Bold Proposal: Let’s Just Convict People Of Crimes We Can Prove They Committed

Episode Notes

Transcript

[Music]

Joe Patrice:  Welcome to another edition of Thinking Like a Lawyer.  I’m Joe Patrice from Above the Law.  I am joined by the interrupting sound you heard, which is Kathryn Rubino.  I am also joined by Chris Williams.

Kathryn Rubino:  How you doing there, Joe?  You were out last week.

Joe Patrice:  See?  I don’t think you understand how this process works when I say I’m also joined by Chris Williams.  He’s supposed to talk.

Kathryn Rubino:  Well, I waited a beat.  You don’t want dead air.  Are you familiar with the podcasting biz?

Joe Patrice:  Yeah, I think you’ve got a different definition of beat.

Chris Williams:  I’m on Joe’s side with this.  Interrupting voice is apropos to this podcast.  He didn’t even get to respond.

Joe Patrice:  See how she does this all the time?  I’m glad that you’re coming around to my side.

Chris Williams:  Yeah.  You know what?  Fuck the sounds.

Joe Patrice:  Well, I mean, on that front — well, wait.  We should begin this show as we weren’t able to last week because I was ill, we will begin with some small talk.

Kathryn Rubino:  Small talk.

Joe Patrice:  All right.  I wasn’t here last week.  I can make that a bit of my small talk.  I felt terrible.

Kathryn Rubino:  That’s no good.

Joe Patrice:  Yeah.  I actually don’t think I’ve gotten that sick in a really long time.  Just an illness like cold level sick.  I don’t think I’ve had anything like that in a while like I slept for like 18 hours.

Chris Williams:  Did you have a two-week crock pot egg?

Joe Patrice:  What?

Chris Williams:  With a two-week crock pot egg?

Joe Patrice:  No.

Chris Williams:  I remember one time you make an eggnog and you’re talking about having a thing in a crock pot for like two weeks of egg.

Joe Patrice:  Oh, no.  That’s not —

Chris Williams:  It was a deep cut callback.

Joe Patrice:  Yeah, that’s not how that works.  It’s that you sous vide the eggs for 20 minutes or something like that, and that will pasteurize them so that you don’t have to worry about raw egg having any salmonella on it, but that’s a whole different issue.  Yeah, no, I felt very ill, and thankfully it wasn’t COVID or anything.  But yeah, like slept for 18 hours in a row at one point, just real bad.  Anyway.

Kathryn Rubino:  But you’re back now with all of your sound effects as we’ve heard.

Joe Patrice:  I am.  So it’s exciting for the listeners, I’m sure, and hopefully for all of you.  Is there any other small talk topics that strike any of your fancies?

Chris Williams:  Right before the show, we were talking about the joys of whiskey beers.

Joe Patrice:  Yeah, I don’t know.  I’ve had that before.  It just seems like two great tastes that tastes worse together.

Chris Williams:  Well, for me, it’s different.  It’s a great taste and a thing that gets sold as I mean, I don’t like beer.  I think I just have strong frat associations with it.  Not to mention that it both looks and tastes like piss.  Unless you like IPAs, which is just like decaf weed tasting in your beer.  And I’m like, ew!  Why would you do that?  Just if you wanted just hot water —

Kathryn Rubino:  It did not taste like piss also.  No, it’s not.

Chris Williams:  Natty light and Budweiser.

Joe Patrice:  I don’t know how much piss you’ve been drinking, but —

Chris Williams:  I’ve dabbled in many of drink.  It has not been that particular brine.

Joe Patrice:  Right.  Yeah.

Kathryn Rubino:  I enjoy a nice light beer and if they’re going to be derogatorily compared to anything, it’s water, which is fair, but also refreshing.

Chris Williams:  Also speaking of refreshing, completely different because the viewers can’t see this nice orange nails.  It’s a cool touch.

Kathryn Rubino:  Well, yes, I have orange nails because, as I mentioned a couple of weeks ago, I recently had my baby shower and it matched the theme of the baby shower.

Chris Williams:  I’m sorry to tell the listeners, but Joe is not wearing a matching set.  Really dropped the ball.

Joe Patrice:  No, I do not have nails.  I do not.  Yes, no that’s fair.

Kathryn Rubino:  You have nails.  You have painted nails.  There’s a distinction there.

Joe Patrice:  Yeah, that’s fair.  Anyway, what were we talking about?  Yeah, the IPA.  The fixation the world has on IPAs needs to stop.  It’s just too much.

Kathryn Rubino:  I feel like it has come down a bit in the last maybe three or four years.  Not quite the height that it was in, like, the mid-teens.

Joe Patrice:  Anyway.  Sorry.

Chris Williams:  It was like Starbucks for, like, mid 20, 30 something, men.

Joe Patrice:  Yeah.

Kathryn Rubino:  Yes, that’s exactly what it was.  They were, like, jealous that white women had their Starbucks culture, so they created their own.

Joe Patrice:  I mean, I think there is a pumpkin spice IPA somewhere.

Kathryn Rubino:  There’s multiple, not just one.  Let’s be very clear.

Joe Patrice:  All right.  Okay.  Well, with all of that done, I think we can move on to real topics.

Okay, so we had a few stories of the last week worth discussing.  Let’s jump into the first one.  Chris, this is one that you covered.  There was a recent Supreme Court determination and only three justices dissented from this, but it dealt with –well, explain this case.

(00:05:11)

Chris Williams:  Yeah, so it was a felony murder case.  The dissenting justices were Sotomayor, Justice Kagan, and Justice Kintaji, and the rest of them were cool with the outcome.  What happened was there was a guy, he got hit with a felony murder charge.  One of the good things about felony murder that makes it different from actual murders, like, there’s no defenses to it, what have you.  I described it as the transitive property going crazy.  He was involved of what appeared to be, there was a shooting like him and like five other men.  There was no story that made it more likely that he pulled the trigger and killed or did the shooting that made him more likely than any of the other five.  This evidence was not introduced to trial.  There was no evidence of a smoking gun in his hand at the time.  And he’s like, hey, they’re about to kill me for this.  This is probably a bad thing, right?  And the justices are like, no, it’s cool.  That’s not how felony murder works.  The jury was probably considering that he might not have been the person that actually shot the gun that killed the people.  It doesn’t matter.  And Sotomayor was like, “The fuck?”  She said it in a much more legalistic way, but that was the general sentiment.

Joe Patrice:  Right.  So to abstract out a little bit.  So the way felony murder works is essentially it’s a provision of the law that operates as kind of like a disincentive.  Functionally, if you take part in a criminal enterprise that results in a murder, the government is allowed to charge you as responsible for that murder because you engaged in the criminal activity that ended in that murder.  So if you and your accomplice go perform an armed robbery or something like that, and your accomplice murders the teller, you are liable for murder because that murder wouldn’t have happened but for your involvement in the enterprise, essentially.  This obviously goes further than most crimes do.  Right?  Most crimes we have a real bent towards proving you did the actual act before we can drop the hammer of the government on you.

In this instance, the society has largely come around to the idea that we can have some vicarious liability, shall we say, for people who are involved in this as a disincentive to getting yourself mixed up in potentially deadly criminal activity.

Chris Williams:  And the thing worth mentioning about involvement is that it’s loose.  It’s not just limited to your party.  So, for example, if there’s a police officer that shoots a gun and murder someone under normal standards, the police officer is the person that committed the murder.  It might even have even been unnecessary.  There might not have been any need for them to do any shooting in the interaction.  But the guilt and responsibility of that is applied to the people who committed the felony.  And it’s had strange effects, I think, even times where a person involved, like a felony murder charge was charged with, say, like poaching or something, because I think a cop from an airplane, like, shot wild game or something, and they tacked that on to somebody committing a crime that had nothing to do with killing wild game.

Joe Patrice:  Right, yeah.  It really stretches the limits of responsibility.  Well, so there are two categories, I think it’s fair to say, of problems with felony murder, both dealing with proximity and the two examples you just gave deal with the attenuation of liability for the murder part or the killing part of it.  So if you’re dealing with a situation where you have engaged in a criminal activity that results in the cops chasing you and the cops haphazardly shooting guns at you and that ends up killing somebody, the idea that that be pinned on you is a situation where your proximity to the death is attenuated.  You didn’t do anything or your criminal enterprise didn’t really do anything that led to that death.  It was something that was being done by the police.

The other side of it is a question of the proximity of liability to the person.  So this is a situation where if you go on an armed robbery and your associate kills somebody, then it’s right in front of you.  They actually did it.  You’re a part of this criminal enterprise, but to what extent are you liable if you rolled into an armed robbery probably much more liable if you rolled into a shoplifting situation and didn’t know that your accomplice had a gun, now you’re not really approximately involved as far as your mens rea to commit any kind of violent act.

(00:10:03)

Those are two different problems with the felony murder rule and I think it’s important to distinguish between them because the problem with focusing on one’s where the death is, the attenuated part is that they’re far too easily solved by minor reform fixes.  You could fix that by saying, well police misconduct or police acting unreasonably in pursuit of folks that shouldn’t count.  But that still leaves the bulk of the actual problem with felony murder, which are the legions of people who didn’t do anything wrong and didn’t think they were doing anything wrong that end up being tagged with life sentences because they were a lookout on something they didn’t think was going to involve any weapons and it turns out that they had a bad faith co-conspirator.

In this instance, it’s more like that former situation.  Someone of the people involved in this armed robbery actually went ahead and hauled off and murdered somebody.  The question was just they couldn’t figure out which one of them did it and therefore, felony murder kicked in and the prosecutor said, it doesn’t matter which one of them did it, they all are equally liable.

Chris Williams:  That would make more like the latter?

Joe Patrice:  No.  More like the former because they don’t know which of them did it.  Somebody shot somebody in the face.  It’s not like a situation where a cop five levels of attenuation further along, while unreasonably performing a car chase crashed the car into a pedestrian.  That’s where the death is not attenuated.  One of the people in this case actually murdered somebody.  But which of them it is and whether or not you can tag all of them just willy-nilly without proving it is the question at hand here.

But it is a real issue focusing on the former side of it, because there are a lot of people who get tagged with this, who probably are bad folks who just as easily would have committed the murder if they’ve given the opportunity.  And then there are a bunch of folks who don’t know what’s happening, who don’t understand that somebody’s going to commit a crime.  They’re going to commit a murder and they end up getting tagged with it based on not having complete information in a way that, is not how the justice system supposed to work.  But yeah, it’s a really important issue.

Chris Williams:  I still think even this instance, where they were six men and without knowing who did what, there’s this decision to smear liability equally without regard or the facts of the case outside just like I said I was.

Kathryn Rubino:  Well, I don’t think it’s outside of the facts of the case.  Because felony murder rule specifically anticipates this exact situation.  You can have problems with the rule, but it’s not some prosecutorial problem.  It’s the way the law is written.

Joe Patrice:  Yeah.  In some ways this is the paradigmatic case.  You don’t want a situation where five people go in —

Kathryn Rubino:  And I’ll point to the other one.

Joe Patrice:  They kill somebody and they all point to each other Spiderman style pretending.  Well, you can’t put me in jail because I didn’t —

Kathryn Rubino:  I didn’t pull the trigger.

Joe Patrice:  Because I didn’t pull the trigger and then when you that, you end up in the situation where nobody gets charged.

Kathryn Rubino:  Or no one’s guilty or responsible.

Joe Patrice:  Or no one gets convicted.

Kathryn Rubino:  And again, it’s not necessarily a justification for the rule.

Joe Patrice:  Absolutely not.

Kathryn Rubino:  But it is absolutely the way the rule is intended to work.

Joe Patrice:  Right.  And that’s not particularly a good way of having liability handle.

Kathryn Rubino:  Especially now when you’re talking about you know life in prison, death penalty, sorts of.  It impacts for sure.

Joe Patrice:  But this is certainly what it’s for.

Kathryn Rubino:  But that is how it’s intended to work.

Chris Williams:  Yeah.  My thing is, we think about a murder trial, there are things like mental states.  There are potential defenses that the person accused can have just need to prove that they actually did the thing.  And like when we think of the death penalty is being one of the highest, or even a life sentence or in applying states as being like one of the highest things we can met out as far as punishment.  The notion is that, this particular person did this thing that we know and the idea that there’s like when this case, whereas like the person be like “I did not shoot this person.  I didn’t have the gun.  I might not even know the person that did it”.  Doesn’t matter if that person has to be given a treat as if they committed a murder.

I think it’s like an anomaly.  And I know that the idea is that there should be some form of we don’t want people to get away with saying.  But I’m like, they didn’t do the murder.  He didn’t prove they did the murder.  Like a death happened, but let’s not just — I think the good thing about the felony murder rule is called a murder, but it’s not that.  That’s not how we treat murders in legal system.

(00:15:00)

Joe Patrice:  Well, and that’s the thing.  And that goes to that proximity of the death versus the liability of the individual.  This is definitely –

Chris Williams:  Talking about both.  I think this about the both.

Joe Patrice:  This is definitely murder.  This was a 100 percent a murder.  It’s just they don’t know which of them did it.

Chris Williams:  Yes.  And if you don’t have the grounds of pinning liability to a specific person, I don’t think that specific person should be charged with a crime that is generally applied to us.  When occur specific doesn’t — person’s specific set of actions.  It was torque.

Joe Patrice:  Okay, I guess.

Chris Williams:  But this is the death penalty.  You want to kill a guy because somebody else shot somebody else, get him.

Joe Patrice:  Yeah, that is a problem.  But that’s where this is one of those bad cases and bad law situation.

Kathryn Rubino:  The law is potentially problematic.

Joe Patrice:  The situation of an innocent lookout, going to jail forever, is far more common than this one, which is very much.  You don’t look live like the reason this rule exists is to avoid a situation like the mafia where four guys show up, execution-style somebody and then turn around and go “Yeah, you can’t tell which of us had actually pulled the trigger.  So, I guess we all get to walk”.  And you don’t want that situation to develop and that’s why rules like this exist that said, like this seems like an –

Chris Williams:  By the way, this is the only place I will exist.  This is also by the way also worth noting that’s only to this rule exists.  For example, Canada, outlaw in like 1990.  Because they said it was like, this is like a constitutional.

Joe Patrice:  But the level of abuse that happens under it, is just ridiculously high.  Like the logic of it makes total sense but like the amount of abuse of both on the examples you were giving of the extenuated killings and those situations where the killing is very proximate.  But people with low involvement and culpability are getting tagged with it.  Are just so, so egregious that.  Yeah, there’s many, many good reasons to get rid of this on both ends of that.

Chris Williams:  And the wild thing is, it’s like even if there’s a scenario where there’s a felony happens there, persons A, B and C.  Person B and C say to A, don’t do this.  Do not do this.  It is not part of the plan.  Stop.  Even if they try to stop whether there’s some – Well, I don’t actually think there’s any difference to pull me harder but like let’s say, hypothetically, this was (00:17:40) case, even B and C try to stop A.  A shoot someone.  B and C are still liable for the death like that is absurd.

Yeah, so like even in instances where — so I guess that’s what I was getting earlier.  When I was like, you just look at the fact we’re calling it like the what would may have been considered intervening circumstances if we treated this like basically any other thing.

Joe Patrice:  Yeah.  No, and that’s a great point too.  You don’t have access to and this is what makes the Spiderman meme scenario of this egregious is no one could even present a defense of, “Yeah, I was the one saying don’t do it because they utilize this rule to skip over all of that.”  So, yeah it’s a huge issue, felony murder continues to be a problem.  There are some justices who seem concerned about it, unfortunately.

Kathryn Rubino:  Not enough.

Joe Patrice:  Very many.

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Joe Patrice:  Okay, Kathryn, talk to us about billing.

Kathryn Rubino:  So, as part of the M law 100 data that ALM collects every year, they also put out a chart that just like fun stats that they collected as part of ranking every firm.  Every year they also find out the firm that has the individual who build the most hours and this past year that person build 3,737 hours.

(00:20:04)

Joe Patrice: Those are a lot of hours.

Kathryn Rubino: That’s a lot of hours.

Joe Patrice: That’s over 10 hours a day every day, 365 days, right?

Chris Williams: That sounds like a lyric to rent. Like, how many dollars you work? 3,375 hours. You know like —

Kathryn Rubino: Well, why it sounds being like 70 hours a week, right?  A little bit more than 70 hours a week every week and, by the way, this individual was at McDermott which, I guess, shout out to that firm, but we’ve gotten a lot of feedback about this little stat saying, how is this possible, this seems like a lot.  It certainly is a lot.  What we don’t know is if this was atypical year for the attorney involved perhaps —

Chris Williams: I hope so, dear God.

Kathryn Rubino: Perhaps, they went from trial to trial and I think that if you’re in a trial or some other situation where your entire day is pretty much billable because everything falls under the auspices of trial prep in some way.  This is a lot more feasible benchmark to hit than if you’re working on five or six different matters constantly throughout the year and there’s that whole transition period between one to the other.  There’s always downtime in between.  You might be in the office for 12 hours, but your chances of actually billing 12 hours is unlikely when you’re going back and forth between multiple matters.  That makes this a much harder number.

Joe Patrice: Yeah, it’s a pretty hard number even with that.

Kathryn Rubino: Sure.

Joe Patrice: It’s totally reasonable like as I said, it’s a little over 10 hours a day, 365 days, right?

Kathryn Rubino: Yeah.

Joe Patrice: But if you’re in a trial or in the middle of a major deal, it is not unheard of to be billing 18, 19 hours a day for a month on —

Kathryn Rubino: Six weeks, yeah.

Joe Patrice: — and six weeks on end.  But even if you front load the numbers this way, they’re still getting absolutely slammed throughout the rest of the year which is brutal.

Kathryn Rubino: Yeah, it is absolutely brutal.  I don’t envy this person at all.

Chris Williams: I feel like the only way — I mean, I know they won’t be sleeping at night, but I feel like the only thing I could sleep peacefully at night is if this was either a clerical error or a cry for help.  Those are the only reasonable options.

Joe Patrice: Yeah.  We talk about lifestyle issues with law firms a lot and in particular how — there’s a bravado culture that says, “Oh, you know, we all went through this working this hard,” but the reality is that’s not really true, right?  Well, because AM Law collects this data, we can look back and find that the average attorney and big law attorney was billing something like $1,600 an hour in 1986 or something along those lines.

Kathryn Rubino: 60 hours, yeah.

Joe Patrice: Right?

Kathryn Rubino: Yeah, I think that this year —

Joe Patrice: 1,600 hours, yeah.

Kathryn Rubino: I think the average was in the 1,900 hours.

Joe Patrice: I think that’s where it was in the late 90’s.

Kathryn Rubino: I believe that’s what it is this year.

Joe Patrice: Oh, okay.

Kathryn Rubino: I’m saying.  Again, that’s on average that’s the people who are underperforming, the people who are overperforming combined together, you know, the way that that works.

Joe Patrice: It’s egregious and a sign that the firm probably needs to give this person some mandatory time off.

Kathryn Rubino: You know that is definitely a much more popular solution than it ever was historically, and I think that that’s the good thing.  Listen, this could be once in a lifetime kind of year for this attorney and it’s just the way things were.

Chris Williams: I hope so.

Kathryn Rubino: Well, I think it tends to be people who bill a lot, bill a lot, but you know –

Chris Williams: Oh, God.

Kathryn Rubino: I think that it’s certainly possible that when you see someone at the end of a year who’s billed this many hours, you should be like, let’s talk about a sabbatical.  Let’s make sure you’re okay.

Joe Patrice: Yeah.

Kathryn Rubino: Yeah.  So, the stat that I was referring to though is that the highest billable hours per lawyer at a firm was at Fish and that was 1,918.

Joe Patrice: Okay.

Kathryn Rubino: So, every other firm falls below that number.  So, that is the most billable hours per lawyer at any AM Law of 100 firm.  So also, remember that if you’re a law student or you’re thinking about lateraling and there’s a 2,000-hour billable hour requirement, that doesn’t — oh, sure, that’s not terrible.  I’m sure I can do 2,000 hours, maybe, but the highest billable hours per lawyer in the AM Law of 100 is 19.

(00:25:00)

Joe Patrice: Yeah.  Although I think I feel as though associates.

Kathryn Rubino: It’s probably chargeable, but there’s probably write offs that might count towards there.

Joe Patrice: There may well be write offs there.  And also, I feel as though that associates make that 2,000.

Kathryn Rubino: Sure.

Joe Patrice: I feel as though partners, generally speaking, are billing higher rates and utilizing fewer individual hours, especially because not that they aren’t working hard, but there’s business development work happening, firm admin work happening that isn’t captured in this.  I think the average partner is probably bringing that down quiet.

Kathryn Rubino: I think you’re probably right, but I think the other thing is that everyone — listen, lawyers are generally type A sorts of personalities.  Everyone thinks they are going to be the one that hits their hours.

Joe Patrice: Right.

Kathryn Rubino: And yet, they have these requirements because not everyone does.

Joe Patrice: True.

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Joe Patrice: Okay.  So, the final story that we covered that generated a lot of interest out there is the latest in Disney’s ongoing battle with Ron DeSantis.  DeSantis decided after, you know, the last time we discussed all this it was when Disney’s lawyers were way smarter than DeSantis’ and had successfully penned a number of deals between the Reedy Creek Investment —

Kathryn Rubino: Improvement District.

Joe Patrice: Improvement District.

Kathryn Rubino: Yeah.

Joe Patrice: Whatever the actual acronym is, the Quasi-Governmental Organization that runs the government over a lot of Disney property holdings.  Disney executed under all of the public requirements.  They executed a series of deals with Reedy Creek that gave them a lot of the authority over the land that they themselves own.  This was a problem for DeSantis who is trying to replace the board as a matter of retaliation.  He has now had that new board vote to say that all of the deals that the old board did are invalid.  This was met within hours by a lengthy complaint that was already prepared by Disney’s lawyers for this exact eventuality.

Kathryn Rubino: They were good lawyers for a reason.

Joe Patrice: Immediately filed in the Northern District of Florida that challenged the new board’s ability to do this on a number of grounds.  Some of them being the First Amendment grounds.  Those are going to get a lot of the attention because that’s First Amendment.

Kathryn Rubino: I think in the mainstream press for sure that First Amendment plays pretty well.  It’s understandable.

Joe Patrice: They understand that means.

Kathryn Rubino: Yeah.

Joe Patrice: In this instance, we have a lot of reason to believe that this was retaliatory given —

Kathryn Rubino: Because of everything that he said.

Joe Patrice: Circumstantial evidence like him actually saying, I’m doing this as an act of retaliation.  Multiple members of the state legislature who passed the bill allowing this new board to do this saying, this bill is designed to retaliate against Disney, things like that.

Kathryn Rubino: Subtle little things that really take out.

Joe Patrice: So, a real problem for them.  Obviously, there are First Amendment claims there.  There are takings clause claims there because this is obviously property interests that they are trying to take away without compensation.  There are due process claims given that this was retaliatory.  There’s also the claim that I think we would argue is the most slam dunk claim, though new article by Mark Joseph Stern from Slate argues that this is probably an advised argument.  I’m not sure I agree with that, but it’s certainly an interesting take a contracts clause claim.  For those who aren’t familiar, the United States Constitution, one of the things — you know, there’s a lot of things that people imagine the constitution says.  As it turns out, one thing it actually very directly says is that states do not have the power to invalidate contracts.  So, if you have an existing contract between say, Reedy Creek and Disney, you do not get to as a state government roll in and say, we’ve decided to nix that.

Kathryn Rubino: Yeah.  And I think the argument that Mark Joseph Stern is making and others is that this has a potential to be abused because, listen, the contracts clause in the constitution is not something that’s litigated frequently.

(00:30:03)

I think like the most recent case is 1902.

Joe Patrice: That is correct.

Kathryn Rubino: Right?  So, this isn’t something that comes up a ton and it’s worrying. It’s potentially worrying for sort of our corporate overlords, although as our government overlords are doing a poor job, but who’s to say that it’s actually worse?  But I understand the sort of fear that —

Joe Patrice: Stern’s argument is that this develops kind of from the bad old days, the Lochner era days, —

Kathryn Rubino: Sure.

Joe Patrice: — where businesses utilized and invoked this clause as a reason to prevent, say, municipalities from cleaning the water and stuff like that.  A municipality might say, “Oh, I want to build a reservoir and have, you know, publicly available city water” and businesses would say, “Oh no, we have a deal to supply water.  So, you aren’t allowed to get in our way.”  These sort of stretches of what this is supposed to do — he argues if Disney successfully brings this claim and it starts going up the ladder, it’s going to become a new hook for bad actors in the judiciary to hang a neo Lochner worldview upon, which I think it can do that.  I’m not disputing that that’s a possibility.

Kathryn Rubino: Sure.

Joe Patrice: I also, though, think that it puts a lot on a litigant to say, don’t make the most direct good faith argument because there’s a risk that a future bad faith judge would exploit it.

Kathryn Rubino: Yeah, I think he —

Joe Patrice: Like I don’t think you as an advocate cannot make that argument.

Kathryn Rubino: I think that, you know, the big law attorneys at I think it’s O’Melveny and Wilmer have to make this argument.  It’s right there.  It’s in the Constitution.  It’s not barred.

Joe Patrice: It’s explicit.

Kathryn Rubino: Yeah. And this is — I mean, what DeSantis is doing is wild, right?  Like he’s running roughshod over an entire body of law something and I think making this constitutional argument is the most basic of things to argue.

Chris Williams: Would you say what he’s doing is goofy?

Joe Patrice: No.

Kathryn Rubino: There was that onion.

Joe Patrice: The onion did a great headline.  Goofy beats Ron DeSantis to death with crowbar.

Kathryn Rubino: I’ve seen that everywhere now.

Joe Patrice: Yeah.  So, I think that the lawyers involved here are doing a great job.  Unsurprisingly, Disney’s lawyers continue to be better than anybody working for DeSantis.

Kathryn Rubino: Yes.

Joe Patrice:  And in this instance, they are zealously pursuing the most effective path of least resistance argument, and I don’t think you can call them for that.

Kathryn Rubino: That’s correct.  Yes.

Joe Patrice: Like I get the argument that it can be exploited by people, but that’s true of almost everything, right? Like you can’t make a First Amendment argument without it becoming twisted into some kind of bad faith First Amendment argument.  We see this all the time with this like, campus free speech “crisis” where people are utilizing First Amendment precedent as an argument why protesting is bad, which one would think is the point of the First Amendment but, you know, bad faith actors, gun of bad faith.  The contracts clause exists for a reason.  It can be used to help robber barons continue to exploit people, but in a lot of ways, it was built to prevent, you know, in the kind of sepia toned how the framers thought of things.  They worried that the state government would be populated by people more willing to bend with the winds of political —

Kathryn Rubino: Sure.

Joe Patrice: — expediency and that states would disrupt the national economy by screwing around and seizing popular things to be popular and this is what we have here.  We have kind of a mob mentality that DeSantis is leaning into, and he’s trying to utilize state power to screw up a multinational corporation for that reason and that’s why this is here.

Kathryn Rubino: This is what — like if you, you know, a lot of times people kind of use that — imagine if you asked the founding fathers, blah, blah, blah, blah and it’s like, you know, they would be wowed by just sort of all the modern inventions.  But if you literally were able to pose this particular scenario to a founding father, they’d be like, yes, I have thought about that exact scenario.

Joe Patrice: This is exactly why this is.

Chris Williams: This is not what we wanted.

Kathryn Rubino: This is not what we wanted.

Joe Patrice: And yeah, I don’t know.  I think, though, it is a very valuable point to raise.

Kathryn Rubino: Yeah.

Joe Patrice: And I think it’s important to flag it for the purposes of the appellate advocacy —

(00:35:01)

— and the future judges and clerks who are going to work on it that whatever result comes out of this be cabined as best one can to prevent this kind of slippery slope into robber baron territory.  But yeah, this seems like a pretty good argument to be making here for me.

Kathryn Rubino: Yeah, I’d have to agree.

Joe Patrice: Well, before we close off, I just wanted to say out there.  We know we have listeners among the law student ranks.  The ABA Law Student Division is looking for student hosts for its Law Student podcast.  So, if you’re a law student, want to get in front of an audience and connect with some industry leaders, do some interviews with important folks, you can find a link to the application for this gig in the show notes for this episode.  So, there you go and I actually been on that podcast in the past, a long time ago.  So, you know, good show.  With that said, you should be subscribed to this show so they get new episodes when they come out, give reviews, stars, write something.  It helps the algorithm know that we’re here.

You should be reading Above the Law so that you read these and other stories before they come out.  You can check out other shows.  Kathryn’s on The Jabot.  I’m on the Legal Tech Week Journalist Roundup.  You can check out a bunch of different offerings including the Law Student Podcast at Legal Talk Network.  You should follow us on social media.  We remain vigilantly without our blue check marks on Twitter.  You can check out at @ATLblog, @josephpatrice, @Kathryn1 and at @wrightsforrent.

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That’s rights with a W, like writing something and not rights like the right to invalidate a contract.  And with all of that said, I think we’re done and we will check in with you all next week.

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