Fifth Circuit Gets Way More Originalist Than You Thought Possible

Episode Notes

Transcript

[Music]

Joe Patrice: Welcome back.

Kathryn Rubino: Hi.

Chris Williams: Hello.

Joe Patrice: Yeah. Excellent.

Kathryn Rubino: How do you do?

Joe Patrice: This is Thinking Like a Lawyer. I’m Joe Patrice. That’s Kathryn Rubino and Chris Williams. We’re all with Above the Law and we’re here to have a chat about what happened in the world of legal in the last week that we thought was entertaining. We’re not really covering all the legal news in the world.

Kathryn Rubino: Maybe about half hour.

Joe Patrice: Yeah, just the entertaining bits.

Kathryn Rubino: Well, some of them. There also may be some boring stuff.

Joe Patrice: Why are you like sabotaging the show out of the gate?

Chris Williams: I am having a good time.

Kathryn Rubino: I am trying to manage expectations.

Joe Patrice: I mean, okay, fine. You know what that sound means?

Kathryn Rubino: Small talk.

Joe Patrice: It’s time for us to have a little bit of small talk to show that we’re people. So how is everybody doing? Chris, I saw some pictures, you’ve been on a trip.

Chris Williams: Oh yeah. I totally forgot that that happened. Yeah.

Kathryn Rubino: It’s your life. You should try to remember?

Chris Williams: Yeah, it’s my life.

Joe Patrice: Or see someone like about that, because if you are forgetting the weekend it’s problematic.

Kathryn Rubino: Short-term memory loss.

Chris Williams: Look, I’m having a time of it.

Joe Patrice: They’ll kick you off the federal circuit for that.

Chris Williams: Anyway, so I went to St. Louis. Oh no, sorry. God, yeah, I’m having a memory problem.

Joe Patrice: It is not St. Louis. It is a different city.

Chris Williams: Thankfully. Yeah. Also bad, went to DC, not for the express purpose of calling Clarence Thomas a bum, but if I saw him I would have called him a B word. My mom was there so it would have probably been bum. His jurisprudence is worth being cursed at for.

Anyway, so I didn’t see Uncle Clarence. I did go to the steps of the Supreme Court to feed the birds, so probably there were some surveillance cameras.

Kathryn Rubino: Do you feel better in the inside?

Chris Williams: Oh, always, always, right in the left ventricle.

Kathryn Rubino: That’s where it fits.

Chris Williams: That’s where I felt better. Yeah. I also got to see my mom. I wanted to go get my mom (00:02:17), but that fell through, but I also got to give a gift to a friend that I bought for their models in Thailand. They went to law with the express purpose of wanting to work on ANWR, like Alaska. Anyway, environmental stuff. So I found that I had — there was a white hat that had a little polar bear on it, so I felt like it was apropos, but yeah, it was a good weekend.

Joe Patrice: Great.

Kathryn Rubino: How about you Joe, how was your weekend?

Joe Patrice: Prettygood. Fairly uneventful Oregon game for me to be rooting for.

Kathryn Rubino: Nice. Not like the Colorado game.

Joe Patrice: Yeah, that was a nail-biter. I mean we’ll see how those two teams matchup this week. We’ve talked about Formula 1 on this podcast before. I was unable to watch this race.

Kathryn Rubino: Oh, that’s a shame, because it was a real good one.

Joe Patrice: Yeah.

Kathryn Rubino: It was a real good one. You know why? Do you know why?

Joe Patrice: Why?

Kathryn Rubino: Red Bull didn’t win.

Joe Patrice: Yeah, I did see that.

Kathryn Rubino: It was the first race of the year that Red Bull has not won.

Joe Patrice: Yeah.

Kathryn Rubino: They didn’t even get on the podium.

Joe Patrice: And you know why?

Kathryn Rubino: Because they were cheaters.

Joe Patrice: No, because they cracked down on their wings.

Kathryn Rubino: That’s what I’m saying.

Joe Patrice: No.

Kathryn Rubino: Oh, because they’ve got wings because it’s Red Bull.

Joe Patrice: Yes, because it’s Red Bull, yeah, I was working on a joke, but yeah, thanks for stepping on it.

Kathryn Rubino: No, you get full credit. You get full credit for it.

Joe Patrice: Okay, great, great.

Kathryn Rubino: Yeah, I appreciate that. But yeah, their flexi-wings were modified and not very good. They didn’t get on the podiums, three different constructors on the podium, felt bad George Russell crashed on the second to last lap, it was kind of a shame, or the last lap I guess.

Joe Patrice: Poor lad.

Kathryn Rubino: Poor lad. But that did mean that my favorite driver Lewis Hamilton got on the podium.

Joe Patrice: Well, there you go. So a good weekend was had by all.

Kathryn Rubinl: Yeah. Ferrari won, which it’s good to give Ferrari fans a little bit of joy because being a Ford fan snatches it back.

Joe Patrice: Yeah, they haven’t had it in so long. Yeah, that’s great.

Kathryn Rubino: Yeah, it was a good competitive weekend.

Joe Patrice: My fantasy football is doing well going into Monday. I mean we have a couple of games tonight I believe and I don’t know why. I guess one of them might have been canceled for the hurricane. I think there was a hurricane delay. Anyway, the point is we got a couple of games tonight for me to snatch my fantasy football.

Kathryn Rubino: I’m in two leagues. One feels like I have it in hand. The other one I’m currently ahead, but likely to lose after the results of this game, unless like New Orleans defense does exceptionally terrible, then I have a chance, but otherwise I’m probably splitting the difference on my fantasy leagues this weekend.

Joe Patrice: All right, fair enough. We have some things to talk about.

Kathryn Rubino: We do.

(00:04:57)

Joe Patrice: So we’ll close out this segment and we’ll move on. So let’s talk. You wrote a story this last week about the Fifth Circuit. There’s a definitional battle and sometimes in statutory interpretation it’s difficult. You fight over the definitions of certain words. You have to employ what they call the canons of construction. These like rules that say words have multiple meanings, how do you define them, and there’s canons that are things like you prefer specific term — if there’s a specific term, give it that specific meaning or a general meaning, because if the word is defined elsewhere in the same section, you give it that same meaning, things like that.

Kathryn Rubino: There are classes you can take about this sort of construction.

Joe Patrice: I took one in fact.

Kathryn Rubino: You know what you don’t typically study in these statutory construction classes?

Joe Patrice: What canons of construction were on display at the Fifth Circuit?

Kathryn Rubino: It was the Bible. It was the Bible. Yeah. It was not —

Joe Patrice: (00:05:56) Biblicus.

Kathryn Rubino: Yes, the Bible was not only cited, but bickered over between the majority and the dissent about the proper meaning of a particular clause in the Book of Matthew. This was not as you might think a religious freedom case. It had nothing to do with the First Amendment. It was a — the decision was about class certification.

Joe Patrice: Oh.

Kathryn Rubino: Class certification.

Joe Patrice: I mean hey.

Kathryn Rubino: The phrase or the word in question was seek and the reference that James Howe wrote in the majority is —

Joe Patrice: I’m just imagining like a youth pastor, like who else was a class, the apostles, strum guitar.

Kathryn Rubino: Yeah. He talks about Matthew 7:7, Ask and it shall be given you. Seek and you shall find. Knock and it shall be opened unto you. Because the definition was — the question of seek, whether or not the class was seeking redress, and Andy responded. The Bible says seek and you shall find precisely because God gives us hope and faith. The two things the plaintiffs do not have in seeking to recover from a defunct shell company. His argument was that seeking from a dead company has no chance of success; therefore, they were not seeking, so class shouldn’t — here and there, but it is the most Fifth Circuit that debating over what the meaning of Matthew is relevant, and to be clear it’s not relevant.

Joe Patrice: Right. Yeah, it would not —

Kathryn Rubino: But it’s part of their dicta at the very least.

Joe Patrice: Yeah. And put aside, just going for this anyway, so their argument was they wanted to define the use of the English word seek in a contemporary piece of legislation based on 17th Century translation of ancient Greek.

Kathryn Rubino: Right, the translation of it.

Chris Williams: It’s the living word Joe. It’s the living word. Even iOS updates basically.

Kathryn Rubino: Yeah. We can make fun as we should about this, but I think there is a bigger point to be made and that is this is Judge Ho once again trying to signal, to virtue signal, I am happy with our coming theocracy. I welcome our coming —

Chris Williams: Not even God, just Lord. I welcome our Lord.

Joe Patrice: Yeah. You use the term virtue signaling and I think that’s a good one here, because obviously we can tell based on his career, he has done this a few times, but it’s also something that’s ramped up for him recently, and for good reason. He is determined that he has a shot at being, to use another religious term, (00:09:05) among conservatives. And so he thinks he is first in line to get promoted in case the Republicans win the presidency again. So he is leaning as much as possible and holding on to that, because he has challengers. There are other people on the courts who are trying to jockey for that.

Kathryn Rubino: Sure. Although most of I think the other people who are looking for promotions tend to be in the district court looking to get elevated to the appellate level, but he as an appellate judge only has one job above where he is.

Joe Patrice: Well, see, interesting, we talked a few weeks ago about that insane letter that bunch of former Thomas’ clerks wrote. Of note, (00:09:47) do not sign that letter. That seems to suggest to me and those are appellate judges who are very much thinking that they might end up on the Supreme Court someday, it seemed to me as though you had a couple of lanes.

(00:10:04)

You had, Ho thinks he has got this unlocked because he is talking about defining class actions based on the Bible. And then you’ve got those two saying, what if we distance ourselves from the crazy and maybe —

Kathryn Rubino: Maybe Donald Trump doesn’t get the nomination, sure.

Joe Patrice: Yeah, maybe we end up in that lane in case somebody — yeah, it’s interesting.

Kathryn Rubino: I think that’s definitely true. And I think what’s particularly noteworthy of Ho’s lane as you’ve defined it is that there’s no downside for him, right, that’s the nature of a lifetime appointment. He can say whatever crazy he wants to try to get the attention of whoever he thinks is most likely to be empowered to give him a promotion with no repercussions, right? There’s no reprimand coming. There’s no demotion.

Chris Williams: The wild thing is that is the literal exact opposite purpose of lifetime appointments.

Joe Patrice: Yeah.

Chris Williams: You appoint people so they don’t have to play politics.

Joe Patrice: Yeah. That’s an excellent point, like the argument — and this is actually — it’s interesting, now it’s flashing back to me, my 1L year, I remember in civil procedure, one of the early conversations in civil procedure the professor asked was like, why lifetime appointments? And people are like, well, you could avoid political pressure or whatever, and she was like okay or how does that really play out in reality here? And she wasn’t really a political firebrand or anything, but she was really pushing us on the idea of what is the real justification for any of this at this point.

Kathryn Rubino: Also, people lived a hell of a lot shorter so it wasn’t as egregious.

Chris Williams: Lifetime was like 10 years or so.

Joe Patrice: If you really wanted to avoid people having any political influence, what you do is you give them define terms and bar them from ever seating there again.

Kathryn Rubino: Running again, yeah.

Joe Patrice: That’s the way in which they’re insulated completely. What we currently have are folks living as ProPublica has pointed out over and over this year, the definition of high on the hog while they’re sitting there because they can.

Kathryn Rubino: Although I mean, just to play — just to point out if your suggestion was correct and it was a finite term, can’t do it again, whatever, there would be I think a certain amount of jockeying in their jurisprudence because they would be trying to secure themselves the best big law job on the back end. This is my CV, all these decisions I’ve had and you definitely want me representing your massive slate of clients.

Joe Patrice: Yeah. And I guess it would skew a little bit the appellate courts because people are increasingly believing they can get that job. Right now very few people have realistic shots of being elevated that way, if there was a lot of turnover, perhaps. Although I mean a lot of times we’re talking about 18-year terms. It’s not like that’s a ton of turnover. It’s actually much more in line with what the founders assumed someone taking a lifetime appointment would do.

The first Chief Justice of the United States never heard a case, right, because he retired before anything got there. That’s a testament to how little people used to care about this job. So yeah, that’s —

Kathryn Rubino: That is the world we’re living in.

Joe Patrice: Really trying to think of more like youth pastor explaining things jokes, like strum guitar.

Kathryn Rubino: Have you got exposure to youth pastors?

Joe Patrice: No, but I listen to podcasters who are like former, very deep in it and they have some very funny stories.

Chris Williams: You know who has a good story, Jesus has parables.

Joe Patrice: Yeah.

Kathryn Rubino: There you go.

Joe Patrico: Well, let’s take a break and we’ll talk about someone else who has parables when they said really crazy things in a deposition that took parables to do that. I don’t get it.

Chris Williams: It’s okay.

Kathryn Rubino: Is that where your joke is headed? Okay. Good to see where it’s boiling.

Joe Patrice: Yeah, that was where it was going. Thanks.

Kathryn Rubino: Okay.

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[Music]

(00:15:05)

Joe Patrice: All right. So we’re back.

Kathryn Rubino: We can only go up from here. We’re literally in the toilet.

Joe Patrice: What do you mean we’re in the toilet?

Kathryn Rubino: Potty humor?

Joe Patrice: Oh, right, right.

Chris Williams: That was a worse stretch, honestly.

Joe Patrice: Yeah.

Kathryn Rubino: We’re taking that away. You don’t have access to the soundboard anymore. It is decided.

Joe Patrice: Honestly, I don’t actually hit anything. It’s just like that algorithm just starts based on the flow of our conversation.

Kathryn Rubino: Liar. Joe is a liar.

Joe Patrice: And it correctly determines.

Kathryn Rubino: Liar. Joe is a liar.

Joe Patrice: All right, so —

Chris Williams: We were on the parable to parable pipeline.

Joe Patrice: Yes. So if you’re ever deposed, one thing you should do is —

Kathryn Rubino: Keep your cool.

Joe Patrice: Keep your cool, because like look, you’re probably — especially if you’re like the central witness, you’re probably going to end up in live testimony anyway in front of the jury, so your video deposition is not necessarily going to be what they see, but it will be assuming you say anything on the stand that contradicts what happened in the video testimony, so mind your manners. Someone who did not do that is MyPillow dude Mike Lindell.

Kathryn Rubino: That is not surprising. I think anybody who is at all aware of anything that happened after the 2020 election and the fact that a pillow empresario has come into our national conversation, this is not surprising.

Joe Patrico: Hello empresario. All right, we’ve got to work on ways to turn that into a portmanteau that could be fun.

Chris Williams: Pillow prince, prince and pillows.

Kathryn Rubino: That sounds like pillow princess, which is very different.

Joe Patrice: Liz Dye did coverage for us, she refers to him as pillow fluffer. Anyway, Mike Lindell, who believes in all sorts of election conspiracy theories, he was deposed in this ongoing suit being brought by an executive of Dominion who was singled out by Lindell on one of the right-wing media networks, I can’t remember, OAN, Newsmax one of them, as this is the person responsible for stealing the election which resulted in a lot of strife for this person so they’re suing.

Lindell has been showing up to depositions and refusing to cooperate, leaving, answering his phone in the middle of them and stuff like that. But a lot of America got an opportunity, and if you haven’t got an opportunity yet, there’s an Above the Law story you can check out where you can see the video, got the opportunity to see him absolutely lose it in the deposition. He loses it and there’s crazy things throughout the deposition. So I encourage people to deal with all of it, but I thought we would do a little dramatic reading and some of the stuff that happens.

Kathryn Rubino: Fantastic. I would love to see your acting skills.

Joe Patrice: Okay. What’s my motivation here?

Kathryn Rubino: You’ve lost the plot. That’s your motivation.

Joe Patrice: Good, good. Thanks, all right. Question her. Okay. And I’m not asking about the lumpy pillow calls, and this is a reference to like people who call in to customer service or whatever at MyPillow. I’m not asking about the lumpy pillow calls. Answer: No, no, they’re not lumpy pillows, that’s not what they call about, okay. When you say lumpy pillows, now you’re an asshole, you got that, you’re an asshole, that’s what you are. His attorney, Mike, witness. No, he’s an asshole, he’s an ambulance chasing asshole. That’s what you are. Lumpy pillows, kiss my ass. Put that in your book. No, they answer anything, any problem customers have and they want to reach Mike Lindell, those are the ones. I want to talk to Mike Lindell, I want to talk to Mike Lindell. They send them to here and they go, and they call about maybe they didn’t get their pillow on time because of FedEx or whatever, but we’ll cover it even though it was probably somebody else’s fault. Nobody calls because of lumpy pillows. But good one, good one though. Yeah.

Yeah. So the question then is —

Kathryn Rubino: Don’t call my pillows lumpy.

Joe Patrice: The question then is, are you done? Answer: Yeah, I’m done. He was not done. He continued. He went off on whether — asking whether or not the guy had a MyPillow, talked about how he is pissed.

Kathryn Rubino: If at any point the depositioner comes away with the impression that you are more crazy than when they started, that’s probably not a good deposition for you.

(00:19:54)

Joe Patrice: Yeah, it was not great. And what was interesting about it from my perspective was, put aside he is losing his damn mind over lumpy pillows, which is a thing, but you can, if you really play around with this transcript for a while, you can see, I don’t want to get like all philosophical about it, but you can see a level of brokenness in his brain about — and I mean this not like a mental health issue, but like a brokenness about how he perceives what’s going on here, because at one point he has an exchange where he is yelling about how the people saying that he defamed this person resulted in right-wing networks not letting him be on TV anymore. And his response is that the person he defamed should feel bad because he cost my employees their livelihoods, because we can’t get free advertising on these networks anymore basically.

It’s just like the victimhood is, he says his employees are the ones being hurt because he is not allowed to go around defaming people without consequence. It was really interesting because he is saying this with no hint of self-awareness that this might be bad, that lying to about people, allegedly putting them in the crosshairs of real crazy people who like honestly believe that folks should be killed for this. He thinks that is just part of how he should be able to advertise and when you take that away and hold someone accountable for having to tell the truth in public, you’re hurting not him, but his employees.

Kathryn Rubino: It’s a wild ride really.

Joe Patrice: Yeah, it’s terminal crazy CEO brain. It was kind of sad, like obviously I went to the video and transcript for the lumpy pillows exchange, but the more and more I read, the more kind of sad the situation was, like how weird you have to be.

Kathryn Rubino: Well, I don’t think he needs your sympathy.

Joe Patrice: I’m not saying sad in giving him sympathy, it’s sad that we’re in a society where I don’t think that he is alone among these sorts of people. There are people who legitimately believe — I believe the person currently running X might be one of them, who legitimately believe that if you do anything to prevent them from —

Kathryn Rubino: Do whatever they want.

Joe Patrice: — tortfeasing, then you’re hurting — well, they sublimate it by saying their employees, but hurting them, and no matter how many they layoff, it’s that we’re hurting the employees. It was an interesting transcript to roll through. Yeah, I’m really hoping that he on the stand says the opposite of anything in this exchange, because I feel the jury will be very excited to see the lumpy pillows discussion.

Kathryn Rubino: What I thought was interesting was that the way that lumpy appears to be a trigger word for him, like what were these early MyPillow reviews that lumpy became such a dark place in his mind.

Joe Patrice: I don’t know man.

Chris Williams: I will say deposition aside, I recently bought a purple pillow which is pretty good, but after reading that, I might have to buy a pillow from him. I mean he is very (00:23:26) quality is constant. It reminds me, have you ever heard the Notorious Thugs — Thuggish Ruggish Bone by Bone Thugs-N-Harmony? It starts off, they’re quoting from this sermon that’s against gangster rap. This guy is like, listen, we’re not against rap, we’re not against rap, but we are against those thugs. And then Bone Thugs-N-Harmony quotes it and makes this beautiful song, that needs to be the next MyPillow commercial, just him yelling in a deposition, they’re not lumpy, and then there’s like a theme jingle.

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[Music]

(00:25:11)

Joe Patrice: Okay, so summer associates, we have a lot to talk about in a relatively short period of time, summer associates, summer is over. Yay.

Kathryn Rubino: Which means you probably got an offer. Not that fast.

Joe Patrice: So yeah, so the summer associate lifestyle which used to be an opportunity for law firms to kind of —

Kathryn Rubino: Wine and dine you.

Joe Patrice: Wine and dine you to come back, because they had in their mind hired you, barring something actually insane, and their whole program was about bringing you back, even if that include going to nightclubs, not strip clubs though, though we had this a couple episodes ago, it was not actually a strip club. It was a nightclub. It was still wildly inappropriate probably, but yeah, we’re putting that aside for now. But yeah, you used to be able to get offers. We’ve talked a bit about changing economic conditions. This is one of the more troubling ones. This links to that strip club, not real strip club story in that one of the postscripts to that story is that Gunderson did not give the person who reported the incident an offer, but also didn’t give offers to between a third and a half of their summers.

Kathryn Rubino: Yeah. And this comes up because Law360 did a summer associate survey and they found out — one of the questions they asked was whether or not you got assurances that you were going to be getting a full-time job offer and only 45% of respondents said that they received those assurances, which is horrifying, not just because — I mean it used to be basically a rubber stamp once you got that summer associate offer that you were going to get a full-time job there.

Joe Patrice: In fact, you have the stat on what people thought the last time they did this survey, right?

Kathryn Rubino: Yeah, last time they did it I think was 49%, but in 2020, which is the first time they ever asked this question as part of — which is not that long ago you all, 74% of the folks said that they —

Joe Patrice: Yeah, see, that’s more what I’m thinking.

Kathryn Rubino: Yeah. Well, I mean I would argue that in the early aughts it was close to 99.

Joe Patrice: Oh yeah.

Kathryn Rubino: In the early aughts literally you could jump in the Hudson River and get a job offer.

Joe Patrice: Which did happen.

Kathryn Rubino: Exactly. This is a true story here, but going from 99% in the early aughts, to 74% in 2020, but 74 to 45 over the course of three years, that’s bleak you all.

Joe Patrice: It’s a problem for sure. We also have read there’s also that issue with exploding offers now being a function. What’s going on there?

Kathryn Rubino: Yeah, more and more firms are interviewing before Early Interview Week, so they are trying to get as many offers into their system and kind of fill out their class before they have to compete with other firms as part of Early Interview Week. And what they’re also doing is making some of these offers exploding, if we don’t hear from you by X time, you no longer have an offer, which is incredibly stressful for some potential summer associates. These are law school students who may not have a ton of exposure to different law firms and even know what’s out there before the process of Early Interview Week. So law schools are quite annoyed by that and I think that a lot of the blame for this goes to NALP.

Joe Patrice: That’s what I was going to ask is, do you have a sense of the cause of all this?

Kathryn Rubino: Yeah, I mean NALP used to have a very strict set of rules about when you could and could not contact law students for law firms and then about five or six years ago they started doing away with them and made them unenforceable, more advisory as part of a process of kind of getting hands-off, and that’s what happens. You stop having rules and regulations about what you’re allowed to do and you start having things like exploding offers for summer associates who don’t know anything about the firms that they’re potentially not just working at for the summer, but working at for the next five years.

Joe Patrice: Right. Well, they’re also choosing not to pursue other opportunities they could possibly have because they think they’re going to get a job there, which is what makes it extra awful.

Anyway, so that’s our catch up on that. That pretty much gets us to the end here. Thanks everybody for listening. You should subscribe to the show to get new episodes when they come out. You should be writing reviews, stars, write things, it all helps people understand that we’re here in legal podcast.

You should be following us on social medias. I’m @JosephPatrice. She’s @Kathryn1 and Chris is at Rights for Rent at the Twitter. I’m at Joe Patrice and Kathryn’s at Kathryn 1 on Blue Sky. The publication is at ATL blog. I suppose I should mention also, you should check out The Jabot, Kathryn’s other podcast. I’m a guest on the Legaltech Week Journalist Roundtable every week, and maybe not this week, but most weeks, and there are also a bunch of other shows by the Legal Talk Network worth listening to and checking out. And with all of that said, I think we’re done.

(00:30:07)

[Music]

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