Advisory Opinions - The Curious Case of Jailing Children

Episode Date: October 15, 2021

On today’s episode, we get a Supreme Court update from Sarah and not one but two entire Ted Talks from David. They cover a very obscure (yet interesting!) constitutional case, and then discuss two viral stories--one involving an elementary school and juvenile justice system in Tennessee, the other involving an absurd act of unfairness at Yale Law School. Our hosts talk poverty and privilege in the same pod. Oh, and Sarah winds it all up with a discussion of laches and estoppel that you don't want to miss. Show Notes: -ProPublica “Black Children Were Jailed for a Crime That Doesn’t Exist. Almost Nothing Happened to the Adults in Charge.” -Washington Free Beacon “A Yale Law Student Sent a Lighthearted Email Inviting Classmates to His ‘Trap House.’ The School Is Now Calling Him To Account.” Learn more about your ad choices. Visit megaphone.fm/adchoices

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To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Welcome to the Advisory Opinions Podcast.id french with sarah isker and sarah i have two personal updates before we start okay so um one is i'm very excited today and i'm very excited because for the first time in two years pre since well pre-pandemic, all of the guys, the core group of guys I've served with in Iraq are all coming to my house and we're getting together for a long weekend reunion. And I'm so excited. It has been a very long time since I've seen those guys. We try to Zoom regularly. So this is a good day.

And number two, Nancy and I, I think, unless they leave it all on the cutting room floor, are going to be featured in an NPR podcast called This Is Love. I kid you not. I kid you not. It's about the...

Do you remember Nancy wrote a story in the Washington Post a couple of years ago about a rather unusual mix-up in phone numbers? Yes. So I'm not going to tell you what that twist was, but it's a very crazy, hysterical, and funny story. And when that podcast comes out, I'll be sure to share it with listeners.

So yeah, on my bingo card in life, Sarah, you know what I did not have? Being on an NPR podcast called This Is Love. But this is love, David. And this podcast is about the love of law. The love of the law. Why didn't we name it something like For the Love of the Law? We didn't spend nearly enough time on naming this podcast. We spent some time. There were other options other than advisory opinions, but not long enough. Advisory opinions is a great name, though. That was your suggestion, wasn't it?

It might have been. Yeah, I think so. So we've got on advisory opinions a lot of stuff going on. We've got, number one, Supreme Court update. Number two, we're going to talk about this really extraordinary pro-publica story about some terrible things that have happened in Rutherford County, Tennessee, the county immediately east of mine. And then we're going to talk about an extraordinary story out of Yale, where Sarah's got a little bit of original reporting to share with folks.

And then if we're at the end, we're saving the absolute best and most exciting thing for last, which is just, I don't know, should I say now so that people know to not turn it off early? Absolutely. I mean, we have to tease this out. It's going to be one of those things where after the commercial, we'll talk about latches versus estoppel. We've had numerous emails asking us to dive into this distinction.

And by numerous, I do mean three. But, you know, I think in our defense, in defense of a segment called Latches versus Estoppel, I think that that just shows how responsive we are to our listeners. Yeah. Yeah. I mean, you email us, we take it under advisement and it could very well be content. But let's just go ahead and dive right in. Sarah, Supreme Court update. All right, big picture. I'm still going to talk about the arguments because they're going really well, in my opinion. Justice Kavanaugh was

back in the court this week. Remember last week he tested positive for COVID and was attending virtually, he's back. And so the arguments still followed their, at least in theory, going back to their original argument style. And then the new style where at the end, everyone is asked whether they have a question. But it's not just back to the old style. It is much calmer. Justice Thomas starting in many of the arguments with long question and colloquies back and forth. Justice Gorsuch also having quite a bit of time to explore some of his questions. It's been really, really great. But also, Justice Sotomayor, yesterday, David, was discussing the arguments. And she said that these changes have been instituted because of a study from 2017 that showed that gender was playing a role in interruptions. It's a 2017 study by Tonja Jacoby and Dylan Schweers.

Northwestern University, of course. Pritzker School of Law there. Very cool. It was in the Northwestern Law... Sorry, it was Northwestern Law and Econ Research Paper published in the Virginia Law Review. And they found that lots of things affected interruptions in oral argument ideology. They found that conservatives interrupted liberals more often. They also found judicial interactions at oral argument are highly gendered, with women being

interrupted at disproportionate rates by their male colleagues, as well as by male advocates. They're also highly ideological. Anyway, so... In other words, but male... I just interrupted you. No, you didn't. But for clarification, so male advocates interrupted female Supreme Court justices?

Yes, which is a little bit bonkers. Interesting. Yeah, I want to dive into this study a little bit more. They did dispel the notion that it was just Justice Scalia's particularly disruptive style. They looked at different time periods, 1990, 2002, and 2015, to look at different female justices, different male justices, obviously, on the court. That being said, I at least feel listening that Justice Sotomayor has a particular style that lends one to being interrupted. Now, she actually addressed this to some extent, and she said that she had noticed the pattern without question

before the system would change, and would sometimes respond in a way that she knew was probably not ideal. I interrupt back, she said. I think if you listen to a lot of the previous terms, arguments, she gets into like this sort of debate format with the advocates, which is not how the other justices approach their oral argument time. And in a debate where she's basically advocating against the advocate, which is a little unusual, that yes, she does get interrupted by the male advocates, but any advocates. So I'm interested by the fact that they did look at

other terms, previous terms, where she was not on the court yet. Anyway, so very, very interesting. They also said that they looked at how the female Supreme Court justices over time were avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men, as they put it. So if you have this lead-in, it's like, well, I think women tend to couch their opinions with all this like lead in language. Well, that's going to lead you to get interrupted if there's all this lead in going on and couching and there's filler. And so that is interesting to me that it would affect that. Now, it is also quite relevant, of course, that seniority is how one is supposed to do the

questions. And in fact, a more senior judge is allowed to interrupt a more junior judge. And the more senior judges have been male. There just haven't been a lot of female judges. Justice O'Connor became quite senior, but not the senior justice. Justice Ginsburg, same thing. She was never the senior justice. So anyway, lots to think about there, and I will be listening for that. Now, on to the arguments this justice. So anyway, lots to think about there. And I will be listening for that. Now, on to the arguments this week. So I mentioned two of the arguments that we were going to have this week. One was the abortion case out of Kentucky that has nothing to do with abortion.

Right. And lo and behold, David, the argument, nothing to do with abortion. And lo and behold, David, the argument, nothing to do with abortion. This is about whether the Kentucky attorney general can intervene in a case when the Kentucky He didn't want to defend the abortion restriction anymore. The Kentucky attorney general is a Republican. And he was like, I'll defend it. And the opposing counsel was like, no, we would like to just win this case like the secretary of state wants us to. The argument was very much into just civil procedure, but there was a interesting back and forth where they said, look, he waited,

the Kentucky Attorney General waited until after the Second Circuit's opinion to try to intervene. That's simply too late. Hint, hint. Estoppel versus latches, our conversation to come. And the Chief Justice

had a really interesting point in that Attorney General Cameron had tried to intervene before a Sixth Circuit opinion. And his intervention had been opposed that time because it was too speculative. And he's like, no, wait a second. So if he comes too soon, you say it's speculative. If he comes too late, you say he's waited too long. Like, isn't this a catch-22? It appears very much like this will be... Sotomayor seemed maybe skeptical, but Breyer was asking pretty direct questions. Kagan, slightly less, but still pretty

there. This could be an 8-1. It could even be a 9-0 case. That yes, basically when parties flip, when these state officers change, intervention is not to be used as a cudgel to prevent state laws from being defended. The other case I mentioned was the Boston bombing death penalty case. Yes. Boston bombing death penalty case. Yes. Also, looks like the death penalty will likely be reinstated. There were two reasons that the circuit court

overturned the sentence. One, the judge should have asked would-be jurors what media coverage they had seen or heard about the case. That one seemed pretty relevant. Second, the judge didn't allow evidence about Tsarnaev's brother being involved in an unsolved triple murder before the bombings. They wanted their theory to be that Tsarnaev had been brainwashed by his brother, who was a murderer, and therefore his culpability was significantly less than his brother. Now, remember, the brother dies.

And so a lot of the argument here turned around the fact that this could have been a reasonable decision for a trial judge to make. The brother's dead. He can't defend himself. The murder's unsolved. It's not like we know. The brother's dead. He can't defend himself. The murder's unsolved. It's not like we know that the brother did it. And so it's like this trial within a trial of who committed these earlier, the 2011 triple murders. And then did that have any bearing on the culpability of Tsarnaev? And in any of these, there's a certain amount of deference that goes to a trial judge.

I think in a death penalty case, that deference is lessened simply by the seriousness of what we're discussing. But there is still a deference. You're the guy on the ground with the facts who's like living and breathing that record. And it's you know, this is why we had the whole conversation about sports law and appeals on the field. This is like that. Like if the ref on the ground says that he saw it, who are you, nine people in robes who sit in Washington, D.C., to say that they got it wrong? So that'll be an interesting opinion. But again, not really a lot to do with the Boston bombing, more to do with the deference that a trial judge gets in a death penalty case. of counsel, especially trial counsel, is such an affront to your constitutional rights because

a solid or high-quality trial counsel, they set you up for success throughout the whole process, the whole thing. You cannot at any point say if something negative happens to you at trial, oh, we'll fix that on appeal. That is not the way it works. And so if you're an impoverished defendant, or even if you have some resources and you're just, you're lawyering good, it is remarkable the ripple effect. You're lawyering real good. You're lawyering good.

Then those ripple effects, woo boy. Yeah. And a lot of people sort of think of these appellate courts as a second bite at the apple. Mm-mm. It is, it's not. Oh, and do you know why, David? Because of the doctrine of waver, estoppel, be latches.

Yes. Man, so, this topic, it's just so rich. It's everywhere. It's so rich. So, there was a case that was argued this week that I did not preview last week, and it turned out to be super fun on several levels. So, David, I want to tell you about it.

Okay, please. Larry Thompson was charged with resisting arrest and obstructing a government investigation when he attempted to stop police from entering his apartment in response to a call about child abuse. But it turned out it was a false call. The prosecution dismissed the charges. And he, Thompson, then sued one responding officer who signed a criminal complaint during that post-arrest detention. Why is this interesting, you sue under a statute called 1983, which David, you are highly familiar with because it covers the First Amendment just

like it covers the Fourth Amendment. Yes. Now, when you're filing a 1983 claim for excessive force or something like that, it's pretty clear how that falls into the Fourth Amendment framework. But there are some times where it's actually unclear. 1983 just requires this constitutional violation. And so often they are looking to common law to determine the scope of 1983 at the time that it was passed in 1871, I want to say. So this one's a little different. It's not excessive force. It's not that the arrest itself was the violation. It is what happened afterwards. It's that criminal complaint that is signed after the arrest. And he's also claiming that when he was released on his own recognizance, he had to reappear. There were certain conditions on being released and that that also was a seizure. So that criminal complaint started two seizures. One, they held him while the criminal complaint was being filed. And then

when they released him, that that was also a seizure of sorts, even though he was being released because there were conditions on that. So what common law tort is this most similar to? Everyone, every circuit has agreed that it's malicious prosecution. Great. We're good so far. Malicious prosecution also has a common law element where you have to prove that your case came to a favorable termination, i.e. you weren't guilty. You can't be convicted of the crime and then go and sue because your constitutional rights were violated. Now that's sort of interesting because you could still very much have your constitutional rights violated and be convicted and be guilty for that matter, even in a malicious prosecution case. By the way, this favorable termination only applies to malicious prosecution, not excessive force or something like that.

But in this case, you know, you could have a false criminal complaint filed by the police officer. But then it turns out a witness comes forward later and you were guilty. Your constitutional rights were still violated, but you did not have favorable termination. Okay. The QP in this case was whether- Question presented. Yep, sorry. The question presented in this case

that the Supreme Court accepted certiorari on was whether the plaintiff in a criminal proceeding must show that the favorable termination affirmatively indicated innocence or only that it formally ended in a manner not inconsistent with innocence. So again, let me break this down.

If you go to trial and you're acquitted, that affirmatively indicates innocence. No problem. Bring your claim. But what if it gets dismissed? And your case can get dismissed for all sorts of reasons. As Justice Breyer pointed out,

what about like a Jean Valjean mercy dismissal? Yes, you stole the bread, but you stole to feed your family. And so you're guilty, but we're going to dismiss it because you're a good guy. That is formally ended in a manner not inconsistent with innocence, but it certainly doesn't affirmatively indicate innocence. Okay, so that's how you go into this oral argument. And I was like, well, that actually

is kind of interesting, although I think it's pretty easy to see that, to me at least, affirmatively indicating innocence is bizarre because then all they have to do is dismiss your case if they know there's been some problem along the way and they can't be sued. And so you were just held in jail. Maybe you got no bail and now you can't sue. Like that'd be really weird. But boy, did the advocates have something else coming today.

Now, first of all, a guy named Amir Ali was arguing on behalf of our Mr. Thompson, but we had friend of the pod, Jonathan Ellis of the Solicitor General's office arguing on behalf of the United States, also saying that it should be, like dismissal should count as favorable termination. And as it turns out,

there were several justices on the Supreme Court who didn't so much want to talk about favorable termination as they wanted to talk about whether malicious prosecution is in fact in the Fourth Amendment. Is that a constitutional injury? Where in the Fourth Amendment. Is that a constitutional injury?

Where in the Fourth Amendment is malicious prosecution, David? Well, it doesn't use those words. Yeah, so the Supreme Court in a previous case called Manuel held that you could have an unreasonable seizure by legal process. Yes. But that's not malicious prosecution. For instance, that's an objective inquiry. Was the seizure unreasonable? It doesn't require malice, the proof of malice, which is not an objective inquiry. It also doesn't say anything about favorable termination. And so Justice Gorsuch, our textualist, was like, where's this favorable termination coming from? Why do I even care about

this favorable termination? Justice Alito has this amazing back and forth where he says, in fact, I'm going to read it to you. Justice Alito, let's say someone is questioning a medical expert, an expert on lung cancer. And the question is, doctor, I'm going to ask you a question about a centaur, which is a creature that has the upper body of a human being and the lower body and the legs of a horse. And what I want to know is if a centaur smokes five packs of cigarettes every day for 30 years, does the centaur run the risk of getting lung cancer? What should the medical experts say to that? The point being you're, you're asking, you know, the lung cancer part of this, which is the favorable termination and how to define favorable termination. But you're asking it about a centaur, about malicious prosecution, which according to,

I think you can assume Justice Alito and Justice Gorsuch, probably also Justice Thomas, doesn't exist in the Fourth Amendment context and therefore doesn't exist in the 1983 context. But there's a problem. This wasn't really briefed below. And so we have- I was going to ask. Yep. We have a waiver problem. We have a waiver problem. So that, Sarah, you have just triggered a terrible memory of mine. Because when I was a young lawyer, before I was a partner, before I had litigated a lot, I was second chair in a trial that went very, very well.

We won a verdict of $9.5 million on behalf of our client. That is well. When prejudgment and post-judgment interest were calculated, that added up to about $14 million. Woo! Woo is exactly right. And that's like late 90s dollars, Sarah. That's some spending money in your pocket. Yeah, that's like $1 billion now.

It's actually $1 billion. But anyway, we had this weird Kentucky constitutional issue attached to it. Whereas in Kentucky, if you appealed to the Supreme Court and the Supreme Court denied review at the Kentucky Supreme Court, a 10% penalty was attached to the judgment. So you'd be punished for appealing to the Supreme Court. Well, that was all to the good for us

because they had appealed to the Supreme Court and denied. We got an extra 1.4 mil, okay? So they appealed that to the Supreme Court saying it was unconstitutional under the Kentucky State Constitution. Yeah, that's an insane rule. Pardon? That is crazy rule to me. Yeah.

It's a crazy rule, but it helped our client. And I didn't say, you know, hey, crazy rule client here, return that 1.4 million. And so the partner in the case said, you know what, David, this is all gravy. We've won the $14 million. This is $1.4 bonus. This should be your first state Supreme Court oral argument. And I was excited. I prepared, I prepared, I prepared, couldn't wait, got to the state Supreme Court. And the argument was about nothing that was briefed. It was about nothing that was discussed at any single point in time in four years of litigation.

It was about something that one justice who was a scholar of obscure origins of Kentucky separation of powers doctrine had concocted, not concocted, had thought of himself as, obscure origins of Kentucky separation of powers doctrine had concocted, not concocted, had thought of himself and it was a nightmare. It was a living nightmare.

I think you and Amir Ali maybe should get some drinks. I don't think that Ali was as totally blindsided as you were by the argument taking this turn at times. But it was 85% of his argument time, which went very, very long because of the new argument format.

So not only, like, there was no running out the clock on this. It was just Justice Gorsuch, body blow after body blow. Malicious prosecution isn't a thing. And him saying, but this isn't malicious prosecution. It's unreasonable seizure by legal process, which happens to be closely analogous to malicious

prosecution. And that's how we get the favorable termination, which we think is a good common law rule that should be applied to unreasonable seizure by legal process because it comes from malicious prosecution. But this isn't a malicious prosecution claim. And as you can probably guess, Justice Gorsuch was like, yeah, that's cute what you just tried to do there. But if we get the favorable termination from malicious prosecution and malicious prosecution isn't in the Fourth Amendment,

then why am I deciding about a centaur's smoking risk? then why am I deciding about a centaur smoking risk? And it just never got off of that. So there's a few options here for the court. One, this is actually a pretty good candidate for a dig. And we've talked about that last term, dismissed as improvidently granted. And that's where they grant the cert case. Usually they even hear argument. It's been briefed, all of that. And then they realize

there is some fundamental flaw with this case that makes it not great for a Supreme Court opinion. When something like the fact that malicious prosecution may not exist wasn't really briefed, wasn't looked at by the Second Circuit, wasn't briefed to the court, isn't part of the QP. That should be exactly the kind of case that gets digged. Yeah. this question hasn't gotten to the court already because it has come up at least twice, he says, where then they don't get to decide whether malicious prosecution is within the Fourth Amendment or in this case, malicious prosecution without the malice, but with the favorable termination smuggled under the guise of unreasonable seizure by legal process.

unreasonable seizure by legal process. And so he really wants to get to it. So I'm not sure they'll have the votes to dig. And there is, so this is how Ali in his rebuttal responded to this problem. Basically, you can decide this case really easily. This is all you have to say. The Second Circuit decided this case on the basis that the favorable termination rule we have applied to certain Section 1983 claims requires indications of innocence. It does not. A criminal proceeding terminates in favor of the accused when it ends and the prosecution has failed to obtain a conviction. That's the thrust of it. That's three sentences. Two, if you like semicolons.

Which did not get a laugh in the courtroom, David. No. No, because there wasn't an audience, remember? Yes. And the justices, we didn't get any of their chuckling because their mics only turn on when they're talking. Well, you should hear a chuckle. You should hear a chuckle. Oh, no, it's not a voice activated mic. Yeah, no, it doesn't appear to be because we're like,

you can tell because we're losing the beginning of their questions often because they're not pressing their button, I'm guessing. I can't quite tell how that's working. But yeah, so we got no chuckle. And I thought it's very rare that an advocate should ever be the one to tell the joke. Usually they fall quite flat, but I thought this one was rare that an advocate should ever be the one to tell the joke. Usually they fall quite flat. But I thought this one was charming. That's great. That's great.

Yeah. Well, speaking, should we move from charming to definitely the opposite of charming in every way? Yes. But this case, Thompson v. Clark has a lot going for it when it comes to the opinion. It could get digged. They could reach the malicious prosecution in the Fourth Amendment, common law, malice standard, favorable termination, all things that aren't in the Fourth Amendment. Or they could just decide the favorable termination question and the centaur would live on. And I am pumped. And congrats, of course, to Jonathan Ellis, friend of the pod, for his able argument while also getting, you know, buffeted against the rocks by Justice Gorsuch.

I'm going to be fascinated how that turns out. That is going to be very, very interesting. It is textualism versus common law versus criminal defendants getting the benefit of the doubt. versus criminal defendants getting the benefit of the doubt. I mean, there's a lot in here that puts justices internally opposed to themselves. Yeah. It's a Justice Gorsuch special. There's no way that anyone else is writing this but Justice Gorsuch, I hope,

unless it gets digged. Yeah, I'm intrigued. I'm absolutely intrigued. All right, let's move on to, uh, whoa. Okay. Whoa. All right. I wanted to highlight this story for a couple of reasons. One is it's an incredible piece of journalism that highlights ridiculous injustice. And did I say a couple? Here's three reasons. One, incredible piece of journalism. Two, highlights a ridiculous injustice. And three, that we can learn some important lessons from. And if you spend much time on Twitter, which I think most of our listeners don't, God bless you, because that's a very smart life choice, is you will have seen some reference to a ProPublica story. And Sarah, you mentioned ProPublica last podcast is doing outstanding journalism. And this is one of, and this is high praise because ProPublica has done some pretty incredible stuff.

I mean, their investigations of the U.S. Pacific Fleet and the collisions in the U.S. Pacific Fleet, it's some of the best stuff I've read in my life, in some of the best journalism I've read in my life. But this is the story of, and the headline is, Black children were jailed for a crime that doesn't exist. Almost nothing happened to the adults in charge. And that is, that one fact above, that black children were jailed for a crime that doesn't exist, would be bad enough.

But it's the entree into a story of a criminal justice system in Rutherford County, Tennessee. And Rutherford County, for those who don't know, this is no backwoods county. This is a county directly south and east of Davidson County, Nashville. It is directly east of Williamson County where I live. This is part of the greater sort of metro Nashville area, and it's the home of Middle Tennessee State University, which I think is actually the largest university in the state. It's bigger by students than the University of Tennessee. the state. It's bigger by students than the University of Tennessee. And so this is not like some tiny little county that time forgot. This is one of the most growing, prosperous counties in the state, a growing, prosperous county in the South. And it begins like this. And I'm just going to read a couple of paragraphs. Three police officers were crowded into the assistant principal's office at Hobgood

Elementary School, and Tammy Garrett, school's principal, had no idea what to do. One officer wearing a tactical vest was telling her, go get the kids. A second officer was telling her, don't go get the kids. The third officer wasn't saying anything. Garrett knew the police had been sent to arrest some children, though exactly which children it would turn out was unclear to everyone, including the officers. The names the police had given the principal included four girls, now sitting in classrooms at the school. All four girls were black. There was a sixth grader, two fourth graders, and a third grader.

The youngest was eight. On this sunny Friday afternoon in spring, she wore her hair in pigtails. A few weeks before, a video had appeared on YouTube. It showed two small boys, five and six years old, throwing feeble punches at a larger boy as he walked away while other kids tagged along, some yelling. The scuffle took place off school grounds after a game of pickup basketball. One kid insulted another kid's mother is what started it all.

all. One kid insulted another kid's mother is what started it all. Now, what then proceeds to happen is a conflict amongst the police officers over whether or not they have the authority to arrest the children. One of the officers basically takes the lead. He was a SWAT team, member of the SWAT team, and says, I'm doing it. We're arresting them. Rather than doing it sort of quietly out of the way, they do some of it right in full view of folks. The kids, as you might imagine, melt down. It was a horrible, horrible scene. And here's the thing, the crime, the quote unquote crime that they're arresting them for didn't even exist. They had just watched, allegedly watched a fight take place. But here they are arrested at school. And this was the, all of that is terrible. All of that is awful and gross and terrible and worth a story. But it is the launching pad to

the story about a county that was so out of control on its approach to juvenile justice that it locked more kids up than any other county in the state. And it was such an outlier that it locked kids up at a rate that was almost twice as high as the second highest county and more than 10 times higher than most counties in the state. And it all centered around a particular juvenile court judge who was absolutely dedicated to this sort of tough love approach to tough love, love in quotation marks, approach to juvenile justice, that flouted state law at scale, that implemented its own sort of independent incarceration standards. And the stories of injustices beyond that, that one story that I'm telling you, just blow your mind, such as putting

kids with bipolar disorder in solitary confinement without their medication. I mean, it just goes for non, after nonviolent offenses. I mean, it just goes on and on and on and on. And some of this has come out through lawsuits. And there's a few things that I kind of want to say about this. things that I kind of want to say about this. We're going to put it in the show notes. It's a long read. It really is. But I would really urge you to read it. And I have a few thoughts on it, but I've been kind of monologuing the setup. And I know you had some thoughts on it as well, Sarah. So what were some of your initial reactions, sort of aside from the shock of arresting eight-year-olds for crimes that don't exist? What were some of your takeaways

from the story? There were a few. I don't have a five-year-old yet, but I'm going to have a five-year-old boy, God willing. My impression, and please correct me because you have had a five-year-old boy, is that five-year-old boys sometimes get into little fights with each other on the playground. And already, my 16-month-old little boy and his little baby girlfriends all want the same toy, not because that toy has any intrinsic value, but because the other one wants it. And there's a lot of shoving and crying and things like that. And sometimes you intervene. Sometimes it's important to let them kind of work it out themselves. When five-year-old boys get into fights on the playground, I understand that is more serious than a 16-month-old boy in terms

of their ability to injure one another. But my impression that someone insulted my mother. And so I'm sort of punching them in my five-year-old six-year-old way, uh, is something that the police shouldn't want to be involved in. You're a police officer. Don't you have other things you want to spend your time on? So that was my first observation. Um, insulting mothers and, and uh schoolyard fights seem like something if the police are to get involved in all of those then we will need a whole other police force because i think that happens a lot is my impression um second cheering on a fight also is something that uh at least in movies, is depicted as happening with every schoolyard fight when someone insults the other one's mother. And this was off school grounds,

too, by the way. This was off school grounds. I don't care if it's on Mars. That's insane. Now, we have talked before, we talked very recently about how asking someone to commit a crime is not a crime. Now, of course, I didn't get into criminal solicitation because criminal solicitation is a high flipping bar. Yes, if I send David a wad of cash, tell him where Scott's going to be at a specific time and ask him to kill Scott, yeah, okay, then I did ask him to commit a crime and I committed a crime by doing so. But the vast majority of the time, not so much. And I say all that because if you're standing around going, yeah, yeah, hit him again. Or he insulted your mom. You can't do that. I love his mom. She makes the best cookies. Again, the headline almost doesn't do it justice.

They were arrested for something that's not a crime. That implies that they did anything even particularly wrong. Standing around and saying, stop hitting him, keep hitting him. You suck. You're the best. That's not even close. And we're talking about five-year-old girls in pigtails? The what? Yeah. Yeah. I mean, so yeah, there's so much here. One, the actual facts, if getting in a playground fight, whether it's on school or off school, was a crime. We would all have an arrest record. All of us. I would have a lengthy arrest record. I would have a link. I mean, this is something that, you know, I grew up in Kentucky and guys got in fights, especially when you were in elementary school, you got in, you'd have a

dispute in basketball. You have dispute where you're playing football and people would push and shove and throw punches. And then it was never considered a big deal. It was never considered a big deal. And everyone watched. I'm sure this won't shock you, but when I was in eighth grade, so actually much older, I was 12 years old. I was at a slumber party

and all of my best friends were there. There were five of us, our little group of five. And the four of them were kind of being mean to me. You know, in groups like that, it sort of switches out like who's mean to who. And so they were being mean to me that night. I wanted to go to bed early. I like going to bed early.

I like sleep. And they were staying up late. So they were making fun of me. And I wasn't asleep yet. And they were sort of intentionally talking about me loud enough that I could hear. And they were like, hey, let's cut her hair. Let's cut her hair while she's sleeping.

And so I had my head under the blanket and they walked in with scissors and they were like, you know, snapping the scissors and stuff. And I heard them get really close with the scissors. And right when I heard she got close enough, I pulled down the blanket and clocked her in the eye. Self-defense. She had a black eye. She had to tell her mother that she had run into a door, which made me feel pretty bad, actually, because generally that's something that, you know, that's like the stereotype abuse thing of like, oh, no, I ran into a door. So I'm really sorry, Marie, about the whole episode, but I'm really glad I didn't get arrested for it. for it. Yeah. Yeah. I mean, my last fist fight was a senior in high school in the locker room. I was just attacked. Somebody told another kid that I had said something terrible about him, which I had not said. They were hoping to instigate something. And he just walks up and just absolutely clocks me. And so then it was on. I mean, it was on and we're just wailing at each,

I mean, just blows are raining down. And then somebody yells out, the coach is coming. And then like turning off a light switch, we both stop and we're staring at each other, our face inches apart, fist balled up, our faces are red from all of the blows that had landed. fistballed up. Our faces are red from all of the, you know, the blows that had landed. Obviously not terribly effective blows, or there would have been more than just red faces.

Coach walks in, and he says, I know what happened here. Cut it out, and walks out. And that was that. But anyway, this is a long digression into,

are you kidding me about these arrests? Okay. Are you kidding me? And the fact that the police officers thought this was, again, an appropriate use of their authority, you know, acting under color of state law is the legal term. And I'm sad for the principal that she either were having sort of a hindsight version from the principal or she really felt that she did not have the authority to protect her students at that point to call someone. You know, that that is a problem to me as well. Which cops do you call on the cops? Right.

I mean, you call a lawyer. Yeah. Yeah. So anyway, this is a launching pad into something more and much deeper. So, the breakdown here is unbelievable. So, this juvenile court judge who really had implemented a really punitive regime of incarceration of children, really punitive regime of incarceration of children. And again, I'm not pretending that there aren't juveniles who do things that require incarceration. I'm just saying this was an extreme outlier, an extreme outlier. So in 1998, she becomes what's called a juvenile court referee, sort of like a judge. She had been appointed by another judge. The following year,

she violates federal law. Not one time, Sarah, not 10 times, not 100 times, 191 times by keeping kids locked up too long. And then, this is reported in the media, and she wins election in 2000 to become a juvenile court judge. Now, she wins election. Did she beat a high-quality opponent? No. Her opponent was a major in the sheriff's department

who was later charged with sex crimes against minors. Oh, my God. Okay. And she's not had another opponent since then. So here, here is my plea to the audience. Okay. Here is my plea. Please pay attention to your local government. Please. We nationalize politics. You and I talk about national politics all the time. We really do. And there are good reasons why we do. I mean, this is kind of the world that we grew up in and the world of constitutional laws, the world that that's our professional life. But please pay attention to local politics. I promise you this. I promise you this. You have almost infinity times more influence over what happens down the street than you do have in Washington, D.C.

Unless we're talking to, and we are talking to right now, some federal judges, some Hill staffers. Okay, in your spheres, you have an enormous amount of influence, but those of you who are not in those spheres, you have infinity times more influence. And what you look at when you look at this story is the thousands of people, thousands of people impacted by a system that created its own rules, rules that applied them at scale to thousands of children and their families that was fundamentally unjust, fundamentally unjust. And she never, after the sex criminal, had an opponent in an election. And guys, this is how a lot of injustice happens in this country. I grew up in a small town. I love my small town, but I'm very well aware that there were two systems of justice, and I can especially see this in hindsight. If you were of a certain social standing or if you knew the right people, living in that small

town was great. It was great. The cops knew you. They'd say hi to you. People gave you a bit of different, everyone sort of under, you had this feeling of neighborliness and relationship, but that did not apply to everybody. And if you were not in that category of people that had sort of a background level of social standing that was, by the way, often correlated with race. Let's not kid anybody. Often correlated with race. Your life was different. It was profoundly different.

And I remember, and this is something that I talk about a lot when I talk to conservative audiences about systems and systemic injustice and things like that, is,, you know, one of the things that we conservatives remember very well is the Obama Department of Justice's report on the Michael Brown shooting at Ferguson. And why do we remember that? Because it sort of decisively debunked this hands up, don't shoot narrative that emerged from the killing of Michael Brown, that the facts demonstrated something completely I think Politico called it one of the lies of the year. And they forget that there was a second study. It was a second study. And that second study showed the systemic way

in which the police department at Ferguson exploited its poor citizens. That essentially, and the way the report phrased it essentially was that it stopped viewing public safety as the primary role of the police department and began to believe or began to use revenue generation or opposed upon it a revenue generation responsibility that disproportionately fell on the poor citizens. And I wrote about this in 2015, and I said this, and I think this is true, and it was true in Ferguson, it's true in a lot of places in this country. If you're blessed to live in a town where the public officials are relatively clean, or if you're among the class of people that officials fear to cross, then public institutions can seem benign and helpful. But there are millions of our

fellow citizens who live a different reality under the authority of different kinds of public officials, officials who view them as virtual ATMs regardless of their ability to pay. And when the government imposes that mindset on police officers, forcing men and women who are trained to respond to and anticipate the most violent incident to essentially become the armed tax collectors of a corrupt system, then that's government is unjust and its officials must be made to feel the bite of the Constitution that they've willfully and continually abused. viewing citizens as ATMs. It applies double to public officials being excessively and unlawfully punitive towards children, especially vulnerable, poor children. And so anyway, I've gone on about this

and I went on about this in the Ahmaud Arbery situation where a local prosecutor is being prosecuted because the fix was in in that case and she put the fix in and tried to guarantee the fix would stay in. This stuff is real. This stuff is real. And I would ask you, I'm begging you to read this story, and I'm begging you to know what's happening in your own backyard.

Thus endeth my TED Talk. So, interesting music, song I want to bring to your attention david okay this was nominated for cma's music video of the year a bunch of other stuff as well it's a song called famous friends by chris young have you heard of this song i'm not can you sing it i'm not gonna sing it but it references rutherford county hamilton county, Davidson County. You happen to know what state might have counties by all three of those names? I know. Yes, that's Murfreesboro, Nashville, Chattanooga. That's right. That's some Tennessee. So this song is about Tennessee. And there's this lyric that has stood out to me. It's been getting a lot of radio play recently,

so I hear it in the car a lot. And the whole, the thing is like, I've got famous friends, meaning like he knows all the sort of big wigs in town. And he talks about the, you know, the football coach and the teacher who's one teacher of the year and the preacher, you know, you may never heard of them, but, uh, you know, in this big city we're in, but when I go back home home i've got some famous friends but here's one of the lines uh got some famous friends you probably never heard of my buddy jason he's the sheriff he'll flash his lights but let me go no doubt right like i grew up in a small town too like there are the people who know jason jason's friends who he golfs with, uh, you know, is socializing with that are going to tend to be of his socioeconomic class and race. They just get

a light flash that means, you know, slow down or ha ha. I saw you roll through that light, that stop sign. Um, and then they get to go. But if you're not one of Jason's friends, it is assumed at least in the lyric that when he flashes his lights, you better pull over. And I think that's a, that's what this, like, this is like a fun song that people love. And then the story that you mentioned is actually the same thing. I can assure you that nobody, no police officers were showing up to arrest me for punching Marie at 12 years old. I mean, and if they had,

the hellstorm that would have rained down on the figures of authority. I mean, let's suppose that the PE teacher, football coach, had walked in and seen me actually fighting. He'd have called my dad, math professor at the local college. My parents would have handled it. At most, I would have gotten maybe a two or three days. It would have been nothing. It would have been nothing. By the way, you were a senior, you were eligible to go join the military fight in a war. We can assume maybe not you, David French, but someone else of David's genre, you could have, in theory, killed someone in fighting them. At least at 18 years old, we expect some 18 year old men to be

able to throw hard, serious, damaging punches. You are empirically more dangerous at 18 than you are at... Yes. Yes. That is 100% the case. So yeah, I mean, and as you're talking about that, I'm remembering I was in a courthouse in East Kentucky. This is in the late 90s, and I was there for arguments in a case. And walked by a room, and what was going on in the room is I saw the county attorney and the sheriff, and they had a big pile of tickets, of traffic tickets and speeding tickets and all of this. And I just casually asked the attorney, the local attorney, what are they doing in there? He said, oh, they're fixing tickets.

And they're just deciding whose tickets they were going to throw away. And so it was going to be all of the people they knew is going to be the people at status in town. And then there was going to be a stack of tickets of people who didn't know anybody, who didn't have any resources. And those tickets might be $150 or $200 of money they don't have. And then if they don't have it, then there's going to be penalties attached to failure to pay. If they're worried that they don't have it, so they don't show up, then there's going to be a failure to appear charge. And this kind of gets into this cycle where the government, this local government, uses

its least connected, least wealthy citizens to essentially help prop up a lot of the operations of the government in a way that often traps them even further in cycles of poverty. And it's just terrible to see happen. It's awful. And yeah, just please read this. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app,

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David, on the far other end of the spectrum is Yale Law students. Yes. So the plight of eight-year-old kids in, eight-year-old poor kids in Rutherford County, moving from that to the plight of Yale Law student FedSoc members. Yes. So this is a big switch.

Big switch. And my sympathies are lessened accordingly. But this student was a member of the Native American Law Student Association and the Federalist Society. And so he decided to throw a party for those two groups at his apartment house, whatever this is. Let me read you the email and language alert for kids listening in the car. Hope you're all still feeling social this Friday at 730. We will be christening our very own soon to be world renowned Nulsa Trap House by throwing a Constitution Day bash in collaboration with FedSoc.

Planned attractions include Popeye's chicken, basic bitch-American-themed snacks like apple pie, et cetera, a cocktail station, assorted hard and soft beverages, and most importantly, the opportunity to attend the Nulsa Trap Houses inaugural mixer.

Hope to see you all there. Now, what's NALSA? The Native American Law Students Association. Things got out of hand from there. Within moments, complaints were sent to the administration at Yale Law School. David, the Yale Law Administration flagged three problems with this email that made it racist. Can you find them? I will do my issue spotter right now.

Yes. Trap House. Yes. But Trap House, as you may know, is also the name Chapo Trap House of one of the most popular podcasts in America, which is hosted by three liberal white dudes. Yes.

And Trap House just means essentially, it's kind of the version, it's like the 2020 version of saying Crack House. Yes, totally. In the 80s. Yeah, it means drugs. Like there's a rap song that's like, bees in the trap, bees in the trap.

And that's like, you know, ladies in your drug den. Yes, right. But yes, it would be, I think, in fairness, a word traditionally used in rap lyrics and rap is a traditionally black form of music. So you can get there. And rap is also the most popular music in America. Also that, but these, you know,

so three white dudes host a podcast called Chapo Trap House. So it can't just be Trap House. So you need other things for the Yale administration to find this to be triggering. And an invitation was recently circulated containing pejorative and racist language. We condemn this in the strongest possible terms and are working to address this. So David, it can't just be Trap House. What else was there? and racist language. We condemn this in the strongest possible terms and are working to address this. So David, it can't just be Trap House. What else was there? See, Sarah, this is so easy. I speak fluent university. Okay. Yeah.

So number two is FedSoc. FedSoc is triggering. Correct. Yes. Because Chapo Trap House is by three white men who are liberal, but this was sent trap house by a conservative. So yes, that is the second part that makes it racist, but there was a third part. Oh, I know. I know. So it's a native American man, by the way, who was allegedly racist. Correct. He's part Cherokee. Yep. So, and the third is basic bitch american themed snacks oh i'm sorry incorrect you lose our competition you were close but in fact it was the mention of popeye's chicken which they then translated to fried chicken which they said was a racist trope used against black Americans. So it was use of trap house, chicken,

Popeye's chicken in this case, and that it was sent by a Native American conservative. Okay, so I'm actually really upset that I missed that. Oh, you should be. Yeah, it was right there in front of you. I know. I know. So I do have reporting on this.

My source, of course, will stay anonymous. So there is some language in a recording in which a member of the administration says, I don't want to make our office look like an ineffective source of resolution. So for instance, when we talked about the UCLA case last week, many people said it wasn't that the professor refuses to grade on race. That wasn't why he was suspended. But it also wasn't that his email was unprofessional. It was that they simply were responding to the mob. I will agree that this recording, I don't want to make our office look like an ineffective source of resolution, certainly looks more like it's under that bucket of simply mob service. So as this person put it, everything associated with FedSoc gets called racist, basically full stop.

They said that the combination of Trap House, FedSoc, and fried chicken made it objectively offensive. And this person had another example during COVID or the end of COVID recently, I can't quite tell. But regardless, they had a Zoom Super Bowl party. A student who had a long history of antagonizing FedSoc members logged in. She did not turn on her audio. She did not turn on her video. Then someone said, hello, are you there? She didn't respond by either turning on her audio or video. respond by either turning on her audio or video. So the person responsible for the Zoom removed her from the Zoom. Within an hour, this person had an email from the administration asking the head of the Zoom to apologize for discriminating against the woman who was kicked out of the Zoom.

Meanwhile, this source notes that people walk into FedSoc events and steal their pizza. They walk in in the middle of a speaker, give the middle finger, and walk out with a box of pizza. Nobody has ever apologized to FedSoc for these transgressions. As this person puts it, the left wants the administration to police the right the right just wants to be left alone contrast this with stanford referencing the fedsoc student who brought um who asked the administration to suspend a student for parodying their poster um but yeah they said it's absolutely miserable. And by the way, David, that same student who was in the Zoom call who refused to turn on her audio and video and was kicked out,

but then demanded an apology for being discriminated against, this person had previously complained that FedSoc students were doing the Blackstone Fellowship. This is a fellowship through Alliance Defending Freedom. Now, ADF doesn't pay them, but sort of helps them find these fellowships and provides kind of mentoring, et cetera, kind of groups them. It was said that conservatives who have worked at conservative organizations like Blackstone Fellowships shouldn't be admitted to the law school. No financial aid for summer public interest work should be granted if the student works at an organization that doesn't, quote, match the mission of the law school,

which presumably then excludes Blackstone and ADF. And three, same for public interest loan repayment. So that's the student who joined the FedSoc Zoom party and then complained that they were discriminated against. Because clearly that person wanted to eavesdrop, thought they wouldn't get caught, thought they could overhear some stuff that then they could complain about. I mean, it's a lose-lose situation.

And it sounds like the administration is just perpetually backing this stuff up. Look, the only reason we're bringing this up is because it's Yale Law School. But the Nulsa trap house that has to include cheap food. They could have done pizza, but fried chicken seems like Popeye's seems like a pretty reasonable thing to have instead of pizza at your party with apple pie and other snacks. It's pretty silly that this person faced a lot of pressure from the administration threats that they would, according to the student at least, threats that the administration would send notice to any bar that they tried to take, that they did not meet the character and fitness requirements to take the bar if they didn't issue an apology. The administration now denies that for what that's worth and says the student simply misunderstood. But there's recordings of some

of this. I mean, it is a problem. It is, you know, sending emails while being conservative is now just waiting to be flagged to the higher authorities. Okay, so a few things. One, this is absurd. It's just worth just saying, this is completely absurd. It's the kind of controversy that we've been seeing on college campuses for a while now. It's one of the reasons why FIRE was founded, Foundation for Individual Rights in Education, that I used to work with and for. Absurd, full stop number two stop persecuting or persecuting is a strong word um stop treating targeting stop targeting fedsoc students okay truth be told guys truth be told it was fedsoc members who disproportionately saved this country during the Stop the Steal movement.

Everyone pays attention to the FedSoc lawyer, John Eastman, who wrote the memo that was horrible, that was dreadful, that was, you know, that could have given— Also legally stupid. Legally stupid? Legally and ridiculous that tried to provide Mike Pence a pretext to overturn the results of a lawful election and plunge us into an extraordinary constitutional crisis. Yeah, he belongs and belonged to FedSoc. But up and down the chain, it was FedSoc lawyers who declined to participate. The top end lawyers declined to participate, protested these actions. It was FedSoc member judges who ruled against the Trump administration time and time and time again. So stop it with this notion that FedSoc is somehow some sort of inherently problematic institution. It was people

who were raised in the FedSoc legal culture who stopped the steel cold in court. That's just flat out true. There were also certainly, of course, Democrat-nominated judges who did as well, but it would be it. We would be living in a different situation if the FedSoc members were the way a lot of their critics caricature them as, as just mindless partisans. No, these FedSoc members, they had a judicial philosophy that they stuck to that utterly rejected what was happening. At the same time, unquestionably, there are some elite lawyers, FedSoc members like John Eastman, who went totally the wrong way. But that's on John Eastman, okay? It's on the president of ADF, Mike Farris, that he participated in the effort to draft that ludicrous Texas lawsuit.

Ludicrous. That's on him for doing that. And that is not, I don't even know if Ferris is a member of FedSoc. But if there is an elite lawyer, conservative lawyer who's participated in Stop the Steal, it is on them. It was the FedSoc legal philosophy and FedSoc culture, frankly, that helped save this country. Man, end TED Talk number two. country. Man, end TED Talk number two. Look, I think it's both. I think, though, when you have people within an organization who are on opposite sides of the thing, you can't then tag the organization with being on one side of the thing. I do not think, you know, whatever. All right. Last up, latches versus estoppel. Okay, I'm going to make it real quick. The moment. This is the moment. The whole podcast has been building towards this moment. The whole podcast has been leading to this. So previously when we talked about election law several episodes ago,

I said that when they waited too long, when they waited until after the election to complain about the change in the election rules made by election officials instead of the state legislature, that that fell under the rule of estoppel. They were estopped from making those arguments because they had delayed. Someone wrote in, a very good attorney, and said, I think you mean latches. And I was like, ooh, you are right. I do mean latches. But it actually is a little more complicated than that, David. So estoppel,

generally the way that lawyers use it, he is correct. It would mean something more like David and I are involved in two different lawsuits. They involve the same facts and both of them involve David and I. In one of the lawsuits, I say it was a moonless night. And in the second lawsuit, I want to argue that it was a very sunny day. I am a stop for making the opposite argument that I just made in a previous case with the same facts and the same plaintiffs and all of that. And that comes from the 1530s, by the way, David, the French word estopel, which means to cork. Makes sense. Nice. Latches is more that you waited too long. You slept on your rights, for instance. But actually, it's called estoppel by latches. It is a type of estoppel. So it's a

type of equity, basically. Latches comes from the old French laches, which comes from the old french lashes which comes from the latin laxus and it's where we get the word lax it means loose you were too loose so yeah lax latches that was everything i thought it would be. You're welcome. You're welcome. Well, anything else do we have? Any pop culture? I sprung a book recommendation on folks last time. I know. People seem to appreciate it. We're pretty far over, but we are going to get the preliminary report from the Biden administration's Supreme Court reviewing

whether we should add justices, whether we should change their jurisdiction. We are expecting that later today. And so I predict that Monday's podcast will dive pretty far into that report. Also, we mentioned this on the Dispatch podcast. A number of people have emailed me about this report out of Loudoun County involving a parent who was arrested at Loudoun County school board meeting and whose daughter was allegedly sexually assaulted by a boy, according to reports, possibly wearing a skirt in a girl's bathroom. And we're looking at that situation, taking a look at it,

trying to see if this reporting gets verified. There are a lot of known unknowns right now. So we are taking a close look at that. Obviously, if the report is what it seemed to be, or if the facts are as reported, that's something that is absolutely worth diving into. So we are monitoring. We are not asleep at the switch on that. I know a lot of you guys are very interested in this because we've been talking about these school board issues

and abuses coming from the right and from the left. And this is a big and important story, and we're taking a close look. So I wanted to let you guys know that as well. And I think that is it. We will be back on Monday. And until then, please go rate us on Apple Podcasts. Please subscribe. Please check out thedispatch.com. Thank you.