Advisory Opinions - Extraordinary Wits

Episode Date: August 31, 2023

After David Lat is publicly inducted into the AO family by undergoing a fan-based correction, he and David French run through an eclectic mic of legal topics, starting with an update on a heated chess lawsuit. Join the two as they discuss: -Chess settlesment -Mark Meadows’ risky testimony -Amy Coney Barrett’s not so news-worthy comments -Trump’s trial date conundrum -Hardball playing out at the North Carolina Supreme Court -Sackler family’s unpopular bankruptcy appeal via Purdue Pharma Show Notes: -Past AO episode on chess lawsuit Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt, who is filling in for Sarah Isker while Sarah is on maternity leave. Still no news on that front. Still no news. We will let you know when we have good news on the Sarah front. But for right now, it is the Meadows testimony. We're going to answer a quick question

about the Trump trial date. Amy Coney Barrett has commented on public scrutiny of the court. We're going to have a small discussion about a really interesting bankruptcy situation

involving Purdue Pharma, OxyContin, deaths of despair, the Sackler family. It's really a tangled web. And then we're going to end with a discussion of a judicial ethics fight in North Carolina that touches on the First Amendment. But before all of that, we've got a correction, don't we, David? Yes, we do. I cautioned when I was discussing that Fifth Circuit case about free speech that I did not know how to pronounce the name of the municipality at issue. And thanks to the commenters who corrected me, it is Rapides Parish, not Rapides or whatever three-syllable thing I came up with last pod. Rapides Parish, Louisiana. And I even called their school board and listened to their voicemail to confirm the correctness of our commenters. So thank you commenters for that correction.

Well, I would like to think, David, that this now kind of officially welcomes you into the Advisory Opinions family because if there's one thing that we're known for, it is mispronunciation, especially me. So welcome officially. This is like your initiation into advisory opinions, a public mispronunciation. Yep. I also think, and commenters will tell us, I think parish is Louisiana speak for county, not municipality.

Ah, yes, yes. I think that is correct. I think. Thank you for catching me before we have another correction, a correction of the correction. But this is a big day. I mean, beginning with what is now just known as bell-nap-gate, we have had multiple pronunciation controversies and advisory opinions. You're now a part of that. Fantastic. It's just further making you best friend of the pod. And before we go on to sort of the heart of the podcast, I also wanted to circle back

on another issue, which was a settlement in a case that we discussed, that Sarah and I discussed, discussed that probably resulted in more heated commentary and heated responses to us personally than any non-Supreme Court issue we've ever addressed. And I'm not kidding. I think we even had a couple of podcasts where you went back and kind of answered listener complaints about it. But this is the settlement of the chess lawsuit that we discussed. And this is a long time ago. It's so long ago. We'll just put one of those episodes in the show notes. And this is involving Magnus Carlsen, who's a $100 million defamation lawsuit filed against Magnus Carlson by a guy named Hans Niemann, who's a 20-year-old American grandmaster. Carlson had accused Niemann of cheating after Niemann beat him in a game in a tournament in St. Louis. Carlson was the top-ranked player for a very, very long time.

very long time. After Carlson made his allegations, I'm reading here from the Times account of this, chess.com, which has more than 145 million members, which I think makes it more popular than World of Warcraft, David, released a 72-page report concluding that Neiman had cheated in more than 100 games on its platform, and his progress in over-the-board chess, as the in-person version of the game is known, has been uncharacteristically fast. Though chess.com presented no evidence that Neiman had cheated in over-the-board play, it barred Neiman from the site.

So Neiman's filed suit against Carlson, chess.com, et cetera, and the settlement, chess.com, said that it was rescinding its ban of Neiman, allowing him to participate in all activities on the site, including tournaments with cash prizes that can be in the hundreds of thousands of dollars. But it also said it stood by its findings of its report about Neiman from the year before. So also in announcing the settlement, Carlson acknowledged that there was, quote, no determinative evidence that Neiman cheated in his game against me. He added,

I'm willing to play Neiman in future events. Yeah, it's really tough to translate settlement speak, David, which often the guts, the heart of settlements are often well, you know, we're behind the veil of ignorance. But from an external point of view, and listeners, I'm sure will correct me if I'm wrong about this, an external point of view, if you've been accused of cheating and if you've been barred from participating in certain events, and then as a result of a settlement, you are allowed to participate again. One of the defendants says, there wasn't definitive evidence you cheated. And oh, by the way, I'll play you again.

Feels kind of like a win for the plaintiff. Kind of like it? Yes, I guess so. I think that it is vindication in some ways for Neiman. He did acknowledge cheating earlier in his career, I believe, in non-over-the-board games. So this wasn't necessarily great for his reputation, but it is a kind of indication. One thing to add about the settlement is, as provided for, all parties in the litigation will be now allowed to talk openly about their views.

So nobody admitted anything really. And so they can continue to duke it out in the court of public opinion, subject to the things you mentioned earlier. For example, the acknowledgement by Carlson that there was no determinative evidence that Neiman cheated. But I suspect we might still hear more about this. No more lawsuits, it seems, but I could see definitely some more public argument. Yeah, yeah, absolutely. So we're not going to talk about that anymore. Although I am looking forward to reading what you have to say about it

because I did not know, David, that we had a lot of chess players in our listeners. I should have known, should have known, but I did not realize we had a lot of chess players and that they had a lot of views and a lot of thoughts. You know, I've always felt a little weird about chess because I'm the Asian kid who's not good at chess. And so I've never been that into it.

And I've often felt a little bit inferior on it. So I am glad and not surprised that AO listeners are passionate followers of it. I have to confess, I am not a chess devotee. No, I'm not either. Although in my latchkey kid era, I spent time all through middle school as a latchkey kid. And what I would do is I would come home, I would bring out the chessboard, and my neighbor from across the street would come across.

And our version of latchkey life was playing chess on the front porch until my parents got home. So not exactly as rebellious as some of my peers, I would say. But yeah, so I spent years playing chess almost every day and then just didn't play it anymore. Wonderful game. Glad a lot of our listeners are passionate about it and thought we'd just close the loop on that case because a lot of people had definite feelings about it. And I'd love to hear your evaluations in the comments. All right. So let's move on to the bigger news. Martin Meadows testified in federal court in his bid to remove his case from state court into federal court.

Really interesting details about the judge in addition to some of the stuff we talked about before. One of the interesting biographical details about this judge is he's actually the, he's an Obama appointee, as we talked about. He's actually also the judge who, in 2019, he upheld Georgia's purge that had occurred previously. And longtime listeners may remember that we talked, Sarah and I talked about this. This is a federal case that resulted from the Stacey Abrams allegations and some activist groups allegations about unfairness in the Georgia election in 2018. Because remember, there was a Democratic push in 2018 to say that Brian Kemp's victory was not legitimate. And Stacey Abrams for a long time refused to say

that Brian Kemp's victory was legitimate. And then in 2019, this was a really sweeping and important ruling that upheld a lot of the actions that Democrats had pointed to in 2018 to say as their justification for the argument that the election wasn't legitimate. And Jones, he upheld George's actions. It's very interesting. So he's already been involved in a very intense piece of litigation over Georgia elections. And he ruled against the Democratic position, which is also very interesting. point stuff like that out, David, because it is just not the case that you can predict with regularity outcomes of cases based on the identity of the president who appointed the judge. But Meadows takes the stand and Meadows is trying to argue, just to give you a little bit of review,

to give you a little bit of review, that his conduct was relating to his official duties, the color of his office, and that he has a colorable federal defense to the election charges against him. So, David, what did you think about the testimony about his decision to testify? And then after that, I want to circle back to something else we talked about earlier in the week about Meadows. As a number of legal analysts noted, it was a gutsy decision because he is a criminal defendant and he took a stand. And this allowed him to be cross-examined, including about events relating to the criminal charges against him. So it was a bold,

gutsy move. I don't know that his testimony necessarily changes the final analysis. I stand by my earlier prediction that nobody is getting removal. I think that Judge Jones is a very straight shooter. Your mention of the election rolls case is a good example. He's an Obama appointee, but he voted against the Democratic position. But then in 2020, he also held unconstitutional a Georgia abortion law. So that time he voted for the more left of center position that was pre Dobbs, of course, he seems like a very smart, thoughtful, straight down the line judge, in my own personal opinion is removal is not warranted. I will note, again, shout out to the commenters. There are some defenses or arguments in favor of

removal there. But I think it's a bit of an uphill battle. What Meadows was trying to argue and what some of the commenters have argued is, look, the White House chief of staff is this political position, but it is a federal position. There's inherently going to be this kind of bleed between the duties of the office that are executive branchy and that are politically, that's just inherent to it. But we have to give the president and the executive branch broad leeway here. And some people have also tried to question the constitutionality of the Hatch Act, which limits election-related activity by federal executive branch officials. So that's the argument on the other side. But I still think that

if you look at the totality of the circumstances, don't overanalyze it. Just listen to that call. And it's a long call. As Sarah has mentioned, it's not just the one exchange about finding the votes. It's a long call. But if you listen to the totality of the call and the totality of the circumstances, I think it seems pretty clear here. He wasn't trying to focus on federal election integrity. It was about trying to get Trump another term. It was about trying to get him to overturn the results of the election.

I think that's just what was going on here. Yeah, yeah. And we mentioned the Hatch Act and a Just Security piece last podcast. I wanted to dive back into that a little bit because we kind of talked about it on a surface level. And there's a little bit more to that, to talk about that. And I want to go back to this Just Security piece. And by the way, let me just say this.

Just Security is a website that not enough people know about. It's a really excellent legal, it's really an, it's an excellent website that has some of the better legal analysis you're going to find. So strongly endorse. If you want to dive in deeper to issues, JustSecurity is one of these websites. It's kind of a secret weapon for people. JustSecurity is one of these websites. It's kind of a secret weapon for people. They don't know that it's out there, but once you discover it, oh, interesting. Some in-depth legal analysis that's actually understandable. They do a good job of this. So essentially what they argue is that, look, in the briefs before the judge, Meadows' lawyers conceded that, quote, all the substantive allegations in the indictment concern unquestionably political activity, unquote.

Which is an interesting concession, right? Because the Hatch Act says, and it's pertinent part, that subject to the provisions of subsection B, an employee may take part, may take an active part in political management or in political campaigns, except an employee may not use his official authority or influence for the purpose of interfering with or affecting the result of an election. So this is, and this, the employee referred to as a federal employee. And the employee referred to as a federal employee. So this has sort of been broadly construed as the no use color of official state law. I mean, under the color of law, under the color of his office that he was doing this. Now, there are constitutional arguments against the Hatch Act. I'm not confident that they have a lot of merit, but I did think that we needed to dive back into that to look at the actual language that he used in the briefing, the actual language of the statute, and why it is the Hatch Act might really come to bear here. And it's going to be very interesting to see what role that plays in Judge Jones's opinion. And so, David, I don't

know if you've had further thoughts about that issue, but there's also that issue. And let's also deal briefly with a topic that Trump raised regarding, hey, I don't like the March 4th trial date, which we knew he would not. We knew he would not like that date. I don't like the March 4th, 2024 date. Remember his lawyers proposed 2026 as a trial date. I'm going to appeal it. I'm going to appeal it. So A, any additional thoughts on Hatch Act?

B, thoughts on Trump appealing his trial date? So on the Hatch Act issue, I guess we will have to see. We're recording this on Wednesday. And by, I think, the close of business on Thursday, August 31st, Judge Jones is going to get additional briefing from the parties. He said that he wants to move quickly in this case. But at the same time, he's acknowledged the huge importance of these issues. And he did state that if he hasn't ruled

by September 6th or some date like that after Labor Day, of course, the state proceedings will continue to go forward. So stay tuned on that. Regarding the trial date, and this is, of course, in the D.C. case brought by special counsel Jack Smith for Judge Tanya Chutkin. Trump has said that he wants to appeal this, but as most AO listeners know, these types of appeals in the middle of the case, so-called interlocutory appeals, are very disfavored. The general theory is, look, if the trial judge makes a mistake, it can be reviewed by the appeals court on the back end once everything is done. It is just a matter of judicial efficiency. Imagine if

every little decision could be appealed constantly in the middle of the case. Now, there is sort of an escape hatch. It's called seeking a writ of mandamus, and that is an extraordinary remedy. That is basically going to the higher court and saying, wow, the district court or the trial court has majorly messed this up. And my interests are going to be prejudiced in a very severe way. And this is so obviously a huge, huge screw up. And it's funny. Years ago, some people, the term may have already been in circulation, but I've been credited with popularizing the term bench slap, which is sort of like a very harsh rebuke by a judge or a court.

Bench slap. I is basically saying, you have really screwed the pooch here. It is a big capital letters gnaw dog. And I just don't think that setting this trial date, which was in between what was proposed by the prosecution and proposed by the defense, and still gives Trump lots of time to prepare, I just don't see this as the kind of gigantic, glaring, obvious error with very prejudicial consequences that usually leads to a writ of mandamus. So I'm predicting that the higher courts are going to give this the back of the hand. Yeah, I would agree with that. I practiced for 20, I was a full-time lawyer from 1994 until 2015, litigating all 21 years.

Lots of cases in those 21 years, David, from constitutional cases to commercial litigation to being pulled in on employment litigation, lots of things in lots of different courts. Don't think I ever saw a writ of mandamus. Wow. Wow. Don't think I saw one. There's a case where we strongly considered filing for writ of mandamus and ultimately decided not then sometimes that trial judge will feel like they

can operate with impunity against you. You know, you've fired your best shot, right? And you've lost. And so, it is an extraordinary writ. It is. And in fact, that is what is often called an extraordinary writ. And so, this sort of idea that, well, I don't like the trial date equals writ of mandamus, good luck with that. Good luck with that. Yeah. I would say there's a, I don't know, 5% chance of this prevailing, 10% max. Maybe if you got really lucky in your draw of a panel. But again, I think the one thing I guess Trump has going for him is saying, look, scheduling orders, usually no way. This is consigned to the so-called discretion of the trial court, meaning this is the kind of thing that a

trial judge has broad leeway on. Trump can say, look, this relates to a major presidential election. I'm a candidate for a presidential election. These are extraordinary circumstances. So I'm entitled to this extraordinary relief because of how this is going to affect the election and my chances in the election and the right of the people to vote. And I don't know whatever else you want to throw in there. But again, I think this is a real hail Mary. Yeah. I think five to 10%, you're being generous. I think it's more like even a whole percent to me is like being generous on that, getting it a whole 1% of a chance. A trial date set like, you know, is six months or a little less than six months from the indictment is not

crazy. And then look, let's be very clear about these trial dates. They're not chiseled in granite. It is really common to get extensions on trial dates in these cases. Now, if there's a situation where he believed he had an extremely credible argument for an extension on that date, something had come up in discovery. Perhaps they found out that the prosecution hadn't turned over some Brady material, exculpatory material, for example, and then you haven't had time to digest it and prepare. There's a lot of reasons why you do get extensions on trial dates. And I would see perhaps mandamus being slightly more credible if you had a really compelling argument for an extension, say, related to, again, related to prosecutorial misconduct. I'm just making that up.

I don't know of any, you know, then you might be getting more than the one whole percent of a chance. as a general matter, when you lose in these preliminary motions, or you get an outcome in a lot of these preliminary decisions that you don't agree with, you just put it on the list of grounds for appeal. And that's how it works. Yep. No, look, if she had said something like, trial's going to begin in six weeks rather than six months, okay, that would be one thing.

But six months and significantly later than what the prosecution wanted, yeah, I don't see it happening. Yeah. And there's also a difference. You would say if a judge says, look, I'm going to schedule you like I would schedule any other defendant. I don't take into account, say, for example, an athlete's sports schedule, like an Olympians Olympics competition or whatever, you name it. I don't take that into account. You are a criminal defendant like any other criminal defendant. And then now I'm setting the date. It's very different from saying, for example, ah, when is Super Tuesday, Mr. Trump? March 5th? How about we try you on March 4th? So you are going to have to be

here instead of on the campaign trail. Like if you said that to him, then you'd have, that's more of like your mandamacy style argument that, wait a minute, higher court, look at this judge being completely unprofessional and targeting me. Whereas the record in front of, the record with a judge right now is we're treating you like anybody else. And the mandamus would have to be, no, you can't treat me like anybody else. And that, and good luck with that. That's why I'm like,

you've got one whole percent of a chance. Maybe. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation Maybe. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift.

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That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, man, we're flying through, but we're about to slow down. Amy Coney Barrett gave some remarks. She was being interviewed at a conference by Diane Sykes, Seventh Circuit judge. And it's the kind of thing now where a justice of the Supreme Court says anything and it's news. But there was a little bit here that struck my eye. And I just want to go through it and a little bit, get your reaction to it, David. So Diane Sykes, chief judge of the Seventh Circuit, of the Seventh Circuit is interviewing Justice Barrett at a judicial conference and asks about, you know, public scrutiny and things like this. And here is the actual quote from Barrett.

Public scrutiny is welcome, Barrett said. Increasing and enhancing civics education is welcome. Then she says the immediacy and amount of information that is available has fed the increased scrutiny of the Supreme Court. You're not waiting once a day to read your print newspaper, she said. You're seeing things that come across your phone all the time. You're seeing pictures of people. Barrett said that before the birth of the internet, when she was a law clerk, people routinely visited the Supreme Court, and this is interesting, David, and asked justices on the court to take their pictures or for directions because they didn't know who they were. People just didn't recognize who the

justices were, Barrett said. I think that's better. I don't think justices should be recognizable in that sense. But she also said the critique of the court is nothing new. Justices and judges are public figures and public criticism comes with a job. Barrett said, I'm still kind of new at this. Okay, there's not a lot there for a news story, to be honest. But there's a couple of aspects I thought were actually kind of interesting. The number one is I do think there is perhaps, and I'm just, look, let's just be honest.

I'm just pulling at threads here from some pretty anodyne statements. But I do think it is interesting the different tone between Barrett and Alito. But there's also a major generational difference between Barrett and Alito. But there's also a major generational difference between Barrett and Alito. So Barrett had her toe in the water in the olden days when she was a clerk and people were visiting the court and not knowing who the justices were and has now come into the court in the newer days,

the sort of social media, internet news era. And my perception is that what Justice Barrett is basically saying is, while it's perhaps better if we're more anonymous, it is what it is. You just have to be open to it and in fact, welcome it. You know, I'm not sure that that has much import at all, but it did perhaps highlight a little, maybe a little bit of a generational difference, or am I just reading way too much into standard talking points? No, I think you're right, David. I think it does reflect her understanding of the internet age. does reflect her understanding of the internet age. She was a judge on the Seventh Circuit from 2017 to 2020. This is her old court, and she is the circuit justice for it, which means that she's the one who's sort of riding herd on it. She hears emergency applications from the Seventh Circuit.

She's talking to her former colleague, Chief Judge Sykes, who, footnote, was also a Trump Supreme Court shortlister back in the day. And I think she understands that when you're on the Supreme Court, you're going to suffer some slings and arrows. And again, I agree with you. You can contrast this with Justice Alito's interview with the Wall Street Journal, where he seemed really upset and heaved and defensive. And she doesn't. She seems quite gracious about it. She acknowledges that they're going to get public scrutiny. And yes, even if she thinks it was better in the olden days when people would not recognize Justice Kennedy or Justice Stevens, and they would say, ask them to move out of their shot

when taking pictures of the front of the court, even if she thought that might've been better, she acknowledges that, look, this is the reality of the world we live in. So again, I thought it was very gracious. She's a very classy person. I had the pleasure of the world we live in. So again, I thought it was very gracious. She's a very classy person. I had the pleasure of interviewing her for original jurisdiction after her lower court judge, Judge Silberman, who was a real giant of the law, passed away. She's a very gracious person, and I'm not surprised that she took the high road here. So again, there's not much here, I agree with you. She didn't say anything controversial or as Sarah might say, spicy. There was very little spice here.

This is sort of like a turkey sandwich with mayo. It's very bland, but I agree with you that probably the most interesting thing that can be pulled out of it is the generational difference. You know, it's interesting because we've now had Alito kind of very defensive in the Wall Street Journal.

We've had Kagan being much less defensive, sort of, hey, you know, we can be regulated by Congress. And interestingly, Barrett and Kagan seem similar in disposition, in my view, in an interesting way. I think they're both gracious people who are also, and I think this is pretty key, pretty confident people. In other words, like, yeah, take a look at me. You know, Justice Barrett, when she was Judge Barrett, sort of came into prominence to a degree that appellate judges rarely do.

From the beginning, immediately she was tagged by a lot of people, From the beginning, immediately, she was tagged by a lot of people, including Koff, me, Koff, as like, put this person on the Supreme Court. I was jumping up and down and waving my arms in 2018 going, put Amy Coney Barrett on the Supreme Court. And all of her rulings as a Seventh Circuit judge were subject to extreme scrutiny. Her every move was watched going back to her time as a Seventh Circuit judge were subject to extreme scrutiny. Her every move was watched going back to her time as a Seventh Circuit judge. I mean, I guess in the lingo of social media, she would have been a judicial influencer from sort of way back. And so she's been in the glare of the spotlight. And I do think it's really interesting. She's one of these people who has, you know, you never know if the

private persona is more stressed than the public persona, but she has come through it with it really not seeming to phase her public persona at all. And so this doesn't surprise me to see this kind of confident statement about public scrutiny. And it resonated and had interesting echoes to sort of Elena Kagan's sort of confidence about public scrutiny as well, which I found kind of interesting. Yep. It's interesting, as you mentioned, Judge Barrett, Justice Barrett, has been in the spotlight for a very long time. And I would argue she was in the spotlight even before she was officially confirmed as a judge

because she had that famous or infamous exchange with Senator Feinstein. And Senator Feinstein was questioning Barrett as a nominee about the influence of her Catholic faith on her rulings. And she had that really, I guess, terrible quote where she said something like, my sense is the dogma speaks loudly within you

or moves loudly within you or something like that. And of course that made Judge Barrett a real hero or cause celeb on the conservative religious right side of the aisle, because it felt like she was being subjected to some kind of religious test for office by Senator Feinstein. And so ever since then, she was kind of like this folk hero.

Yeah, I cannot believe that I had forgotten that. I wrote about that at the time. I mean, I was like, hello, no religious test for public office. I mean, the dogma lives loudly within you was even on coffee mugs. Loudly Within You was even on coffee mugs. Speaking of which, I will have to say our Naught Dog coffee mug, which is available at the Dispatch store for advisory opinions, is already proving to be quite popular.

So listeners, if you want to proudly show your advisory opinions, allegiances, and loyalties, the Naughtw dog coffee mug should be right next to your dogma lives loudly within you coffee mug, mandatory collector's item. But I digress. I can't believe, David, I'd forgotten about that. You're exactly right. That was because she responded to that again, confidently and graciously, not angrily and defensively, kind of in the way that she conducts herself. And so I thought it was not at all surprising to me that she would adopt that public posture. All right. Well, let's dive into Purdue Pharma. So this case is something that Sarah and I have been meaning to talk about and kept getting blocked by indictment after indictment. But fascinating issue. And David, I'm really interested in your thoughts on this because I have to issue the malpractice alert.

This is complex bankruptcy litigation involving billions, billions of dollars, billions with a B. I am not, I have, I stuck my toe into bankruptcy law when I was a young lawyer, but this is not an area I practiced. So I'm very eager to hear some of your thoughts on this, David, but there's a very interesting issue here. Okay. So what has happened as a top line news point is that SCOTUS has put Purdue Pharma's bankruptcy approval on hold, pending an opportunity to fully hear it before the court. So Purdue Pharma was settling bankruptcy litigation. And here's the question presented. Here's the question presented. And this is from the very brief Supreme Court order putting everything on hold. Here's the question presented. The parties are directed to brief and argue the following question, whether the bankruptcy code authorizes a court to approve as part of a plan of reorganization

under chapter 11 of the bankruptcy code, a release that extinguishes claims held by non-debtors against non-debtor third parties without the claimant's consent. What does that mean in plain English? Okay. In plain English, what that means is you have people suing Purdue Pharma, which is the manufacturer of OxyContin. And we don't need to go into the whole history of OxyContin, but OxyContin is what was supposed to be the magical painkiller, the one that allowed for long-term pain relief without being as addictive as taking straight Percocet or other kinds of opioids, that this was going to be the slow-release opioid painkiller that was going to avoid a lot of the negative effects of other opioids. And in fact, it triggered or helped trigger was a factor in triggering this wave

of opioid overdoses. And the numbers are just unbelievable. During a 20-year period between 1999 and 2019, a quarter of a million people died from overdosing on prescription drugs like OxyContin. Purdue Pharma has pleaded guilty twice to federal criminal charges arriving from its marketing. Thousands of lawsuits were filed. Purdue files for bankruptcy in 2019, proposes a reorganization plan that would make the company a nonprofit dedicated to addressing the problems created by the opioid epidemic. And the Sackler family, now this is where it gets interesting. The Sackler family, these are the people who owned, operated Purdue Pharma, who had withdrawn approximately $11 billion, billion with a B, from the company, agreed to contribute approximately $4.5 billion to fund the bankruptcy plan.

And in exchange, they would be released from liability. That's the part that's interesting here. If the case is against Purdue Pharma, the corporate entity of Purdue Pharma, how is it that a bankruptcy can release the sacklers who are not the debtor in the bankruptcy, who are not the defendants in this particular case. That's the core issue here. That's when it's talking about releasing the non-debtor, that the Sacklers are not the party to the bankruptcy proceeding. And so that's the issue.

How much can the Sacklers get off the hook through the Purdue Pharma bankruptcy? This is going to be a fascinating case, David. And I honestly, I'm going to be studying up on bankruptcy law before these arguments, which are likely to take place in September. But even what little I know, just the question presented seems to indicate that the court and also that the court took the question seems to indicate a degree of skepticism. The question presented again is, can a release that extinguishes claims held by non-debtors against non-debtors third parties, can you do that release without the consent of the claimants?

I'm not thinking it looks good for the Sacklers here. So I'm eager to hear if you have additional bankruptcy expertise to bring to bear. Well, full disclosure in the spirit of malpractice alert, bankruptcy was actually my worst grade in law school. Yeah, law school does have grades. And this was one of my two passes rather than ages. So I am not a bankruptcy expert either, but I'll make a prediction here because that's what I do, or that's what we do. I'm going to predict that the Supreme court reverses the second circuit says that these

non-debtor releases are not allowed under the bankruptcy code. And I will even predict the writing justice. I predict that the due process obsessed justice Gorsuch will write this opinion. And if he doesn't write the majority, he'll write a concurrence. Because there is a due process issue here. I am, say, an opioid victim or the family of an opioid victim. I sue the Sacklers. But suddenly, I don't get my day in court, and my lawsuit against the Sacklers is quashed. And I was not a party to any proceeding where I got to say, hey, and yet my liability suit against the Sacklers was killed off. That's totally unfair.

Now, look, here's the other side of it. And there was an op-ed, I can't remember if it was in the Times, perhaps by a pair of law professors, as a matter of public policy or consequences or equities. This is very sympathetic, the position of Purdue. The Sacklers, I think, have actually even sweetened their office offers. So I think it's now $6 billion that they're going to kick into Purdue or the trust or what have you. This is $6 billion that could be going as relief to families, victims, municipalities, et cetera, tribes, whatever. This is a lot of money that could be going to help deal with the horrific consequences of the opioid epidemic.

So I get it. I understand why people want this to go through. But I just think that regardless of the public policy consequences, I think the law is pretty clear here. This was actually appealed by the Solicitor General's office. I made a wrong prediction here. I predicted there would be no appeal because the vast majority of parties are actually in favor of this, but the Solicitor General appealed this. And Elizabeth Relager's brief on behalf of the United States, I think it may have been the U.S. trustee here, is a very

persuasive brief. She notes that the lower courts are divided on this issue. And she also notes that this is a really radical thing to have this liability protection for parties who themselves never filed for bankruptcy. If the Sacklers personally want to file for bankruptcy, that's fine. And then the people with lawsuits against them can go into the hearings and go into the proceeding and object and say the plan is not fair, et cetera, et cetera. But to actually squash their lawsuits without them, the plaintiffs against the Sacklers, not Perdue, plaintiffs against the Sacklers getting their day in court, I think this is going to be a big nod off. Yeah. No, everything you just said,

I'm nodding along with you. It makes all of the sense in the world. And when you combine that, it's just the way the question is presented. There are times when the way the question is presented, you feel like there's an inexorable logic that flows from this question. And, you know, again, whether the bankruptcy code authorizes a court to approve a release that extinguishes claims by non-debtors against non-debtor third parties without the claimant's consent. My goodness, that screams due process. It just shrieks it. It screams it. And look, I can't argue with your assessment that Justice Gorsuch would be raising his hand to say to Justice Roberts, please give me this. I was born for this.

This is my time. And I could see a bipartisan coalition. You know, Justice Jackson, as you and Sarah have mentioned, has sometimes formed this interesting coalition with Justice Gorsuch. I could see her saying, whoa, this is terrible.

I could even see her writing a concurrence saying, describing the horrors of the opioid epidemic, but then saying, look, due process is due process. The other thing I'll mention is this is a big issue that goes beyond just Purdue because there are a number of major American corporations that have huge tort liabilities or potential tort liabilities that are trying to use bankruptcy to sort them all out in an orderly and fair way.

Johnson & Johnson has been sued for its talc products allegedly causing cancer. 3M is on the receiving end of two multibillion dollar litigations, one over its earplugs for members of the military that apparently were defective, and one over these chemicals that wound up in drinking water. And I think this week,

one of those settlements was announced and another settlement was approved. But a lot of times, companies try to go through bankruptcy to deal with this. Johnson & Johnson tried to go through bankruptcy. I think that the lower court or the bankruptcy court approved their plan, but then the Third Circuit said, no, this is not kosher. So again, this is a big, big issue. I think that if we want to change how this is dealt with, oh my gosh, look at what's going to happen. I think Congress if we want to change how this is dealt with, oh my gosh, look at what's going to happen. I think Congress is going to have to get off the bench and do something because I don't think the justices are going to allow this. Yeah, I agree with you. I agree with you. And this is once, you know, we have this theme at

advisory opinions, Congress, do your job. Yep. This is one of those circumstances where the Supreme Court might be once again ultimately saying, well, if you don't like this, Congress, do your job. We're not going to expand the meaning of the bankruptcy code all on our own. It's going to be up to you. And this may be the kind of issue where given the billions of dollars at stake and given the advantages to both plaintiffs with terrible illnesses, say, and the advantages to corporate America, companies that are facing this great uncertainty, which drags their share price down, I could see a coalition of bipartisan legislators saying, we've got

to do something here. This might be a case where Congress will do its job. Don't hold your breath. You never lose money betting on the inability of Congress to do something. But I think we could see something here if the Supreme Court rules against the non-debtor releases as I predicted. Yeah. Yeah. It's absolutely fascinating and extremely consequential. This is one of those cases the Supreme Court takes up that it is not going to make sort of the list of most. Now, legal insiders might say when they're putting together their Supreme Court term

preview, pay attention to Purdue Pharma. This is going to be one of the most consequential cases. I guarantee you that this is not one of those cases that's going to generate a lot of public response. This is not a 303 creative. This is not a Harvard affirmative action. But this is extremely consequential. And as you're saying, to the extent anything about it is predictable,

it seems predictable to me that you might have one of these, again, one of these cross-partisan, cross-partisan in the sense of judicial, Republican and Democratic nominees, cross-partisan coalitions in the case, and it's kind of easy to predict who they might be. But yeah, it's another one of these examples of consequential cases that really mattered to people's lives that you just can't plug and play into the culture wars. And the other thing I would say about it is for people who sort of complain that the Supreme Court is getting too involved in cultural wars and what have you. This is a classic case the Supreme Court takes.

This is an interesting, naughty, consequential issue of law on which the lower courts are divided. And it has consequences for many companies, untold numbers of victims, billions of dollars. Of course, they should take this case. And it wasn't surprising when they did. Yeah, absolutely. No, it's going to be very, very interesting, and I look forward to talking about this case after the oral argument, and of course talking about this case after the opinion comes down.

Let's go from one interesting thing to another interesting thing. We're bouncing all over the place here, which I kind of like. It's fun. This is an interesting issue in the state of North Carolina. Now, we're going to be talking, I think, in the next several weeks about maybe more than one of these state Supreme Court controversies. Sarah and I briefly talked about efforts to perhaps get some of the one of the new justices of the Wisconsin Supreme Court recused from cases that she commented on when she was a candidate for office from issues, cases involving issues she commented on when she was a candidate for office. very interesting. And this is a North Carolina Supreme Court justice has filed a lawsuit, a First Amendment lawsuit against the North Carolina Judicial Standards Commission. Why? Because she has been placed under investigation for public comments that she made about diversity on the court and implicit bias on the court.

And David, I'm really interested in your take on this. Let me just set up some of the things that she said. And by the way, this judicial ethics commission or this judicial commission in North Carolina can have some real teeth. I mean, it can even remove a candidate or it can remove a judge from office. So here's what happens. In May 17, 2023, there was an article published in a magazine in the North Carolina Bar Association called the North Carolina Lawyer titled Diversity and the North Carolina Supreme Court, A Look at the Advocates. And the statistics showed that over 90% of oral advocates in the North Carolina Supreme Court

identified as white and over 70% as male. This was in contrast with North Carolina's overall statistics. Then after that article was published on June 20th in Law 360, an online publication, the justice, the Supreme Court justice, Justice Earls, who's the only non-white female serving on the North Carolina Supreme Court, Earls, who's the only non-white female serving on the North Carolina Supreme Court, gave a number of remarks. She said she was described as a former civil rights attorney elected as justice, who shared her perspective that she said that the current Supreme Court was lacking on racial diversity. This is one reason why that there were, why are there fewer advocates that come before the Supreme Court who are not male and not white? And she said, well, take a look at

the law clerks. There are 14 or 15 law clerks and no African-Americans, one Latina. She said there was implicit bias where she said that she felt like my colleagues were unfairly cutting off a female advocate, that she was sometimes unfairly not allowed to answer the question that the advocates were, that this was not uniform and not in every case. It could have been a factor, and also politics could have played a role. She said she was not suggesting

that any of this was conscience, intentional racial animus, but she said, quote, our court system, like any other court system, is made up of human beings. And I believe the research shows that we all have implicit biases. So she also talks about how a internal equity committee was disbanded, et cetera. this these were her comments and then she faced a um you know and also she talked about how it seems that some of the conservatives were very interested in their ideology she talked about an illustration was hung up in the north carolina supreme court that depicted the elected

Republican appellate justices as cartoon superheroes called the North Carolina Justice League, etc. This is sort of the flavor. It's not all of the comments, but this is the flavor of the comments. And so she was subject to an ethics complaint. So Justice Earls faces a complaint and there were two parts of the canon of judicial ethics that were directed at her. Part of canon two that says a judge should avoid impropriety in all of the judge's activities and says that judges should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Also, the notice announcing the investigation referred to a canon under the rubric adjudicative responsibilities that states that a judge should

be unswayed by partisan interests, public clamor, or fear of criticism. So she's under investigation. She files lawsuits, a lawsuit. Fascinating stuff. David, what do you think? So this is a very interesting case. She filed this lawsuit in the middle district of North Carolina in federal court, and she's making this first amendment claim, and she's seeking both injunctive relief to stop the investigation and also a declaratory judgment that this investigation is inappropriate. And she suggests or argues that this is having a chilling effect on her. It's interfering with her ability to do her job and to speak out on issues of importance to the judiciary. As you mentioned, Justice Burroughs is the only woman of color on the North Carolina Supreme Court. She's one of only two Democrats on that seven-member court, which flipped its composition recently, which is what led to the ambiguity over some standing the independent state legislature theory case. She's 63, and she, as a Black woman, was also considered by President Biden for the Supreme Court seat that ultimately went to Justice Jackson.

She is a former civil rights lawyer, as you mentioned. She cares a lot about diversity. The governor appointed her to co-chair this task force for racial equality and criminal justice that was convened after the murder of George Floyd in 2020. So I'm not surprised that she is filing this lawsuit. My own view is I actually am sympathetic to her view here. If you look up her lawsuit and you look at the exhibits, which include the interviews, is she being aggressive in criticizing her colleagues? Sure. But I don't think she crossed the line.

And to the extent that she's raising important issues about the judiciary, I think she should be given leeway to comment. And again, look, I don't, you know, sure, this wasn't the most collegial thing. But if you look at her comments, she's arguing that they have already injected politics into it. As you mentioned, you referred to the drawing, the Justice League, one of the Republicans. She also talks about how the conservatives on the court actually refer to themselves as the conservatives. So I think it's one thing for commentators like ourselves to refer to conservatives or Republicans on the bench. But for the judges to do that themselves, it's kind of a little dodgy. So I'm probably siding more with her on this.

you can, and we'll put the complaint in the show notes, you can actually see the North Carolina Justice League drawing. And, you know, in the exhibits, yeah, I'm with you on the merits, you know, barring some, barring, you know, a procedural bar to the case, but, you know, regarding perhaps some abstention issues, regarding an ongoing investigation, et cetera. But on the fundamental First Amendment merits of the case, pretty solidly in her camp here, regardless of what I think about her arguments about implicit bias, et cetera. And there's actually a Supreme Court case that is mentioned in her complaint called Republican Party of Minnesota versus White, which goes back to 2002, that established very strong First Amendment rights in judicial candidates in stating their opinions on disputed political or legal issues. political or legal issues. And this is a case involving restrictions that were placed on candidates from judicial office from announcing his or her views on disputed legal or political

issues. This was what was barred by the canon of judicial conduct in Minnesota. And that was swept away by the Supreme Court. And the Supreme Court swept it away in a pretty conventional First Amendment analysis that said, wait a minute. What you're talking about here is you're talking about a restricting of speech based on its conduct and burdens a category of speech that's at the core of First Amendment freedoms. Speech about qualifications of candidates for public office. And the court just went through a conventional strict scrutiny analysis, narrowly tailored to serve a compelling governmental interest. And it strikes me that Republican Party of Minnesota v. White would, I think, control this case, David. It is pretty broad ruling, and it's hard to see how her speech doesn't fit within it. As she said, and I'll quote her, I believe that the First Amendment provides me and every American the right to free speech and to bring to light imperfections and unfairness in our political and judicial systems.

That is her statement on this. And the other thing I will mention that might be a point that would appeal to conservatives is, I think we do have to be wary of the weaponization of judicial ethics against judges whose views we might not like. Some argue that that is what's happening with the Supreme Court, where people are going after Justice Thomas and going after Justice Alito, even though Democratic appointees to the Supreme Court have done similar things. So here, I think there is a fair question. Is Justice Earls, this outspoken Black woman with a passionate commitment to diversity, who's one of two Democrats on a seven-member Supreme Court, is Justice Earls being singled out partly because

she has underlying disagreements with her colleagues on judicial issues. So I think that even conservatives who probably disagree with her on the DEI stuff might say, look, she does have this First Amendment right. Yeah. And, you know, it's interesting because we do have in many, if not most states, I haven't done the census on this, you have judicial elections. And so the people of the state

are charged with selecting their judges. And so when you do have judicial elections, this is again, going back to the Minnesota v. White, how are people supposed to make these determinations? What kind of information is the public entitled to have to make these determinations? And I do think there is a compelling governmental interest, for example, in prohibiting judges from saying, if you vote for me, for example, every car accident plaintiff is going to win.

Right. That is prejudging the outcome of a case. But the public is entitled to know an awful lot about the judicial philosophy of the people they are selecting. And also this idea that somehow, well, maybe okay during a campaign, but no further information until the next campaign would be a difficult rule as well. Because when you're evaluating public officials and you're evaluating their role and their suitability for office, that's an ongoing process. That is something for which information and critique is important throughout the process. And so, yeah, I do think there are some very, very, very narrow and specific restrictions you can put on a judicial candidate, for example, regarding the administration of justice in a specific case. But as a general matter, in a specific case. But as a general matter, allegations that, for example, the court pays insufficient attention to diversity or that it interrupts women too much, if they don't interrupt

women more, put out that information. Another justice can say, well, I can see how my esteemed colleague might think that because maybe it appears more salient, but we've looked and studied this issue and we found that in fact, we interrupt men more. That's how you deal with it. That's how you deal with it. Not by saying this judge or this justice should face sanction for critiquing her colleagues. And I also know that there's an awful lot of controversy around the very subject of implicit bias as well.

How valid is that as a measure of human behavior as opposed to sort of, if something is implicit or unconscious, how can we regulate it? How can we change? There's a lot of controversy around the whole concept of implicit bias. But again, that's something you can address with more speech.

Another justice can say, you know, my esteemed colleague raises an issue of unconscious or implicit bias. But again, you know, there's no evidence that the whole concept influences actual behavior. And also, by the way, we've looked at the evidence that she states for the idea that we have implicit bias, then there's just nothing to it. That's how you would deal with it. Not, again, by filing a complaint, a judicial ethical complaint. Now, I will offer one caveat or two caveats.

One, I would highlight your point about how in terms of the lawsuit, there may be various defenses not related to the merits. And so I'm not commenting on those. The second thing I would mention is we don't know who filed this complaint. It was an anonymous complaint. And the head of the commission said, look, we have this duty to investigate all the complaints that we get. So we don't know necessarily that it was, say, a colleague of Justice Earls who filed this complaint. We don't know. Probably wasn't, right. Yeah, exactly. But I guess what I'm saying is, aside from the merits of the suit, it's the kind of thing where I wish it had not been filed, this complaint, the complaint against Justice Earls. And that would have then avoided her having to file her own complaint in federal court. And, you know, this is, this actually raises, I think, what's an interesting point.

And that is, for all of the raw ferocity of our federal, you know, the raw ferocity of politics at the federal level that we see, it's more ferocious at the state level. It really is. It really is actually more sort of red and tooth and claw at the state level. And there are interesting reasons for this. And I think part of it is that there is actually people pay less attention to the state level politics than they do to the federal level politics. With the nationalization of everything, the eyeballs are naturally sort of drawn up the chain. And so there's sort of more scrutiny, and in many ways, more accountability for misconduct at that federal level. People get

away with a lot more at the state level. There is a lot more hardball. And this is one of those examples where you see like real hardball being brought to bear against this justice. And you're right. I want to say you're absolutely right. It's highly unlikely that one of her colleagues filed this. I was trying to make the point that the better response if there is a complaint about what she said is for a colleague or somebody else to rebut it on the merits as opposed to trying to shut down her speech or trying to punish her for her speech. But yeah, we just finished a special session in the Tennessee state legislature that ended with kind of what would look like a quasi melee on the floor of, of the house where there's video evidence that the speaker of the house kind

of, uh, shoulder checked one of the Tennessee three. So there were these three legislators who were subject to expulsion from the Tennessee legislature over their conduct during gun, gun control hearings and debates. And two of them were ultimately two, two young black men were expelled. The one white woman was not.

They were brought back in. They were immediately brought back by their city council and then ultimately elected again to serve their terms. And at the end, it looks like the Speaker of the Tennessee House kind of shoulder checked one of the Tennessee Three. And it was caught on video and it sort of created one of these pushing and shoving sort of situations like you see in the NBA sometimes, like, hold me back. But it was the kind of thing that if that had happened on the floor of the U.S. House, it would be big news. Everyone be fighting First Amendment issues brought up during the hearing because there was a ban on small signs. So people couldn't hold up small signs advocating for their position. That ACLU filed suit, that ban was blocked by a trial, a state trial court. I mean, it's been an absolute mess, just an absolute mess. And some

of it includes conduct that if it was conduct in the U.S. House, people would say, what is happening to this country? Right. And it's just very interesting to me that with less scrutiny at the state and local level positions, often you're just seeing much worse conduct. Yep. Just one final observation along those lines. In 2011, there was an alleged physical fight between two justices of the Wisconsin Supreme Court. Imagine if you had an alleged physical fight between two justices of the U.S. Supreme Court. That would have been national news. So I agree with you that the lower scrutiny leads to more ugly behavior. Yeah, yeah.

Well, we'll keep an eye out on this case. Very, very interesting. And thank you guys for hanging with us. This was fun. Multiple quick hits on multiple interesting issues. And one last thing, I've got a little personal announcement. If you are a college student

or an aspiring college student in the Nashville area, I am going to be for, I was announced yesterday, I'm going to start, I'm going to be a visiting faculty member at my alma mater, Lipscomb University, marvelous Christian school in the middle of Nashville. And I'm going to be a visiting faculty member at my alma mater, Lipscomb University, marvelous Christian school in the middle of Nashville. And I'm going to be teaching a course a semester in the evenings.

And my first course is going to be on the foundations of free speech. So really looking forward to that. At some point in the future, we hope to offer some courses like that in the Lipscomb Adult sort of Lifetime Learner Program for members of the community. So that'll be fun. But yeah, I'm excited. I'm going to get in the classroom, David, and I'm going to rather, I've just decided rather than doing these quick hit speeches around the country, I want to invest more in an institution and invest more in like actually forming relationships with students and

faculty members. And so I'm, I'm excited about it. Looking forward to it. Um, so thank you guys for listening and we're going to be back, not a Tuesday because Monday is labor day and the D&D show does not work on labor day, But we will be back next week. Thank you so much for listening.