Advisory Opinions - Naw Dog Doctrine

Episode Date: December 10, 2020

On Wednesday, 17 state attorneys general filed amicus briefs in support of Texas Attorney General Ken Paxton’s lawsuit contesting the presidential election results in Pennsylvania, Georgia, Michigan, and Wisconsin. To make matters more interesting, President Donald Trump has said he will join the lawsuit and Texas Sen. Ted Cruz has agreed to argue the case in front of the Supreme Court. Tune in to today’s episode to hear why, in David’s words, “this Texas lawsuit as a legal and evidentiary matter is frivolous.” Today, David and Sarah also give us an update on Sidney Powell’s “Kraken” lawsuits and the Department of Justice’s antitrust lawsuit against Facebook. They wrap things up by answering some reader mail about law school. Show Notes: -Supreme Court’s one-sentence order denying injunctive relief to Rep. Mike Kelly. -French Press: “The Kraken Is Lackin’.” -Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin. -The Morning Dispatch: “Checking in on the Trump Campaign Lawsuits.” -The Federal Trade Commission’s lawsuit against Facebook. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I'm just going to give you a warning. Both Sarah and I are a little bit ticked off. Am I wrong, Sarah? Gnashing of teeth. Wailing and gnashing of teeth is about to happen on this podcast. We're going to cover, of course, the continued attack on the election. I don't even like calling it an election contest anymore. It's an attack on the election.

That is what is happening. Let's just be honest about it. We're going to talk about how the Kraken has seen Medusa in every jurisdiction. Just before we started recording the podcast, I had to fact check again with how did the Kraken die in Clash of theusa, and I was right. So the Kraken has seen Medusa in four states now. We're also going to talk about the Department of Justice launching an antitrust lawsuit against Facebook. Feels like the DOJ is settling scores. The Trump DOJ is settling some scores on the way out the door. We're going to talk about what that means for the new incoming Biden Department of Justice. And we're going to answer some interesting reader mail. So let's start with the most recent meaningful development. Since we last recorded advisory opinions,

a few things have happened. One is the Supreme Court, in a one-line order, dismissed or refused to grant relief in the challenge to the Pennsylvania election brought by Congressman Mike Kelly. The state of Texas filed lawsuit against Wisconsin, Michigan, Georgia, and Pennsylvania to try to overturn their election results. 17 state attorneys general have since joined that lawsuit. As amicus, they've filed in support of that lawsuit. This is a legal podcast. We're going to be really precise. Super precise. Filed in support. Ted Cruz has agreed to argue the case in case that it is, you know, heard by the Supreme Court. What else am I missing, Sarah?

I think Donald Trump has filed to intervene to join the lawsuit. Oh, correct. Yes. Yes. So Donald Trump has filed to join a lawsuit. And as I said earlier, the four Kraken lawsuits have all been summarily dismissed, often in pretty scathing judicial language. So that's where we are. Well, there are...

We have this great thing up on the website today, thedispatch.com, where David and I, with the very big help of a whole bunch of the dispatch staff, maybe all of the dispatch staff, David, I'm not sure if anyone got left out. I think maybe so. Went through all of the cases that have been brought to do something vis-a-vis the election. to do something vis-a-vis the election. And by our count, zero times has Team Trump been successful in getting any of the remedies that they want. Eleven times those cases have been dismissed,

finally, either by the district judge, lower court judge, or that the Trump folks have voluntarily dismissed their case. And while there's seven pending, David, most of them have either lost the temporary relief that they sought, et cetera. So that I would say, and if you want to go read the rundown of the details of each of those cases, how they were dismissed, all of the little nitty gritty of process stuff, please check out the website on that. But really, we're basically done of the 18 cases that you and I think are real is the wrong word, isn't it? That could have challenged.

Yeah. Yes. That could have challenged the outcome. There's really only one still pending at the state level, and that's this new Georgia case that got filed, which is better than the other ones. It's just really late. And there's no evidence. Like if they have the evidence for what they're saying, it is a more substantive lawsuit than a lot of these other ones. I haven't seen that evidence. No, no, I've not seen that evidence. And then there's this Texas case.

But really of 18, that, that's two left. And the Texas case is absolute dangerous silliness. Yeah. So anyway, so that's where things lie. If you want the full rundown of the 18 cases, check out the website. Yeah, so I couldn't agree more. Check out the website. Of course, we'll be updating this as results come in.

But one of the things I think that's really important to emphasize, you just called the Texas lawsuit dangerous silliness. I think we should address, and I think that's a great way to frame that lawsuit. So let's address the silliness and the danger, okay? We've talked about this a bit on Dispatch Live, on the Dispatch podcast, but I think it's worth emphasizing that this Texas lawsuit as a legal and evidentiary matter is frivolous. It's frivolous. There are so many reasons why it is frivolous, okay? One, Texas does not have standing to challenge the election laws of other states. Now, remember, we do not have one national election

for president of the United States. We have 50 separate state elections for electors who choose the president of the United States. Each one of those states conducts elections with different rules, different deadlines, different kinds of voting machines. These are 50 state elections. If I'm in Tennessee and I'm a voter in Tennessee, or if I'm the attorney general of Tennessee, to take a non-random example, Mr. Attorney General of Tennessee, you're very disappointing and ridiculous. The idea that I could challenge what's happening in Kentucky is absurd. If there's a problem in Kentucky, you know who challenges it? Someone in Kentucky who feels aggrieved, so that you don't have standing. Many of these cases, many of the claims made by Texas have

been already raised in other cases, and guess what? Rejected. Some of the claims made by Texas have been already raised in other cases and guess what rejected some of the claims that are new in Texas are crazy like the idea there's only a one in quadrillion one in one quadrillion chance or 10 quadrillion or whatever chance that Trump could have lost after leading at 3 a.m. in the four key states, when we all know exactly what happened in those states, exactly what happened is big counties full of Democratic votes were slower to count and reported their results later. We also know why many of them were slower to count, because they were denied the ability to start counting their mail-in ballots by Republican legislatures. All of this was predicted. It was completely predicted on this podcast. It is a frivolous case. It is a silly, silly case. And one thing that you need to

know, the person who is typically tasked with arguing cases to the Supreme Court in the United States, the Texas Solicitor General, is not on this case. He's a respected guy. He's a former Alito clerk. He did not sign this pleading. He did not sign this pleading. This came from an attorney general of Texas that is under investigation for bribery, is fighting for his political life. This is a brazen political ploy. And you know what?

It is really working to win the heart of the president of the United States, Sarah. That's my first rant. I have others. So would you? I have others. Yes. I want to start. I want to get into the weeds on some of this. So I want to start by talking about their legal argument for why they believe both that the states have standing.

And it actually is sort of their standing argument is their merits argument. And let me explain. So the electors clause, as it is referred to in the U.S. Constitution, says each state shall appoint its presidential electors, quote, in such manner as the legislature thereof may direct. This is the heart of the whole argument, David, is what does that electors clause mean to some extent? And so what their argument is, is that in such a manner as the legislature thereof may direct means that state legislatures set the rules for their elections and how electors are picked. Therefore, the theory would go that if a state doesn't follow their law as passed by the state

legislature, that clause has been violated because the state did not appoint its presidential electors in such manner as the legislature thereof may direct. So it's a twofer, right? On the one hand, they're saying that states must follow their state legislature passed laws for their elections and that another state is guaranteed that the states will follow their own laws by the U.S. Constitution through the elector clause. So there's your injury, David, and that's how they're arguing that they have is guaranteed that the states will follow their own laws by the U.S. Constitution through the Elector Clause. So there's your injury, David, and that's how they're arguing that they have standing. There's a few problems with this. A few.

Let me go with just the merits problem first. So the merits problem here is that, as we talked about many times in this pod in the last few weeks, the U.S. Supreme Court defers to state Supreme Courts to interpret their own laws. So let me think of a good example here. Actually, we had a pretty good example. the pandemic, state courts basically at various points, including in Wisconsin, by the way, said, I know what the law says, but this is a pandemic. And so I'm going to change the rules because I think they need to be changed. Or basically saying, I'm not following the law as passed by the legislature because these are extenuating circumstances that the plaintiffs require this extraordinary relief aside from the law, hashtag pandemic law. Right.

In that case, there is a question for the U.S. Supreme Court in terms of whether Wisconsin followed its own election laws, in theory. followed its own election laws in theory. But that's not, in some ways, the Trump campaign lawsuits have actually been very helpful in undermining this case. Because what we've had, as you and I have discussed, are 18 cases, well, minus this one. So 17 cases that have been brought in each of these states, where I believe almost all of these state supreme courts have now weighed in to say that the uh the officials the election officials including by the way these folks are arguing that um it's the other state election officials the secretary of state the governor who didn't follow the legislature and that it's the legislature who is supreme in these ways. So, but now we have all these state supreme courts saying,

we, state supreme court, the supreme interpreter of our own law, are ruling that the state did follow the law on election day. Therefore, your case is dismissed. Pennsylvania has said that. Arizona has now said that. I believe Nevada has now said that.

Anyway, go on and on. Because of that, their lawsuit is by definition meritless because the U.S. Supreme Court will defer to Pennsylvania. Pennsylvania says, here's the law as passed by the legislature and that law was followed. They get to interpret that law and decide whether it was followed. So that's kind of the ballgame on that. Now on the standing question, David, talk about a dangerous argument for Texas and these 17 other states to make, because by this theory, set aside voting, right? So well, actually, let's not set aside voting. California can now, under that theory, if the Supreme Court were to adopt it, and we'll get to why they're definitely not going to do

that, California could sue Arizona about their voter ID law. New York could sue Texas and say that you must have more drop-off boxes in every county. That's a wildly ungood idea, David. And I don't think that the theory of this would stop at the electors clause. If states can do this, basically arguing we have standing because we have an injury because your state affects my state. I'm not totally sure that this wouldn't apply to California getting to sue Texas over their emissions standards. Oh, absolutely. Absolutely.

And you know what it wouldn't preclude Texas from California from suing Texas over? Its own election. For sure. Because you know what? Texas did. Texas had some gubernatorial proclamations that altered the election laws of the state this year. And we talked about one of them on advisory opinions. It was the limiting of the drop box, the drop, the absentee ballot or the mail-in ballot drop offs. This was something that was not allowed for.

He altered, I'm reading the Texas Supreme Court. The plaintiffs challenged one such proclamation by which the governor altered the statutory requirements for hand delivery of mail-in ballot. So this is- So if this theory holds water, that violates the electors clause because then Texas did not appoint its presidential electors in such manner as the Texas legislature may direct, did direct.

Exactly. And if the theory then holds correct, and Ken Paxton's theory supported by 17 state attorneys general is the remedy theory is correct, then Texas loses all of its electoral votes. All of them. I mean, this is nuts, Sarah. This is nuts. I, to step back a little, when Ken Paxton filed this lawsuit, noting that Kyle Hawkins, a solicitor general, did not sign it, and just full disclosure, of course, my husband was the former solicitor general of Texas Texas, and Kyle was his deputy. Noted. You know, I thought it was sort of a pardon grab, an attention grab. Hey, look over here. Don't pay so much attention to those FBI agents investigating me. You know, the usual. And I sort of blew it off. And I thought the Supreme Court would do exactly what they did in the last case, in the Pennsylvania case. Justice Alito refers the case to the full court

and denied. Now, by the way, David, fun fact, Justice Alito is the circuit justice for the third circuit for that Pennsylvania case. He is also the justice for the fifth circuit. for the third circuit for that Pennsylvania case, he is also the justice for the fifth circuit fun times had by all. Um, and so I was sort of going about my day. And then yesterday when the 17 States dropped, so did my stomach.

It is, it was really disheartening. I have lots of sort of feelings about it. The feels, um, I'm really upset about it. And if you want to, we can talk a little bit now about how we think the court will react, because I actually do think this changes things. Not the outcome, not the merits at all.

But I'm not sure that the court will feel that they can simply give a one-line gnaw dog to this case anymore when you have 18 states now saying that they don't believe the election was fair. I think you could end up with a per curiam opinion, meaning that it's unsigned. That's what Bush v. Gore was. The court does a couple PCs a year. Per curiams are unsigned, but they're also not for precedential value, which is funny because this is littered with Bush v. Gore references, including to a concurrence that doesn't even have the majority of the justices signing on on this electors clause theory. So obviously, the not for precedential value is only as far as you can throw it, but that's the theory. for presidential values only as far as you can throw it, but that's the theory. So I think they may well issue a procuring opinion talking about how the states don't have standing and how

dangerous it would be if the electors clause provided standing for any state to collaterally attack a sister state's election. And that such a theory could expand far beyond the election. such a theory could expand far beyond the election. But, and I'm fine with having a statement on that standing because frankly, I think it helps down the line because I don't want California attacking Texas's election. And by the way, we, at some point we'll talk about the Arizona Voting Rights Act case that's coming up in the next oral argument sitting, because that's a biggie. that's coming up in the next oral argument sitting, because that's a biggie. But it's not great.

It's not great, David. It's not good. No, no. You know, look, Andy McCarthy has long been, National Review's Andy McCarthy, a good friend of mine, great guy. He's long been, if you could say, who is among the president's most capable legal defenders in the pundit world, you would say it's Andy McCarthy. He has been relentlessly negative, for example, in the Russia investigation. He and I went back and forth in the pages of National Review many times where he was much more skeptical about the investigation.

I was more arguing. I disagree with Andy a lot, by the way, but he is not a hack. He is a thoughtful, interesting person who I like to read, even when I vehemently disagree with his conclusion. Yeah. And he has said that these gambits, to upend the election results and then to have, because the ultimate goal is then to have Trump electors cast the state's votes, giving an electoral college victory to Trump, even though Trump lost in these states.

He says this gambit makes court packing seem positively tame. And I think that that is a good way of putting this in perspective. What we're talking about would be a historic disruption and defiance of an actual American election for the sake of a president retaining power, it could actually fracture the country. Oh, David, there's no question in my mind. I've said this before. There is no world in which Donald Trump is inaugurated in January. No, there I don't. You know, if they got their way, Donald Trump doesn't become president. We just have a civil war. Yeah. That's it. That's exactly right.

I mean, what this is saying, and this is 17 state attorneys general essentially asking for civil war. I mean, this is 17 attorneys general saying, our guy or the country falls and we'll kill it. Now, I know, you know, we all know that they don't think they're going to win. Okay. And this is the strategy behind it. This is like the what Ted Cruz hath wrought problem. I think this actually is exactly because of what Ted Cruz did when he initially on the

Pennsylvania case put out a press release saying that if the Supreme Court took it, he would argue it. He knew that that was a zero downside political maneuver because the Supreme Court was never going to take it. And he's a smart guy who clerked at the Supreme Court and knows that very, very well. And so he got all of the sort of attention and kudos for saying he'd argue it. And he knew there was no downside because he was never going to argue it. Unfortunately, what the states, I think, learned from that, the state attorneys general, was that they could do the same thing. They can file this amicus brief and the Supreme Court is never going to find that the states have standing. So they don't need to worry about California getting to sue Missouri to overturn its elections. That's not going to happen. But they think they're

getting all of the attention and political benefit of siding with Trump because they're getting pressure from him and phone calls, I think, to join the Zemeckis brief. But the problem is, David, it's not a zero loss strategy. Because while the Supreme Court won't take it, loss strategy. Because while the Supreme Court won't take it, it undermines institutions further because now it lends credibility to a lawsuit that shouldn't have any. The very people who should be standing up and saying, no, Mr. President, you lost the election are making arguments that they're only making because they know that these nine people at the Supreme Court are going to have to be the adults who step in

and say, nah, dog. Yep. And then, because of that, it's going to undermine the Supreme Court because people aren't going to understand

why if 18 states think this is a reasonable argument, why it's 9-0 at the Supreme Court. And so you're putting the Supreme Court in a terrible position, which is their job.

I get that. Like, I don't... I'm not, like, morally offended when you put the Supreme Court in a terrible position, which is their job. I get that. I'm not morally offended when you put the Supreme Court in a bad position, except when you're doing it for the most cynical of reasons and the result is to undermine good faith people and their belief in our system of elections and how we transfer power in this country. Because not everyone's reading these briefs, David. You and I, unfortunately, have. Most people are just going to see that 18 states think the election was rigged. And while they might have been like, well, I don't know, Donald Trump sounds unhinged. That's a hell of a thing to not then say like, well, something must be there. That's a lot of smoke, David. In fact, 18 states, that's looking like fire to me. Yeah, exactly. And then a lot

of people don't know about state attorneys general. Okay. When they hear state attorneys general, they often think kind of like the U S attorney general. Um, usually the U S attorney general is somebody who has an extremely distinguished career, often in politics, often in law, and it's typically somebody of real intellectual heft and seriousness. That is the case for some state attorneys general. It is not the case for all of them. What is much more common in a state attorney general is they're an extremely ambitious politician. Let's just be honest about that. These are often, unlike an

appointed office for the U.S. Department of Justice, these are by and large elected offices. They're a stepping stone to hire. They're often seen as a stepping stone to higher office so we have here are not 17 now 18 18 legal scholars hey taking a really hard look at the evidence what you have is by and large 18 super ambitious politicians who are giving throwing red meat to the base and hoping to have a resume bullet point for their next office where they can say, I fought for the 2024 election. This is what this is, y'all. This is what this is. And you know what? It's silly. And all of them, well, maybe one or two of them are crazed, who are actually crazed. But in reality, I would say all of them are like, okay, it's going to be denied. It's going to be denied. They're viewing this as a freebie. They're viewing this

as a freebie. But as Sarah just said, it is not a freebie because it has consequences. It teaches people something about this election. And you know what else it does? It's a signal flare to all of talk radio world, to all of of Newsmax world to all of One America News Network world to parts of Fox that this is all very serious and this election has been stolen and it is it's one of the more destructive and and frankly just disgusting things I have seen in public life and it's an evidence that all of those who said of us who said Trump is going to rot this party to its soul. We were right. It is rotting the soul of this party. I'm sorry. That is exactly what it is doing. It's infuriating to watch. And if you think for us, I mean,

it's some of us, I think for a second that if this is going to be the GOP post-Trump, that a lot of us who left it will want to come back, think again. So some interesting notes on this, by the way. One, you mentioned attorneys general being different and steps to higher office. Do you know who the last two Texas attorneys general were before Ken Paxton? Greg Abbott. That's the most recent one. And the one before that? Rick Perry.

Nope, John Cornyn. John Cornyn. And I mentioned John Cornyn because he was asked about this lawsuit recently and said, you know, it's very unusual because when a state sues a state, the Supreme Court of the United States has original jurisdiction. So you don't have to go through the ordinary procedure.

I read just the summary of it, and I frankly struggle to understand the legal theory of it. Yeah. Thanks, Senator Cornyn. Yep. Ben Sasse just put out a statement calling it a PR stunt. And he's right. Thanks, Ben Sasse just put out a statement calling it a PR stunt. And he's right. Thanks, Ben Sasse. David, states led by Texas have often, for instance, joined up to sue the Obama administration

to sort of vindicate states' rights over federal overreach or just, frankly, policies they don't like. states' rights over federal overreach or just, frankly, policies they don't like. So for those who think that this is just, you know, conservatives conservativing, do you know how many states joined Texas for the DACA and DAPA lawsuit? This was when President Obama, you know, you can have totally agree with the policy ends of letting children brought here through no fault of their own have some sort of legal rights to be here. But President Obama himself said he didn't have the legal authority to do it by himself, and then he did it. And certainly giving those people's parents legal status would be an obvious violation of the Immigration and Naturalization Act, which every court has found that it was, and the DACA thing, we talked about that case. Basically, John Roberts said it was,

but through some procedural problems, that hasn't technically been the ruling. Anyway, do you know how many states joined Texas on that? How many? Seven. So, to be clear, 18 states are saying the election was rigged but only eight states thought that the president doesn't have the unilateral power to change our

immigration laws it's a clown show it's a clown show sarah that's what it is. I mean, it's disgusting. And it makes me doubly angry because, look, as I've said a million times, here I am sitting in red America and lots of people I know who are good folks, they're not lawyers. Unfortunately, they're not lawyers you know they unfortunately they're not listening to this podcast they're watching you know Hannity or listening to Rush and and so you know what does Rush do yesterday Rush starts openly talking about secession you know to millions and millions and millions of people he starts openly talking about secession and it is is, you know, look, I know I wrote a book about the possibility of this happening, but one of my arguments was that if we don't arrest a lot of these forces at some point in the future, you know, we're going to have a real problem.

And I feel like lots of sort of political and cultural pyromaniacs are trying to make that quote unquote, some point in the future feel a lot more immediate. And it is, it's very distressing to see this happen. Well, this is obviously on a expedited briefing schedule. I think that Texas asked for briefs to be due today, I believe, which means I think we'll have this here from the Supreme Court in relatively short order, David, any prediction? I mean, it will be 9-0 is my prediction. The only question is, is there going to be a per curiam opinion? And at this point, I feel like there will be.

I feel like there will be. It'll either be per curiam or 9-0 authored by the chief. Now, it'd be particularly delicious if it was 9-0 authored by the chief now it'd be particularly delicious if it was 9-0 authored by barrett um that would just that would sort of be the supreme court just giving the the other branches of government a sort of giant middle finger uh or giving the executive branch a giant middle finger but um i i expect 9- expect Nino and I expect an opinion of some kind, whether per curiam

or authored by the chief or somebody else. What's your prediction? That's exactly my prediction. I do think that, you know, we've talked before how justices are human. And if I'm sitting

on the Supreme Court right now and you didn't take my first brush back from the plate, part of me is like, you want to come have oral argument? Please, come on down. We're going to ask you some questions about how you think this theory of standing is going to work against Texas and whether there's any daylight or whether we just have to throw out Texas's electors and Georgia's electors.

And is that what you actually want here? I don't think they'll do that. They're not as spiteful as that perhaps. But man, I think you'd just be a little tempted because Ted Cruz knows the law. And so he's actually in this unfortunate position where if he's going to stand up there and they call his bluff, he's going to have to actually answer their questions. And it would really be something.

You know, I would. would really be something. You know, I would, it would be hilarious. This will never happen in a million years, but imagine if they bring Ted Cruz up, let him finish his oral argument and then sanction him for making a frivolous argument to the court. Never would happen.

Never would happen. But okay. I told y'all listeners, this is this was not going to be the normal podcast. We were a little bit more, what's the word we keep using? Spicy? Yes. So we've had Spicy Alito, Spicy Gorsuch, and now we've had Spicy Advisory Opinions. Let's take a moment and thank our sponsor, Headspace.

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Shall we move on? Let's. Are we going to antitrust? We are indeed. Can I tell you something, David, about me and antitrust? Yes, please. I don't understand it. I don't understand it one bit. And I don't mean that I

haven't read about it, that I haven't studied it. No, no, no, I have. And I don't understand how this is actually part of our law. With that, please jump in. So essentially what we have is a huge lawsuit filed, U.S. District Court for the District of Columbia, seeking against Facebook, essentially seeking to break up Facebook, that it has monopolistic power. It maintains its monopoly by buying up companies that present competitive threats and imposing policies that

hinder actual or potential rivals that Facebook does not or cannot acquire. And it says it has monopoly power in the market for personal social networking services in the United States. So this is 48 states, by the way, as we just talked about 18 states. 48 states and the Federal Trade Commission have brought this lawsuit. It's a big one. Yes. And, you know, it's really fascinating to me. Everybody hates big tech right now for different reasons.

reasons so um it's it's as if that there's this wave of a desire to punish big tech but not a unanimous reason as to why uh big tech should be punished so for example we've said this often that uh conservatives in general want to see facebook and twitter and others take a more hands-off approach to content placed online. Less censorship, certainly less tagging for misinformation, etc. Whereas Democrats, as a general matter, want Facebook and Twitter to drop the hammer and to censor more. But both of them are really upset. They're both, the one common denominator is they're really upset with big tech. And so they are using whatever tools they have at their disposal.

We talked earlier about a DOJ antitrust case against Google. Now we have an antitrust case against Facebook. And what's puzzling to me about this is that is the monopoly argument. I get that Facebook is really big, but they object to Facebook also owning Instagram and WhatsApp, you know, the messaging service. When I remember the antitrust claims against AT&T way back in the day, Sarah. The baby bells. Which spawned, which birthed the baby bells.

And I can remember, you know, if you're going to talk about monopolies, it made a degree of sense. Because if I was going to have phone service back then, if you're going to have phone service in Georgetown, Kentucky, it was going to be AT&T. That's how you got phone service, was through AT&T. In the meantime, I've seen enormous amounts of debate over the Facebook monopoly on Twitter. On Twitter. And then all kinds of politicians tweeting nonstop about Facebook's monopoly. Wait a minute. It's a complaint that talks about our monopoly. And as some folks mentioned, it does not contain the word TikTok.

TikTok, which has almost a billion global loot users. I don't know, Sarah. This feels punitive. It feels punitive. It feels as if you've got a lot of people angry at big tech for a lot of different reasons trying to do something about it. And it is totally unclear to me how spinning off Instagram or WhatsApp will change our lives, the consumers' lives, for the better, or deal with any of the problems of big tech that people are worried about.

So this is why I say antitrust law is made up, because there is no bright line rule. It is simply this test over whether the actions of a corporation basically substantially lessen competition or tend to create a monopoly. That's a quote, actually. That's not a legal standard. Everything that companies do is to give themselves a competitive advantage. That's how it works. And so then what you have is the government saying, well, that's too much of a competitive advantage. How? Why? What is that based on? Now, I do think a monopoly actually has a definition, and I would be sort of, I guess, more fine. That's a little less made up to me, but a monopoly is sort of on the far end of the spectrum.

And then you have to define a monopoly over what? Now, telephone service was at least a little more clear, but what does Facebook have a monopoly over? Being Facebook, no question, but you have to get pretty specific. I think that the Google antitrust suit that the Department of Justice filed, you can at least then define it. It's at least over search engines, although you and I have talked about that and that other search engines enter and they're just

not as good. And so what happens when it's expensive or difficult to enter a market and then your product isn't as good as the government's job really to put a governor over your competition so that you can keep working on it or just be competitive because they can't be as competitive. I mean, this is the problem with antitrust law and why conservatives have in the past tended to be against antitrust laws because conservatives like to have anyone, company or person, understand the law so that they can form their behavior around it. And if you don't have consistency in the law, it actually really hurts competition, business, all sorts of things. And this is like such a good example of it. Okay. So they acquired Instagram. Again, I don't know how we're defining the world in which

Facebook and Instagram, I mean, I guess social media networking, but then they're also, so they're attacking the acquiring of Instagram and they're attacking the acquiring of WhatsApp. That one to me makes the least amount of sense because on my phone right now, David, hold on, I'm going to open it up. I have iMessages, that's owned by Apple, Wicker, I don't know who owns that one, WhatsApp, Signal. I mean, I obviously do FaceTime a lot. I think I had some other ones on here. Don't forget Snapchat, which has a messaging function, yada, yada, yada. My point being, what's their monopoly because they have WhatsApp? I don't think so. In fact, WhatsApp's the one I use the least. I really just use it with my friends overseas. Signal's probably the one that I use the most when I'm not just using regular iMessage.

I mean, and isn't Slack a messaging? Oh, right. Isn't Discord messaging? And Slack is crushing it. Like nobody, no company use WhatsApp. They all use Slack. So I'm looking at my phone. So I've got under a,

I have a messaging app, Slack, Discord, GroupMe, Skype, which has a messaging function. Oh yeah, I have Skype. I've got Messenger and Facebook, Instagram, WhatsApp, of course. I also have Twitter. I have Discord. I have Wicker. Sometimes I have TikTok. Sometimes I don't, depending on whether I'm worried about it. That's very honest of you. Yeah. And I've got this cool social media platform

called Marco Polo, which I probably use about as much as anything else. It's a video messaging service. Yeah. Oh, I have Clubhouse. Clubhouse is weirdly like a messaging service, but you call, you call in, it's like a conference call that you want to be on. Go figure. I will tell you this. People message me in so many different ways, Sarah. I want more monopoly.

Yes. I would like fewer apps on my phone. I miss the days of AIM. Yeah, please. And, and you know, what's interesting. So I'm days of AIM. Yeah, please. And what's interesting, so I'm looking at the complaint here. And what's interesting about this is the definition of antitrust of a monopoly is not the most popular. So the entity with the largest market share is not a monopoly. So for years, GM of the American automakers, and GM was in the world the largest automaker for years and years and years. That did not mean that GM had a monopoly. So this is how they're defining the market or the industry in which, or the format that Facebook has of monopoly.

It says, through an account on a personal social network, people can post content about their own lives and interests and view what personal connections have posted. In doing so, they can stay up to date about the lives of people they care about. During a single session, a person can read about one friend's recent vacation and other friend's thoughts on a local session, a person can read about one friend's recent vacation

and other friend's thoughts on a local restaurant and a relative's wedding announcement. And then the person can post her own content, interact with their friends' posts through comments, replies, and reactions. Thus, personal social networking gives people a personalized social space in which they can share content with their personal connections.

That describes a number of other platforms that have millions and millions and millions of users. Again, I just keep going back to people. It's just seems punitive that that what's happened here is that for different reasons, both sides of the political spectrum have more or less united around a thought, big tech bad, big tech bad, and are trying to use whatever tools they have. And I've got a message for conservatives. It's not like if you spin off Facebook

that Instagram's going to be run by members of the local Silicon Valley tea party. Okay? And WhatsApp won't either. You're going to have woke Facebook, woke Instagram, and woke WhatsApp. It's not like... And let's be clear, Mark Zuckerberg is actually the most conservative friendly of the tech CEOs by a mile. By a mile. By a mile. By a mile. By a mile.

I mean, this is a guy who has placed a priority on free expression, a priority on free expression and conservatives. And because of the demographics of Facebook, typically on any given day, eight or nine of the top 10 posts and pieces of content shared on Facebook are conservative. By the way, I can't believe I'm sitting here defending Mark Zuckerberg. I am off Facebook. I deactivated my account years ago. I think it is toxic. I think it has a negative, corrosive influence on not just our politics, but our friendships on all sorts of things. I mean, no problem for those who are still on it. That's fine.

My only point being, I don't like Facebook. I don't, I barely look at feelings one way or the other on Mark Zuckerberg. I don't know him, but like, I, I certainly am not pro Mark Zuckerberg. And yet here I am because I think this is made up law. I barely look at Facebook, honestly. I think I'll go three, four days at a time where I don't even open the app. I look at, I think I cruise through Instagram maybe once a night for about 15 minutes just because I'm more selective. I made the mistake early on in Facebook of if someone sent me a friend request, I was like, yeah. I'm a selective. I made the mistake early on in Facebook of if someone sent me a friend request, I was like, yeah. I'm a friendly guy. Wow. And so I have thousands of friends on Facebook. And

what I need to do is spend hours going through and paring that way down. But I don't want to do that. So I just don't look at Facebook. And Instagram is much more selective. I joined it later and it's more, got a more fun culture to it. It's much less politically toxic. It's much more sort of, oh, look, this sunset looked cool. Oh, and here are my kids. It's much more like that. i follow a lot of nba stars because nba has lots of instagram drama um but yeah i mean sadly the the social media app i spend the most time on is twitter and i say sadly because i think it beats facebook in the toxicity category um category. All right, David. One quick statement. Part of the problem, guys,

everyone's blaming social media for everything. Nobody's making you put crap on there. Nobody's making you be an asshole on there. This is kind of us. It's human beings being human beings online and then saying, save us from

ourselves, somebody. That's what's happening. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. 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. My parents love it. I upload photos all the time.

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Use code ADVISORY at checkout to save. Terms and conditions apply. David, I've gotten several emails about this, but for some reason, this one I liked the best. So I'm going with this one. We've gotten a lot of requests for follow-ups on our law school conversation in various directions, but here's a really specific one that I think we should pursue today.

So this person lives in Texas, wants to practice law in Texas. He's applying to law schools now. He says he's pretty sure he's going to get into the University of Texas, and he thinks he might get into some of the top 10 schools, but he's not sure, and he's definitely not sure which ones. He wants to know how good of a school does he need to get into to make it worthwhile to go instead of the University of Texas if you want to practice in Texas. And he notes, by the way, that year-to-date applications to law schools

are up 34% right now. Wow. Yeah, isn't that crazy? I mean, yes, when the economy has a downturn like it did in 2008, law school applications jump up because people are basically pushed out of the job market and think like, well, now's a good time to take a break because this isn't turning out well. But 34%. Woof.

That's amazing. That's really amazing. You know, it's a sign that a lot of times applications will jump when people aren't really excited about diving into the workforce right now. Yep. It's a good way to punt while expanding your options. So how do you answer the question? Because I have thoughts, but I want to hear your, I love to hear your thoughts. Okay, David, as you know, Scott went to the University of Texas. He graduated number two in his class, which is called the vice chancellor. And I know I've mentioned this before, but I can't help myself that the number four person in their class at the University of Texas gets the title Keeper of the Peregrinus. That's P-E-R-E-G-R-I-N-U-S. And I'm looking at the

Peregrinus right now. It is a creature that maybe has the body, like a part bird head, the body, like part bird head, mammal body, like maybe a fox tail. He's wearing some shoes and it's like a little statue-y thing. And anyway, the person who graduates number four is literally the keeper of the Peregrinus. They are charged with keeping it or something, keeping it safe from, I don't know, Baylor law students. Anyway, that's a long way of saying I love the University of Texas. I love their football games, but I even love the law school more for giving me my wonderful husband and making him the person he is. Look, here's the bottom line. If you get into the University of Texas law school, you are one lucky critter because it's an amazing law school. It's fun to live at. The professors are awesome.

lucky critter because it's an amazing law school. It's fun to live at. The professors are awesome. One of them might be my husband from time to time. That being said, you ask the question, what happens if you get into the University of Texas as a lucky critter, but also get into one of those top 10 schools? When should you consider going to a school other than the University of Texas? I've got some thoughts. If you're at the University of Texas, if you want to clerk, you need to be in about the top 10% of your class. If you want to get a top tier law firm job, you probably need to be in the top quarter, top half of your class. Whereas everyone at the University of Chicago will get a top law firm job if they want one. And probably the top quarter to 50% of the class will be competitive for clerkships. And so if you're just looking at numbers, and by the way,

University of Texas is enormous. And so you're competing against a whole lot of people as opposed to the University of Chicago or some of these other schools. Now there were some close calls. Basically when you get past the top six or so, and you're looking at Penn, UVA, Georgetown, Duke, Northwestern, like that sort of iteration, it's a closer call if you want to practice in Texas for sure. But it kind of depends on how much you want to hedge your risk. And look, you know, it turned out really well for Scott. He went on to clerk on the Ninth Circuit, clerk at the Supreme Court, worked in the U.S. Solicitor General's office, and then became Solicitor General of Texas. So if you want to take the risk, there's a huge payoff if you were right. if you want to take the risk, there's a huge payoff if you were right. But if you're someone like me who maybe lacks the self-confidence that Scott had and wants to hedge the risk,

you should go to Harvard. So really, Harvard is for people who aren't nearly as sure of how smart they are. And go to the University of Texas if you know that you've got this in the bag. Yeah. Now, there's also another factor, and that's cost. So I just looked up the gap between in-school tuition at in-state tuition at Texas. So if you're from Texas and you want to go to University of Texas Law School and tuition at, say, Harvard. So tuition at in-state at University of Texas is $36,000. That's a lot of money. That's a lot of money. But you know what the tuition is for Harvard per year? Oh, God.

$65,875. Oh, that has risen. Oh, yeah, that has risen. Oh, yeah. So, yeah. My basic thought is, I mean, first, if you got in the University of Texas, celebrate. It's a great law school. An amazing law school. It's a great law school. Celebrate.

And you know what it means? You're going to be fine. You're going to have a lot of opportunities. Okay. So, just sort of say, take a moment and go, man, I got into one of the top law schools in the country. I'm going to have a lot of great opportunities. Awesome. Now, my own view of it is, if you can, and there are mitigating factors to the cost.

If you go into public interest law, you can get some debt forgiven, et cetera, et cetera. But my general view is if you have any real doubt, you might think at age 21, 22, 23 that I know I want to be in Texas and practice in Texas. That's what I want to do. This is what I've always wanted to do. I'm certain I want to do it. And then you meet a beautiful girl from the state of Missouri. Right. That's the thing is going to another law school in the top 10. And really, I would really more say top five because the difference between, say, the number 10 law school in Texas is really small. Yes. But if you're talking about the of the, the, the top four, top five law schools, and it's not going to cripple you debt wise, I would take that option.

I would, I would take it basically every time for one simple reason. It does not limit your options in Texas at all. In fact, expand your options in Texas and expand your options around the rest of the country. Um, but there's no real bad choice. It's like saying, you know, do I want like how good of a steak am I going to buy?

You know, like you're really, if you go to the university of Texas, you get to live in Austin, which just has some of the best food in the world. Well, all of them are, New Haven, meh. But Boston's a great town. Chicago's a good city. It's cold. It's also cold. Yeah. Yeah, that is true. That is true.

No, and Texas has amazing professors. Your fellow students will be lovely. No, and Texas has amazing professors. Your fellow students will be lovely. And by the way, we're using Texas as kind of a stand-in for that, I don't know, do you want to call it 10 through 25 schools? So many of those are good law schools. Right. But you're limiting yourself a little regionally, clerkship-wise. And even if you drop out of the top 25,

even if you graduate number one in your class, sometimes you're not going to get the clerkship that you think you will, certainly. So can we agree? I bet we can agree on the best combination of ranking and climate. Okay. Stanford.

Oh, well, you know what, though? I find it too cold, and that's weird because I know it's not like winter cold, like Boston, where I actually went, but the problem for me of that entire area is that it never gets hot. You know, like, I need it. I'll actually tolerate the cold better

if I can also, like a a lizard heat up on a nice rock later. But San Francisco just kind of always stays 70 and 70 is approximately 10, 13 degrees below my comfort zone. So as a cold-blooded lizard creature, my Venn diagram of best climate to ranking is the University of Virginia. Ooh. Maybe Duke. Maybe Duke.

I don't know. I would, yeah. Yeah, I would say UVA. They're very similar. Very, you know, not much. See, my issue is that I think I was born and raised in the wrong region for my internal temperature. I should have come from the Pacific Northwest, from no cow up. That's where I should have come from. I am getting increasingly tired of summer hanging on so darn long down here in the South. I hate it when it's like September 25th

and it's 90 degrees. What is wrong with you, David? Blasphemy. Yeah. No, I like that. Never gets too hot. Never gets too cold. I like that whole climate. I like the proximity to the mountains. It's too cold. I like that whole climate. I like the proximity to the mountains. It's just fantastic. All right. Well, I'm not going to name names here, but to the person who is listening to this podcast, he's like, wait a second.

That's my question. Thank you for sending it in. I hope you will let us know how it turns out. And perhaps we can even update all of you on what this future law student decides. And we'll follow his whole career. This will be like a Truman Show-esque thing where we're just going to follow this future law student decides and we'll follow his whole career. This will be like a Truman Show-esque thing where we're just going to follow this single law student, see where he goes to law school, how he does, where he decides to clerk, what law firms he's looking at for on-campus interviewing. This can be it, David. He's our very own Truman. We'll call him Truman.

Exactly. So speaking of messaging apps, I'm looking right now at there's a French press channel in the unofficial dispatch discord. So if you don't know what discord is, it's essentially a messaging app mainly used by gamers, but we actually, somebody started a Discord channel that I think about 300 regular readers are on. And it has a newsletters channel. It has a podcast channel. And one of them is the advisory opinions channel. And I just typed in it while we were recording. I said, lots of rants coming into AO today, recording now. And Justin Perry responded, the gnaw dog doctrine seems like it should be a thing. Well, Justin, you're not going to be disappointed by this episode. We have had an invocation,

at least one invocation of the gnaw dog doctrine. Oh, I think I've added at least three. Yeah, I think that's right. I think that's right. All right. I think that's right. All right. Well, I think we've covered all of our topics.

I look forward to Monday already. I do, and I fully expect, well, here's one last prediction. Monday, which is the day the electors vote, correct? Is that going to be, or will we have had a Supreme Court decision in the Texas nonsense by then?

By the time we record, I don't know. Although frankly, if we don't, we may put off recording until a little later in the day. Yeah, exactly, exactly. I can't imagine not getting the decision before the electors vote. Oh no, it'll definitely be by the 14th. It's just like we saw with the safe harbor day. It could be 430 on the 14th.

Right. Right. Exactly. All righty. Well, lots going on. Lots to rant about. And hopefully the reasons for the rants will cease soon, I hope. But I only hope. I don't know. There's a lot of time between now and January 20th. But we'll be with them. We'll be with our listeners every step of the way, Sarah. Guiding them, ranting them through this whole process.

So we will be back on Monday. Thank you for listening. And as always, please go rate us on Apple Podcasts and please subscribe to the Advisory Opinions feed. And please check out thedispatch.com for the full range of offerings from the Dispatch team. Thank you for listening. Get to know yourself and your roots better in 2024 with AncestryDNA. Want to know where your family comes from in northern France? Maybe you'd like to see how your genes influence certain traits like diet, fitness, and allergies.

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