square my support for classical liberalism and democracy with support for disqualifying President Trump, which would deprive a bunch of people of their

choice for president? The short answer to the question is, I'm a constitutional conservative, and the framers of the 14th amendment made a declaration that is every bit as binding as the authors the the free you know as is the content of the first amendment the fourth amendment the fifth amendment any other of the amendments in the united states constitution that has a counter-majoritarian an actual counter-majoritarian intentionally counter-majoritarian, an actual counter-majoritarian, intentionally counter-majoritarian component. And so if I'm bound by the rule of law in the United States, which I should be, then this constitutional provision, which is unquestionably counter-majoritarian, still has full force and effect. And so our objective as a constitution-bound democracy

is to give full force and effect to the Constitution. So therefore, if Trump's conduct meets that definition, it applies to him. And I know it's counter-majoritarian. The founders or the framers of the amendment knew it was counter-majoritarian because the concern in 1868 was that former Confederates would win elections. That was the actual concern, was that former Confederates should win elections. And we had seen what Confederates' intentions were regarding the American Union and also, very critically, the human rights of black citizens. And so the question was, what do we do about the fact that these defeated Confederates still are very popular in the South? And the question was, what do we do about the fact that these defeated Confederates still are very popular in the South? And the answer was, they can't run. And the wisdom, actually, of the initial decision was proven in many ways by what happened when they backed away from the decision in 1872. So in 1872, the Congress passed the Amnesty Act, which allowed these defeated Confederates who had previously sworn an oath to run for office.

And what happened was these guys ran for office, won, and immediately began to create a version of the Confederacy, the closest thing to the Confederacy that they could create. The closest thing to the Confederacy that they could create. Jim Crow laws, black codes, essentially recreation of slavery through penal labor. All of this was the result of defeated was one of the beginnings of the failures of Reconstruction. In fact, a scholar who looked at, took a very close look at who actually benefited from this called the Amnesty Act the harbinger of doom for Reconstruction. It was the beginning of the end of civil rights for Black Americans. And so there is a devastating consequence if you have insurrectionists who achieve real power. And so I think the authors of the 14th Amendment were quite wise. It's not too much to ask. Like, this is not a big, heavy ask. It's not a heavy ask to ask someone, if you're going to swear an oath to defend the Constitution,

to not go ahead and participate in a violent effort to disrupt the operation of american government we're not asking much um but if you do it you can't run and it's it's absolutely counter-majoritarian i totally agree with you and i think it's a row we could have a robust debate if this was 1868 over whether or not we should put something that counter-majoritarian in the Constitution. But that's a decision they made. And now the decision that we have to make are do the facts of Trump's involvement in the run-up to and on January 6th meet those legal definitions.

And if they do, then constitutionally, he's just not qualified to serve as president. It's sort of fascinating. The entire purpose of a written Constitution is to be counter-majoritarian. Otherwise, the constitution would say, it's all up to a vote. Yeah, whatever the most people want. But like literally all power is vested in the executive branch. Like that's technically counter-majoritarian. You know, the First Amendment is the most counter-majoritarian thing ever. Due process is extremely counter-majoritarian in

high crime times. There's so much that's counter-majoritarian in the Constitution. Yeah. So we disagree on the 14th Amendment, and I don't want people to be confused that I don't like the 14th Amendment because it's counter-majoritarian. I love counter-majoritarianism. I am very counter the majority all the time, and I like to be protected in doing so. I think the question, which you've left open in your answer, and that's where the disagreement is, is does it apply? Yes. To me, all of these arguments that say, well, it's bad for America if a majority of people don't get to vote for their choice, that's kind of beside the point. That's a policy question about whether that amendment should exist. Because the amendment exists for the very purpose of disqualifying people

who could otherwise win an election. So that policy constitutional decision has been made. The question, the legal question is, does Trump's conduct fit those facts? Do the facts of his conduct fit the law? That's where Sarah and I have the disagreement. And there's the little escape hatch. Two-thirds of Congress can undo it if they want to.

So there's sort of a majoritarian, a re-majoritarian built into the counter. Super majoritarianism can overcome the counter-majoritarianism. Yeah. Awesome question. Yes, next. Here's the question. Awesome question. Yes, next. Here's the question. We had talked about sort of this duty're based on seniority uh in the circuit courts for instance the chief judges of a circuit court could rotate through um that spot and so the question is when you think about recusals death

or any vacancy on the court that would leave it with a 4-4 what about this idea of having backup justices and perhaps even allowing each justice to pick who their backup justice would be although my goodness it would sort of be like picking the like the vice president who everyone hates a lot more than you because it's like a insurance policy that you'll you'll never be impeached because nobody wants who's coming up next. The backup justice, yeah. I love that justice picking the backup justice idea so much I want it televised. Like when LeBron James and Kevin Durant pick the NBA All-Star team, dozens of people would watch that and it would be amazing. No, the question that I have about the backup justice is, do you need a constitutional amendment for that, is the interesting question. Because could you ask, let's just say, for example, the senior or the chief judges of each circuit are in a rotation.

Yeah. That every time a Supreme Court justice recuses the next person up, First second circuit third circuit senior judge or maybe even better you have to make it a drawing you know all uh 13 or whatever circuits are in the drawing for the chief judge but you don't want people to know who yeah so they would game yeah uh like i think something that like that would be incredibly valuable just for the administration of justice because the the consequence of recusal is this eight justices. And if there's eight justices, you can reach, you know, like the DACA situation where it was 4-4, so then the lower court's decision stood and the Supreme Court was

essentially a nullity in that process. So I do think there's a compelling need for that odd number. My question is, would we need a constitutional amendment? A constitutional amendment thing's a problem. What I love about your idea is it does fix the problem that we were sort of talking about with Fannie Willis, where no matter what, you're better off rolling the dice on who would come up next. So if you're a liberal coming to the Supreme Court, you'd still rather have Justice Thomas recused. It doesn't really matter, you know, because your chances of getting a chief judge who's better is still higher than the 100% chance of having Justice Thomas, for instance. So your point about the backup justice, you know, Justice Thomas picks Judge Van Dyke on the Ninth

Circuit. And it's like, well, are you really getting much, you know, anything particularly different at that point? And so maybe the pressure to recuse Justice Thomas, people seem to care a lot less about it if they know that Judge Van Dyke is the one who would hear the case then. I don't know. That's deeply fun. Yeah, that's a fun hypo. I love that. And I do want the televised draft. I want that so bad. And who would each justice pick would get really fun. And then even more fun is the way the clerks would fight with each other

over that very... Oh. Just to be the backup. There's just all upside to this idea. Yeah. Highly entertaining. All right, next. Yeah, one of my issues...

Okay, well, I keep forgetting to repeat the question. It's a very good question about originalism. And the question is, if the argument of originalism is the text has a fixed meaning, why would you cast aspersions on a text history and tradition test that is trying to find what that meaning was at the time? Applied in that is layers of scrutiny doesn't dive nearly as much into the meaning at the time. And I think that the answer to that question is twofold.

One is I think that these layers of scrutiny end up placing a greater emphasis on the text than the history tradition element, which I have seen in practice can almost start to overwhelm the text so if you've seen one of the things that's concerned me about reading bruin and and uh its progeny is we're 90 of the discussion is the history and tradition i mean it just is overwhelming and then the question that I have is, you're often looking at the actions of state legislators in the history and tradition, and guess what? Their job is not interpreting the law. So you're looking for definitive interpretation of the law from a political branch of government whose responsibility is not the interpretation of the law.

And so, as we know from our current time period, legislatures go wild all the time on cultural war issues, on you name it. And so, what you end up with is if you were going to say, let's just say the First Amendment was recently passed. Just the examples of Texas and California alone, I mean, I'm sorry, Florida and California alone, you would say, well, look at the legislature of Florida and the legislature of California and all the speech restrictive things that they have passed. Obviously, the First Amendment is not, doesn't mean that much. When the reality is a lot of that, very little of either one of these states in operation when they were passing their laws, very little of it had to do with, in the debates, very little of it had to do with the First

Amendment. And a lot of it had to do with what their sort of cultural war agenda was. And people like me were on the outside yelling, First Amendment. And so this idea that these state legislators are definitive interpreters of law when it's A, not their job and not their role in the constitution and their constitutional function. And B, we know, we know that they are not making a decision in that capacity that they're

making it much more in a political capacity and yet we're looking at them as the definitive interpreters to me just sort of as a matter of reality just doesn't make a lot of sense and you know we've used this example a million times before but if you wanted to go with sort of the first major legislative act after the First Amendment was ratified, you'd go with the Alien and Sedition Acts. But nobody thinks that that is the proper interpretation of the First Amendment. Not nobody. Well, they did. They thought it was. Currently, there are some people who do. There's a couple of people. I mean, using nobody in the most imprecisive ways, meaning almost nobody.

But very few people would say that that's a definitive interpretation. Okay, the five-week-old has still not woken up, but she is leaving. So good night, sweet princess. Enjoy your nap as it continues. The question is, do we have any fun traditions for the pod that may or may not include shots of fireball?

So it's weird that you mentioned that. And maybe you've just worked in campaigns before because that is absolutely a tradition on a lot of campaigns to do shots of fireball, at least the ones I'm on. David and I do not do shots of fireball. No. Yet. No. Occasional glasses of bourbon. Yeah.

Yeah. Occasional glasses of bourbon. You know, it's funny because we we're in different states. So, you know, we just have a very similar routine each time. But I go up to D.C. a lot and we actually do a lot of events together in D.C. And that's when I get together with Scott and Sarah. And and, you know, we we have a lot. The three of us have a lot of fun. have a lot of fun. And, you know, but I would also say that advisory opinions is a, in one way, it kind of never ends because we're constantly slacking, texting each other. Did you read that? So, you know, it's the nerdiest slack and text threads that you can possibly imagine that things like, oh my gosh, did you see the Newsome concurrence? There's a lot of actually just that. We could just cut and paste that. Yeah, exactly. So the fun thing about the podcast is if it's going to be good, we have to do homework. We have

to read the stuff. We have to do the work. And that's a continual collaborative process can just continual yeah i mean it sucks to get things wrong but you do have to also realize that we're reading or skimming thousands of pages oh um every week for every week and yeah with an audience full of subject matter experts which is terrifying by the way um you know because it could be one day that the number one legal story in America is an antitrust story. I never practiced antitrust law, Sarah. I avoided it at all costs. Avoided it at all costs, but it's the most important legal story. So what you're trying

to do is get it right. There's a sweet spot, And the sweet spot is, can we make this understandable to somebody who knows nothing about antitrust law while not offending the subject matter expert that we've oversimplified or we've missed something important? Although with antitrust, that's worked out so well because I just say that antitrust law is all made up and all of the experts who've emailed in have been like, actually, you're more or less right. So God bless the antitrust bar. If the Supreme Court overturns Chevron deference, how optimistic are you that the court will actually then force Congress to do its job? Not. Okay. So what we're dealing with is a problem that developed over decades that you cannot fix in months or even a few short years. So one of my thoughts is we actually might have to feel some pain before we get it better, before things get better. that the abdication of Congress would otherwise be such an intolerable situation that America

would demand a response, that the way presidents have moved into that void has actually eased the pain enough in a way that it's almost like the patient is sedated and being smothered with a pillow. And so what we are having to do is a little bit of what I think is some shock therapy, is just take away the crutch. And when you take away the crutch, you're going to either fall or you're going to have to learn to walk again.

Because right now, the state we're in is intolerable. And I fully acknowledge that removing the crutch could over the short term make things worse. But what we're in is intolerable. And I fully acknowledge that removing the crutch could over the short term make things worse. But what we're doing right now is walking off the edge of a, we're hobbling off the edge of a cliff with a crutch. And so what can we do about that? And so no, I'm not naive. Oh my gosh. But I do think that there is such a thing as political pain yielding political change. And I think that change will have to be driven by voters who start to see the problems are piling up and that the people in Congress that they've elected at this point aren't

doing it. And you're going to have to have presidents who have to say like, no, I'm sorry, I cannot fix that through executive action. It has to be Congress. And remember that that alone will put a lot of pressure on Congress, because right now, there's zero pressure on them when the president, like as we were quoting from that Chevron argument, at any given point, 50% of the members of Congress can get everything they want from the executive branch. So they just don't need to lift a finger. And the people who wanted to legislate

are retiring in droves. And so we're actually going in the wrong direction right now. So it's going to take a long time because I don't think it's that Congress as a whole will do one thing or the other. I think it's individual members of Congress are there because they like to legislate or there because they like to run their mouths on TikTok. And if the legislators are leaving and retiring and the TikTokers are coming in, the TikTokers aren't suddenly going to turn into legislators. They're going to need to lose their elections

and be replaced by legislators. So all of that's going to take. Yeah. And let me just give you a perfect example of how this dysfunction plays itself out. We're right now in the middle of negotiations over this incredibly world historic issue of Ukraine aid, because if Ukraine doesn't get American aid, it will lose the war.

Losing the war will change the course of history in some ways. We don't know exactly how, but it would definitely do it, my guess is, a lot of bad ways. So you have a world historic decision, should you support Ukraine, combined with a very urgent domestic necessity of dealing with the southern border. In a functional Congress, you're going to get a compromise there. And in fact, we have the outlines of one that has been hammered out in the Senate. And basically, the odds of it passing the House are zilch because the motion to vacate the chair is hovering out there. So what, and so when you press people on it and say, how is this in any way advancing American interests? Because the current compromise will help stop Russian aggression and be a big advance in border security. I know it's not everything that you want, but it's better than the status quo. Why don't you pocket the better and then push for more? And the answer is, well, it's not all on us. Biden can confiscate $300 billion in overseas Russian assets, and Biden can do the same regulatory regime that Trump did.

So why are you talking to us? Biden can do all of this, and he's choosing not to. And so that's how this happens, is you never get to a point where they actually feel like they own the, they have accountability for the decision for the fall of Ukraine or for the security at the border because they can always point to the executive and say that the executive,

well, if this is so big and important, why doesn't Biden do it himself? And it's a hard answer to give because we have so many years now of executive authority that it becomes kind of a fair question. Why not? Why not push the envelope one more time? But that's just what's walking us off the edge of the cliff. All right. Last question or lightning round. How do conservatives get walked off the ledge from being tempted by authoritarianism? Periodically in the United States of America, people from right and left have to experience the failure before they can re-embrace, you know, re-embrace small illiberalism. And we've actually seen periods of illiberalism in the United States, and always it has come to grief.

Always it has come to grief. And sometimes you'll see people repeat the same misguided actions within the space of one generation or a generation and a half but one of the things that is one of the reality one of the the things that actually maintains pluralism in the united states is the long-term impossibility of authoritarianism this is not singapore right this is not a ethnically, religiously homogenous country. It is a giant, continent-sized, diverse country that there is no possibility of one faction becoming so dominant that it can dominate all others.

number of factions who misperceive their strength and believe that they can be the one and you see that on the right and you see that on the left and many times what they have to do is they have to fail um they just have to fail uh and and so i i i think there is a win hearts and minds process here there is also a lose painfully process here um and the sad thing about the lose painfully process is that a lot of damage can be done before you finally lose i mean again i hate to go back be a broken record but post-reconstruction south was an authoritarian apartheid state and it was able to exist for decades it was ultimately doomed but it was able to exist for decades um widrow wilson was able for some time to throw a lot of people in jail but it ultimately it you know ultimately it failed so that's my the optimistic side of this is that it is authoritarianism over the long term is not possible

in this this nation the negative is that a lot of pain can be endured while people try again and again all right thank you guys so much for coming to our podcast taping and for joining advisory opinions and for being awesome law students taking over the next generation of lawyers here at vanderilt Law. Thank you guys.