Advisory Opinions - Sarah VS Serial

Episode Date: March 30, 2023

Sarah and David spin through a carousel of cases, argue about theoretical swastikas, debate the merits of true crime content, and even bring on returning guest Christopher Bogart to discuss commercial litigation (and why you should really care!). The journey includes: When Gorsuch sided with Donziger Jack Daniels and Bad Spaniels: Trademark wars Things Lisa Blatt can get away with that no one else can (so for the love of God, don’t even try) Justice Jackson calling to reign in Munsingwear Vacatur Sarah’s beef with true crime (or: when Sarah lost the internet) Texas West A&M University President gives double middle fingers to the law Hostile learning environment vs the First Amendment And finally, a guest breakdown on worrying trends in commercial litigation Show Notes: -Substack piece regarding Stormy Daniels Trump Prosecution Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm your host Sarah Isgur, joined by special guest David French. And boy, quite a podcast today, David. Let me just run through some of the topics we're going to hope to touch upon. We've got a dissent from denial at the Supreme Court, as well as a few arguments to discuss briefly. Munsing where vacator? Will we finally get to it? Nobody knows. Then we'll move on away from the Supreme Court. Why I don't like true

crime podcasts. I cannot wait for this. The Adnan Syed story. I cannot wait for this. Part 435. And then I want to talk to you about hostile learning environment under Title VII, Title IX versus the First Amendment,

looking specifically at this school in Texas and the drag show issue. And then we had a wonderful listener do an entire Substack post discussing our podcast on the potential New York indictment. He pointed out some great ideas, possibilities, hypotheticals, flaws in our arguments. And if we've got time, I want to run through those.

And regardless, I want to put it in the show notes. He is not a New York prosecutor, but he is a state prosecutor. And he raised some great points all around. But most importantly, David, we have an awesome conversation coming with Chris Bogart. He is the Chief Executive Officer of Burford Capital. We've had him on the podcast before to talk about litigation financing, but they've got kind of a fun case going on. And I just thought, you know, we don't do a lot of civil litigation on this pod.

We're never going to do it unless we say we're just going to do it. And so by God, today, David, we're going to do some civil litigation. Well, we do civil litigation, commercial litigation. Oh, sorry. That's what I meant. Of course. You know, this happened to me the other day on the Dispatch podcast where I kept saying T-bills instead of T-bonds. My God, the emails that we got. I can only imagine. People don't understand when you're just talking, sometimes you don't hear the words

coming out of your mouth. I know that's not a good excuse because that's literally what I do for a living now. But nevertheless, here we are. All right, David. Interesting dissent from denial. This is a Gorsuch dissent joined by Kavanaugh

about, well, it's a special prosecutor case, but it's not the special prosecutor that you think it is. Yeah. This was a case where, in fact, the judge held someone in contempt refers it to the department of justice the department of justice then declines to bring charges and so the judge is like okay in that case i will appoint a special prosecutor to prosecute this contempt case and the judge continued to be

the judge didn't recuse themselves at that point and this of course made it all the way to the supreme court on a cert petition that cert petition was not granted but you had gorsuch and kavanaugh saying what the separation of powers batman Yeah, this case, Sarah, absolutely fascinating. The facts are really interesting because it involves an environmental case that I've kind of followed for a while, kind of at arm's length, fascinated by it. It was a lawsuit brought against Texaco, which is a corporate predecessor to Chevron. We've talked a lot about Chevron in the context of administrative law and administrative law cases, but this is talking about Chevron as in Chevron, the gas station or the gas company. This was a case brought against Chevron. Chevron wanted it removed to Ecuador from New York. Now, this is an interesting strategic decision. They said, no, don't sue us

in New York. Sue us in Ecuador. They get sued in Ecuador and lose a judgment, Sarah, of $8.6 billion. Womp, womp, womp. Yep. And you can imagine me like Austin Powers with a pinky at the edge of your mouth, billion dollars, okay? So then Chevron is like, wait a minute, this was corrupt, there was bribery, there is all kinds of problems with this judgment.

So they've been attacking the judgment ever since. And so they've been attacking the judgment in federal court and an attorney, the plaintiff's attorney, a guy by the name of Donziger, Stephen Donziger, received an order to turn over his electronics. And he says, nah, dog, I don't think I'm going to turn it over. So the court does what the courts often do when you say nah dog to the court issues a contempt citation and then the prosecutors don't prosecute and then the court says I'm having none of that I'm appointing my own prosecutor and then hearing the case in a bench trial. Now, what blows my mind, Sarah, is that the case was upheld by the Ninth Circuit.

There's a lot that blows my mind about this case. Just to be clear, and this is, you know, what Gorsuch and Kavanaugh are pointing out in their dissent from denial, what branch is this special prosecutor belonging to and reporting to? So, for instance, and I'm now reading from their opinion, highlighting the confused but surely executive nature

of the prosecution in this case, the United States applied the Second Circuit with two different briefs offering different theories. One brief came from the court-appointed prosecutors, another from lawyers within the Department of Justice. I mean, as then they later point out, the notion that the Constitution allows one branch to install non-officer employees in another branch would come as a surprise to many. Who really thinks that the president may choose law clerks for my colleagues, that we may pick

White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House. Our Constitution does not tolerate what happened here. Nevertheless, it does because, in fact, they did not have four votes to take this case. Exactly. Turned out there's lots of tolerance for this weirdness yes it's not the only weirdness i mean we have talked about these separation of powers cases for instance in the context of

independent agencies or independently funded agencies there's now the cfpb case it's going to be argued next term but there are at the margins a lot of weird, fuzzy lines. So for instance, there can be interim U.S. attorneys that are court appointed, in fact. Now, as that works in practice, normally it's someone who the Department of Justice wants to be appointed by the court. But that doesn't have to be. So I agree with Gorsuch and cavanaugh here however it's worth noting that for as high a horse as they are sitting on this isn't actually so out of the blue or so different than a bunch of other weird things. I mean, for that matter, and I know I'm the daughter of a bankruptcy

judge. Bankruptcy judges are unconstitutional. Wait a minute. Does your dad listen? Does your dad listen? He does. He sent me notes on the last podcast. Dad, you're unconstitutional. I told him that. Unconstitutional dad. But you know, there's Article One judges, and there's Article Three judges. And then there's judges within the executive branch. Think about immigration judges. So this idea that we have this perfectly delineated separation of powers sure feels really nice. But in practice, it's not how it's working. Though again, I appreciate Gorsuch and Kavanaugh standing up and saying our Constitution does not tolerate it's working. Though again, I appreciate Gorsuch and Kavanaugh standing up and saying our constitution does not tolerate what happened here.

Also worth noting, this guy, Don Singer, is a celebrity on the left, as Josh Blackman pointed out in one of his posts. So anytime you're looking for justices siding against their policy preferences, if you were, this is a decent example of Gorsuch siding with not just a criminal defendant, but a left-wing criminal defendant.

Celebrity left-wing criminal defendant. Yep. And, you know, I think the thing that just gobsmacks me the most about the case is... Love that phrase. It's just... Isn't just that he appointed the attorney to go ahead and prosecute when the DOJ said no. It's that he did it when he held on to the case and it was a bench trial.

So it would have been at least you could say if he'd had to say a jury trial. Well, the jury did what it did. I mean, I have no control over the jury, but he said, you got to prosecute and I'm the finder of fact here. It's a pretty, it's a pretty remarkable turn of events. And I'm, I'm glad that I'm glad that Gorsuch stood up here. I'm, I'm glad that Kavanaugh stood up here. And I'm just sad there were not two others, because this is a wild case. And a little surprising that there aren't two others. But as has been pointed out, for instance, and again, this is Josh Blackman pointing this out, Justice Sotomayor and Jackson could be expected to go along with a grant on a matter of such concern to criminal justice.

But alas, this case involves separation of powers and potentially the non-delegation doctrine. And again, it's not that I think we know how they would have come out if the case had been granted cert, but rather when you've got a really messy case like this,

sometimes the justices are just like, I'm waiting for a cleaner vehicle. Right, right, exactly. All right, I'm waiting for a cleaner vehicle. Right. Right. Exactly. All right. Let's do a little dog toy. This case is so funny. This case was argued last week. And there's just a lot of reasons that we're going to talk about this case. And that frankly, the decision, it's one of the few times where the decision is going to be less interesting than the facts of the case and the argument of the case.

So you're all familiar with Jack Daniels and what a Jack Daniels bottle looks like. And it's like a black label. The font is very specific. It says old number seven, Tennessee sour mash whiskey, all of that. All right. There is a company that has made VIP products that has made a Bad Spaniels. Get it? Jack Daniels, Bad Spaniels. It's a dog toy.

It also has a black label. The font is the same. And it says the old number two on your Tennessee carpet. Get it? All right. That's some quality humor right there. Jack Daniels sues VIP for trademark infringement and dilution. We're not going to get too far into the weeds on this.

Maybe the decision will be really interesting. But David, I did think you would be interested on the legal side of something that we've skimmed in and out of on this podcast, which is the relationship between trademark infringement and the First Amendment and specifically parity. Yeah. So in this case, they're arguing that this is really protected because it's a parity. Now, this case does deal with some First Amendment, but actually, it's really in the weeds of trademark law and a lot of precedent. So we're not going to get into a ton of that here. But it led to a fun oral

argument in a number of ways, David. And I wanted to talk about that because sometimes I point out like, hey, if you're ever looking to beef up your oral argument skills, go listen to this oral argument and learn from the best of the best. So Lisa Blatt, who is certainly the most, you know, decorated female advocate at the court at this point, but really among the most decorated advocates at the court setting aside gender. And I would argue in the top five most famous advocates at the court,

she argued the angry cheerleader case. She appears at the court multiple times a year. But she's got a certain style, David. Yeah. And I'm just going to say, if you're a young lawyer or law student who wants to beef up on their oral argument skills, do not, do not try to imitate Lisa Blatt.

Only Lisa Blatt can do Lisa Blatt. You cannot do Lisa Blatt. Right. And I thought it was worth reading a few sections of why you can't do Lisa Blatt. So, Justice Jackson asked this long, you know, I guess I'm trying to understand why it's atextual in your view to focus on this idea of use of a mark as a source identifier.

Because it seems to me that what you're describing as the problem is courts grappling with the degree of expressiveness of various items in terms of determining whether or not this art exception should apply. And her question goes on from there. And it ends with, what's wrong with that? Blat, well, unfortunately, a lot. And with respect, literally, you're taking language in the text of parody, in the text of the statute, which you had a Supreme Court case on, designation of a source are actually exceptions under two statutory provisions that don't appear in infringement.

So I'm fine with you just making stuff up. So Justice Jackson, I think, pretty gently pushes back. No, but I'm not making stuff up. I mean, you said this other thing. Blatt interrupts and says, confusion has nothing to do with designation of source. So no, you're just sorry. But in trademark law, you can have a very confusing use of trademark that's not. Now Justice Jackson interrupts her.

This gets kind of heated, David. And I'll tell you, as I was listening to it live, I felt very awkward. Yeah. And then you've got this very interesting back and forth with Alito, where he's basically saying, how could there be confusion of whether Jack Daniels made this dog toy? It's clearly like, why would the CEO of Jack Daniels ever agree to make a dog toy that talks about number two on your carpet? Clearly people are going to know that Jack Daniels didn't make this. Therefore, these exceptions don't apply. So they get into this back and forth. And Blatt says, nationwide ran a Super Bowl commercial with a dead child in it. And they had to pull it because it was such a bad idea. I don't know who approved that one. It was really embarrassing for them. People make dumb commercials.

And Blatt continuing, I think if you're selling urine, you're probably going to win on emotion. And Justice Alito has to interrupt because he's not saying like, literally if you're selling urine you're probably going to win on emotion and justice alito has to interrupt because he's not saying like literally they're selling urine they have this back and forth he's trying to clarify she's interrupting and she says okay my bad and she says well just showing how confused i was suggest that i would be your perfect consumer that gets laughter again you are not supposed to be the one getting laughter as an advocate. That's considered a no-no. And after the laughter subsides, she continues, Justice Alito, I don't know how old you are, but you went to law school. You're very smart. You're analytical. You have hindsight bias. And maybe you know something. He interrupts and says,

well, I went to a law school where I didn't learn anything. She says, It's just a little rich for people who are at your level to say that you know what the average purchasing public thinks about all kinds of female products that you don't know anything about or dog toys that you might not know anything about. Wow.

He interrupts and says, I don't know. I had a dog. I know something about dog toys again i just all of this the whole argument frankly is is things lisa black can say that you can't there are cases i thought angry cheerleader was one of them where i think that um there is a great reason why clients want to hire Lisa Blatt because she can say things and do things that other advocates can't at the court.

But man, some of this was, well, she was the spiciest justice that day. Yeah, that is some pretty remarkable stuff to hear that. And in reading it, you think, pretty remarkable stuff to hear that. And, you know, in reading it, you think, I really hope people were smiling during some of this. It reminds me of when... They clearly were. Yes, yes.

And it reminds me of those, do you remember when we had, was it McKay Coppins from The Atlantic on? And you and him were going at it. And I said, I just want you to know that they're still smiling at each other. Yes. Yeah, that was so funny. It was such a good example of where body language

and familiarity mean that there's certain conversations where you have all the subtext that you're aware of with your... Yeah. With your colloquial... Colloquial? But the audience has no idea. And like, you know,

mommy and daddy are fighting. Like, no, no. Mommy and daddy are having a great time. Last up, David. David, I'm going to do it. I'm going to try to do my sing-wear bacon-er. Oh. Oh, please. Okay, go for it. David'm going to try to do my sing-wear vacater. Oh, oh, please. Okay, go for it.

David's going to pull out some of his Jack Daniels for this. Yeah. Okay, so I'm going to overly simplify this. But when you've gotten an appellate decision from a circuit court, and then something happens to moot that case before the Supreme Court can review it, and it's not your fault. The Supreme Court might get rid of that circuit court opinion,

just sort of wipe it off the books in something called Munsingware vacator. So I'm going to try to give an example of this. David sues me for defamation. I say all sorts of horrible things about David, as we all know. And David wins a trial and he wins in the Fifth Circuit, my home circuit, you know? I don't know.

It's really embarrassing. But then David dies. He's just dead now. Uh-oh. Not loving this hypo. And it's very important here. I didn't kill David. If I killed David, this all goes a little differently. Let's assume David just, you know, a pelican lands on his head and it all goes awry and David's dead now. And I had a surpetition pending at the Supreme Court, but now the whole

case is moot. Let's assume David has no estate. I don't know. This isn't a great example in some respects, but the point is, it's not my fault the case got mooted out and I had real legal claims that I wanted to continue to address. And now there's this circuit case that says that I'm a defamer and a bad person all around and I did all these things that were wrong. In what's supposed to be exceptional circumstances, the Supreme Court may simply vacate that opinion because I can no longer pursue my appeal. And again, for all you Supreme Court litigators out there who are about to send me angry, angry emails about Munsingware vacator, you try to do it. Okay, so there was a very interesting case that came up in the court. And normally Munsingware vacator would never be

interesting. But David, this was an abortion distortion Munsingware vacator would never be interesting. But David, this was an abortion distortion Munsingware vacator case. Basically a, a state employee had refused to allow someone, a minor to seek an abortion without parental consent. Um, and there's some dispute about this, but probably against the law, what she did. That this person did meet all the exceptions and could get an abortion without parental consent under the law. But then Dobbs happens. Both parties then agree to dismiss the case. So then the circuit clerk wants the case wiped out.

so then the circuit clerk wants the case wiped out and it's all turned on whether by agreeing to dismiss the case is that kind of close to like me training a pelican to kill you that like i am party to it's it's partly my choice that the case got mooted out and basically the court granted vacature in this under munsingware. And you have this really long, interesting Justice Jackson dissent on that or statement regarding that, where she was like, whoa, Munsingware used to be for these exceptional situations. And now it's just getting handed out like candy. And also, you know, it has to be through no fault of the party seeking the vacature. In this case, they agreed to dismiss it. And again, David, I was curious if you had any thoughts on it since this would have gotten no attention, but for the underlying topic.

Right, right. No, it is not something that I paid close attention to. It's niche. Can something be niche of a niche issue? It really is. I found Justice Jackson's argument interesting. And you're right. It's something that never would get attention except for the abortion connection. So I have to express, is it possible to express complete indifference to the fate of Munsing Ware doctrine? I'm largely with you. You know, precedent matters, not wiping out circuit court opinions for no reason

probably matters some. I think I agree with justice jackson in the sense that there should probably be more stringent standards one way or the other it should you know we should know whether something's going to get munsing where vagator and not it shouldn't be quite so up in the air how about that yeah that that makes sense but it is fun to say so i highly recommend bringing it up at your next cocktail party. Well, and it just makes you just, it sounds like you're so fluent in Supreme Court.

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This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift

by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com to get $30 off plus free shipping on their best-selling frame. That's AURAframes.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, a little bit of legal news. We don't really do true crime on this podcast. And there's good reason. A, we're not very good at it. I think we've proven that repeatedly. So I'll acknowledge that part of the reason is simply a lack of ability. But part of the reason is because I guess I kind of object to the popularization of criminal

justice because... And look, I watched the Staircase documentary. I watched the Staircase HBO special. It's not that you can't watch these things and enjoy them. But I guess what bothers me is people then forming strong emotional opinions to how a case should have turned out. David, there is no amount of podcasting that you can listen to

or HBO Colin Firth level quality and retainment that you can listen to or HBO Colin Firth level quality and retainment that you can watch that will possibly ever substitute for sitting on the jury and the evidence that they heard, the evidence they didn't heard, the credibility determinations that they made about people on the stand, the boredom, the excitement, whatever it may be. You can't mimic that. And a podcast presenting that to you, frankly, has their own incentives to make it exciting,

for instance. So even if there was sort of a slam dunk aspect, as far as the jury was concerned, the podcast isn't going to present it to you that way, because that wouldn't be a very interesting podcast. And this brings me all to the original true crime podcast, the Adnan Syed trial. And boy, is it a good example because people feel so emotional about whether he is innocent or guilty. And David, I wasn't on the jury. I don't know whether he's innocent or guilty. And I don't know how I would even have voted if I were on the jury because I don't really know what experience they had and what was presented to them because I've listened to the serial podcast and it's not the same thing. And there's been so many ins and outs of this case. The most recent was this week when basically an appeals court reversed the, what do you call it?

Undoing of his conviction. Why am I blanking on that word? Yeah, reversed the reversal of his conviction. Yes, reversed the reversal because the victim's family did not have sufficient notice to speak and be heard at that hearing. So I made the mistake, David. I made a huge mistake. Oh, you did. You stepped in it.

I saw it. I saw it unfold. I tweeted the story out and said, this is why criminal trials are decided by juries and not podcast listeners. Boy, I'd forgotten what case I was talking about and the feelings, David, the feelings. So first of all, everyone thought I couldn't read and that I didn't actually understand that podcast listeners didn't decide to reverse the reversal. Like what? Of course not. I know podcast listeners don't have an actual say. My point was, this is how the law is actually done on the one hand.

It's small. It's due process questions. It has no regard to the merits often. That's important in our system. And two, frankly, and again, this isn't about guilt or innocence at this point, this case has gotten so much more attention. And I don't even mean from the public. I mean, from the criminal justice system itself, from the prosecutors who are elected and have been

getting enormous amounts of public pressure, from people who listen to a podcast or have read news stories, and again didn't serve on the jury haven't looked at the trial record don't know this case i know you think you know this case but you don't and yes you're gonna throw all these stories at me about how now the prosecutors want to toss out the case i i get it i do think of all of the people who don't get a true crime podcast and again think of the incentives of true crime podcasts to make it either always the closest that they can make it or if someone's already been convicted as in the Adnan Syed case when that serial podcast came about to make it look like the system has convicted an innocent person. It's not an interesting podcast to cover the true crime of someone who did it.

And to be like, and they're sitting in jail. Congrats. Everyone's happy. That doesn't have the tension. And so, David, I do. I think I have a little bit of beef with the whole true crime model. And this case is just the epitome of it. Yeah.

Okay. So let me just be transparent. Yeah. Some true crime stuff I really have gotten into. Yeah. Especially when you're driving. I like the genre

and I watch Law & Order, which isn't true crime. It's false crime or whatever. Like, I'm into crime stuff. But I don't then think that the prosecutors or anything else should change based on this one version that I heard

that was meant to be entertaining. So here's how I parse good true crime from bad true crime. Okay. Okay, so good true crime is, or bad true crime for me is easy to spot because it is basically the jury messed up true crime. Like I'm looking at the evidence and I'm reaching a subjective determination

in a manner that is freed from the rules of evidence, by the way. Right. How convenient. Yeah. Right. So I'm looking at the evidence, weighing them as, weighing the evidence as I want to and the context that I want to, not in the context of the rules of evidence and come out differently. And you can spin a really compelling yarn like that. But the bottom line is exactly what you said, Sarah. That's not value add. That's just like to quote, oh gosh, what is the movie where they say, well, that's just like your opinion, man. Yes, yes.

Wait, is that? The Dude Abides. What is that? Oh my God. Wait, we're going to get so many. Big Lebowski. Yes, Big Lebowski. Yes.

Oh God. So there's just a genre of true crime that's like, that's just like your opinion, man. And it can be entertaining, but that's how I feel about it. But then there's another kind, which is we've actually done some real original investigation and have found pieces of evidence that were not found or have discovered things that were

not discovered. I find that to be the most compelling. That is also, by the way, Sarah, the most rare. That is difficult. And if you're wanting to investigate a case, let's say you're an aspiring true crime podcaster, I would submit you could investigate a lot of stuff before you're going to find something

that has really compelling evidence that was late discovered, never discovered until you, etc. That's hard. That's hard to do. Which is why when it comes to my crime entertainment, it's British crime dramas, not true crime podcasts that I rely on.

You know, the only one I'm particularly thinking of that maybe falls into that genre for me is the jinx the life and deaths of Robert Durst I was thinking of that yes where you know they've they've miked him up for the documentary and then he goes to the bathroom and says I did it I killed them all that's new evidence yeah that is new evidence yeah because always before i was watching that podcast and i was thinking okay this is just fascinating to tell the story but like as sort of we've got something original to bring to the table not as fascinating um and then he goes and he confesses in the final episode.

Yeah. Spoiler alert to this three-year-old documentary or whatever it was. But man, and David, it also brought up something interesting about Twitter, which is I will fully acknowledge that my tweet was not clear what I was talking about. I think that it still stands on its own.

We should have trials decided by juries and podcast listeners. But I did link to this article that didn't seem to have a lot of connection to that. So it was unclear. So Twitter, people have three choices at that point. One, ask for clarification. Two, assume the best of what the person meant. Or three, assume that the person meant whatever will make you the angriest and most outraged. I mean, David, there were like, it was weird stuff in some of those Twitter replies. And like, I didn't even mean anything. Like what I actually meant wasn't very controversial. I agree. It wasn't clear. Why would you assume like there were people who assumed I meant he was guilty. There were people

who assumed I meant he was innocent and they both like want me to die. Yeah. Oh, it's absolutely unbelievable. It's take the least charitable interpretation, amplify it by 100, and then write a disproportionate response to the amplified by 100 conclusion. It's just absurd.

And it makes me sad, not for me, but for these people, because if you are looking so much to be outraged and to feel that anger, there's something really sad going on in your life right now. People don't, normal, well-adjusted people don't want to feel angry at 8 p.m. on a Monday night.

And, you know, some of it, I think, is actually kind of malicious glee. I guess, but that's also, yeah, I mean, maybe that's just like entertaining. There wasn't anything new on TV and it's not actually enjoying the feeling of outrage or hating someone, but like, whew, it's weird.

Oh, it's really absurd. I mean, it's just really absurd and then you know the other cycle of Twitter is somebody gives an utterly over-the-top response to you other people see the response and take it as you're just as bad as they say and I had this interesting encounter when I was at an event last week, and this very sweet woman came up to me, and she said, David, I want to talk to you about your position on transgender issues. And, you know, somebody's very sweet and sincere.

I'll talk to them about my position on anything. But before we began the conversation, I said, where did you learn about my position on anything. But before we began the conversation, I said, where did you learn about my position? And she said, well, I've been reading, you know, what people are saying on Twitter. And so then that led to the next question. What do you think my position is? So before I even, you know, get into it,

like, what is it? What is your... And she proceeded to tell me something that was completely not what I think and completely not what I've written, either on Twitter or in essays, but is what people say that I've written and say that I believe, which are different things. And so I said, here's what I actually think and what I've actually written, plainly and clearly and unambiguously.

And she said, oh, I agree with that. And she was very emotional approaching me because she genuinely was upset at the completely fictional version of my beliefs. And this is something that is not uncommon, Sarah. It is not uncommon at all. All right, well, we're gonna actually take that because it's a great segue into our next topic,

which is the president of West Texas A&M University in Texas canceled a student drag show aimed at raising money for the LGBTQ community. And in doing so, he said that he found drag shows to be demeaning to women, that they caricatured women and compared them to minstrel shows,

to being in blackface, for instance, that it was a parody of women, basically. And so he was not going to allow that drag show on his campus. Fyre, not of course, but Fyre has gotten involved and has made the argument that these students have a First Amendment right to have a drag show, that this was a content-specific decision by the university president. And David, I am curious what you think, except for a moment, except the sincerity of his belief that the drag show is demeaning to women and similar to blackface. And Title IX, of course, protects against having a hostile learning environment on the basis of sex, that harassment could be so pervasive

as to create this hostile learning environment that discriminates against female students. If drag shows are demeaning and caricature what the female form is and what women are supposed to be by having you know men in big uh you know wigs and lots of bright makeup and fake boobs that are you know double triple d's and all that and like that's what women are supposed to be um you know i think that again take take the sincerity of his belief that that is similar to blackface and to minstrel shows in some ways, and that that could create a hostile learning environment

for women on his campus. How are we to balance the First Amendment content neutrality with Title IX, Title VII, et cetera, hostile learning environment laws? Yeah, that's a really good question. Now, interestingly, he doesn't really justify it along those lines. No, he doesn't.

I'm helping as his counsel. You are helping as his counsel because he wrote that he's going to do it, quote, even when the law of the land appears to require that he permit the show, right? Yeah, I don't like that stuff. Straight up, double middle finger to what he believes current valid law is.

And one of the reasons why I fire sued in less than a week, I think, after he launched this. And that's a very bad statement from a qualified immunity standpoint, Sarah, because he's saying, yeah, I know the law. But you raise a really good and important question about the intersection between harassment law and free speech. good and important question about the intersection between harassment law and free speech. And this is something that has been a point of confusion for colleges for 30 years until they kind of were sued out of their commitment to expanding harassment law. So essentially, the way to view harassment law is not that it is sort of a backdoor anti-hate speech law. In other words, it is not a way that you can ban hate speech sort of through the backdoor by relabeling it harassment. What harassment law is, I think the best way I've tried to explain this to people,

and this isn't exactly precise, but it really helps, I think, people figure out distinctions. What harassment law is kind of like is imagine a time, place, and manner restriction tied to specific kinds of protected categories. And it is not tied to viewpoints. Let me make this, let me give you an absurd hypothetical to illustrate what I'm talking about. You know, let's suppose you are utterly opposed to drag queen story hours and you're posting that, you're Facebooking that,

you're tweeting that, you're in support of this professor, I mean, this president here, you're doing petitioning, in all of your spare time, you're completely opposed to drag queen story hours. That's all constitutionally protected, totally fine, absolutely. But then let's say you then walk into an LGBT colleague's office and you're wearing them out about drag queen story hours, they don't want you in the office. They're saying, leave me. You don't wear out anybody else about it. You don't talk to your straight colleagues about drag queen story hours. You're just walking into that LGBT colleagues

office. They don't want you there. And you're yelling at them about drag queen story hours. You can't say you can't defend the harassment claim by saying, well, that was constitutionally protected content. Because the way in which you were expressing at the time, the location, the captive audience, the unwelcome expression to this captive audience in the workplace, all of that is what renders it the targeting of the person because they're LGBT. All of that is separate from the actual content of the speech. And so therefore, that's what renders it harassing. Okay, so can I host my minstrel show on campus, and all of the white people are in blackface and are making fun of stereotypes of black people on campus? Is that protected? I would say almost certainly yes. It's a Nazis marching through Skokie kind of situation. Can I put a Confederate battle flag on my dorm room door?

Probably so. Yeah. Can I put a swastika on my dorm room door? Probably so. Yeah. Can I put a swastika on my dorm room door? I would say probably so. And you could not put that same swastika on a Jewish student's dorm room door. Nope, it's on my door. Yeah. It's on your door.

It's on my door. I'm just a proud neo-Nazi who's attending this university. Yep. And then I start a student group and I invite some local neo-Nazi who's attending this university. Yep. And then I start a student group and I invite, you know, some local neo-Nazis to come speak at my student group. You can't disrupt that event or shout them down

as they are professing why it's important to eradicate the Jews. Yeah, it is. That awful expression is constitutionally protected and it is i have actually spoken to university professors on i mean presidents on very similar circumstances so for example i got a call when i was a uh early at fire from a university president who says the clan is wanting to hold an event and they're advertising for the event on campus. Can I remove those advertisements? And I said,

you cannot remove those advertisements. But David, some of what makes this not hostile is the very small nature of it, right? So like I'm one student, I've got the swastika on my door, nature of it, right? So like, I'm one student, I've got the swastika on my door, you know, everyone else hates me, etc. But let me reverse it. Because I think it's closer to what I mean by the menstrual show example, or by, again, the drag show in this hypo. I don't want to have fights over whether drag shows are demeaning or not. I don't. Which is, imagine it's the pervasive opinion throughout the campus. So for instance, 90% of the campus shows up for a, Christians should be kicked off campus and eradicated from the country because their beliefs are so violent and hostile towards the LGBTQ community.

You know, we hate them and they shouldn't be here. 90% of the campus shows up for that. There's a week of events by every major student group dedicated to that message. You're saying that that wouldn't run afoul of a hostile learning environment for Christian students at that campus? We've had circumstances not terribly, not incredibly different. I remember a case back in the early 2000s where the argument was made that Orthodox Christianity is by itself creates a suicide risk for people that was used as a pretext to knock a student group off campus, a Christian student group off campus.

We contested the exclusion of the Christian student group from campus. And in the run up to the hearing on campus about this, there was anti-Christian chalkings on the sidewalks. There was campaigning directly condemning evangelical Christians. And in that circumstance, now what's interesting about that is Title VI, neither Title VI nor Title IX come into play there because Title VI is race, Title IX is gender. Title VII, which protects against religious discrimination, is for employment. So there wasn't a specific hook, but even if there had been like a different title

of the Civil Rights Act that protected against religious discrimination, expressing extreme disagreement, even vitriolic disagreement with evangelical theology is not harassment. It's not harassment. So it needs to be more pointed towards specific students. And so the minstrel show, no matter how egregious, unless it is, you are, I think what you would say is, in this show, if certain white students in blackface caricaturing black stereotypes have on their shirts the names of specific black students at the school, that would probably be harassment. So, Sarah, we've had this discussion and we haven't talked about the legal standard for harassment under Title IX.

So there's an actual case, Davis v. Monroe County Board of Education, a 1999 case. So what is harassment? It is conduct that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victim's educational experience that the victim's students are effectively denied equal access to an institution's resources and opportunities. That's a really speech protective definition. So it's severity, pervasiveness, and then when it says objectively offensive, that is a shorthand for the reasonable person standard. So it's offensive to the reasonable person. So it's not just sufficient

to say, as a woman, I am offended by a drag show. And if you have other women who are not offended, then you're dealing with, is this objectively offensive or subjectively offensive? If it's subjectively offensive, then that's not going to cut it. And then it's so, so severe that you're denied equal access to an institution's resources and opportunities. That's the definition. It's really speech protected. All right. West Texas University president, I've done my best. I think you've lost this case. The drag show shall go on. I think you're right. And David, I also want to mention there was a case from the Massachusetts Supreme Court actually this month that sort of fascinating. It struck down Southborough's

civility code for public comments at meetings, which required, quote, respectful and courteous discourse, free of rude, personal, or slanderous remarks. So basically, you can call this the school board meeting rule, if you will. The idea that like, don't get up and compare your city council member or the school board member to Hitler and yell at them. have a civil discussion about your disagreement with the school board or whatever. So yeah, someone definitely got up and compared someone else to Hitler.

Someone definitely did that. Someone definitely did that. It turns into a lawsuit. And the Massachusetts Supreme Court said, no, actually, we get that the government wants to have civil discourse. It'd be nice if we could have civil discourse. Everyone should strive for civil discourse.

But you cannot mandate it. You are allowed to be rude to your elected representatives. And I think this is so relevant. It was brought up in the comments, interestingly, over the Stanford case, that somehow this meant that you could disrupt events. And no, this was not about disruption. This was about content.

And so time, place, and manner, which we've talked about, but maybe not fully explained. Time, they can say you can't do it at 2am. Place, they can say, here's the spot for the town hall, not over here. Here's the public forum,

not this building. And manner... Manner doesn't refer to your content, to what you're saying. Manner refers to not being able to use a bullhorn with a decibel level that's outrageous. Or amplification, various... The manner in which you deliver the message,

not the content of the message itself. So time, place, and manner restrictions still allowed. Heckler's veto, absolutely not allowed. And so there was this discussion of like, well, Stanford clearly violated the disrupting student speech. No, if anything, under Leonard's law, Stanford disrupted, sorry, Stanford violated the rights of the students who had come to listen. You don't have to listen to speech you don't like. You don't have to be in the room. You don't have to go to the city council meeting, et cetera. But if you do, you can be bound by time, place, and manner restrictions. You cannot disrupt. However, on your side, you are allowed to be as rude as you want,

especially in the state of Massachusetts now. as you want, especially in the state of Massachusetts now. Well, one way that places like school boards or town councils tried to limit this is by topical restrictions. In other words, to say the subject of this meeting is this policy. We will only take comment on topic. And that's generally acceptable. Also, there's, you know, to go back to your, I was thinking through some of your hypos

about dorm room doors. Yeah. When colleges began to get their speech codes struck down, they began to get really keenly aware of the full extent of the free speech rights of students. And so they started to do things like say, okay, well, if we can't tell you to get hateful stuff off your door,

we're going to say nobody can decorate their doors. This is the Boston City Hall flag problem. If you let some people raise a flag, you have to let all the people raise the flag. And if you don't want the Wiccan flag being raised or the Christian cross being raised, then you don't get to have the pride flag, or the Ukrainian flag are all the flags that everyone likes. Same thing, right? If you don't want a swastika on students doors, you don't let them put a rainbow flag on some doors,

because it's content based. Yeah, one of my cases, one of my favorite cases was a based, one of the instigators for the case was a dorm room door poster that was a picture of a B-52, a stylized sort of picture of a B-52 bombing Osama bin Laden. Islamophobic, which by the way, if I'm Muslim, I'm offended at the idea that you think I would be offended at taking out Osama bin Laden. But... There's that. Yeah. Nobody said censorship is always

rational. Alright, we're gonna leave the long sub-stack post about our potential New York indictment pod for another pod, but I am going to put it in the show notes for those who are curious and really want to dive in and do their homework before the next pod.

It was really well done and thoughtful. And we just so appreciate someone taking the time to take, to take our arguments so seriously to then find the flaws in them, which I thought were well pointed out. And then David, you ready for some commercial litigation? Yes, let's do it. All right, and back on the program,

we have Chris Bogart of Burford Capital. Chris, friend of the pod, litigation financier extraordinaire. What brings you back? Hi, Sarah. Hi, David. Thanks for having me back on. So the last time I was here, we had a nice conversation about the concept and the theory behind litigation finance. And we talked about why companies were using it, which fundamentally has to do with the really high and ever-growing cost of litigation on the one hand. And on the other hand, the fact that company shareholders don't tend to attach a lot of value to the litigation exploits that companies get up to.

They want companies to go and make money on their products. They don't want companies to go and make money on the litigation. And so companies, when they do have significant litigation, have potential future cash flows and assets sitting there that investors don't really care about and don't really give them any value. And so the concept of litigation finance is really twofold. One is it helps deal with the cost side of litigation by coming along and paying on behalf of a business the costs, the millions of dollars associated with taking cases through the American litigation process. And on the other hand, it also allows companies to monetize pending litigation. It allows them effectively to finance their operating business by using the asset value underlying litigation.

So that's what we talked about last time. That's a big and popular business, as I told you then. We do billions of dollars of this kind of stuff, and it's a large and growing market. And there's a very significant amount of corporate demand for it. But what we didn't have the last time we talked was a really good example of how it was being used. And the reason for that is, not surprisingly, that companies tend not to want to talk publicly about their litigation. And so you've had me back on today because there is now a good case study of how this actually gets used in practice. And the reason there's this case study

is that there's also a dispute going on. And so we'll come on to that. But before we get to the dispute, let me just sketch out what has actually happened in terms of the use of litigation finance. So this is a company called Cisco, not the technology company, but the big food distribution company. You see their trucks all over the place. And Cisco is a plaintiff in a number of antitrust cases that are pending in the food industry. Apparently, the food industry is a hotbed of price fixing and other anti-competitive behavior. The Justice Department went and investigated, secured a significant corporate guilty plea, and now there is a bevy of follow-on civil antitrust litigation. And to make this almost too simple, basically, you've got only

three major pork producers, and they've all agreed on what price they're going to charge, and that has artificially inflated the price, which is anti-competitive. And Cisco's the one buying the pork. Correct. And as a result, Cisco says that because of that anti-competitive conduct, it paid too much for the pork. And it would like some of that money back. Thank you very much.

And these are large dollar claims. Hundreds of millions of dollars are an issue for individual companies, billions of dollars in the industry. And so what Cisco did with us, starting in 2019 and extending through the pandemic, when lots of companies like Cisco were worried about liquidity, is Cisco took $140 million of capital from us against the future value of those claims. Some of that money, as I said before, goes to pay the ongoing expenses of litigating the case. But most of that money doesn't. Most of that money simply treats those cases as financeable assets. And Burford is in the business of providing financing against those assets. And so we did a traditional financing

arrangement. And what we do when we do those things is we're just like any other corporate finance provider. We're a passive provider of capital. We're sort of like a, almost like a specialty bank, if you will. And so we provide capital against the value of those claims, but Offsysco and its lawyers go to litigate them. We don't step in to litigate the cases. We don't get control over them. That all remains in the hands of the company and its lawyers. So that was all going along just fine. A little wrinkle

in antitrust land is that under a Supreme Court case called Illinois Brick, Supreme Court has said that only what are called direct purchasers can bring antitrust cases. So just to use a hypothetical example, if Cisco is buying, let's say, chicken from Pilgrim's Pride and turning around and selling that chicken to McDonald's, it may be that McDonald's ultimately was the victim of the overcharging. Cisco may have been passing those overcharges along, but McDonald's can't sue Pilgrim's Pride because it's the indirect purchaser under this Illinois brick doctrine. But the other little wrinkle is that antitrust cases are freely assignable in the United States, unlike lots

of other kinds of litigation. And so once it became clear that these cases were going to be worth a lot of money, a number of the purchasers of Cisco's clients started to pressure Cisco to assign them the cases so that they could pursue them directly and make some money. And Cisco, even though making those assignments would give away the collateral that Burford was financing, and even though our agreement forbade that, Cisco went and did it anyway.

And who knows what happened there? Maybe some customer guys went and did this on a rogue basis, we don't really know. But in any event, a whole lot of our collateral got assigned away. So this isn't any different than if you're financing airplanes or something, and you do a deal with JetBlue, you finance 20 airplanes, and JetBlue turns around and sells half of them to somebody else without telling you and without giving you the money. So Cisco admitted that this had happened. And as a settlement of that breach, we recut the deal so that we ended up with you know a very significant amount of what was left and that's really where the difficulty arises because historically we are not in that kind

of position we're taking a comparatively small part of the outcome of these cases we're passive we're reliant on the incentive that the plaintiff has to make good the litigation and to bring home a recovery for itself, and we just get a portion of that recovery. Here, those incentives have now been mixed up a little bit by this unfortunate breach along the way. And so, as part of making sure that our position was protected, we got an unusual provision in the revised agreement with Cisco, which gave us some limited consent rights over settlements, which is not something that normally happens in this industry. So fast forward about a year, and surprise, surprise, with not the incentives left any longer that should be there, Cisco is tired of litigating. And it proposes then to settle a couple of these cases for significantly less than we think is appropriate and that we think other people in the litigation are settling for. That led to a dispute between Burford and Cisco. That dispute went to arbitration in a New York arbitration and resulted first in a temporary restraining order, a TRO, against Cisco and then a preliminary injunction. And that dispute has now spilled over into the courts in New York and Illinois. And that is how this whole saga has become public. I feel like saying like, bippity boppity boop, this is commercial litigation.

Yeah, like, there's everything you need in a great commercial litigation drama. There's breach of contract, there's arbitration. Now there's a, you know, collateral federal court, you know, And now there's a collateral federal court review of the results of the arbitration. I mean, this is fun stuff. So, okay, before we get into why this is fun, why listeners should care, can I just ask a few follow-ups? A, you mentioned this went to arbitration. I assume that's because it was agreed upon in the initial contract that disputes would go to arbitration.

Why would you want something like this to go to arbitration? Why would that be part of the contract? And maybe just sing a couple bars on arbitration versus court remedies. So it's certainly true that it went to arbitration because the parties agreed that it would go to arbitration because the parties agreed to go to arbitration. It is pretty common in litigation finance arrangements for arbitration to be the remedy. And that's consistent with the theme that I introduced earlier, which is that companies tend not to want to talk publicly about their own litigation. And so arbitration, one of the benefits that arbitration offers is typically a degree of confidentiality, unless, as in this case, you end up moving from arbitration into

the courts to try to enforce or to overturn an arbitration award. You know, I think more broadly, there's a big debate to be had about arbitration versus litigation. You know, there are pros and cons to each of those systems. And that's, I think, a topic, you know, a long topic for another pod. Well, maybe just give us a few lines on what the top line differences are between arbitration and traditional, you know, Article III litigation. Well, I think some of the key differences are in arbitration, the parties are basically selecting their own decision makers. So you're choosing your tribunal usually, sometimes with the assistance of an institution if you can't agree on a tribunal. The courts give a lot of deference to arbitration.

And so you tend to get a much more final result. The standard for overturning an arbitration award in the U.S. court is very high. So it's not like an appeal where, gee, you know, you got it wrong, so we're going to reverse it on appeal. Arbitrators are, in fact, allowed to get it wrong and still not be overturned by the courts. And so speed, confidentiality, and finality are often cited as the big advantages. On the other hand, you know, you've got one shot. And so if you've got arbitrators who, you know, you don't think are capturing or really understanding your position, you don't get a second bite of the apple and you don't get all of the procedural protections that you get in a classic Article III court.

And interestingly, when we're talking about two large, sophisticated parties, arbitration also has a different, I think, tenor than a lot of the times when we talk about arbitration coming up, it's one repeat player, and then a whole bunch of little guys. And I mean, like, literally, just like random consumers who are then put into arbitration. So that's also a different, as you said, for a different conversation. But here we have two sophisticated parties who are showing up to the arbitration. Yeah, I think there's two, to use one of your terms, there's two different big buckets of arbitration, right? There's company versus consumer, where you've got mandatory arbitration in adhesion contracts and so on. And then you've got corporate to corporate arbitration,

which is a big booming business, but exists for a different reason. All right, enough on arbitration. But I did, I mean, that's like fun and something. We don't talk about commercial litigation enough on this pod. So we're going to have to do some detours here. Okay, so why should listeners who come here for fun time Supreme Court happy good feels care about any of this? Well, I think that you care about it because this is a trend that's going on in the civil justice system. And arbitration actually is relevant to that trend as well. But the fundamental trend is that litigation has become something that is extraordinarily expensive, very time-consuming, very disruptive for businesses. very time-consuming, very disruptive for businesses. And so the number of cases that you see going through the courts and going all the way to trial is at historic lows. Some of those cases are getting diverted into arbitration, but others of them

are not making it through the system because even large, sophisticated parties simply don't have the financial wherewithal to deal with them. It's not that companies don't have the money. It's the companies want to use their money on their operating business as opposed to on litigation. And so I think that this is significant because the presence of litigation finance capital, in fact, is breathing some life into a litigation system that otherwise is struggling to meet the needs of all of its users. So I understand very much the sort of litigation funding theory and the role it is playing in the marketplace, and you've explained it very well. But in the weeds of this particular case, you've got an interesting problem here, which is litigation isn't widget making. And at the point that Cisco's incentives were not well aligned to continue the litigation to advocate on their own behalf.

Um, how much, uh, should we think about your role then? And I mean, your, uh, you know, litigation financing role and then taking over and or needing to approve of the litigation, because in this case you said, of course, it was just sort of a right to reject a settlement, but one could imagine a different version of this. You know, they really breached the contract. Now you're taking a hundred percent of the claim. And so you take over the litigation itself, for instance. That seems tricky to me. Well, that's obviously the policy issue. Now, interestingly, it's not so much a policy issue in antitrust cases, because antitrust cases are completely assignable. And so Cisco is free, or any other antitrust cases because antitrust cases are completely assignable. And so Cisco is free or any other antitrust plaintiff is free to simply, in fact, sell their claim to me or to somebody else.

And we think that that is, in fact, a policy good in antitrust law to be able to ensure that bad actors are held to account. And there are other policy choices in antitrust law as well, like automatic trouble damages in cases that go to trial and win. So I think that there's a broader policy question that you're raising. But at the same time, there's a question around adherence to financing contracts. So the right answer at the same time can't be that you can take $140 million of capital and then say, well, litigation is so special that I'm allowed to breach the contract with impunity,

and that the financier has no remedy. And, you know, if you think about this, the logical extension goes all the way to bankruptcy. So when companies go bankrupt and enter into liquidation, in many instances, those companies are going to have litigation claims that probably have value that they should be bringing. And the way those claims get brought is by third parties coming in and bringing them using litigation trusts and such structures. And we do some of that business as well. And so it's not as though the world exists even today in some sort of a world of complete purity where everybody, the only person who can bring a claim is the original plaintiff with that claim. We have lots and lots and lots of situations where that is not the policy choice,

and this is one of them. So before I get to my question, I just want to make an observation, which is for future guests of the podcast, is that Chris has established an advisory opinions to 60 Minutes pipeline. Because first he was on advisory opinions, and then you were featured on a big 60 Minutes report about litigation financing, as I recall. And so just for future guests, you just need to know about the launching pad that is this podcast. But I want to talk for a moment.

I owe it all to A.O. Everything, everything. Everything. Everything. Okay. So I want to talk a little bit about, as a former commercial litigator, I'm curious about something that might be a little bit out of left field. And that is this. So when I was in commercial litigation,

one thing that struck me about these major complex cases was how little they were often about business and how much they were often about ego or emotion or a sense of betrayal. And you would have large corporations locked in battle with each other where you as the attorney could see how this thing was gonna settle or should settle. But many times the combatants didn't wanna do any kind of settling anywhere they wanted to go to war.

My question is when litigation financing gets involved, does that sometimes introduce sort of a level of cold, hard business calculation into the commercial litigation process that is sometimes missing? How does litigation financing impact that kind of emotional side to litigation that I always saw in these big commercial cases, even though everyone was sort of pretending that they were just, you know, coldly rational business people figuring out dollars and cents. Yeah, I think that it certainly does. And you're quite right, because what it does by turning to a world where you're focused on the economic outcome and only the economic outcome, you do inject a degree of discipline into that process. Now, that has limits.

And there are certainly any number of cases that we get pitched that we don't do. cases that we get pitched that we don't do. And one of the reasons that we don't do them is we think that the motivations of the parties are insufficiently economic. That instead, this is litigation. This is litigation for a purpose other than, you know, getting to a financial judgment. And, you know, sometimes that's emotion and sometimes it's strategy. Right? It's not uncommon for people to use commercial litigation as a business strategy tool. They're not trying to get money. They're trying to slow the development of somebody else's product. They're trying to create some obstacles. You know, people do that. But those aren't cases that are that are financeable. I love the phrase, your motivations are insufficiently economic.

That's such a nice way of putting it. I'm going to start using that when someone's being too emotional around me. I fear your motivations are insufficiently economic in this conversation. It feels like a line that should be an Atlas shrug. So Chris, how is this going to resolve? Well, that's a good question. You know,

back to David's point, I think ideally all of these things resolve, you know, after people blow the steam off, they resolve by, you know, by rational negotiation. And that's certainly what I would like to see happen here as well. You know, it may be that this needs to play out a couple of acts before you get there, because the question, Sarah, that you raised, you know, is a question that's being raised in the litigation itself. You know, it's the policy question of how far you can go with this. As I said, this isn't a particularly good vehicle for that question, given the sophistication of the parties and the assignability of antitrust claims. But it wouldn't surprise me if you see, you know, a few dueling rounds.

And, you know, when you've got sophisticated litigants in commercial litigation, you know, you also have all the gamesmanship that goes along with that. you also have all the gamesmanship that goes along with that. So right now there are cases filed in, you know, several different courts that are sort of bouncing around, competing for priority. You know, there are jurisdictional questions here. There's removal and remand in New York. There's consolidation in Illinois. And so, you know, that will take a little bit of time, I think,

to work its way through the process. After that, though, you know, that will take a little bit of time, I think, to work its way through the process. After that, though, you know, you'd certainly hope that this is the kind of thing that gets resolved. One thing, you know, and one of the reasons why we wanted to talk about this case is it's an example of what commercial litigation is like. This is how complicated it is. This is how many zeros are after the numbers often. So in your typical case, your typical commercial litigation case, how long are these things going?

Is this a, this is complicated litigation involving teams of lawyers in federal courts that are often front-loading with criminal dockets, so you're not necessarily getting the first bite of the apple on scheduling. How long do these things tend to take? And is that length of time another reason for the arbitration explosion? Look, the bottom line in commercial litigation, in large-dollar commercial litigation, in large dollar commercial litigation, is that it's complicated. And when you have lots of zeros, as you said, David, then people, you know, go to the mattresses on all things large and small. And that's what

makes commercial litigation expensive and adds to its duration. You know, at the same time, our courts are actually pretty good at sorting through cases that are meritorious and cases that are not, at kicking cases out pretty rapidly that are not meritorious, and focusing attention on cases that need attention. So, this case, for example, has only been out in the public eye for the last maybe three weeks. And, you know, it has received the immediate attention of judges where it was filed. It's not like it languishes, you know, below a big stack of criminal cases that, of criminal cases and doesn't get touched for six months. Sure, there are lots of examples where I wish things went a little faster in the courts. But the reality is that you do move these things along.

And it's a pretty darn good system when you consider the alternatives and look around the world to do them. But I think sort of to close this out and to come back to where Sarah was earlier, you know, why does this matter? And what's going on here? You know, I think this stuff matters to your listeners. You know, and I've been one of your listeners for a long time, I think it matters to your listeners because it's a significant element of what happens in the legal system in this country. The reality is that most litigation that's going on is not rarefied Supreme Court, you know, culture war, clash, or policy litigation. It's litigation that is important to people, whether it's big companies or smaller ones. And David, you mentioned 60 Minutes before.

You know, the 60 Minutes feature that was on Burford highlighted a very different kind of case. It highlighted a, you know, a longtime large family farm in California that was selling all of its product to the makers of Sriracha hot sauce. They got into a tiff. It harmed the family farm a lot. The family farm went to court and won a jury verdict in its favor. But, you know,

there was delaying tactics and it wasn't being paid and that farm was going to go into business. But, you know, there was delaying tactics and it wasn't being paid and that farm was going to go out of business. And we stepped in and provided enough money for that farm to stay alive while its appeal was heard and ultimately resolved in its favor. And so when you have a system that outcome take years without there being some ability to do something economic along the way. And that's what we try to do to help. Well, Chris Bogart, thank you for joining us today. And it's kind of a, it's a really fun case. I mean, this is why you will meet commercial litigators who love their jobs, because this is, you're all over the map.

And I mean that in a literal sense. You're all over different types of courts. There's all sorts of strategy decisions to make along the way. Litigation, financing just being one small part of this. And I don't know. This is fun stuff, man. Thank you. Well, it's fun for us.

Not being in disputes with our clients, but the business itself is fun for us. I have a $6 billion portfolio of litigation all over the world. So I spend my days looking at really big, really interesting cases in every common law country and a bunch of civil law countries and trying to figure out what's going to happen with them. So it's a great job. It's too bad you can't have your own advisory opinion spinoff podcast of what cases Chris is looking at today and how you decide whether to finance that case or not. I mean, that would be a fun podcast, man. Well, we can come back next year for that one.

All right. Thanks. Talk soon. Thanks. Thank you, Chris. Ha! Well, that was just a breath of fresh air, David. Yeah, it was. It was. And I just want to reaffirm to guests how good it is to be on our podcast. Just think what he gained, that 60 minutes,

that 60 minutes exposure. Think what we gained, David, which is, I think, a better... Again, I think it's a better understanding of why there are lawyers out there who love their jobs. Yeah. Because there are so many strategic decisions and questions. It's really a choose-your-own-adventure when it comes to commercial litigation,

that in a lot of ways, when we're talking about some of this constitutional law stuff or criminal defense work, which I think is so meaningful, law stuff or criminal defense work, which I think is so meaningful, you know, there's a well-worn path on habeas, for instance, and it's pretty narrow and it's pretty limited. Commercial litigation, though, do you want to arbitrate? Do you not want to arbitrate? Discovery and, I mean, summary judgment, it's everything. It's all the things. Well, I enjoyed it when I did it. And one of the things I really liked the most about it is after every case, I was a quasi, I'm not going to say expert, but at least stayed in a Holiday Inn Express last night level expert

on whatever industry was at the heart of the case. And that was just fun learning things. I mean, I remember I had a very long case about a contract dispute over a mountaintop removal mining. And by the end of it, I was so familiar with all the different ways in which coal is extracted from the ground. You were the Munsingware vacator guy, but on mountaintop mining. Mountaintop removal mining and tried to talk about it at parties, Sarah, and found a distressing lack of interest. I'm sure Nancy really enjoyed the pillow talk though. Mountain top removal mining.

It is fascinating. It is fascinating. All right. With that, another podcast comes to a close. Bye. hold on let me find the actual thing