Advisory Opinions - Smothered and Covered

Episode Date: April 27, 2020

David and Sarah discuss the latest polls looking at the 2020 election, the Supreme Court's decision to dismiss a New York gun rights case, and talk with Steven Lehotsky, of the U.S. Chamber of Commerce, about how businesses are dealing with liability as they make plans to reopen. Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at Real Canadian Superstore. Your teen requested a ride, but this time not from you. It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your team to your Uber account today. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. We have an action-packed pod today.

We're going to begin with polling, talking about where does Joe Biden stand in the race against Donald Trump. We're going to talk about, well, from polling, we're going to go to my legal PTSD, how a Supreme Court case about gun rights has triggered me, Sarah. You're such a snowflake. I'm melting right now. Then I'm literally shaking. I'm literally shaking. Then we're going to go to a fascinating discussion with, yes, Sarah knows everybody, Chamber of Commerce Counsel, Litigation Counsel, Steve Lohotsky, about how it's not necessarily, opening the economy is not necessarily as easy as saying open sesame or open economy because there are liability issues around coronavirus that might have to be dealt with legislatively. Really

interesting conversation. And then we're going to wind up with a brief talk about where do the culture wars go from here? But let's start with polling, Sarah. The state of the 2020 race is dot, dot, dot. Well, last week was so interesting because we'd had sort of a gap in polling, or maybe the better way to put it is all of the polling had really been about coronavirus, Trump approval rating. How do you think he's handling the coronavirus? How's your governor handling the coronavirus? And then all of a sudden, in like a 48-hour period last week, we got a whole bunch of 2020 polling. And so I was just having a good old time going through crosstabs, and I have some things to share. Share. Share. But first, let's

just say, how many people in America can say the sentence, I will tell you that. Oh, good. Okay. I have a text chain with my students where I like send them things that they're like, aren't we done with class? Do we have to keep reading this stuff? Yes, forever. So let's dig into some of the swing states, because I think we have beaten it into our listeners enough that national polling is pretty pointless because we don't have a national election. So Pennsylvania hadn't gone, hadn't voted for a Republican president since 1988 and then 2016. Right. With several polls from the last week or so, many polls, Biden is averaging six points ahead. That's enormous. Now, it's also very early. And, you know, yes, Hillary Clinton was ahead at this point as well. Well, but voters there are more likely to disapprove of Trump's handling of the virus.

There's a lot that shows why those numbers are what they are. Unemployment is much higher there than it is nationally at this point. Florida, Trump is trailing Biden by three and a half points in the polling averages that I ran. And so here's an interesting crosstab point in the groups that Trump does the best with. He is down double digits, meaning he's still winning those groups. But compared to where he was at 2016, he's down. So white voters, there's a 14% drop from where he was in 2016 in Florida. Without a college degree, 12 point drop. And conservative voters in Florida have dropped 21 points since 2016. So that's pretty bad. But one group in particular, one crosstab, is a total disaster. And a really quick one.

Like, it just, boom, it just happened. And that's the olds, I will refer to them as. You. No, just kidding. Me. Wait a minute. So different polls use slightly different numbers to determine what's an old. But roughly speaking, it's over 65. So not you. Not me.

This is really bad because in 2016, Trump won seniors by seven points. It's an enormous part of the electorate. They're the most likely voters. They're very ritualistic voters. They go every time. And so to lose them is a big deal. So in 2016, Trump won seniors by seven points. According to exit polls, he now trails Biden nine points. That's a real shift. That's 16 points. Again, you look at his approval rating with older Americans, 19 point advantage before. That number has dropped 20 points. He's now negative one. That's remarkable.

I just honestly, when I saw that, I actually thought it was a bad poll. And in fact, we were having sort of a slack conversation and someone pointed out, and I was like, I roll guys, no single demographic group that's that large moves that quickly in a month. Like, sorry, look at like Catholics, for instance, and the slow evolution of a demographic group from one party to another, things like that. Then like three other polls came out the next day and I was like, huh, okay, they're all exactly the same. So can we move from your rational analysis phase to rank speculation phase? Wait, I have one more study. It's not a poll. Okay, okay.

But it's too much fun not to talk about. Here's the study. So we're not the only ones who are sitting at home trying to think of interesting things to do with our free time. But these three professors at Texas A&M Corpus Christi, mind you, they live like right next to a beach. I've spent many a month in Corpus Christi. So I feel like I want to suggest other things for them to be doing. But this was so interesting. So I'm glad they did it. They found that the death toll in these states that Trump won narrowly in 2016 could disproportionately affect Republicans in 2020. So they're projecting in Michigan and

North Carolina that even with shelter in place orders remaining in effect, about 11,000 more Republicans than Democrats over 65 could die before the election. And in effect, about 11,000 more Republicans than Democrats over 65 could die before the election. And in Pennsylvania, 13,000 more Republicans than Democrats could die in that age category. Isn't that like, David, your face? Yes. Yes. Wow. I mean, it's grim. I don't mean to make light of it, but I think it's a really interesting set of data they dug into there. of it, but I think it's a really interesting set of data they dug into there. Well, so moving from the cold-eyed rational analysis to the rank speculation phase, so why? Why is this happening? Why would you see the dip? Part of me thinks it has to be because of the disproportionate fatal impact of coronavirus

on older Americans that number one, you're probably more likely to know somebody who has died or struggled with it immensely. You're going to be more frightened of it. And then I just wonder how much some of this really weird wave of commentary that you saw for two, three weeks or so about, oh, this thing's not such a big deal because it just hits older people and we need to kind of wall them off and just go about our business. I don't know that would make me feel great and feel super valued. Right. Like the warm embrace of the party. You know, normally I would say that there it's probably much more nuanced, much more complicated reason, except for the speed and timing in which that, for instance, 20 point approval shift happened. We're talking one month. Yeah, there's not a whole lot else to point to.

to. Yeah, it's a stunning change. And I mean, you know, we can't this is sort of a natural Trump constituency. So I would expect some of that to snap back. Yeah. Yeah. But if even if a significant portion doesn't, even if you have a snapback of, say, 60 percent of that or 70 percent of that, that's still, given the closeness of the election in 2016, a real problem. Well, just take Florida, where 65 and overs make up about a fifth of the population of the state, which we all know and love about our grandparents in Florida. Trump won seniors by 17 points in 2016. In the last poll that I read, Biden is winning over 65s by 10 points. That's a 30-point reversal in a couple of weeks. That's remarkable.

I mean, that's remarkable. And Trump won that state by 1.2 percentage points or so. Yeah, yeah. That's, you know, when you when you look at those polling numbers and, you know, again, it's hard to again, this just with the caveat, this is rank speculation. But given the tiny rally around the flag effect that Trump had, like just tiny at the start of this, which is largely receded, by the way. He's now back to about the numbers that he was six weeks ago. Combined with his performance in the polls. And look, I don't want to engage in

sort of the stereotypical, you know, it was sort of like this joke for a while, the Tom Friedman style of reporting where I flew into Calcutta and my cab driver said, and it was always the cab driver, you know, wherever you were. I was in Amman, Jordan and the cabbie said, but I've talked to a number of people who voted for Trump in 2016 who are really kind of jolted by the press conferences. They look at them and they're they look at them and they're they're just a little bit disturbed um this sort of prolonged exposure to a which and it isn't just like the the sound bites it's the contrast between him and everyone else on the stage it doesn't do trump any favors um at a rally it's all trump you know trump is up there he's got two hours but it's all Trump. You know, Trump is up there. He's got two hours. But it's sort of like here, Trump does his thing. And then here comes like a rational,

calm discussion of the issues. And then the bull in the China shop comes in. And then there's the rational, calm discussion. And I don't know that the contrast does him any favors at all. I mean, again, this is just rank speculation, but I've heard it from more than one person who's enthusiastically voted for Trump in the past and probably will at least reluctantly vote for him in the future. I think the best pushback to these numbers mattering is that it's April. is that it's, you know, April. We've got a long way to go. And we're so early. We have yet to see sort of the full sort of partisanship move over to your team really doesn't happen until around Labor Day. We see that more in polling. And, you know, anything can happen between now

and then, first of all. But also today, you might be more likely to be annoyed than you will be to say this actually is going to change my vote in November. And so to some extent, there's also a gap in what polling can really get people to tell you. What they're telling you is that they're annoyed today. They're not actually able to tell you who they will vote for in November. They're not actually able to tell you who they will vote for in November. And but I said all along that I think 2016 was if it was a referendum on Trump, Hillary would win. And if it was referendum on Hillary, Trump would win. Biden sort of running the basement campaign that he is has made it at least as of April, a referendum on Trump. And the polling is bearing that out. And we will just have to see

what the polling, what that referendum-esque feature looks like come October. And correct me if I'm wrong. I also, I think you mentioned this in your very good dispatch piece on polling that you wrote last week, that the, isn't there a disparity between in 2016, the people who didn't like both candidates broke overwhelmingly for Trump. And as of right between in 2016, the people who didn't like both candidates broke overwhelmingly for Trump? And as of right now in 2020, the people who dislike both candidates are breaking for Biden. Yeah. Yeah. Big time. It's a small number, but they're they're breaking quite widely for Biden. And, you know, this the other thing that's worth noting is that this really does emphasize for the Biden team a do no harm strategy, at least for right now. But when you're talking about the VP pick and you're sitting around with your family, Zoom, looking for topics and you want to talk about veep stakes, there might be great reasons to pick any number of exceptional women for Biden's vice president. But if you look

at these numbers and the number one thing that's jumping out is referendum on Trump, don't interrupt. Yes. That's going to, it changes your entire perspective on who to pick for vice president. What you'd like to pick is a pet rock. Right. One that was fully capable of taking over the Oval Office. A pet rock with some experience. Right. Somebody not controversial. Somebody that's, yeah, that's that, you know, that's going to scream sort of like, hey, I'm competent. You know, it's interesting, George W. I'm too boring. Don't look too please. being an intellectual lightweight and not as experienced a politician.

And so here comes Dick Cheney, who is sort of like increases the seriousness of any room he enters by about seven percentage points. It's just like he has this demeanor, this gravely serious demeanor that Bush needed. demeanor that Bush needed. And I just wonder if Biden, who is kind of a gaffe machine and a little bit all over the place when the bright lights are shining on him, is going to just need somebody who walks in, makes the room more boring and more serious at the same time. I think the Las Vegas odds on clobmentum are ticking up. Yeah, I would concur. All right, can we move on to how I'm triggered, no pun intended, by New York State Rifle and Pistol Association? Another exciting day at the court. Let's do it. to decide its first Second Amendment case since Heller and McDonald, which essentially were very,

all Heller did was said Second Amendment right is an individual right. It's not a collective right. McDonald said, incorporated it to the state. So in much the way, all of the other material rights of the Bill of Rights are incorporated and bind the state and local governments. But what's been left kind of undecided since that time, so we're talking 2010, a full decade since McDonald was decided, are things like undecided by the Supreme Court. What is the proper test to apply to a Second Amendment regulation? Is it intermediate scrutiny? Is it strict scrutiny? Are assault weapons bans acceptable under the Second Amendment? There have been assault weapons bans upheld in circuit courts, and the court has never granted cert on

those. What about high-capacity or standard-capacity magazine bans? You can just go on and on and on with basically Second Amendment is an individual right. It applies to the states and nothing else. We have decided nothing else is what the Supreme Court has said, which leaves makes perfect sense, by the way, when you're entering a new legal topic to let the states let the circuit courts work some of this out, create the circuit split, see where the problems are. I mean, this that's not surprising to me whatsoever that you'd have about a decade of that. I don't know, like laundering of law, like, you know, just picture your laundry machine, like flipping things around and like, I don't know, see how things are going to turn out. But 10 years later, we have this case. Yeah. So what is the first case in a decade? It's a weirdo case. I mean,

a weird... Well, it turned into a weirdo case. It looked pretty normal at the front end. Well, but it was a... In 2013 when it started. Yeah. I think of it as weirdo just from the inception because it dealt with a regulation that basically nobody else had anywhere. So it wasn't dealing with a standard argument about like, say, expanded background checks or magazine capacity or kinds of weapons. It was in New York. There is a there are very limited ways in which you can own a weapon. And one of them is essentially you get a premises permit. You're allowed to have a weapon at your home, at your premises.

And if you have that premises permit, you cannot take it outside of the home. Well, previously, basically at all. At all. And the only time you could take it out is if you're going to one of a small number of approved gun ranges that were located in the city of New York. And so all but one of which was a membership only gun range. Right. And so this really went to it wasn't really a regular it wasn't really a case about the right to keep arms, but the right to bear arms. And so you couldn't take it if you had another house outside the city, you couldn't take it there. You couldn't, if you're going to participate in a shooting competition outside the city, you couldn't do that. I mean, you had to take it to one of these gun ranges and that's it. So it was a strange case, although it could have had

some usefulness if it was a case where the Supreme Court started to articulate a test, a Second Amendment test, intermediate scrutiny, strict scrutiny, that would provide some clarity. Well, as the case went... Also, if you're pro-Expanding the Rights on the Second Amendment, expanding the rights on the Second Amendment, you want to take these extreme cases first. Yes. Extreme meaning extremely bad for your side because you're far more likely to win those and create some law on that side than you want to take the close calls or the ones that are pretty reasonable. Yes. So this was a bet. If you want to restrict Second Amendment rights, this was not the case you wanted at the Supreme Court. This was- Which, and New York agreed.

Yes. And so what did New York do? After defending it for years, successfully defending it at the District Court and the Second Circuit Court of Appeals, after the Supreme Court grants cert, what does New York do? It changes the law. It essentially tries to moot the case by changing the law. And today, New York won. It succeeded. It mooted the case. Now, I'm not surprised at

this result, but I'm triggered by this result, and I'll tell you why. But wait, before that, let's get into what they actually said. So you had a PC opinion per curiam, meaning nobody signed to author the opinion. And then you had a Kavanaugh concurrence where he agreed that the case was moot. By the way, the PC is three paragraphs. Yes. You can go read it. It's quite readable. Just saying it's moot.

quite readable. Just saying it's moot. Kavanaugh concurred that it was moot, but also agreed with the last part of the dissent about how it would have turned out if it weren't moot. And the dissent was Alito with Gorsuch joining in full and Thomas joining, except for this one part at the end about applying Heller exactly because Thomas has sort of a different view of how the history of Heller works. And Alito's dissent is roughly 30 pages. So you have a three paragraph, this is moot with 30 pages. Oh no, it isn't.

Yeah. And it's interesting, Sarah. The reason I say I have legal version of PTSD is this gave me flashbacks to years of speech code litigation. It's all about mootness, really. Well, yeah, it's about mootness constantly because what happens is these universities would put in place these grotesquely overbroad speech codes, just terribly overbroad. They would defend them right until the moment when they thought they're probably going to lose. And then what do they do?

They change the speech code, file a motion to dismiss on mootness grounds. And so we're constantly in this battle of, is this change capable of repetition and evading review? In other words, did they just change it to moot the litigation and then intend to go right back or could potentially and realistically go right back to an unconstitutional regime? Much less likely here because New York State changed its law. Not only did New York City change its law, New York State changed the law. So capable of repetition and evading review is a tougher case to make. And by the way, a very famous term that is not used once in the 30 pages of the

dissent. I know. Amazing. Interesting. But one thing that really struck out to me, it says petitioners also argue that even though they have not previously asked for damage as a respect to the city's old rule, they still could do so in this lawsuit. That's in the per curiam decision. And it took me back to a rule that I made when I was running a litigation group in when filing a section 1983 case, always ask for injunctive relief, always ask for declaratory relief, always ask for damages. Every complaint, even if you were pretty sure that you weren't going to survive a motion to dismiss on qualified immunity grounds, injunctive, declaratory, monetary, always. And one of my favorite cases, we won a tremendous third circuit opinion,

striking down Temple University's speech code. Great. One of the best appellate court opinions dealing with speech codes. And at the end of the day, guess how much money we got in damages? we got in damages? One dollar. One dollar. One dollar. But it was so worth it because that damages claim preserved our speech code claim, even when the school changed its code to try to evade all of this. Well, and this is a topic I care a lot about because I care about the incentive structure set up in litigation. It's why this liability conversation that we're going to have in a second is really interesting to me. By getting that dollar, you also preserved your claim to attorney's fees, which in a civil rights matter, you can only get if you prevail. Yep. And in this case, what I think is very frustrating for it to be mooted out, and Justice Alito does talk about this quite a bit, is, you know, this case started in 2013.

They litigated it fiercely. New York was a fierce opponent. The plaintiffs were fiercely plaintiferous. Yes. And there were hundreds and thousands of hours of lawyer time spent on this case from 2013 to today. When New York changed its law and then the court moots this, there is no prevailing party. And therefore, there are no 1983 attorney, 1988 attorney's fees claims. And it's, it just, it's very frustrating. I would think for that to happen when it was so intentionally done once they thought they were going to lose. Yes. I mean, that's, you know, there's a part of this that just seems fundamentally manipulative of the system and that the court- Which was Alito's point. Yes. Which the court allowed itself to be manipulated. Now, in that case, that Temple case,

$1 of damages, but we got attorney's fees, and those attorney's fees were about $250,000. So much more substantial, but that's exactly right. Imagine if you're a group that something happens or you're an individual, and I bring this up in the school context a lot, something bad happens and you now have to decide whether you're going to spend hundreds of, like you said, $250,000 to vindicate your rights or, ugh. Yes. Yeah. Or just let it happen. Yes. Yeah. I mean, they won the case. And yet they have, in essence, no court decision to show for that. Right. It was a purely manipulative legal tactical move by New York that paid off. And I think that that's responsible for a lot of Alito's heat.

Lots of heat there, by the way. Pardon? It felt like a very emotional dissent to me. It did. It did. That's responsible for my own flashbacks and dealing with, I had a case years ago where we filed an injunction against a university that was shutting down pro-life speech on campus, got an agreed order at the injunction hearing to change policies, to allow the speech to go forward. And then the court moots the case, even after an agreed order, without a prevailing party finding. What the heck, Sarah? Which in this case in particular, I don't think I've seen

a more stark example where there is no question that but for the plaintiffs filing the lawsuit, the law would not have changed. And so their choice was to file the lawsuit, spend the hundreds of thousands of dollars on attorney's fees to get the law changed or to do nothing. And the law would have stayed the same. And that's where mootness doctrine gets tricky. And that's where I think that today's opinion has nothing to do with the second amendment and has a lot to do with mootness going forward. And you're seeing where where the court's going to fall out on some of that. I, you know, boy, when I was clerking, I had a, you know, a mootness case on speech, of course, that was interesting. And mootness, guys, like process, I am just the biggest process person. And for me, mootness is a

looming vessel of process that I just don't think we have resolved what is the fairest way to grapple with that process. Yeah, this case has been read entirely through the prism of the Second Amendment so far until today. Is this going to advance gun rights or is it not going to advance gun rights? What I would say is now the analysis of the case needs to completely shift to civil rights because mootness is the tactic, mootness, and we'll call it manipulative mootness is one of the favorite tactics of an abusive state. We're going to cling to an unconstitutional, unlawful policy as long as we possibly can. The instant, however, that we believe that this thing is going to lose in court, we're going to moot it out, which is an incredibly draining process for civil rights litigants. It's an incredibly draining process for civil rights litigants. It's

an incredibly draining process for civil rights plaintiffs. They win the case in the sense of achieving real change on the ground, but at great cost that is not compensated at all. And so from this standpoint, this is a negative case for civil rights. And interestingly, this was the predicted outcome by pretty much everyone watching it. So it was also, it's sort of like news, no news. Yeah. It's another one of those liability, another process topic. Yes. But first, Sarah, we've got a sponsor. It's ExpressVPN. Being stuck at home these days, you probably don't think much about internet privacy on your own home network. Fire up incognito mode on your browser and no one can see what you're

doing, right? Wrong. Even in incognito mode, your online activity can still be traced. Even if you clear your browsing history, your internet service provider can still see every single website you've ever visited. That's why if you care about privacy, never go online without using ExpressVPN. ExpressVPN makes sure your ISP, internet service provider, can't see what sites you visit. Instead, your internet connection is rerouted through ExpressVPN secure servers. Each ExpressVPN server has an IP address that's shared among thousands of users. That means everything you do is anonymized and cannot be traced back to you. ExpressVPN also encrypts 100% of your data

with best-in-class encryption, so your information is always protected. Use the internet with confidence from your computer, tablet, or smartphone. ExpressVPN has you covered on every device. Simply tap one button and you're protected. ExpressVPN is the fastest and most trusted VPN on the market. It's rated by number one by CNET, Wired, The Verge, and countless more.

So protect your online activity today with the VPN you should trust to secure your privacy. Visit my special link at expressvpn.com slash opinions, and you can get an extra three months free on a one-year package. That's ExpressVPN.com slash opinions. ExpressVPN.com slash opinions to learn more. So thank you, ExpressVPN, for sponsoring Advisory Opinions. And now let's move on to our very fascinating guest. As we know, Sarah knows everybody.

And that includes she knows our guest that she's going to introduce right now. We're going to have a great conversation about the realities of reopening the economy and how individual and corporate liability plays into that or could play into that. So, Sarah, introduce away. I am so pumped. I feel like we have a nice healthy competition going between our guests, and I feel like I've upped my game this week, I have to say. Today, I have with us Steve Lohotsky. He is the Executive Vice President and Chief Litigation Counsel for the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce, David. But perhaps more importantly than all of that, and we do need to start apologizing for this. Steve also went to Harvard Law School. I'm sorry. But he is the Sears Prize winner, which I don't know that we've talked about a ton on this

pod of how the Sears Prize is awarded now that they don't have grades and just hand out smiley faces. So maybe Steve can enlighten us on how that's working. He also clerked for Justice Antonin Scalia, who I know is a favorite of many of our listeners. Steve, thanks for joining. I'm thrilled to be on. So Steve, before we get into the real conversation. So I went to HLS when there were grades, you may not be familiar with this concept of grades. So how does it work now? Cause like when my kids were in kindergarten, they didn't have grades either, but they had like stars or like you would have like little cartoon monkeys you'd put on a board and like the person

with the most monkeys did really well or the most stars like how is is did you like accumulate a whole bunch of stars or like cardboard unicorns to get the seer's prize well i i still had grades uh that oh and that was how uh i think i i got hired by justice Justice Scalia because I still had grades. I can't remember when it was that they eliminated them. I think it was like 2012. What was it then? No, because I had grades. Okay.

So we had also real Sears prisoners. We were all. Yeah, we had grades. Yeah, so we were all there when men were men and women were women. Yeah, my grades weren't good. Steve's were the best. So Steve, wait, do you know how they're awarding the Sears Prize now? So my understanding is that they still have stickers.

I think they call them now book prizes, though, so that they identify the individual or individuals who had the best exam in the class. And those individuals get a book prize so that the thing is you can still tell the people who are like really really really really good um at their exams and their papers um but then it's really hard to tell you know who would be like the you know third best person in a class from who would be the 30th best person in a class. So there's a, you know, it's a lot easier, I guess, for students to then be able to say, be like, hey, I have really good grades. Everyone's grades pretty much look the same, except for the person who has like accumulated a bunch of book prizes named

after story and pound and so on and so on so we still have an elite it's still the case that in every community some animals are more equal than others but it's just a very few small number of animals now at hls that's that's what i'm told okay. But I'm glad to know that all three of us were there when it was a real scare. We'll make sure to find a guest who's post-2012 just so we can really dedicate some time to grilling them over their stickers, their monkey stickers. You, however, are here because you and I were having an interesting conversation last night about how reopening works from here and in particular, some of the risks and choices and problems that businesses are facing as they think about reopening. And one of those is liability. Could you just hum a few bars, if you will, on what y'all at the chamber are looking at in terms of liability that these businesses could face and how that could look for them.

Well, I think businesses are concerned about the liability risk that they face from reopening and restoring facilities that have been closed. Of course, right now we have healthcare facilities and all sorts of other essential facilities, grocery stores, pharmacies, they're currently operating. And we're starting to see some lawsuits that are brought by opportunistic lawyers against retailers, hospitals, other healthcare providers. And we're really concerned about what it will mean for the vast majority of businesses that

have either closed entirely their operations or they've limited them in some respect, maybe they're teleworking. But as they look to reopen and restart the economy at the direction of mayors and governors and the federal government, we're worried that they might then face a new set of liability risks, lawsuits by this same set of opportunistic lawyers who are looking to make money off of the reopening of the economy to provide goods and services that everyone in America really needs. to provide goods and services that everyone in America really needs. So what would a liability waiver look like if Congress passed one?

I know that there's lots of conversations about it. Give us some examples. Well, I think that we're focused at the chamber, both in the Institute for Legal Reform and the Litigation Center on the exposure-related claims claims that's what we refer to as the category of claims that arise from an individual who has either been exposed to covid19 and is a risk of contracting the disease or someone who i guess has been exposed to it and has actually developed uh covid19 and then has some health consequences as a result. And it's that sort of broad category of claims, which could be tort claims, they could be employment claims. I think we're already seeing of the hundreds of business cases that we're already tracking related to the coronavirus. We're seeing a wide variety of

theories that are being advanced with these sort of exposure-related claims. And so I think there are a number of different ways that you could deal with it. One way would be to, and I think this is what our colleagues at the Chambers Institute for Legal Reform are trying to work on, trying to see how this concept would work, is language that would forbid claims, exposure-related claims, unless you have an instance of gross negligence or reckless disregard for public health. So that you're not foreclosing all claims. We're not trying to create immunity from liability, but we are trying to limit the liability so that it really is tailored to the type of really bad activity, activity that everyone wants to discourage. I think we- So to make this concrete, let's take one of my favorite restaurants in America, Waffle House.

OK, and Waffle House, I believe, is reopening in Georgia here soon. Right in my community, the order against restaurants opening is just lifted with conditions. So let's suppose I go to Waffle House and the Waffle House complies with all of the conditions established by the state. 50 percent capacity, social distancing, sterilization, workers are checked for temperature. I mean, all of the things, whatever the conditions are established by the state. I come in, the restaurant complies with everything. And I get coronavirus and I'm pretty darn sure that I got it from somebody at Waffle House, maybe an asymptomatic waitress. You know, somebody had no temperature under yours. You're saying an enterprising plaintiff's lawyer right now would go ahead and sue Waffle House because I got it from

Waffle House. And what you're proposing and what the chamber is proposing is legislation that says, if I do all that I'm supposed to do, I'm going to have immunity from that coronavirus suit, unless the waitress, for example, is wheezing, has 103 fever, is working anyway, coughs into my scattered... It is encouraged to lick you. Yeah. Yes, licks me. So is that about right, minus the licking? So I think it wouldn't be immunity. It wouldn't be immunity from suit, but you're right that it would be the type of

reckless disregard or just gross negligence about the public health guidance that is coming out from the CDC and other public health officials about what's the best way to limit the spread of coronavirus. I think businesses want to do the right thing. I mean, they want to do the right thing because they want people, both employees and customers, to be comfortable coming back to the restaurant or the hair salon and going about their daily lives. So there are already, I think, tremendous economic incentives for businesses to do things like temperature checks, if that's what's recommended, masks, setting up proper social

distancing arrangements for their facilities. And so what you want to do by limiting liability is you don't want to make businesses think, well, I'm going to get hit either way. If I reopen, I'm going to get faced with a strict liability lawsuit, a public nuisance liability lawsuit. What's the point? I should just remain closed. What you want is to create incentives for businesses to do the right thing, to not be grossly negligent. But then where you do have that bad type of behavior, again, you want to create incentives for businesses to be able to do the right thing. for businesses to be able to do the right thing.

So that's a good point on the clarity issue, because if I'm a business owner thinking about reopening right now, it's not like the economy has flipped a switch in Georgia or anywhere else for that matter. Consumer demand is still going to be much lower than it was circa February 15th, just like restaurant sales had declined in early March long before closing orders. So it's not like consumer demand. We're looking at consumer confidence numbers. Those aren't going to surge back overnight. And so you're reopening knowing that you're going to make less money,

even if you reopen. And then you add into that this risk question over litigation. And so when you're talking to these businesses, how are they weighing that clarity versus risk? Well, I think the risk is a real concern. I think businesses are worried about facing those lawsuits after they reopen. And they're taking those costs and that liability risk into consideration as they are thinking about how to reopen, when to reopen, how they rehire, how they scope their operations. I think that the liability risk does have a significant effect at the margin

as businesses are making those decisions about when and how to reopen. Yeah, it strikes me that the legal system is going to struggle for a bit dealing with what happens when we have considerably increased background risk to living. In other words, going to Home Depot might have a non-zero additional amount of risk to my life than it used to have. And as Sarah just said, who bears that risk? Is it Home Depot or is it me? And it seems to be that if we have businesses complying with all of the available and known guidelines with the understanding that we're dealing with a, in all caps emphasis, novel coronavirus, and there's a lot of unknowns, coronavirus and there's a lot of unknowns, it seems entirely rational to say we're not going to ask the business to bear the additional risk of living in the era of the coronavirus. I think that's exactly right. You don't want to have litigation just sort of squash this nascent recovery. There has to be some ability for companies to reopen, to try to resume operations as close to normal as possible, but certainly moving in the direction of a return to normal and doing the right thing along the way.

Is this getting traction on the Hill? Well, I think there's a lot of interest. I think there's a lot of interest in the concept. I think a lot of leaders recognize that this shouldn't be an opportunity for lawyers to get rich over something, which David, as you noted, I mean, it could be everybody in America, everybody in the world is a potential plaintiff, and every business in America is a potential defendant for the sort of society-wide risk. And that's not what we want as an economy. I don't think that's what anyone wants. And so I think there's a lot of interest in the concept and what we need to do in addition to all of the relief that's been provided to businesses in terms of payroll protection and

other programs to try to help keep businesses afloat during this time about what else needs to be done in order to encourage and create good incentives to restart the economy. Is there a difference between different types of businesses, whether it's essential, non-essential, big, small? Do you make a different pitch on this based on that? We talked a little bit about businesses that can work remotely, for instance. businesses that can work remotely, for instance? I don't think there is, in terms of the way that we think about it at the chamber and my colleagues at the Institute for Legal Reform and the Litigation Center, I think we view this, and again, we can see it from the lawsuits that are currently being filed.

You know, there are cases against businesses of all sizes of all in all industry sectors all over the country and so i don't think there's really that much of a distinction in terms of the risk the liability and litigation risk um among different businesses but i i think that you certainly do have businesses like there are some that are essential and that are operating. They might even be going to a location. That's where the customers are. But there are lots of businesses that can work remotely, law firms, accounting firms, tech companies. You have a professional workforce who can work remotely, as I think all of us, the three of us do. And so those, I think, are companies and businesses that have a question about, well, do we keep operating remotely or do we restart our facilities? Do we have people go back into

the law firm office, the tech office? Do we have our vendors and contractors come back to work? Do we have clients and customers come and start to have meetings with us? And what does that look like? Yeah, that's a fascinating question because you cannot operate a sit-down restaurant without having waiters and waitresses on site, chefs on site, hosts, hostesses on site. But in theory, you can operate, you can do a huge amount of legal work not on site. And a subjective, what happens when there's a subjective determination that, for example, teamwork makes the dream work. And that means that we have to be together. And somebody gets sick.

And it was a subjective leadership decision. You know, it's just fascinating to me because the modern plaintiff's bar, while, you know, sort of we've kind of worked out a lot of these premises, liability doctrines and common laws very well developed on who's responsible when you slip and fall and yada, yada, yada. It strikes me that the modern plaintiff's bar and the modern liability doctrines really arose well after the end of infectious diseases as a prime cause of death in the United States. The remote thing is so interesting to me because there's no real incentive to reopen if there's this liability risk hanging over your head. But on the flip side, there's all this trickle down effect if law firms don't reopen.

The cleaning staff doesn't come clean it. The restaurant that's based in the lobby doesn't get its huge amount of business. So they're not employing people. And so, you know, as nice as or as easy as it may be to say, well, we never need to come back to the law firm, for instance. There's actually a lot of jobs depending on lawyers showing up to that law firm. And there's not a whole lot of upside to the law firm telling people to come back in without some of these liability issues being at least clarified. And I think, and maybe Stephen, I should press you on this a little more,

clarity is actually probably more important than what the clarification is even. Well, I think clarity is- Steve's like, nope, nope, the clarity needs to- Nope, nope, sorry. No, sir. I mean, no, ma'am. No, ma'am. You know, clarity of a terrible rule, I suppose, is never a good thing if they said, okay, it is perfectly clear you are strictly liable. Like, well, that wouldn't be ideal. That would then discourage people from reopening their premises.

That would make the law firm say, well, we can continue to work remotely. It's not ideal. We'd rather all be back in the office together, but we can do this. And if the consequences, we're going to be exposed to lawsuits, well, that's not worth it. Let's just keep working remotely. And you're right, Sarah, like that then has a tremendous effect on the economy because there are all those restaurants and bars and dry cleaners and everyone else who is depending on the professional, you know, office-based group returning to the office and, you know, generating all of those

other follow-on jobs. But I do think that, you know, clarity is tremendously important when you're talking about what are the level of protections, like the level of care that is necessary to avoid facing litigation. You know There, you do want to be pretty clear and say, okay, here's the public health guidance. Here's what we recommend. If you're following that, then you're not going to get sued. Then you're not grossly negligent. You're not in reckless disregard. And that's really important for creating incentives for the right level of care. Going back, David, to what you said about sort of when we started to shift away from negligence and towards some of the strict liability and

public nuisance doctrines that are trying to eliminate either the standard of care or causation as an element of what a plaintiff has to prove. And I think you had correctly noted that, you know, in the Waffle House example, by the way, I like mine smothered and covered. But the Waffle House example of you've got the plaintiff who says, I think I got it at the Waffle House. Well, it's going to be really hard for any plaintiff to prove that, I think. It's going to be really hard to demonstrate causation.

But of course, the concern is that it's really easy for a plaintiff to plead causation and to get to summary judgment and get expert discovery and all sorts of other discovery that adds a lot of cost and uncertainty, Sarah, as you noted, for businesses. And so that's why I think there's such a need for addressing this type of liability risk as something that could provide an unintended break on economic recovery, is because there's this really strong legal argument about causation out there, but it's really hard, except through years and years of litigation, to get at that. That's one reason as just a sort of technical or tactical legal matter why it is that you need to have this type of legislation put in place. Well, just one word on Waffle House. I cannot offer the unrestrained endorsement of Waffle House. It's one of my favorite places, but about one out of every 20 visits leads to a phenomenon known as Waffle House stomach.

But I've never sued about that, Steve. Never. I bear that risk. Why do I think that might have more to do with how much you're consuming at Waffle House? Maybe that's not Waffle House's fault that you thought that the omelet and the short stack and the smothered was a good idea? It's just so delicious. Look, these are causation questions for the jury. You're going to have to sponsor of this podcast. I don't think they're going to be named. Steve, thank you so, so much for joining. Really appreciate it. And I don't know, we may need to have you back on as this legislation makes its way

through Congress. See what you think of where they end up. I'm happy to return anytime. This has been fun. David, I thought that was a really interesting conversation. As I said, this process question, it keeps me up at night. And I think the process of how these businesses weigh the pros and cons of reopening, and I think certainty in the process matters a lot on that. If I'm thinking of

reopening, I want to know exactly how much I'm paying my employees, what the cost is going to be depending on consumer demand, which is really the unknown that I'm willing to deal with. I'm not willing to deal with the potential of no lawsuit or maybe a million dollar lawsuit. Right. Yeah. I mean, I get frustrated by this. We, we, this rhetoric that's sort of like the economy is a light. You just, it's like, there's a light switch for the economy. You just turn it off or you turn it on when this is really complicated and it's really complicated, not just because of government policy, but the interaction with an actual freaking virus and government policy, because

that virus has consequences. Elections have consequences and viruses have consequences. Viruses have consequences. So speaking of viruses having consequences. Yes. So speaking of viruses having consequences, we talked last podcast about some cultural consequences, such as perhaps the suburbs will get a little bit more interesting for people to live in. We might go back to the 90s with all this UV light talk where everyone lives in the suburbs and there's a tanning bed in every strip mall, Sarah. I don't know. One of the great Ben Folds albums rocking in the suburbs. I can't say that I've listened to that, but I'll take your word for it. So I had questions for you about this because you are the culture warrior on our pod.

on our pod? Indeed. What effect does all of this have on the great sort when it comes to culture? Yeah. What do you see as the main battle lines being redrawn? That, you know, this is something that I've been thinking a lot about. I read a really interesting column by Barry Weiss at the New York Times where she was kind of walking through this. And I do think she had a thesis that I largely agree with that a lot of the stuff that just dominated news cycles, you know, in, well, not dominated Twitter cycles, which sounds minor, but Twitter cycles often dictate public policy. They often dictate corporate policy. Just saying ridiculous and silly and quaint. Did someone culturally appropriate by wearing a Chinese themed or Asian themed dress to prom? Was somebody being racist when they complained about an MTA worker eating on the subway, old tweets from comedians, you know, that kind of thing that would take over 48, 72 hours of elite conversation. That just seems, I would say that seems kind of quaint, although over the whole weekend, the term orcs trended

on Twitter because there was an incredible argument over whether orcs were racist. But as a general matter, I think that might have been a corner of Twitter. Maybe the algorithm is oriented towards me a little. So I agree with that. The larger question is to what extent will the big ones, pro-life arguments about life, arguments about religious liberty be in the fore. And here's my first pass assessment of it, Sarah, and tell me what you think. My first pass assessment is that they will be less relevant to the outcome of 2020 than in any election in a quarter century or more. And it's not because the dedicated pro-life activists or the dedicated abortion rights activists are less dedicated. It's that the

issues will have less resonance outside of the core. And the core on those issues has always been a minority of the electorate on both sides, on both the GOP and the Democratic side. That's my first. So this is something like, you know, when you have a few hundred thousand of your boys fighting over in Germany, maybe we're less concerned about some domestic issues that seem a bit parochial now. Yeah, I mean, or, you know, so putting on my pro-life hat that I've worn every day of my adult life, you know, the argument that we've always,

the pro-life movement has always been making to the larger GOP is this isn't, don't look at this as a quote unquote culture war issue. Look at this as a fundamental issue of justice in the United States. It should always be a top of mind, always. And we've had greater or lesser degrees of success in making that argument. And the fact of the matter is, in spite of making that argument for a very long time and having some real legislative and cultural success, very real, and the abortion rate is lower than it's been since Roe, lower than it was when Roe was decided. The simple fact-

Cough, cough, birth control. Well, and also more unplanned pregnancies are carried to term, cough, cough. But anyway, the simple fact of the matter is that it's always been a minority of the GOP electorate that puts that front and center. Um, and, and I think that that will be the case in 2020, uh, and even more so, in other words, that will be much, much less of a front of mind in 2020 than it has been. Okay. I'm chewing what you're saying. I'm chewing on it, but I guess I think that it will look more like the Tea Party did

where it gets subsumed into its own culture group. And yeah, maybe the Tea Party wasn't talking about abortion, but the overlap of those Venn diagrams was like just a perfect little circle. And so it'll just be the same group that is talking about reopening the economy or protesting things being shut down. And yeah, they're not going to talk about it in the language of the pro-life movement. It will have a new language of its own, but that that core minority group on both sides, because we've seen the climate change folks doing this as well, like adopting a new language in coronavirus terms. I think both groups are just going to regroup the exact same people with a new type of language, but it'll actually all be the same. And frankly,

the language won't even be that different. Yeah. So here, so we're talking about, just to sort of be precise, yeah, the bases are going to be the bases. There's no question. And the pro-life base is not going to go vote for Joe Biden because they dislike how Trump handled coronavirus. However, what I would say is that there are a group of voters that are sort of like in a time of peace and prosperity, all other things being equal, I have a sort of emotional preference for pro-life or in a time of peace and prosperity, all things equal i sort of have this preference for abortion rights and uh if you make me choose between like um lgbt the advance of lgbt rights and religious liberty i'm going to all other things being equal choose the advance lgbt rights for this soft cultural preference that is a decision maker when there isn't anything else, like no other

elephant in the room. And what I'm saying is there's another elephant in the room and the people who are soft on this are going to be looking at that elephant and that the other things will recede. That's my basic point. Interesting. All right. With that, I think that's a good Monday's work. Yes. Many topics. A little bit of therapy for me from my civil rights litigation days. And yeah, so we'll see. I mean, it's in some good meaty polling discussion. So it's going to be very interesting to see if any of this changes as we begin to open up a little bit. I don't know where Virginia is, but as of today, Sarah, if I want to, I can go to a restaurant in Franklin, Tennessee at half capacity.

My stay-at-home order does not lift until June 10th. June 10th, you say? Blink, blink, blink. Blink, blink. Okay, well, federalism. Luckily, there is an exception for giving birth. So I might be leaving my house for a different reason around that time. Wow.

Wow. Wow. On that Federalist note, thank you for listening to Advisory Opinions. This has been David French with Sarah Isker. And please go to iTunes and rate us and to not iTunes, Apple Podcasts, sorry, rate us and subscribe and please become a member of the dispatch. Thank you for listening.