Advisory Opinions - If You Really Want Judicial Ethics Reform…

Episode Date: August 1, 2024

Justice Kagan makes remarks to the 9th Circuit and President Biden proposes SCOTUS reforms. The usual slow-moving summer legal news drag is disrupted by a number interesting cases and eye-raising comments. On the docket: —To stand or not to stand at a desk —Justice Kagan says Supreme Court reforms are "fair" —The Supreme Court’s caseload —Are justices friendly? —President Biden’s proposed reforms —Leonard Leo says "Dems are destroying a court they don't agree with" —Removing Chevron deference —Title IX cases launch across the U.S. —Taxes on our phone bills —PETA wins one for the gatos —Boneless chicken wings: dangerous or harmless wordplay? Show Notes: —Man makes a passionate speech on boneless chicken wings Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I'm Sarah Asger, that's David French, and David, we're in the same place. We are in the same place. We are in the same place. We are at your standing desk, standing here, looking at each other, doing the podcast. We were having a bit of a discussion on standing desk. So I've used a standing desk since through and since law school, except for my clerkship where they wouldn't allow me to bring in my own desk.

And for the last part of both pregnancies where that just became an untenable burden, literally. What is your standing desk philosophy? I think this is the first time I've been at a standing desk. I'm an evangelist. So husband of the pod now uses standing desks. I've had I think four or five, sometimes I give them away. Like people, you know, let you borrow books or whatever with no intention of getting them

back. Like I send my standing desk out into the world. You send your desks out. That's fantastic. Well, I'm already can tell you're more disciplined than I am because you're standing completely still and I'm just swaying back and forth going from foot to foot.

I think it helps obviously stay awake. You don't get those afternoon sleepies when you're at a standing desk. But I also think it makes me feel at least less frenetic. Like I'm already up, I'm focusing, so it's okay that there's five different things being thrown at me because I don't know, something about the standing and the moving allows me to feel like I can take it all in. Yeah, no, it's, I'm sure there's a lot to be said for it. Health reasons, everything, alertness. Yeah, I haven't even showed you my little surfboard down here that you can stand on

that like is a balance thing. Also, it's there's just so many great parts to Standing Desk Life, David. But we have so much to talk about today. This is a true legal podcast, and it will in some ways be our last one of the summer. Because for the month of August, instead of our usually off-topic August, we're going to do legal books August. So we will be interviewing authors all through the month of August. Now, that doesn't mean that we're not

going to talk about legal stuff. We'll probably do half and half episodes several times. But we have so many cool authors. I don't even know if we can name them all right now. But Keith Whittington, Yuval Levin, David Latt, John and Ah-Zoo. Who else? Oh, Bob Bauer. Bob Bauer. Yeah, yeah.

There's so many. Yeah, we've got a lot. And we have two special guests for our next episode. In fact, Keith Whittington, one and the other one to be revealed to be TBR. Yes. OK, so today, a traditional advisory opinions podcast, we will be discussing Justice Kagan's remarks to the Ninth Circuit in all of their glory. I feel like the media didn't do a good enough job with all of the amazing and interesting things she said. So we'll walk through all of that.

Obviously, Biden has now unveiled his proposed Supreme Court reforms that were the same as his. I'm going to reveal my proposed Supreme Court reforms. And both have an equal chance of coming to fruition. Right. Judge Jim Ho wrote an op-ed in National Review, somewhat touching on some of these reform ideas. And Leonard Leo, formerly of the Federalist Society, also put out a statement. So talking about that. And then, boy, do we have some fun case to talk about a 97 Fifth Circuit on Bonk case on non-delegation-ish stuff. National Institute of Health violated the First Amendment

according to the DC Circuit, boneless chicken, and hopefully we'll get to a little Title IX things along the way as well. So David, let's start with Justice Kagan. Justice Kagan is the circuit justice for the Ninth Circuit. We've talked about this before, that each justice is assigned to a circuit.

Some justices get more than one. But the Ninth Circuit is a big circuit with a long and lovely history of what justices get to oversee it. And she started by talking about her thoughts on Justice O'Connor, who had been the Ninth Circuit justice for some time. And it was interesting. It was sort of an awkward way to start in some ways because Justice Kagan didn't have a lot of personal reflections on her time or conversation with Justice O'Connor, although she did hint at this conversation she said she'd never forget when she became the first female Solicitor General

of the United States. And Justice O'Connor had obviously been the first female justice in the United States. And the Justice O'Connor called her and they had a conversation about being firsts. But that's all Justice Kagan said, she didn't elaborate. No elaboration. But she talked about philosophically

that if you were creating a government and that all of the hardest, most politically divisive questions would end up in a court of nine people, but that actually only one person would really be the deciding vote in those cases. That person would be unelected, that person would have life tenure, et cetera, et cetera. She's like, that'd be an insane way to run your country for 20 years. But that's exactly the system that we had. And she says part of the reason she

thinks that worked so well for that time was because that person happened to be Justice O'Connor and that even when you disagreed with her opinions, that she was someone of great thought and someone who had their finger on the pulse, I think as Justice Kagan phrased it, for the country and what the country needed at any given moment. You'll notice Justice Kagan didn't praise her for being ideological or principled in the way that one thinks of ideology as being,

you know, always sticking to the set of first principles that you had. I found that interesting that Justice Kagan gave a pretty impassioned thought about Justice O'Connor in that way. Yeah, no, I thought that was interesting as well. And it really does speak to this period of time that we went through for really an extended period

where you had first Justice O'Connor, then Justice Kennedy as quote, the swing vote. And so you were having a situation where time and time again on hot button cases, people were coming in and basically aiming the argument at one person, one of the nine, because they knew that one was going to be key. And that is not the way you want to run things,

but at the same time, the disposition and integrity of the individuals, it kind of hung together. I don't agree with everything that was decided in those circumstances, but it was more stable than it might've otherwise been with different personalities and temperaments in that key role.

And David, you know what else is really sort of interesting about large chunks of that time where Justice O'Connor is the swing vote is that for some of it at least, there were eight Republican appointed justices on the court. Rehnquist, Blackman, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas. In fact, in the 1993 term, those were all the justices on the court after Justice White left the court. So it was actually just eight Republican justices on the court. And so for all to talk about the lopsided nature of the court right now, and Justice Kagan didn't get into any of this. It's been far more lopsided in the past and of course President Kennedy replaced Republican appointees to the court. So did President Obama.

He replaced Republican appointees to the court, Souter and Stevens. So both of his picks of Sotomayor and Kagan came from Republican appointees to the court and I guess I do have some leftover frustration and as I've said I'm very frustrated with Republicans about how they handled these came from Republican appointees to the court. And I guess I do have some leftover frustration. And as I've said, I'm very frustrated with Republicans about how they handled the Scalia seat and the Ginsburg seat. But this idea that somehow these seats are locked in to belong to the party of the president who appointed them

is clearly not true in recent history. Yeah, oh, of course. I mean, you fill the vacancies as they arise. That's just the rule. But what is interesting to me is, yes, we had a Republican-dominated court in the sense of dominated by Republican appointees, but that's all while the filibuster existed. And so this is one of the elements of court history that I really wish people would understand a bit better because there's a lot of frustration on the right that all of these Republican appointees from previous eras did not do the things that Republicans necessarily wanted

them to do. They became labeled as squishes, they became labeled as disappointments, some of them, not all of them. But what's important to remember is you could not get a justice on the court without democratic votes then. You just couldn't do it. And Democrats couldn't do it without Republican votes. And that's going to mean that the nominees

are going to be different kinds of nominees. It just does. And it's not a sign of failure of will of Republicans or whatever to not have gotten more committed sort of originalist justices. They were working within a very different system. We'll see in 20, 25 years how much we like the current system, but that was a different system.

Other questions that Justice Kagan addressed. Why so few cases at the court? I love this quote from her. Nobody knows. It reminded me of that SNL skit that Nate Varghese did of where he played George Washington about like how they're fighting for certain grammatical rules breaking from English tradition. Nobody knows. And you know, I've actually been doing some digging into this. And there's this idea that basically with the rise of the cert pool that started in 1973, clerks suddenly realized that they could be really embarrassed if they recommended

taking cert on a case and then it turned out that case was a dud for whatever reason. And so they became cert shy. And there's certainly evidence that the clerks are cert shy. And there's certainly evidence that the clerks are cert shy, but the actual data on the docket decreasing doesn't really bear that out unless you think it took 20 years for the clerks to realize that they could be embarrassed. So the other theories are that the individual justices that joined the court replaced justices

who believed in having a really robust docket, taking every circuit split that was Justice White's MO and that the justices that came on just didn't believe in that having such a large docket. But of course, that to me begs the question, okay, but why didn't they believe in having such a large docket? It just brings you back to more questions as to why that cultural shift would have changed in the first place. But, you know, Justice Kagan, nobody knows. But she does say that she thinks she's working just as hard

and she insinuates perhaps harder than when she first joined the court because of all of the emergency docket issues, which don't get counted in their 60-ish cases that they're taking a year. But, you know, when she was a clerk, it was like 150, now it's 60. I get the emergency docket takes up some space. She said that even as she was here in July

at the Ninth Circuit, she has four memos from her clerks about certain things pending on the emergency docket, one of which we're gonna talk about in that Title IX situation. But I don't know that that for me accounts for the drop in cert grants. Yeah, this seems like one of those things where if you asked her for justices, you might

just get completely different answers where their own decisions on what they choose to accept and why they choose to accept it might be somewhat idiosyncratic or might be strategic in a way that they're not with other justices. Yeah, it strikes me as one of those questions that's just not gonna have a clean answer to it. And you know, when it comes to granting cert, it's the rule of four. You need five justices to decide a case, four justices to take a case.

There'd also been this join three vote, which was basically as you go around that conference table, a justice would say, if there's three vote, which was basically as you go around that conference table, a justice would say, if there's three votes, I will join to be the fourth, a courtesy fourth. If there's not three votes, then I vote to deny. Because you know you're gonna go around and vote in seniority order so you don't really know how everyone else is gonna vote. And so there's also been some scholarship about the death of the joined three votes. And again, it goes back to very specific justices replacing other specific justices who just

aren't joined three years. But again, I think that just leaves you with, okay, but why are now so many of the justices joining the court not into that? As talking to clerks though, and previous clerks over the last 10 years, what they'll tell you is it's not really a lot of strategic voting on cert grants though. Maybe there's some, you know, well, I don't want to vote to grant this case because I don't think there's five votes to come out my way, but it's not like you'd think. And we've talked about this before. If it was a conservative juggernaut court

with six solid votes to come out the way you want every time. And let's even say it's five, let's discount the chief. Then you'd actually expect the cert grants to be going up. To be spiking. But they're not. Because they would be like, I've got a lot of problems with you people and I've got some scores to settle here. Yeah.

Yeah. And this gets to something Joan Biskupic at CNN published a piece about the net choice case and the internal dynamics leading up to that. Initially, Justice Alito was the majority author. And then after he circulated his majority opinion draft about the Texas and Florida social media laws, he lost Justice Barrett and he lost Justice Jackson as well.

That's how Justice Kagan ended up writing the majority opinion in NetChoice according to Joan Biskupic. But there's plenty of evidence that that is accurate given how few majority opinions Justice Alito wrote this term. Yeah, that was one of the data point in Joan Biskupic's favor here was he wrote four majority opinions. That's not enough. Not enough. Not enough. This would not be the first time this happened because there's a lot of informed speculation that the dissenting opinion that he wrote in the Fulton case revolving around religious liberty and foster care was set to be the majority.

In that, it looks like he might have lost Baird and Kavanaugh because Baird and Kavanaugh wrote concurrences in the Fulton case that were, okay, if you're going to replace Employment Division V Smith with what now? Let's slow down a minute before we do that. Yeah. And again, for Biscupix reporting, you had the Fifth Circuit siding against the social media companies, and you had the Eleventh Circuit siding with the social media companies. And Justice Alito was going to take up the Fifth Circuit's mantle and say, yes, this is a facial challenge fail.

So that top part of the opinion would have stayed the same, but then saying, but the Fifth Circuit seemed to apply the law correctly. Instead, you end up with Justice Kagan writing, no, the Eleventh Circuit seemed to apply the law more or less correctly. It would have been a big difference. Oh, yeah. And it gets to those how why it might be very hard to make strategic cert grant votes, because they clearly do not entirely know how each one of them is going to vote and potentially how they themselves are going to vote if they voted initially after conference one way

and then see the draft and are like, well, nevermind. Yeah, no, the caseload of the court is fascinating to me. But at the same time, I've been sort of thinking, okay, what are the areas where there is a real need for more jurisprudence? What are the areas? And now there are people in all kinds of areas of federal law who could probably say an X, Y, or Z arena that are

not hot button, that are not super contentious, there's unresolved circuit splits, and a lot of that is just stuff I'm not tracking. I wouldn't have the ability really to track it. But it does seem to me that the court is, and even looking at the cert grant so far, and of course we'll see a lot more in September, it feels as if the court is punting a lot of the culture war back to the political branches. And if it keeps doing that, then you will continue to see maybe lower, some of these lower caseloads. Well, to tie in a little bit more of Joan Biskupic's reporting, and she always does this at the end of every turn.

She, you know, on a Monday, Tuesday, and usually Wednesday, sometimes even a Thursday, we get these bombshell reports of the internal dynamics within the court of how certain opinions came about. Well, another one she wrote was on the internal dynamics around the Trump immunity case, and that the chief was kind of always where this was. It was always gonna turn out this way. It was a 6-3 vote from the get. So in

some ways, her bombshell reporting was that there was no bombshell here. And Justice Kagan, I want to be clear, was not referencing the Trump immunity case whatsoever when she said this. She was quoting Justice Gorsuch, quoting Justice White as a story that Justice Gorsuch tells when he was clerking for Justice White, in which he would go quoting Justice White as a story that Justice Gorsuch tells when he was clerking for Justice White, in which he would go to Justice White and say, you know, I don't understand this decision. It's very muddled. It's not making a lot of sense to me. And Justice White would say, was it an April argument? And then he would say, we do our worst work in April. And there's in fact some scholarly research in law review articles that show

that April argument cases are more likely to be overturned later by the Supreme Court than any other argument month. Interesting. And it makes sense because not only do they then have 60 days or less to get the opinion out, but sort of like the kid who's left all their homework to the end anyway, they've also got all the other work that's piled up that's circulating and then they get another term paper dropped in their lap at the very end of April if it's the Trump immunity case. Boy, it felt more true to me this term than other terms that an April decision was the hardest to understand, the most muddled. And when you think about the fact that it wasn't just that they only had 60 days, but that they had all this other stuff they were trying to get done too. Maybe my side eye at the chief's normally

so concise, clear writing, you know, maybe it's an April problem, as Justice White said. It could be. I mean, but it's absolutely a problem when you have an opinion that very, very, very smart people read in good faith and cannot agree on what... On the basics. ...like, can the president take a bribe? We don't know. We don't know. TBD. TBD. cannot agree on what's... On the basics. Like, can the president take a bribe? We don't know. We don't know.

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To learn more about third-party litigation funding, visit apci.org. That's ap for sensible reform. To learn more about third-party litigation funding, visit apci.org. That's apci.org. Okay, some other things that Justice Kagan talked about in front of the NICE Circuit. She is anti-concurrences. And in fact, Justice Kagan, by order of magnitude, writes the fewest concurrences as a justice on the court.

Her argument is it muddies the waters. And there are times to write a concurrence, i.e. when perhaps you would have voted for the same outcome, but for entirely different reasons. But she says just because she would have written the majority opinion differently, that is not a reason to write a concurrence because it confuses lower courts. And it's sort of an act of, she again, not her words, arrogance, if you will, to just think the world really needs to hear how you would have written the majority opinion.

Like, of course you would have written it differently. You're a different human being. Adam White over at AEI, he and I were talking about this and I asked his permission to say this, but he called, he said, concurrences are the fanfic of Supreme Court jurisprudence. True enough. There have definitely been an increase in concurrences at the court. I don't have the numbers right in front of me, but roughly speaking, 20 years ago, it

was about 0.7 concurrences and now we're at 1.8 concurrences per majority opinion. And Justice Kagan pointed to Rahimi, for instance, where every justice except for Justice Alito gave in to that urge. So I take a back seat to no one in my regard for Justice Kagan. However, I'm going to say I'm team concurrence here. But are you team concurrence because we're podcasters and we like knowing what they're

thinking or are you team concurrence because it's best for the law? I'm team concurrence because I'm not just a podcaster. I'm also a recovering litigator who would have... What was it? It was the hair just for men? Yeah. I'm not just the president. I'm a customer. I'm a customer. I'm not just the president, I'm a customer. I'm a customer.

I'm not just a podcaster, I'm a litigator or a former. No, when I think about it, because, okay, it depends on how the concurrence is written. Let me go with say, the one of the, the Kavanaugh concurrence and Dobbs. So I found that to be very, very useful because what he was basically saying was laying down his own marker

that if you are a litigant and you're looking at sort of things like travel restrictions, for example, which is something that he addressed, you're gonna know right there, oh boy, I don't think we've got Kavanaugh on that, right? And you know you don't have the three other, three democratic appointees. So you have valuable information. Similarly, Kavanaugh's that, right? And you know you don't have the three democratic appointees.

So you have valuable information. Similarly, Kavanaugh's concurrence with Bruin, where he talks about, hey, look, we're not saying that we're sweeping away all kinds of gun control restrictions. And again, that forecast, in many ways, were heme. So if you'd read Kavanaugh, you would see, you would know that, well, you've got a guy here in Kavanaugh who's not necessarily on board with the strictest possible reading

of the historical record, that he's going to have some permission structure for other kinds of gun control restrictions. And then finally, Sarah, I think the Rahimi concurrences, I've said this before, I'll say it again, it was like a smorgasbord if you are interested in the philosophy of the justices, which is a matter of extreme public interest, I think. And so that's why I can see that you could do it poorly. I could see that you could do a concurrence

that does truly muddy the waters, but as a general, I find them clarified. Okay. I think you're both right and therefore Justice Kagan's writer in the sense that you're talking about litigators being able to anticipate the court. And I don't know that that's the job of the Supreme Court to signal where they'll go next. And that perhaps she's right that it just would be clear to lower courts, if this were the decision and that's it, you then as lower courts, let that percolate, see how you would apply it to this next set of facts instead of looking at the chicken entrails that Justice Kavanaugh left you and trying your best.

Because the Fifth Circuit, in good faith, I think did try their best in Rahimi. Oh, I totally agree. Looking at those chicken entrails and they got it wrong. I totally agree. But let me explore this. Did they get Rahimi wrong because there weren't enough concurrences in Bruin? I hear you. I sort of anticipated that response regardless. Yes. Okay. So two more things that Justice Kagan talked about. One, missing Justice Kennedy on the court. This came up in a conversation about collegiality on the court.

And I love the way that Justice Kagan pushed back on this idea that if you don't have Justice Scalia and Justice Ginsburg going to the opera together, there must not be collegiality on the court. Her point is like, collegiality for what purpose? If it's to have adorable headlines about dogs and cats hanging out, then yeah, I guess that's missing. Fine.

You know what? She didn't say this, but in seriousness, I think it does help the institution of the court from a purely dogs and cats hanging out perspective. Oh yeah. I totally agree with that. But Justice Kagan's point was collegiality has a purpose. And the purpose is, are you open to someone else's ideas? Do you talk to them enough to understand their perspective

that's different from your own, but a good faith, interesting perspective that you wanna hear more about? And she says, we do have that. When we have lunch together every day after oral argument, that's part of what we're building. And she's like, some of my colleagues like to talk about sports, for instance. I wonder who that would be. She referenced baseball in particular. And she's like, so that's there.

And she's like, I think you can see that. The opinions, she says, that being said, she misses Justice Kennedy because he was the civility enforcer. He had the ability to call any other justice and say, take out that line, it's not necessary. And Justice Kagan says she tries to avoid adjectives in her own writing for that exact reason. And she says at the same time,

she'll look back at something she wrote 10 years ago, oh, probably didn't need to include that. Yeah. And so missing that civility enforcer. She misses on the court. And what a lovely thing also just to, to have said about you if you're Justice Kennedy. Yeah, it is. It is really. And it's a wonderful thing. It's an affectionate thing. And, you. And look, at some level, the proof is gonna be in the pudding.

Because if you're looking at, and we talk about this all the time, there are a lot of unusual, what you would call unusual lineups. Unusual if you only look at it from a partisan perspective, when you learn more about the justices, they get less unusual, the lineups. But the fact of the matter is you do have lineups frequently

that do not match this alleged partisan breakdown at all. You have almost half the cases that are unanimous. So there is some proof in the pudding and, you know. That they're listening to each other. Right, right. And that they're, if persuading might be the wrong word, but if you're listening, you find those strange bedfellows. Like, actually, that fits with what I believe as well.

Well, and this goes to something that we talk about a lot, which is I, of the three branches of government, I think we would both say that we think the judiciary is the best functioning of the three branches. Doesn't mean it's perfect. It doesn't mean it gets everything right. I mean, we have had beef on this podcast with various decisions. I've had beef with, in particular, the two Trump decisions in this last term.

But if you want to say, what is worth, I keep thinking of my friend who started, after he listened to this podcast, started listening to Supreme Court oral arguments just to be reminded what serious argument in American government sounds like. And I think there's something to that. If you read the opinions in the Supreme Court, if you listen to the oral argument, what is happening is serious people making serious arguments.

You do not see the grandstanding that you see in Congress. You do not see the viral gotcha moment. Listen, Sonia Sotomayor destroys. You don't have that. It is serious people making serious arguments. I think, to be honest, one of the key value adds of this podcast, not to promote the podcast to people who are already listening to it, but one of the key value adds is I think that's the insight we have into the court that is far more accurate than the insights of those who say, no, it's just a political creature. It's just driven by the demands of tribe and loyalty, et cetera. I think that's just off. That's just off.

And you see that when Justice Sotomayor compliments Justice Thomas. He knows everyone in the whole courthouse, regardless of whether you're working the elevator, in the cafeteria, a clerk of some other justice. You don't say those things unless you're having lunch or notice that about your colleague. This brings us to the ethics question, by the way, because along those lines, Justice Kagan was asked about a binding ethics reform package for the Supreme Court. She said she's in favor of it. She said, you know, in order to make it binding, it's tricky. She suggested having the Chief Justice appoint lower court judges. She didn't say exactly how many, but I got the feeling we're talking a panel, right? Maybe three, maybe five

of people with a reputation for being fair-minded and ethical, right? And she says, look, not only would this provide confidence to the public, but frankly, it would be a help to us because some of these attacks are unfounded. And then you'd have these fair-minded lower court judges calling the balls and strikes. And again, she didn't say, but seemed to imply. And a lot of them would be strikes. So think of it like body cameras for police officers.

A lot of people on the pro-police side were for body cameras because it was going to show that that bad thing didn't happen. I think there's legal issues. She raised this as well with having lower court judges who are under the Supreme Court now be above the Supreme Court for certain things and it would be binding and how would that work? Would they have subpoena power? Lots of people have raised problems. The point that's interesting though is you have a justice of the Supreme Court coming up with her own ideas of how to make this binding ethics pledge or ethics reform package. I like it. I like that idea a lot, actually. My one refinement would be make them senior status circuit

court judges who there's no argument that they're angling for something. There's no way that you could argue that they're currying favor. I really like the senior status part. I also think that this would just take the whole ethics thing out of the institutional problems for the Supreme Court. And that is an institutional win for the Supreme Court because I think I agree with her that

in the majority of cases, it will either be that it wasn't against the rules when it happened or that it's simply not against the rules, that it was not factually accurate, et cetera, et cetera. And so I don't know why all of the justices at this point wouldn't want it to be binding and just put it on someone else, right? Put it on these judges. Yeah. Oh, I think it's a very, very smart idea.

I've been sort of turning it over in my mind ever since I heard it, and it's hard for me to see sort of a clear downside here other than let's suppose you're a Supreme Court justice and you say, nah. There are legal problems. There are legal problems that arise. As she flagged and as others have flagged since then. Last thing, David, that I just thought you would be interested in. She was asked about the future of administrative agency action post-Chevron. And she said, I don't know for three reasons, because we don't really know what the lay of the land is gonna be.

One, Congress, of course, could simply pass a Chevron Act and make Chevron deference by statute. Two, she says Congress can also, in any given statute, explicitly defer to agency expertise on these types of questions. And how much will they now do that, knowing that it's not sort of built in already? And three, she says, we've reverted back to Skidmore deference, which came, you know,

whatever that was 40 years before Chevron. And Skidmore deference is just, you give great respect to the agency's interpretation. And she's like, we don't know how beefy that's going to be and how muscular that type of deference is going to be. Felt like a concurrence of sorts. Yeah. Yeah. No, I think that is a very, very interesting question. And it is absolutely the case that Congress can write around Lope or Bright. There's just no question about that. Where it really comes into play, in my view, are when you've got more agency interpretations or new agency interpretations of existing statutes. And we've got one on the emergency docket right now. We've got the Biden appeals of lower court decisions

blocking parts of his new Title IX regulation. And again, this is another one of those situations where Title IX has not changed. It is still the same statute, but it means something different under Obama. It means something different under Trump. And now it means something different again under Biden. And that is what, to me, that's where you're going to really see the effect in my view of Chevron. I think, I mean, of removing Chevron.

It's these older statutes that have been sort of executive branch playthings for the last several decades, perhaps. And they're not going to be, there's going to be essentially one interpretation. One of the fun things about the summer is that the justices do tend to sit down for these longer form interviews and we get to pick them apart. Yeah, do they now? So we'll be looking forward to more of those as the summer continues. Next up, President Biden issued his three Supreme Court reforms that were exactly the

same ones that we saw when he said he was going to propose three Supreme Court reforms. So one, an amendment to supersede the Trump immunity case. I've already said I like that conceptually because it reminds people that you can always supersede a Supreme Court case either through statute or through amendment. The political process always has the last say. And I think there could be popular support for such an amendment, not in this exact moment, less than 100 days, fewer, not in this moment, fewer than 100 days till the election. But at some point there actually could could be so. Okay, to 18 year term limits for the Supreme Court justices, if Harris were to win, this would

potentially allow her to replace the Chief Justice and Justice Thomas, of course, she'd have to win, the Democrats would have to control the Senate. And this would have to be a real proposal, which given the fact that President Biden didn't even talk to members of his own party in Congress, makes one think that it's not. And perhaps most importantly, there's real legal questions over whether you can do this by statute or whether that would have to be a constitutional amendment as well. We've talked about term limits. I came in term limit curious. I left term limit gnaw dogging. So I'll get to you in a sec. Number three,

binding ethics code. Again, no real meat behind what that would look like. Real questions of how it would work legally. It was a pretty short op-ed, all things considered. David, this is press release politics at its most obvious, but also oddest because he's not the nominee, and frankly, anything he's doing right now is hurting Harris, because she needs to control her own message and not get sort of whipsawed around by stuff the White House is doing that they don't need to.

Yeah, and this is what press release politics, messaging legislation is another way to say it, where you're filing something. Basically, the charitable way of describing messaging legislation is to say, I'm taking a stand. Yes. The uncharitable way of saying, I want on TV. And so one of the problems that we

have in this world of journalism is I always have this kind of, I'm not your trained seal to respond to your messaging legislation. So if it's not serious, if it doesn't have any real prospect of passing, how much time do I wanna think about this? But this is a little bit different. So without being a hypocrite,

I wanna talk about the messaging legislation a little bit. One, I love the idea of a constitutional amendment. That's a proposal that's not, it's least likely to occur because as we know, constitutional amendments are hard, but I like what you said. It reminds people that these things do exist. Second, I want the conversation about term limits. If you go to Fix the Court, which has been advocating term limits for a while, they have

this really interesting lineup of what all the senators who've been on their record about term limits, what they've said. And it is not a uniform list of Democrats saying term limits, term limits, term limits. You've got quite a few Republicans on there saying, oh, I'm open to this. I'm open to this. Let's think about this. And in 2015, Ted Cruz famously wrote a pretty ringing endorsement of term limits after Obergefell. Now, the problem we have with term limits, let's be clear, you and I have talked about it, but here's another one. The people who are for it are almost always the people who think they've lost the court for a generation. So after Obergefell was probably the lowest point, the most pessimistic conservatives

have been about the court in a long, long time. And so yeah, some people were for term limits. Now they're extremely optimistic and they don't want to be for term limits. It's the classic same thing that happens with the filibuster. Every couple of years, somebody will say, you know, that filibuster doesn't seem so great anymore. And they're always in a narrow majority when they say it. So and then on the ethics code, I've got to say I'm I'm a little bit persuaded by the Leonard Leo critique, which is.

Ooh, can I read the Leonard Leo critique? Yeah, read the Leonard Leo critique, because there are parts I don't find persuasive, but I'll first talk about the part I do. No conservative justice has made any decision in any big case that surprised anyone, so let's stop pretending this is about undue influence. It's about Democrats destroying a court they don't agree with. If President Biden and the Democrats were truly serious about ethics reform, then they would ban all gifts and hospitality of any kind to any public official

in any branch of government, starting with Congress where the real corruption is. They would close all the loopholes that allow members to travel on private jets to fancy hotels and restaurants. With respect to judges, they would include the things where influence peddling is most present and dangerous. And that's when the liberal justices rubbed shoulders with influencers at places like law schools, bar associations, progressive

think tanks, and their conferences, and other groups and events funded by left-wing billionaires where they support real vested interests in the work of the court. Let me be clear. If Democrats want to adopt an across-the-board ethics ban for all branches, I am in favor of that. No jets, no meals, no speaking honorariums, no gifts for anyone from any one, no gifts for anyone from anyone for any reason in any branch starting with Congress. Until they support that, let's all be honest about what this is,

a campaign to destroy a court that they disagree with. Okay, rhetoric's a little overheated. Anytime you say, let me be clear, that could just come out, but okay. Exactly. But he's got a point about ethics more broadly. I mean, look, where right now there's more, there's legislation pending around

stock trading by members of Congress. Members of Congress do well in the stock market. I find that a problem, a problem. So I'm with Leo 100% on, let's just have a uniform federal ethics code that applies to everybody and let's make it pretty stinking draconian. Let's just make it draconian. Now my other addition is and let's raise people's salaries. That's my other addition. Let's make the gifts draconian. Let's raise people's salaries. So yeah, I'm with him for that. I'm not with him on the opening sentence

where there's been no surprises. I've been a little surprised by a couple of cases, but I do not chalk it up in any way, shape, or form to corruption or gifts or anything like that. I just chalk it up to disagreement. And I think broadly we've seen across the political spectrum, a lot of agreement on having ethics reform. They just wanted to apply two different things. And I've raised my hand and said, absolutely, these things must, like Congress is far worse.

And there's a reason we're not focusing on Congress and we're focusing on the courts. And that's the political reason. So why members of Congress can trade individual stocks and the insider trading rules around that is bonkers town in the most bonkers townie sense. And yeah, I do think that there's a problem with an ethics code that basically has a loophole for things that liberals are more likely to go do than conservatives. Right. But I'm less worked up about that, but fine. Yeah. Okay. Judge Ho wrote an op-ed about this as well.

Judge Ho on the Fifth Circuit. He said, But the recent attacks in the Supreme Court aren't about improving judicial ethics, they're about undermining them. Judges are supposed to decide cases based on the law, not self-interest. But critics of the court want the justices to rule based on self-interest, namely the interest in avoiding criticism. Their goal is not to restore confidence in the judiciary, but to bend judges to their will by shaming those they don't like. We know this because the critics aren't applying consistent ethical standards.

They're applying hypocritical double standards. He mentions all the things that we've talked about this podcast, Justice Ginsburg's comments about Donald Trump's taxes and then she rules on Donald Trump's taxes. Several of the justices and judges with spouses who work for organizations that file briefs before their court or before the Supreme Court, including Justice Ginsburg again. The one that we perhaps haven't talked about is the media response to, for instance, Justice Alito going on a fancy fishing trip in Alaska versus Justice Jackson getting front row Beyonce tickets. One of those shady, scary, corrupt. The other one, OMG, So Cool, Slay Queen, Beyonce's Amazing.

Right. And in fact, the underlying ethical problem should be the same. And you know, we talked about this offline in our podcast Green Room. And I think this is one of those circumstances where you really do begin to see sort of how the ideological monoculture of to see sort of how the ideological monoculture of newsrooms and not just the ideological monoculture, but the cultural monoculture of newsrooms comes into play because your average person, say, in a newsroom looking at the Beyonce story might think, well, that's fun. A Beyonce concert is fun. And Beyonce

is not trying to influence the court. They're is fun. And Beyonce is not trying to influence the court. They're not trying to. Beyonce is not trying to get a particular legal doctrine enacted. This is just somebody reaching out to somebody they admire. Big deal. No, it doesn't matter. Whereas if you say, well, a conservative justice got Miami Heat tickets thanks to a billionaire that the journalist doesn't know or might be an industry that the journalist doesn't know or might be an industry that the journalist doesn't like, then a lot of the suspicion starts to lock in. What's going on here?

Who is this person? So Beyonce, it's fun, fun, cool. This other billionaire, who are you? What's your agenda? And it's a, and some of that's almost, it can be almost like automatic unconscious. And look, I don't think that there's, I think we use terms like the media way too broadly,

like way too broadly, but there is a phenomenon where there is, there has been less angst over some of the actions of some of the more progressive justices. No question. Looking for a change of scenery? Come on over. Let us give you the tour. Grab a paddle and explore.

Hit the trails and go. When you're ready, kick back and call it a night. New Brunswick. Always inviting. Visit tourismnewbrunswick.ca Go back to school with Rogers and get Canada's fastest and most reliable internet. Perfect for All right. Time to do some case stuff. Should we start with the Title IX emergency docket petition to the Supreme Court? And David, this has been percolating. We haven't actually covered it a ton, but court after court have ruled against the Biden administration's Title IX rules as applied to transgender athletes in schools. Well, and so the Department of Education issues broad new Title IX guidance that was going

to an effect and it deals with things like pronoun usage, it deals with access to bathrooms, etc. Will gender identity be considered encompassed within Title IX, which is, Title IX, which prohibits discrimination on the basis of sex? It doesn't, on its terms, prohibit discrimination on the basis of gender identity. This has been challenged in a number of courts, and so far there have been injunctions issued against the Biden Title IX guidance. And so the Biden administration is charging up to the Supreme Court to try to get its regulations back, in other words.

And here's the interesting question for me about this, Sarah. I think based on the Bostock precedent, that is going to be very hard for the states who are challenging or the litigants who are challenging this Title IX guidance to say, no, gender identity is not going to be part of sex discrimination. That's going to be a hard argument to make. No, it'll be a hard argument to win. Hard argument to win. Sorry. Hard argument to win to say that gender identity discrimination is not encompassed within sex discrimination for all the reasons in the Gorsuch opinion in Boston. However, however, that does then not automatically mean that there will be, you know, biological

males have access to women's restrooms in high schools. It does not automatically mean that pronoun usage, for example, would be mandatory or preferred pronoun usage would be mandatory because there are other interests at play. And then there's this other issue here, Sarah, that goes back to some of the administrative law conversations we've been having all along. As I just said, the statute hasn't changed, but the law keeps changing. So I'm going to be fascinated to see how the court ultimately addresses this. This is going to come up post-chevron, so there is not going

to be deference to the Biden administration. And if I had to predict, I would say they're going to say that gender identity non-discrimination is encompassed within Title IX, but that that does not necessarily also mean that there is access of biological males to females restrooms or that pronoun usage will be mandatory because those implicate other rights. Intermediate scrutiny. It's whatever you want it to be. And gender distinctions have always been intermediate scrutiny. I think this, over the summer at least, also implicates the nationwide injunction or just universal injunction things.

And you look at the Solicitor General's brief to the court, and really what they're saying is they enjoined too much. There are things they didn't even argue about, that they didn't even say could be unlaw're saying is they enjoined too much. There are things they didn't even argue about that they didn't even say could be unlawful, they got enjoined. And so do you see the court step in with something pretty narrow here? Do you see them just say no because they're so tired of emergency docket stuff, but at the same time, they're also tired of large blanket injunctions. There's a lot of different factors pulling against each other for this petition.

And it's the summer and they'd rather be doing other stuff. Yeah, this is crossing a lot of streams to use a Ghostbusters reference. And so I've just got to say, I've got a punt on this one. I don't know, I don't know. They've also been very hesitant, might be the wrong word. They have simply not taken any of these cases yet. Any of the transgender cases, they have simply not taken any of these cases yet.

Any of the transgender cases, they have one coming this term in the fall. It's very different. It's very different. So, yeah, we'll see. It would not surprise me if we end up with two transgender cases in the next term. This one and the child gender transition case. Both of them coming out of Tennessee. All right, next up we have the Fifth Circuit en banc case.

This one I thought we should talk about because I think it will be going to the Supreme Court. We now have a pretty drastic circuit split over something that frankly, not many of you are gonna care about, but you should because all of you are affected by it. So this was nine, seven. So pretty close call on the fifth circuit even.

They break with the other circuits, the sixth, the 11th, and there's one other that they've broken with on this. And it is the tax that is on your cell phone bill, the universal service tax. And it's on all of your cell phone bills, go check it out. So in 1995, they collected $1.4 billion. And in 2021, they're now collecting $9 billion as the tax has been increased that much. So who's increasing it?

Well, Congress delegated that taxing power to the Federal Communications Commission in 1996. And then the FCC sub-delegated that power to a private corporation. That private corporation then in turn relied on a for-profit telecommunications companies to determine how much it would actually be. So this is a lot of turtles all the way down delegation. So this is what was interesting to me about the Fifth Circuit's opinion. There's one way that they ended up ruling on it, but sort of three arguments here. One, non delegation. I'll read here

from the opinion. First, Congress's instructions are so ambiguous that it is unclear whether Americans should contribute 1.4 billion or $9 billion or any other sum to pay for universal service. Second, private entities bear important responsibility for universal service policy choices. Third, it is impossible for an aggrieved citizen to know who bears responsibility for the USS serious waste and fraud problem. All three of those things implicate bedrock constitutional principles. Yada yada yada, back to the end. So amidst all the statutes that have survived non-delegation challenges, this one stands alone.

Unlike delegations implicating special agency expertise, this delegates to the FCC the power to make important policy judgments and to make them well wholly immunized from the oversight Congress exercises through the regular appropriations process. Unlike delegations implicating the power to impose criminal sentences, taxation has always been an exclusively legislative function. Unlike the power to impose conditions on the use of public property, taxation involves the conversion of private property. And unlike other congressional delegations implicating core legislative functions, this is a hollow shell that Congress created for the FCC to fill.

So amorphous that no reviewing court can ever possibly invalidate any FCC action taken in its name. But they end that section by saying, so we're concerned with that. Now part two, this is the private entity part of this reading from them. We, one, explain that the scope of FCC's delegation to private entities may violate the legislative vesting clause by allowing private entities to exercise government power. Two, explain that even if the FCC's delegation could be constitutionally justified, the FCC may have violated the legislative vesting clause by delegating government power to private entities without express congressional authorization.

So the FCC has not delegated to private entities a trivial fact-gathering role. It has delegated the power to dictate the amount of money that will be exacted from telecommunications carriers and American consumers in turn to promote universal service. In other words, it has delegated the taxing power. They say, well, that's concerning too. But here's the part that's really interesting. They basically say that while neither one of those may be definitive or may be unconstitutional, they both may be constitutional, the combination

is unconstitutional. So then they go on to explain, quote, why an agency action involving a broad congressional delegation and an unauthorized agency sub delegation to private entities violates the constitution even if neither of those features does so independently. There's a lot of text history and tradition being thrown out in that section, noting that of course, you know, Congress could do this, specify it, but they didn't. And so, yeah, I think the Supreme Court will probably have to take this one, David. Yeah, I agree. I agree. And it's really, you know, I know the Fifth Circuit

has been sort of the Supreme Court's whipping boy of late. I kind of think they're going to get this one. I think they've kind of got this one right. If you're looking at... And I agree, the combination puts this on tilt. It's the broad delegation makes you, you've got your side eye at the broad delegation. But then if the government goes ahead and uses the broad delegation to do something that's not authorized by the statute, that's

actually kind of unusual, then the side eye becomes what's beyond side eye? Right. Like maybe Congress can delegate something that broad and amorphous, but they never said you could then delegate it. That we're delegating to you, but you don't get to delegate to somebody else. All right. Next up, DC Circuit case about the National Institute of Health. And David, this just follows along that Lidkey case about, for instance, state local officials blocking people from Twitter.

And they basically had this test, right, of like, well, you're gonna look at whether they're speaking with the authority of the government, yada yada. In this case, the NIH has a Facebook page. And in the comments, they basically have keyword blocking. And I'll just read you the keywords. So this is the National Institutions of Health Facebook page have keyword blocking. And I'll just read you the keywords. So this is the National Institutions of Health Facebook page has keyword blocking.

In the comment section. In the comment section. Got it. Here are the words that are blocked. Peta, Peta Latino, animal, animals, animalis, animalitos, cats, gatos, chimpanzees, chimps, hamsters, marmosets, monkeys, mouse, mice, primates, sex experiments, cruelty, revolting, tormenting, torture, torturing, hashtag believe mothers, marijuana, cannabis, Hitler and Nazi.

So you banned Gato, which is Spanish for cat. I don't know Spanish. I think that's right. That's correct. Okay. And you banned Hitler. That's right. From cats to Hitler. That's a good title for this podcast. From cats to Hitler. From cats to Hitler. Okay, so PETA sues and says that this violates the First Amendment that they're being discriminated against. And basically the DC Circuit says, yes, this, the NIH in their comments section created a limited public forum. Just for those thinking back to when we covered all of the different types of forums under

the First Amendment, a limited public forum is a government-created forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. As in non-public forums, speech restrictions in limited forums need only be viewpoint neutral and reasonable in light of the purpose served by the forum. So let's jump into one of the facts here. In July, 2021, one of their posts, the National Institute of Health Post, featured a photo of the eye of a zebrafish.

The caption read in part, "'This picture of an anesthetized adult zebrafish was taken with a powerful microscope that uses lasers to illuminate the fish. It is unreasonable to think that the comments related to animal testing are off topic for such a post. Yet a comment like, animal testing on zebrafish is cruel, would have been filtered out because animal testing and cruel are all blocked by NIH's keyword filters. So I think that's really interesting and builds upon some of these First Amendment blocking what is the forum, how is this going to work type cases that like, yeah, obviously when

those are the words that the NIH blocked, they were trying to prevent certain viewpoints from being expressed on their posts, viewpoints about animal testing. Right, and you know, this is another one of those circumstances where offline analogies are helpful in the online space. So even though NIH does not own its Facebook page, the Facebook page belongs to Facebook.

And this is something that going back to the Twitter cases, this was my big question, okay, wait a minute. If I don't own the page, and if I don't have actual control over the page, that that's shared control with the ultimate control with Facebook, can I say that this is my forum? But the courts have basically said,

okay, well, we're deciding that, yeah, it's your forum. And once you've decided that, one of the good offline analogies would be imagine if the government rented a space in a hotel to hold a town council meeting. And then while it was using that rented space, suppress the free speech of people in the community. They wouldn't be able to get off scot-free by saying, well, but that was at a private place. This, that wasn't public action. This was all in the hotel. The hotel runs it.

We don't, we were just guests. No, but if you have the space and if you control the space for a purpose in a particular time, then yeah, then the constitution's gonna, the constitutional restrictions are going and limitations are going to attach. It's also pretty clear this isn't viewpoint neutral. In your example, for instance, if someone stood up and said, yes, this is exactly the

type of science we need, that would be allowed. But if they said, no, this is not the science we need because it relies on animal testing, that would not be allowed. On referencing our poor little zebrafish. Right. So I don't think this was a close call. Congrats, DC Circuit. Yay, First Amendment.

And David, this takes us to our last decision, the one that everyone has asked us to cover, boneless chicken. Okay, so this is a case where a guy goes and orders boneless chicken wings. He eats them, he feels something weird in his throat, tries to like cough, it doesn't really work. Days later, he gets a fever. It turns out that he ate a small, thin, one point something millimeter bone and it ripped a hole in his esophagus that then got infected.

He needed surgery. It all went very, very badly. So he sued and the Ohio Supreme Court, in a relatively close decision, held that writing boneless chicken wings on your menu was not a promise of bonelessness. And I'll just read you a part of the dissent here. The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that it is common sense that the label boneless wing was merely a description of the cooking style.

Jabberwocky. There is, of course, no authority for this assertion because no sensible person has ever written such a thing. The majority opinion also states that a diner reading boneless wings on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating chicken fingers

would know that he had not been served fingers. More utter jabberwocky. The question must be asked, does anyone really believe that parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don't. When they read the word boneless, they think that it means without bones, as all sensible people. That is among the reasons why they feed such items to young children. The reasonable expectation

that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. Instead of applying the reasonable expectation test to simple word boneless that needs no explanation, the majority is chosen to squint at that word until the majority's sense of the colloquial use of language is sufficiently dulled. As noted above, I certainly am not convinced at this stage of the proceedings that the processor, the wholesaler, or the server of the chicken was careless or negligent.

But I am convinced that the plaintiff in this case should be able to present evidence of their negligence to a jury. Jurors likely have eaten boneless wings. Some will have fed boneless wings to their children and jurors have common sense. They will be able to determine better than any court what a consumer reasonably expects when ordering boneless wings. David, this was not a fight about the word boneless or boneless wings or the expectation one has in ordering boneless wings. This is about tort reform.

boneless wings, this is about tort reform. It was always about tort reform and about what we do with these types of lawsuits where unfortunate things happen to unlucky people. But if it were about the word boneless, I do think the dissent has the better end of the argument here that boneless chicken wings is a different representation than the wings part or chicken fingers. The fact that the meat doesn't come from the wings is pretty irrelevant to one's experience. The fact that it's boneless is not irrelevant to one's experience. You know, this reminds me of a scholar, a 27-year-old man by the name of Ander Christensen.

And I don't know if you remember this seminal moment in American history, but he went to the town council of Lincoln, Nebraska, and he stood up and he made the following statement. Norman Rockwell standing, you know, portrait of the man standing in the city in the town hall. Standings. Lincoln, Nebraska has the opportunity to be a social leader in this country. We've been casually ignoring a problem that has gotten so out of control that our children are throwing around names and words without even understanding their true meaning, treating things as though they're

normal. I go into nice family restaurants and I see people throwing this name around and pretending as though everything is just fine. I'm talking about boneless chicken wings. I propose that we as a city remove the, and this is in the famous YouTube of this, laughter starts to interrupt him. And he very indignantly says, excuse me. And then says that we as a city remove the name,

boneless wings from our menus and our hearts. And it says nothing about boneless chicken wings actually comes from the wing of a chicken. We would be disgusted if a butcher was mislabeling their cuts of meats, but then we go around pretending as though the breast of a chicken is its wing. Boneless chicken wings are just chicken tenders, which are already boneless.

I don't go to order boneless tacos. I don't go and order boneless club sandwiches. It's just what's expected. Our children are raised being afraid of having bones attached to their meat. That's where meat comes from, it grows on bones. We need to teach them that the wing of a chicken is from a chicken and it's delicious.

We can call them buffalo style chicken tenders. We can call them wet tenders. We can call them saucy nugs or trash. We can take these steps and show the country that's where we stand and we understand that we've been living a lie for far too long. And we know it because we feel it in our bones. Put that man on the Ohio Supreme Court.

A hundred percent. A hundred percent. That is the hero of the ages. That's the hero of our time. But David, where do you come out on whether one can proceed to a jury trial on the question of the representation of boneless chicken wings not having bones? I'm for it. It says boneless. Words mean things, Sarah. Right.

So you would still have to prove that they were negligent in serving you a bone. This isn't the ipso facto, a bone's there, you get your $10 million. Right. But the problem is David, and again this gets to my point that this case was never about the word boneless, juries tend to pour that shit out. And this is a pretty egregious thing to have happened to him. It's not like he ate a bone and it was unpleasant. He was in the hospital. He could have died from sepsis. Juries tend to think that they don't like that. So judges in state courts tend to want to prevent those things from getting to juries because it's pretty unpopular with the people who donate to judges, elect judges, nominate judges, because

it hurts businesses. Yes, yeah, it does hurt businesses. But this is the kind of case where you would, I could easily imagine, if you're defending the restaurant, you say, there is a reasonable standard of boneless care that we have met. And there's no evidence that we did not meet this reasonable standard of illness care. And bonelessness is an aspiration. and it can only be an aspiration.

Because the animals come with bones. Because the animals come with bones and there's no way to completely rid your meat of any bone traits. I think that's true and it's funny because I think if you ordered fish and they said it was, you know, a boneless salmon filet or something and you found some bones, I don't think you'd be like, OMG, how are there bones in my fish? Because there's lots of tiny little bones. What they're telling you is they're doing their best

to remove the bones. But of course there's bones, eat with care. I also found it a little bit weird because the majority at one point said they could have just included something on the menu, like a little footnote asterisk thing next to the boneless wings that said, bones still may be present. Or like we've tried our best to remove the bones,

but there still might be bones. And I'm thinking, my God, there are times when I look at a sign or a menu or something else and I think, a lawyer got to this. And if that's all it would have taken to prevent the lawsuit, then like, what are we doing here? Because that's not very much at all. Clearly, the guy still would have eaten his chicken in the same way had that been listed on the menu. So give me a break if that's all we're arguing over. Yeah, yeah. And you know, there's the question of advertisement

has always been allowed to have some puffery. Well, you can't write a paragraph for your boneless chicken wings. I'm reminded of the movie Elf when Will Ferrell takes, what was her name? Zoe Deschanel, with the character she plays, and takes her to get the world's best cup of coffee. Now, you're not going to file a lawsuit if you drink the quote, world's best cup of coffee, and it's actually kind of from the bottom of the pot and the pot's been sitting out for a while and it's just charred and gross, they're allowed to make that claim. They're allowed to make, but bonelessness is a factual statement.

It's much more of a factual statement than greatest wings in Northern Ohio. I'm torn. It is more of a factual statement, but at the same time, meat comes from animals with bones. So that's kind of on you if you believed that it always was boneless. Like, come on. Yeah, no. Well, that's why you're gonna have a standard of care. So over the course of common law will create a standard of care and will you'll have safe havens and refuges.

And you'll be able to, you able to meet that standard. I have a feeling 70% of the comments are going to be about the boneless wing issue. Kaitlin Luna Oh, absolutely. You are too low on that number. Way too low. Michael S. Kemp 90% of the comments on boneless wings. Kaitlin Luna Well, I can tell you 90% of the requests we had for this episode were about boneless wings. Michael S's true, that's true. All right, y'all. Next episode, as I said, we're gonna start our August

law books, and I think you're in for a treat for episode one. You are in for a treat. You