Advisory Opinions - Curb Your Parasites

Episode Date: March 23, 2020

David and Sarah touch on the latest from Capitol Hill, Biden's campaign, and Bloomberg lawsuit. The two then dive into the coming clashes between the state and federal governments over coronavirus, the U.S. women’s soccer team's equal pay lawsuit, and how they're spending their quarantine time. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Real Canadian Superstore. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. We have got a lot of stuff to cover, but in keeping with our pledge to you, and I've gotten a lot of email actually about this, we are always going to include, even in the middle of the coronavirus crisis, a non-coronavirus

item. And this episode's non-coronavirus item is going to be soccer and gender discrimination. And it's actually a really fascinating topic to talk about, but we're not getting to that yet. We are going to start with coronavirus because there is a lot in flux and we're not going to go into the back and forth of what's happening on Capitol Hill right now because there's a very simple reason for that. It's entirely possible by the time you hear this podcast, which it takes, you know, a couple of hours to edit and to upload and all of that, that the two sides that are right now screaming at each other will have reached some kind of compromise. But I will note that we're already beginning to see what it's like when the United States

is in a state of crisis in the middle of a time of heightened polarization, because we are miles and miles from that moment on 9-11 when members of Congress joined hands to sing God Bless America on the Capitol steps. And this is an external threat. Coronavirus is an external threat, very different from, say, Al Qaeda, of course. But it's still, this is something that's come in from outside. We're trying to rally to respond to and we are at each other's throats right now. And I got to say, Sarah, it doesn't really surprise me. I keep saying this. This is a virus that's requiring a high trust kind of response and a very low trust time. And I think that that's being that's sort of playing out in front of our eyes all the time. As one reporter said, they've never seen Susan Collins so visibly angry. This is not a woman particularly prone to fits of fury. So, yeah, I think I think your description is pretty spot on. Can I give a brief political update? Yeah, please do. On the campaign world. So a lot of news today about Joe Biden trying to maintain some visibility during all of this when basically we've all moved on from the 2020 election. He said he's going to host sort of his own coronavirus briefings.

He's put out a couple tweets attacking the president's response. He held a telefundraiser yesterday that they're touting as very successful, that a lot of people tuned in for it. But I mean, A, I just think it's incredibly difficult to break through at this point. And B, and you and I talked a little bit about this, I'm not sure on the wisdom of whether it will make him look, in fact, less presidential to be sort of the daily opposition briefing. Yeah, I think it will make him look less presidential. It's sort of the same. In my view, it's the same kind of challenge you have when you're responding to the State of the Union, which I think. Exactly.

It might be the worst job in all of politics is to respond to the State of the Union because you have all the majesty. It's being on the Madden cover like it's a curse. Yeah, exactly. Well, you're immediately following all the majesty of the presidency, you know, the president of the United States in the full, his full power, not just as the head of the government, but sort of the head of state. And there is a certain authority and dignity that is inherent in the presidency, even when you're just conducting a news conference and you're flanked by all of the people that are at your command and you're beck and call and you're being called Mr. President throughout the entire process. And then you go to, you know, a video that I don't care how well it's produced. It's not going to be the same. It's not going to be the same. It's going to look like the difference between network television and TikTok. TikTok. And you can't you can't do it. You can't be as presidential as the president. And and besides, the bottom line is President Trump's political fate as connected to the coronavirus

is going to be tied to what happens in the economy and public health. It's not going to be tied to in any way, shape or form Joe Biden's videotaped clapbacks. That's going to be totally irrelevant. And it can look like he's rooting for failure and not the president's failure. It can look and I don't think he would ever intend this, but it can look like you're rooting for the country's failure. Yes. Yeah, exactly. And the other thing is and this is something I was on Meet the Press yesterday, and I was asked to comment on a really- Nice humble brag. Right. Sorry. Sorry. I was on an unnamed television show yesterday and asked to comment

on a really harsh assessment of the president's leadership style and his leadership in the crisis so far. And I made two points. One is, look, I mean, I think his early statements that were downplaying the virus, inexcusable. The lack of available testing, appalling. And we got to sort that out, why that happened and whose fault it was. And that's going to be the subject of, you know, there's been good investigative reporting so far, but I don't think the story is finally written on that. But if you go through American history, Sarah, when we have a crisis in this country, we often respond with early bungling. With early bungling. Like that's a normal human state of affairs. And the full story of a person's leadership is not told until we see the sweep of the event itself. Like if you were going to judge FDR, for example, and his leadership in World War II, eight weeks removed from Pearl Harbor, you would have a thumbs down right there because we were in retreat everywhere. People would be wondering if Twitter existed in 1942, why were we so unprepared in the Philippines? Why were our planes lined up wingtip to wingtip

like in Pearl Harbor? Why did we have no dispersion of battleship row? I mean, you could go on and on and on. I can just see it now. I'm not a naval officer, but I've read a lot of naval books. Why our battleships were misaligned on December 7th, thread one out of 117. Well, and even take 9-11, certainly in the 9-11 report and Looming Tower, which I thought was both a great book and miniseries. I don't know what we call those now. You know, in a perfect world, we did have the information to know what was going on. It just isn't a perfect world and not every dot connected itself in time. Yeah. Yeah. And so, look, I mean, people who listen to this podcast, I don't know what a podcast is, but listen to this podcast, know what my feelings are about President Trump. But you cannot judge how the man responds to a crisis until we get at least all the way through it, most of the way through it,

through a critical math, critical segment of it. I think we can judge discrete mistakes that have been made, certainly. But this sort of idea that we now can make a final political judgment when, you know, most experts would say we're kind of still more on the front end of this thing, sadly, than we are on the downslope. Well, and this applies on the other direction, too. His approval ratings for the handling of it have gone up significantly from his overall approval ratings in January, for instance. But that also is a bubble in and of itself. So it's a bubble in both directions.

One other fun legal note coming out of the 2020 primary. A former Bloomberg campaign employee has filed to put in a class action lawsuit against Bloomberg and his campaign, saying that they were promised employment and benefits through November. they were promised employment and benefits through November, and they also were not paid overtime. It's an interesting legal question because the talking points that they were given certainly promised full health dental and vision benefits and employment through 2020 with Team Bloomberg, but the contracts that they actually signed said the employment was at will termination at any time and that the workers were classified as exempt from overtime of course just announcing a worker is exempt from overtime does not make it so uh but you know that'll i think be a fun little side story for the next several months as that lawsuit works its way through. And Bloomberg, of course, gave $18 million to the DNC from his campaign account after spending,

wait for it, $900 million. It's just gone. That money is gone, David. Wow. That's amazing. So, Sarah, putting on my old school, my old commercial litigator hat, depending on the state where that's filed, that's one of those interesting, that's going to be one of those interesting questions because state common law on fraudulent inducement to contract does vary. Yep. It does vary. Some states it's more plaintiff friendly. And that will be their best argument is the fraudulent inducement argument. Yeah.

It wasn't in the contract, but that the things that they were promised were so ubiquitous. And it appears that they were every talking point, every, no one's disputing that it was in every conversation to woo these staffers into signing the contract. Yes. Well, and so that's going to be, that's going to be the, the assertion that this was a wink and a nod. Hey, look, yeah, the contract says that will, but don't pay any attention to that. We're promising, we're promising all these benefits. And I can tell you back in the 90s, man, back in my day in the 90s, Sarah, back in the 90s, when I was doing commercial litigation, if I was representing the Bloomberg campaign, I'd be saying, y'all need to settle this because you're going to lose in the plaintiff. The South used to be a very plaintiff friendly jurisdiction. You were going to lose in a plaintiff friendly state. But let's move on to like the big thing. Let's move on to the big thing because this is an issue that could get in about seven days, it could get very intense, very, very fast.

And that is a conflict between the president's wishes and the power of governors. So we talked, and this is a plug for this podcast, Sarah, we spent a lot of time in the culture segment of our podcast on Thursday talking about how long will Americans tolerate the shutdown? We're not epidemiologists. We weren't saying how long is the shutdown prudent from a How long is the shutdown prudent from a standpoint of preventing the spread of the virus? But how long would Americans tolerate it? Sort of our bias towards action, our bias towards movement, the fact that people are losing their livelihoods and thriving businesses were closing. And we called it that there was going to be a tension.

And the tension was all over Twitter. And then it busted out in the words of the president of the United States. And I'm going to read his all caps tweet. We cannot let the cure be worse than the problem itself. At the end of the 15 day period, we will make a decision as to which way we want to go. We will make a decision as to which way we want to go. Now, the clear implication is that at the end of the 15-day period, which we're about halfway through, the president is going to try to make a decision about the shutdowns and the social distancing, etc., etc., that have really put the clamps on the economy. And here's the issue. If you've also been listening to the Advisory Opinions podcast or reading us, we have laid out very clearly that the president cannot order the end of social distancing.

He can't order businesses to reopen if a governor of a state has shut the business. So what this is doing is it is setting up a potential clash with state governors. So if you have Governor Cuomo in New York, where the virus is spreading so much that New York itself, just the state of New York, has more coronavirus diagnoses than most countries. If you have a clash between the state of New York, where Governor Cuomo has the authority under the police power to order closures, and Trump is saying, you must open your state back up again to business for the sake of the economy, under classic Federalist principles, Governor Cuomo can say, no, Mr. President, we stay closed. You don't have the authority over me. And can you imagine, Sarah, the political fallout from that, much less the potential constitutional fallout? So that's

just setting it up. Your thoughts? A few thoughts. One, it's worth having a footnote here, a very unlikely footnote, but a footnote nevertheless. If Congress passed an act saying that all businesses engaged in interstate commerce shall reopen, can ignore state, you know, all state ordinances are preempted. I do think that actually that would be just fine. I think there is zero chance of Congress doing that for any number of reasons. Although our 17th Amendment conversation becomes more relevant. They certainly wouldn't do it if they were still elected by state legislatures. But let's assume that doesn't happen since they can't even, you know, not yell

at each other today. So, right. So the president can't do that. What's interesting to me, though, is that we also have a president who I don't think knows that. And I'm not saying that to be glib, actually. I mean that, I guess, more in like a quite literal sense i think he would start tweeting and having public pronouncements that all businesses are going to reopen and then there'd be all these stories about how they're not reopening and we would end up sort of where we are on uh the gm making ventilators thing where he says GM is making ventilators and GM's like, yeah, you can't make ventilators in an auto factory. It's not sterile. And I don't think, you know, for what it's worth, maybe I'm too generous here, but I don't think

that's the president trying to lie. I think he like really thinks that slash wants it so much. So I think he would be very confused. And I think we're absolutely going to see it happen. My my bet is April 3rd. How about you? Well, I mean, you know, look, we were saying last week, as I said, that people were people are going to be straining at this government leash. Not everybody. There's an awful lot of Americans and there's polling data that indicates it breaks down kind of by red and blue. There's an awful lot of Americans who are taking this quarantine, this quarantining and the social distancing very seriously.

There's an awful lot of Americans who think that coronavirus isn't all that threatening at all. And so if you think it's not all that threatening and your business is failing or you're sitting at home and you're not earning money and you genuinely believe this is not all that threatening, you've got a short fuse. I mean, you have a short fuse. And I don't think there's any way between now and, say, April 3rd to put us all on the same page. No, certainly not. No way. There's going to be a wide difference in the United States of America in response to this and attitudes towards this. And that's why if you're a governor who's convinced by the public health warnings of epidemiologists, et cetera, why you issue an order requiring people to stay inside rather than having to rather than relying on voluntary compliance.

You know, there's different differences of opinion. So you trump that by issuing an order. And so but we're going to continue to have these differences of opinion. And so but we're going to continue to have these differences of opinion. We just saw in Utah, I don't know if you saw this on Twitter, people came out in large numbers, zero social distancing to welcome home LDS missionaries. So we've already got a situation in which there is a really disparate reaction to this. And that's only going to continue. And speaking of federalism, we had a reader or a listener, sorry, listener, email me about the mandatory gun store closures in Pennsylvania. And I was sort of like, look, it's kind of the same thing as the churches. We had a nice back and forth, but I wasn't going to spend much time on the podcast on it.

But then fun things happened. So here's what goes on. Pennsylvania Governor Tom Wolf issued an order that closed all, quote, life-sustaining businesses. Closed life, closed life-sustaining businesses. Closed life, closed life-sustaining? All non-life-sustaining businesses. Oh, okay, okay. And licensed firearm dealers were not considered life-sustaining businesses, therefore it shut them down. So a group filed an emergency petition and sued.

And they lost. Right. They lost in a one sentence opinion, but with one of the justices dissenting, actually. And, you know, we haven't spent a lot of time on guns of the Second Amendment here. But whereas the First Amendment gets strict scrutiny there is no defined scrutiny level yet for the second amendment and that's sort of part of what the dissent is talking about and basically says there were other ways to accommodate licensed gun dealers because in Pennsylvania etc like they would have to have been in person. And there was a way, basically, he thought to say a licensed gun dealer could require six feet of distance.

Lysol wipes before touching any gun. He sort of like goes through these fun examples. But that's not happening. In the meantime, the governor of Illinois defined firearm suppliers for purposes of safety and security as essential businesses that can remain open. So we have different states deciding different things. By the way, fun note about another business that was determined to be life-sustaining in Pennsylvania. David, do you have any guess on what the life-sustaining business in Pennsylvania is? Have you seen this? The guess is abortion clinics. No, no. Oh, we'll get to Ohio in a second. Okay. Okay. No, the life sustaining

business in Pennsylvania, uh, there is a certain Easter treat that is made in Pennsylvania called yes peeps factories are staying open in pennsylvania and are considered life-sustaining i mean man shall not live by peeps alone but i guess they are part of a balanced diet no they're not part of a balanced diet they might be part of a diet. Okay. Meaning they're edible. So that's just a fun Pennsylvania note. But no, to your abortion point. So it's right exactly what you think. We're just having the reverse conversation in Ohio. The attorney general there sent letters to two facilities that provide abortions and ordered them to stop providing

services that require the use of personal protective equipment. Here's a quote from it. You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient. Hmm. That'll be interesting. Yes, that'll be a lawsuit. So, you know, this is again.

So going back to what we talked about, my assessment of this is very similar to the one when we're talking, my assessment when we're talking about religious liberty and free speech and freedom of association. At this moment, at this moment, these governors are at the absolute apex of their police power. And so constitutional rights, which are less defined and have a less protective legal superstructure than the First Amendment, and have a less protective legal superstructure than the First Amendment are not going to have greater privileges than, say, the First Amendment, than free speech or religious liberty. And so I think that if a governor says at this time, again, not indefinitely, but at this time, a gun shop is non-essential, just like saying I'm going to ban all gatherings over 50 people, which includes churches, the gun shop is almost certainly going to have to close.

And if you have a carefully drawn regulation about what's non-essential in the provision of medical services and abortion is encompassed in that and deemed to be non-essential, then I believe that that's going to pass constitutional scrutiny unless a court gives abortion a sort of special privilege that it does not give other constitutional liberties. And I only classify abortion as a constitutional liberty because of Roe. I do not think it is a constitutional liberty as it should not not be but as of right now it is part of american law but i i would say clarified by david uh but um but the abortion question is to me interesting because uh a few things one i think it's pretty smart that they couched it in terms of protective gear to be used when we're having a nationwide shortage of protective gear in 95 masks, etc.

So I put that in the pro column, meaning pro you can do this. So unlike churches, or let me rephrase, freedom of religion and the individual right to bear arms, you can still exercise those rights. It is not a full shutdown of those rights. You can still pray at home. You can't go to church. Maybe there's an argument about baptism that would be similar to buying a gun versus you can still own your gun, use your gun, etc. So it's a bit more mixed when it comes to the First and Second Amendment issues. If they are saying you cannot, under any circumstances not related to health and safety, get an abortion that is a constitutional right, privilege, etc, that does put it in a slightly different category in

the con side for me. Yeah, it would be interesting, you know, that the actual text of the regulation doesn't really, or the guidance doesn't really do that. And the other interesting thing would be is if you would be prevented, affirmatively prevented by an order from the governor from getting in your car and driving across state lines to a place of less regulation. And that would be another, it would be a burden, it would be a burden, but whether it would be an undue burden, which is, again, a test that is less strict than strict scrutiny applied to deprivations of the First Amendment, I think – but we'll find out, Sarah, because this is going to be a lawsuit. Just like the Second Amendment issue is going to be a lawsuit, but we'll find out. But again, this really does highlight the federalism point. It really does matter who your governor is.

And because. Oh, I was just going to say big. No, you finish. You finish. I was just going to say, because they are going to define they're going to be the first person to define what is an essential service and what is not. So also the Supreme Court and I'm gonna this is gonna be a stretch david welcome this is a stretch but it's monday we got some opinions down and the supreme court gave a big nod to federalism today and i'm not saying it this logic applies directly onto what we're talking about but i don't know like i'm to read you a quote from this opinion. And I think I think you will be so moved. So it was a 6-3 decision today written by Justice Kagan about a criminal case involving a man who was sentenced to death for killing his estranged wife, two teenage daughters and his wife's grandmother. Awful. He wanted to mount an insanity defense, but Kansas, along with Idaho, Montana, and Utah, eliminated a defendant's

ability to plead not guilty by reason of mental defect. Now, to be clear, in Kansas, you can say that you couldn't have the requisite mens rea, the requisite mental state to commit the crime because of mental disease or defect, but you can't get a not guilty verdict because of it. If that makes sense, it doesn't really matter. But, um, and by the way, we've seen justice Kagan, just fun little side note, when the decision's already going to be five-4 she'll join the majority of the five to make it 6-3 but then she'll write the majority thus getting to control what it actually says right it is i mean give credit where credit's due it's a very very smart effective tactic

whether she's doing that here, a discussion for another day. But here's the quote from the opinion. Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense the defendant would like. That choice is for Kansas to make. And, if it wishes, to remake and remake again as the future unfolds. It is a question of policy, not a question of constitutional law. Yeah. I mean, that's pretty pro-federalism. Very pro-federalism. And I think that to the extent that this court has a bias towards or against federalism, I think this is a relatively

pro-federalist court. And so let's stretch all the way back to coronavirus again. I don't think it's all that much of a stretch, but let's stretch all the way back. I think the bottom line is that in the absence of congressional action, specifically tying back to the Commerce Clause, and it would have to be very carefully drawn. I think you and I have maybe a different view on how solicitous the court would be of too much economic regulation of New York over how much the Commerce Clause can overcome the governor of New York's public health assessments. the Commerce Clause can overcome the governor of New York's public health assessments. But in the absence of congressional action tied specifically to the Commerce Clause, the president is going to have no ability to order Cuomo or order Gavin Newsom to open their states back up for business again. Just none. And here's what I'm concerned about in the future. And hopefully this is overblown, Sarah, but this is just put a pin in this.

If New York continues to have as many positive diagnoses that it's having and the economy continues to crater, which it will as we are on lockdown, will we reach a point in which not only will Cuomo do what he has the legal authority to do, which is defy a presidential, quote unquote, directive or order or demand or tweet to reopen, but will he start to try to ban travel from states that are more open into New York, which would be a which is not really in his constitutional authority? Yes. But is this a kind of situation where you could begin to see governors trying to limit travel between states to preserve the public health of their own communities. There's a practical problem with that, though, for a lot of states. How? State trooper at the border. I mean, there's a lot of roads that lead into New York, for instance. I mean, there's a lot of this stuff is mixed up in partisanship. I mean, we could start to reach a real we could we could move towards a constitutional crisis. And I'm I'm very concerned about that. And I really hope the president does not try to overstep his constitutional bounds here.

to limit travel in that way, the president would actually have more authority because it would be so clearly interstate commerce and a federal issue. You know, is he going to limit trucking, things like that? No, New York still needs supplies. So, A, I don't think it's very practical, even if he tried. And B, I think it would actually raise the president's authority under sort of the steel seizure tripartite system that Jackson came up with. I think the president is at a obviously not the low point of his authority because Congress hasn't denied him the authority, but he's at level two. And and I don't think Congress will act if a state acts, however, to contravene interstate commerce, thwart interstate commerce, even without Congress acting, I think that would make it a two plus under steel seizure. presidential overreach followed by a state overreach. And the bottom line is we're in a situation right now that none of us has encountered and the country has not really confronted in a state of extreme partisanship and also extremely disparate experience of the crisis. Because the experience right now in New York or say in Seattle is fundamentally

different from the experience in say Jonesboro, Arkansas, right? Which is also, by the way, why some of these, you know, gun license dealer closures are going to be okay, because they're going to say that, you know, in some states, that's a very reasonable thing to decide that the threat was so much that it had to be a life sustaining business. And in other states, it was fine if you kept them open for public safety. Right. Right. But, you know, the one last thing and we'll move on to soccer. I do think just a few a few things to put a pin in as we go forward. Intense stress points. One, I already said this,

does the president try to do what he cannot do, which is order states to reopen for business? Number two, how much do we continue to be divided politically as a result of the division of the experience here? And I'm looking at right now, I've got this, if you are interested in the data of who's being diagnosed where, I can strongly recommend, there's this website, worldofmeters.info, and they have a coronavirus tracker by country. And when you click on the United States, it's by state. And so if you look at today, you have a total of 40,855 coronavirus cases as of almost 2 p.m. Eastern time. a total of 7,289 new cases today. That's a lot, by the way. 5,085 come from New York, of that more than 7,000. 930 come from New Jersey. And so right there, and again, all the reporting is not done today, but out of the 7,000, roughly 6,000 are coming from one specific region of the U.S. So again, this is part of this really disparate experience. And it may well be that what we need to do is not have a uniform national response to this as a result.

But I also do think that people who say, well, the economy will bounce back if we lift restrictions in Arkansas but keep them jammed in the big cities, forget how much of a driver of national GDP these big cities are. Everything will not be just OK if we loosen up for everyone else and we keep a lockdown in big cities. That's just not the way it's going to work. Fair enough. Let's talk sports. Yes. Sarah, do you want to set this one up okay i'm pretty pumped about it uh so the uh women's national soccer team won its fourth world cup title in france and shortly thereafter filed a lawsuit under the Equal Pay Act saying that they were being discriminated against in their pay because the men had the ability to make more in a given year

than the women did. Some dates worth throwing out there. So first of all, they were granted class action status in November. It started with 28 named plaintiffs, but now applies to any woman who has appeared in a national team camp or game over the multi-year period specified in the lawsuit. They just filed for summary judgment a few weeks ago, late February. We'll talk about that filing in a second. Spicy! few weeks ago, late February. We'll talk about that filing in a second. Spicy! And March 30th is the summary judgment hearing, and March 5th is at least the tentative date set for trial. So, okay, some fun facts. The Equal Pay Act, for instance. So this requires that employees alleging discrimination work at the same establishment as employees who don't face discrimination.

As in, you can't, you know, work at GM and point over to Tesla. Everyone has to work at GM for you to prove your case. Okay, also relevant. The men's and women's teams' budgets, marketing departments, and media rights are controlled by the same entity. The media rights thing is very important when I'm talking to people about this, because, for instance, you cannot break down ad revenue by the men's team and the women's team because they're actually done together. But everything else about the clubs is dictated by each team's head coach. Okay, so in the summary judgment filing by the women, they asked for 67 million. It could actually end up being much more than that, but that's sort of the number everyone's throwing around. That's a very large number that the Soccer Federation probably cannot sustain without massive changes in their operating system.

So they responded in a filing that it legally was pretty clever and PR wise was maybe the worst legal filing PR disaster I've seen in years. I can't think of one that's worse for me. I'm going to read you. These are quotes, David quotes that they put out publicly. The job of a men's national team player carries more responsibility within US soccer than the job of a women's national team player. The point is that the job of a men's national team player competing against senior men's national teams requires a higher level of skill based on speed and strength than does the job of a woman's national team player competing against senior women's teams. So basically, they argue that the men's and women's players are separate groups,

they perform different work, and that the disparities in compensation are a direct result of separate collective bargaining agreements negotiated by each team. That last part, by the way, is highly relevant, interesting, and not a PR disaster. It's really those first things, they're performing different work that I think set people on fire. those first things the they're performing different work that i think set people on fire um and that led to a few days ago an apology uh on behalf of u.s soccer i sincerely apologize for the offense in pain caused by language in this week's court filing which did not reflect the values of our federation or our tremendous admiration of the women's national team. Our women's national team players are incredibly talented and work tirelessly as they have demonstrated time and again from their Olympic gold medals to their World Cup titles.

And he added he is bringing in Latham and Watkins to join and guide our legal strategy going forward. Oops. Yeah. Yeah. So I have two quick thoughts on this, and then I'm super eager to hear your assessment. Quick thought number one for you law students and practicing lawyers out there. It's always important to remember that you can lose your case in the court of public opinion by putting pressure on your client that's too great for your client to bear. If your legal arguments or the way you fashion your legal arguments create a public backlash. So that's just one thing. The second thing is if you really drill down, what were they saying?

The second thing is if you really drill down, what were they saying? And what they were saying, I think, is true. So bear with me. It's obvious a woman, a female player cannot play on the men's team and a male player can't play on the women's team. The World Cup rules gender segregate the teams. But I think what they're saying is if you had no gender segregation, the female players could not play on the males, on the, on the male team simply because they lack the same athleticism as the males. And so because the males had superior athleticism and they had, they had, they, they were qualified and the women were not essentially not

qualified for the same position and that I think is just it's a matter of athletic reality is true that there is a level of skill true but is it relevant well that would be if we were talking about the U.S. military and who should be in combat positions, as we have in the past, by the way, not you and I, just me and as a nation, the ability to do the job is relevant to whether you should be able to get the job. But that's not what we're talking about here. We're talking about a for-profit industry that makes money off the women's team, a lot of money, actually, higher attendance for the women's team, a lot of money, actually higher attendance for

the women's team. And so whether the women could be on the men's team to me is, yeah, just not relevant. Yeah. Yes. But I think that their legal argument would then be that you cannot make the wage comparison if these individuals cannot perform the job. And that, I think that's their legal argument. But David, what is the job? You're saying the job is to play soccer and so athleticism matters. And I'm saying the job is to get people in stands and sell ad revenue. Right.

No, that's, I mean, I think that that's the, that's their ace in the hole is the job is to play soccer and make, make money. Like, well, what is the job? The job is to play soccer and make money. And what they're saying, what the money from playing soccer, it's not to play soccer and make money. It is to make money through the playing of soccer, which in that sense, they are both doing the same job. therefore, and generates revenue. And then never the twain shall meet. And it's interesting, it goes, this reminds me a bit of the arguments over tennis compensation, where for a long time, the female tennis players had received less compensation.

And even though there might be an enormous amount of interest in Serena Williams, more so than, you know, as an American superstar, more so than, say, Roger Federer as, is he Swiss? I can't remember. I think he's Swiss. I don't know. Some European country. And there's more interest in him. And people are saying, well, Roger Federer displays superior skills. And for a while they had this idea that – and he also plays a five-set match rather than a three-set match. But there's no difference, I don't believe, in any length of time between – in the actual duration of the soccer matches themselves. So, yeah, it really goes down to – Which, again, would still all be irrelevant to me. The women, for all I care, could play for five minutes.

If they're making the same amount of money for the company... Like, to me, it's defining the job. And I think that's... It's unfair to simply point to gender as the difference between the two jobs or that you play different genders i think that is a big part of the nut of the legal distinction does what is the definition of the job uh now here's the part that i think the women i think they lose on this though because i'll disagree with you on what the definition of the job is and all of that. No, no, I'm not saying I'm saying that they that how you define the job is in that segment of the argument, how you define the job is the key.

Because I saw a lot of argument on Twitter saying, how dare you say the women aren't as skilled as the men. Right. Which also misses the point. Exactly. Exactly. Exactly. So anyway, proceed. The collective bargaining agreement, I think, is a tough thing for the women to overcome. So in 2017, they renegotiated their contract. And in that negotiation, they have things in their contract that the men don't have, for instance, guaranteed club salaries, maternity and child care benefits, severance pay when they are no longer on the team. I think that's a pretty important one. that the women's team prioritized security over compensation in a form of guaranteed salaries over potential higher rewards slash a bonus-based system.

And so their argument, and I'm quoting with some dot, dot, dots in the middle, that you can't allow a jury to retroactively and selectively rewrite the plaintiff's collective bargaining agreement to give them the benefit of the higher reward when they never took the higher risk. And that's where the contract between the men's team and the women's team is relevant, regardless of skill, regardless of how you define the job. You can define them as the exact same job. But if in their collective bargaining, they made choices that simply compensated them differently and that now in hindsight, those differences didn't pay out the way they wanted to, I'm not sure that's a legally cognizable claim, let alone a pay discrimination claim. Yeah. And it's such a strong claim or such a strong argument. One wonders why they even made the other argument at all.

Correct. Well, then this goes to the PR thing. What dummies? I can easily imagine if you're just sitting in a room and PR doesn't matter at all, how somebody could brainstorm and say, well, wait a minute. Not one of these women's players can run a 4-4-40. Or, you know, they don't have the same fast twitch skill as in the goal, whatever. I mean, I can imagine people sitting in a conference room and saying that, but then how that makes it into, oh yeah, we're going to, we're just going to go ahead and

put a filing out there that says women aren't as good of soccer players as men is, and that's a foundation of our legal argument. I can't for the life of me understand that when you have this freaking contract difference that has been negotiated recently, recently, recently with sophisticated parties. It's not as if the women didn't have legal representation. It's not as if this wasn't a arm's length, sophisticated legal negotiation. And that's your argument right there. the real question to oversimplify this is whether there's any factual disputes right both sides are trying to argue that there aren't factual disputes um i think if the question is what is the job that you're being compensated for that that is clearly an issue of factual dispute um i think if it is whether this collective bargaining agreement forecloses the argument, that is not a question of factual dispute.

Right. Exactly. Is the contract you entered into binding is generally just simply a question of law. And if you're going to attack the contract, you usually have to attack it through like, hey, let's go all the way back to the beginning of the podcast, fraudulent inducement, for example. But that doesn't seem to be an issue here. No, and this is where I am not the foremost expert on all of this, but there is some discussion that the women back in 2017 were offered pieces or all of the men's, at that point, current collective bargaining agreement that they rejected. Now, their argument is we rejected that because it was a 2011 collective bargaining agreement that the men themselves were renegotiating. So we would have basically negotiated ourselves backwards six years. We wanted the men's current agreement, you know, yada, yada. I think they

have some arguments that the negotiation themselves were the result of gender discrimination, perhaps. But then you are in a fact-based world. Right, right. Yeah, it's going to be very interesting. And we can't pretend, as we keep saying all the time, judges are human, that, you know, part of you, part of me wonders if the mistake in the court filing isn't going to have an impact on a judge who doesn't necessarily want to become the most reviled person on Twitter for ruling against the women in the aftermath of such a dramatic PR mistake. I keep I've said this. I said I'll say this a million times. I said it throughout my law practice. Always, always, always make yourself the party that the judge would want to rule for. Make yourself the party that the judge would want to rule for.

That is like the David French lesson. Yes. Also, just to something we said earlier, the women's players do play dozens more games than the men do. Relevant. But it's relevant. Well, I don't think it's relevant because I think it just depends on the job you're being asked to do which is to make money for the u.s federation it doesn't matter how you make the money you agree to make the money uh and also relevant slash not relevant is that the women were paid more than the men 37 million for the women when their club salaries were included to 21 million for the men of course, that's because they win.

Whereas the men lose to like, who did we lose to? Trinidad and Tobago. I mean, there's a certain part of you that says if you're going to lose to countries with one one billionth of our GDP. And you don't don't fact check me on don't fact check me on those figures, but somewhere in there that, you know, maybe we should claw back your salary. Fun fact, I've actually been to Trinidad and Tobago. Beautiful country. Fantastic birding. Birds of paradise. My parents are birders. So, yeah my oh nice yeah uh so uh the i think that the men losing more is as equally pointless to the conversation of what the job is

as the women not being as athletic because again the is on, are you making money for the Federation? And then is that money being distributed in a way that is not based on gender? Right, right. No, I think that it's going to be interesting to see, but I think that your assessment of what the job is, is the better assessment. I think the Twitter response that says, how dare you argue that the women are not as athletic as the men is ridiculous and kind of as ridiculous as the huge argument over whether Serena could win the men's US Open years ago. But it's so funny, Sarah, in the middle of all this coronavirus, some of these some of these arguments that would have take would have dominated the news cycle for days. I know that's another thing that's actually counting against the women. Same with Joe Biden.

Right. Is there's just no oxygen right now. And if that hearing really is held, you know, in just got a couple of days, potentially, I'm not sure that it will be. But it's supposed to be March 30. For the for the summary judgment hearing. That's bad for the women, because they need the oxygen of the PR problem of that filing. Right, right. Yep. That's a that's a very good point. And just to just to illustrate, just as I was saying this about small news versus big news, although the small news does help us stay sane talking about it. Well, speaking of staying sane, I felt, this is just a question, you and I haven't talked about it. I felt like this weekend, especially yesterday, meaning Sunday, things did feel like they slowed down a little.

People got off their phones more i didn't feel like i stayed off twitter and our slack channel by and large um and it was like oh okay this has been a lot for many many days we all need a break you know go outside do whatever you said that you've actually been outside i've you know never heard of such a thing well i you know i live in a community where you can go out and run and still be practice social distancing. And it's kind of funny because you can see someone coming down a sidewalk. And whereas we used to pass right close by each other and give a greeting, I'll swerve into the road or whatever. And so it's just an act of courtesy so that nobody

thinks I'm putting them in danger. But yeah, I have found getting outside is absolutely vital. And yeah, I stayed mainly off Twitter until last night. I kind of logged on to see what was happening and encountered the Twitter apocalypse over the stimulus bill. And then logged back off. And then quickly averted my eyes yeah scott um scott has a convertible he loves his his convertible and when the weather was nice on friday uh he he took me for a ride in the convertible to go to the grocery store uh well he went into the grocery store and my you know preggers self stayed in the car and was not allowed to touch anything or do anything.

Fair enough. It was, I now know what dogs feel like. Like people would come by, keep their social distance, but, you know, ask how I was, how things were going, you know, make sure the windows were rolled down. Yeah, exactly. Exactly. the windows were rolled down. Yeah, exactly. Exactly. Well, and just one to put a period on the sports conversation, just as we're talking about this, the women's soccer team lawsuit, the Tokyo Olympics have been postponed. Not canceled, but postponed. So after the Canada said it was not going to send its athletes. So these athletes, they don't just work so hard to get to the Olympics, but they, you know, their training is time to peak at a certain point.

So even postponing it is catastrophic for some of these guys. And I just, you know, we talk about high schoolers not being to be in their national debate championship or their school play March Madness. And and I do think there's something acute about being a young person and having something taken away that you've worked hard for. But my God, the Olympics. I mean, that is a lifelong dream that you sacrifice so much for. Oh, and, you know, we forget, and I have really felt the loss of sports a lot. I think we forget how much sports is one of the few things left that binds us together, that sort of gives us this sense of shared experience and fellowship and citizenship. And I do worry as the economy continues to crater and as there

is increasing dissent and people have very different experiences with the coronavirus, I am worried about the social tension. I really am. I don't know what to do about it right away, but I'm definitely alarmed if Twitter is any gauge. And it's usually it's often not. But sometimes sometimes it's sort of a leading edge indicator. Man. Well, so what are you doing this week then? Well, so I am reconnecting with Curb Your Enthusiasm on HBO. So that's been – there are shows – so we have now six people in the house. We have all my kids and adding also my son-in-law. that we kind of, once Naomi, our youngest, goes to bed, we kind of have to come to a consensus of five of us. What are we going to watch? Which is severely cramping my late night sci-fi show style. So I'm trying to catch up on Altered Carbon 2. I can't do it. So what the consensus we've reached

is Curb Your Enthusiasm, and we're starting season one, episode one. And I got to say, it's absolutely hilarious. And in a counterintuitive way for me, look, I know I'm talking about a show. The season one, episode one, just to tell you how old this show is, Sarah, starts with Bill Clinton still president. Yikes. Okay. You should see the cell phones. president. Yikes. Okay. You should see the cell phones. I didn't know it was that old. Huh? Yeah. 2000. And so he's such an opposite person from anything that like in my experience, he will not let anything go. He is incorrigible. He is the most maximum incorrigible person you'll ever encounter. And for some reason, it's absolutely my bed that I haven't been able to read for several months. And I'm so pumped because Carl Zimmer is one of my favorite authors and he had a new book come out in 2018, which is embarrassing, called She Has Her Mother's Laugh,

The Powers, Perversions, and Potential of Heredity. I got into Carl Zimmer when he published Parasite Rex, which if you're like feeling sciencey these days, but maybe you don't want to read about coronavirus all the time. Parasite Rex is fabulous. Spoiler alert, it's about parasites. mean, it's gross, fascinating, super interesting. It pairs nicely. You think I'm going to say a wine, but with another book called The Red Queen, which is also about parasites and their hosts. The Red Queen is from Alice in Wonderland. You keep running faster and faster, but you never move. And so you want to dip into some virology. This is the way to do it. And then, of course, another favorite book that I have to throw out there is The Demon Under the Microscope, which is about the discovery of sulfa antibiotics. talking about how azithromycin, along with a malaria drug, was the cure for coronavirus potentially. And Fauci was saying no. And this was a whole back and forth. My first reaction was, oh, dear God, please don't encourage every American to take azithromycin. We don't have that many antibiotics. It will become resistant so quickly. And then we will lose azithromycin entirely, which would be a national tragedy.

And if you want to know why, read The Devil Under the Microscope, The History of Sulfa Antibiotics. I feel like this is a reading rainbow episode. Do you remember reading rainbow? Oh, I do. I do. Yeah. So this is like adult reading rainbow for me.

Readers are discovering how shallow I am compared to you. readers are discovering how shallow I am compared to you. No, I would watch Curb Your Enthusiasm if I liked his sense of humor. I don't know. So on the flip side, I was rewatching 30 Rock because I think that like that is directly in my wheelhouse. Oh, 30 Rock is glorious. My favorite line, my favorite exchange in 30 Rock between Tina Fey and Alec Baldwin. Jack, why are you wearing a tuxedo? Yes, yes. It's after six. What do you think I am, Lemon?

A farmer? I think my favorite line is, ain't no party like a Liz Lemon party because a Liz Lemon party is mandatory. No, 30 Rock is fantastic. But while you're reading genetics, I was watching a TV show, 30 Minutes, that was the theme of the show was a controversy surrounding a crease in a guy's pants. So yeah. I'll let you know how the genetic thing goes out so far. It reminds me a lot of Bill Bryson's A Short History of Nearly Everything, where it starts with some great history on the Habsburg Jaw and the War of Spanish Succession. So, and I, if there's one other thing that I love more than microbiology and genetics,

it might be weird mid-millennia European succession stories. Outstanding. Well, we'll be sure, listeners, to keep you updated on mid-20th century European succession controversies as we work through the coronavirus and pay equity all together. That's what this podcast can do for you. Thanks so much for listening. And please go rate us. Subscribe to the podcast on Apple. Helps us out a lot.

And thank you again for listening. And also, I can't let us go without saying, please become a member at thedispatch.com. Until next time, we'll talk to you on Thursday.