Did Joe Biden Get More Standing Ovations At The State Of The Union Or On Cold Call

Episode Notes

Transcript

Chris WIlliams:

Hey,

Kathryn Rubino:

Hey

Chris WIlliams:

Thinking

Like A Lawyer.

Joe Patrice:

Perfect.

Chris WIlliams:

Yo, I love it. So I just wish y’all could see this. It was like a standoff between Kat and Joe and I was like, I got to, it’s perfect.

Joe Patrice:

See, I actually thought that was fine because you said welcome to thinking look like all the things that actually need to be said, not like hey, for no reason at just

Kathryn Rubino:

Like it’s called a nicety. It’s general politeness to introduce before you just jump into the meat of it.

Joe Patrice:

This is Thinking Like, A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino and Chris Williams who are both, you’ve already heard because they both eagerly wanted to get this show so started that they couldn’t help themselves but to introduce the show already,

Kathryn Rubino:

That was one way to play it. I enjoy

Joe Patrice:

That we begin, as we always do with a little small talk section,

Speaker 4:

Small talk.

Joe Patrice:

Okay.

Kathryn Rubino:

How was your selection Sunday, Joe? It was great. I figure as an Oregon fan you were feeling

Joe Patrice:

It in fairness that that was what made my Saturday better. We had no hope of getting in other than winning the tournament and we won the conference tournament. So the last PAC 12 game, well, depending on whether or not the remaining PAC two add 10 more members I guess, but for the short term, at least the last PAC 12 game we won and so yeah, so we will be in the tournament if only briefly as a,

Kathryn Rubino:

You don’t anticipate a second round appearance.

Joe Patrice:

I mean we are very much an underdog. Sure, but

Kathryn Rubino:

I mean listen, it’s the tournament for underdogs, right? That’s true. I mean five 12 is basically a give me for the twelves these days. I guess you’re an 11 seed,

Joe Patrice:

Right? We are an 11, so swinging a miss, but no, yeah, no, it’s good to have something to do for the first couple days of the tournament at least. So that’s exciting.

Kathryn Rubino:

Well, it was also St Patrick’s Day, but I’ve been celebrating for a week, so I’m not in a position to,

Joe Patrice:

What she means to say is she’s been drinking.

Chris WIlliams:

No, speaking of the St. Patrick’s Day, not the drinking part, did y’all see biting IDAs ass handed to him by who? Rhetorically, I think Deidre Linder. She was like an arming financing and providing political cover for the Israeli regime. You have betrayed your Irish ancestors as you have betrayed humanity, and I was like, damn.

That was also where I did some digging. Apparently I was wondering why people ye things green to celebrate like St. Patrick’s Day and the Irish, I was just like, oh, shamrocks are just Association with green part of it. Apparently when Britain starved, the Irish people were resorting to eating grass and they were found dead with their mouth stain green from the color of the grass. So that was one of those historical side-by-side images of video like Palestinians finding grass to eat and Deidre being like, Hey, fuck you, this should never happen again. So that was an interesting thing from the weekend.

Kathryn Rubino:

There you go. Did you do anything fun? How did you spend your weekend

Chris WIlliams:

Sleep mostly?

Kathryn Rubino:

Oh, well there you go. Much needed. I mean it’s getting to the point in the year of course where there’s not just constant darkness. So I guess we survived the spring ahead, daylight saving time, but it actually feels joyful to be outside again.

Chris WIlliams:

It’s funny how you see those memes where it’s like, oh, I thought it was depression. It was just dark out, which is still valid, but it is nice for the sun to be present

Kathryn Rubino:

A hundred percent. I can remember so clearly when I worked in big law, not even being upset that it was getting dark at four, but also being like, it doesn’t matter. I’m going to be stuck here till 10 and it was always going to be dark at 10. So I’m never seeing this unlike, regardless. And the only thing different is there’s more fluorescent light I guess, in my life.

Joe Patrice:

Well, awesome. Okay.

Kathryn Rubino:

I think that’s, we can pull the plug on it, I

Joe Patrice:

Guess.

Kathryn Rubino:

Small

Joe Patrice:

Talk. Alright, well the first topic of conversation I guess we have is, hey, there’s a law school that’s near and Dhir to all long-term Above, the Law bans. The numbers have come out from the ABA tracks how law schools do in a variety of metrics for various accreditation purposes, and one of them is that they have to meet a certain threshold of their graduates passing theBar exam after over a couple year period. If they aren’t doing that, then maybe they

Kathryn Rubino:

Shouldn’t be. It seems to be the very credited of law school’s degree lawyers. If you can’t pass theBar exam, you’re not actually creating law school lawyers

Joe Patrice:

And you will never guess what school is out of compliance and has the lowest bar passage rate over the couple of years.

Kathryn Rubino:

Yes, you will. I was going to say I know which law school has been the punching bag for Above, the Law as the joke for years. Is it that one? Yeah,

Joe Patrice:

I mean there’s several law schools that fit that bill, but there’s one that’s really done at the longest, which the Thomas Cooley Law School, which is now part of Western Michigan University, has the worst figures.

Kathryn Rubino:

What number is it at?

Joe Patrice:

That’s a great question. I think it’s in the fifties, isn’t it?

Kathryn Rubino:

I mean I’m asking Yeah,

Joe Patrice:

55.8,

Kathryn Rubino:

More than half.

Joe Patrice:

This is very much

Kathryn Rubino:

A glass half open kind

Joe Patrice:

Of thing. Yeah, yeah. More than half have passed over the course of a two year period. They need to have three quarters, so not great. They are not the only school in this situation. There are a few others, two in Puerto Rico, the Southern University Law Center, which had 72.150, so close, very close. So that might be a little bit of an outlier. And Western State College of law, which has the distinction, Charleston is still in its process of converting its status as a refugee from the old Infa Law System or Infin Law in,

Kathryn Rubino:

I thought it was always Infa Law,

Joe Patrice:

Whatever, which were the private for-profit law schools, which they used to be living in this world, but most of them have gone out of business and Charleston is converting to a nonprofit, which means Western State will be the only for-profit law school left, I believe.

Kathryn Rubino:

Wow.

Joe Patrice:

Yeah. Well and so long as they get their numbers up from where they are, they currently aren’t there. Cool. Oh, and DC is also down in the bad zone, the University of District

Kathryn Rubino:

Columbia. Sure.

Joe Patrice:

Yeah. So Cooley has been in this position for quite some time. It’s a sad situation to the extent that this is a school that has had had some illustrious alums like Michael Cohen, but these

Kathryn Rubino:

Days,

Joe Patrice:

Which I’m only partially joking about, yes he’s had some problems and exacerbated them by filing a brief full of hallucinated

Kathryn Rubino:

AI cases, check ai,

Joe Patrice:

But this is a person who operated at the higher levels of working for a private individual doing bunches of legal stuff. So

Kathryn Rubino:

Listen, making hush payments is absolutely what people go to Cooley Law for, I guess.

Joe Patrice:

Well, alright, I don’t know about that. Look, I’m trying to be more, I think there is a history to this school that is defensible, that has been eroded over the last several years and it’s something that predates even my work with Above, the Law, they were putting out their own set of Rankings where they deemed themselves second only to Harvard and they publicized.

Kathryn Rubino:

I mean you just asking to be clowned at that point.

Joe Patrice:

Yeah, it was a bit aggressive as a fake promotional ranking goes. If you’re doing that, you make yourself like 20th and it seems

Kathryn Rubino:

Like maybe it’s a thing, but you really think you’re better than Yale. I mean, unless you’re Stanford. No,

Joe Patrice:

Right. So Cooley continues down this path. It sounds like there was some thought that affiliating with Western Michigan might be part of a broader fix,

Kathryn Rubino:

Prove their reputation.

Joe Patrice:

It appears not to have accomplished that the school actually, the really unfortunate part is the school was already, they’d already missed this number, the last reporting period and have asked for an extension to plead their case to the ABA. So these numbers now are the second in a row of them not making it so it looks pretty bad from their perspective. That said, the last time the ABA tried to do any enforcement toward Cooley, they managed to call the ABAs bluff and survive. And that was also the same time period where the aforementioned whatever they’re gone in all those for-profit schools hired conservative super lawyer, Paul Clement to file lawsuits claiming that the ABA had no authority to accredit despite having

Kathryn Rubino:

All the authority, all the

Joe Patrice:

Authority to accredit, but the ABA was not in any position to fight these cases and so that’s what happened. So point is this is a test of that power again and maybe this time there won’t be some disingenuous dump of money that can hire high-end lawyers to fight

Kathryn Rubino:

It. Yeah, I mean tell you how you really feel, Joe, I do appreciate disingenuous dump of lawyers. I think that that should be a category that we repeatedly talk about.

Joe Patrice:

Yeah, so anyway, that’s going on with them. I

Kathryn Rubino:

Think it’s interesting the notion that bar passage rate is important. We talked to pre-law students a fair amount at this job and I think that that’s always one of those stats I point people to that no one you don’t think about until you’re in the middle of it. That fundamentally, if the law school you want to go to, you’re about to write giant checks for and or sign student loans that will then write the checks to the law school in your name. If they’re not getting the overwhelming majority of people over that finish line, there is a problem and it’s very difficult in that kind of couple week to couple month period after graduation as you’re prepping for theBar to pass theBar if the preceding three years have not been where they need to be. Right. Listen, I’m a bigger Cramer than most, but you really do need that foundation in order to cram effectively for theBar exam. I think that’s probably the single most important thing. If you’re not getting high 90 percentage of people over the course of two years to pass theBar exam, don’t write a check to them

Joe Patrice:

TheBar. So I’m very on record as not a fan of theBar exam as an institution. I think that as a impediment to law licensure, it’s a bad one. I think that the right answer and the way in which an efficient society would work is that we would make our professional schools be accredited in such a way that we could trust that if somebody successfully made it through three years of iterative testing on a wide variety of subjects, then that person is prepared to do the job pending. Obviously the morality and character and fitness stuff, there are problems with that too, but there’s some baseline level to which we probably do want that in a licensing regime that can be tacked on at the end. But the idea of a doctrinal test, a one shot for your whole life doctrinal test at the end of your going to the school as though your law degree didn’t mean anything, but just access to that test is ridiculous. That said,

Kathryn Rubino:

Cooley exists

Joe Patrice:

That said to the point that we’re at now, these numbers are bad and they are indicative of how bad they would be if we were to shift to that kind of a system. Places like this make that shift more difficult. If we could live in a world where we could say, Hey look, we have an accreditation process that leads to all of these schools successfully passing this test anyway. Maybe the test isn’t the point or maybe to the extent it doesn’t cover certain things. That is stuff that the accreditation process could do better to make people cover so that we can trust that they all have that at the backend, especially since it’s expensive. And all that said, we do not have that and places like this are making it harder to justify having that world. Sure. McDermott will and Emory is vault’s number one law firm for associate satisfaction three years running.

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Chris WIlliams:

What is Joe Biden being given a round of applause

Joe Patrice:

For a cold call?

Chris WIlliams:

For a cold call? I mean

Kathryn Rubino:

He Dhir, he’s gotten rounds of applause.

Joe Patrice:

Joe Biden gets tons of rounds of applause. That is the point. But yes, so lay the groundwork. What did he say?

Chris WIlliams:

Yeah, so he was being, was this the thing to determine if he was still all there or not? He was talking about back in 1968, he was in a torts classroom and he said that a professor gave him a cold call, routine stuff, nothing surprising there. What happened was he said he didn’t read, didn’t through the reading. Again, nothing surprising.

Kathryn Rubino:

That’s very believable. Nothing

Chris WIlliams:

Surprising

Kathryn Rubino:

There.

Chris WIlliams:

He then said that he went on to wax poetic about the case for 10 minutes. The professor said you might have a future in something, but you didn’t do the reading and then everybody stood up and gave him a round of applause. That didn’t happen. There’s no way.

Kathryn Rubino:

Jesus, I have pissy challenge.

Chris WIlliams:

Listen, I have dabbled in my fear of bullshit that is beyond the pale. And one thing is it is so patently obvious if it’s Joe Biden or Barack Obama or my cousin Sally, nobody’s going to believe that I write the story. I get hate mail. Somebody’s like, Hey, this sounds like the other guy assuming Trump, are you a robot that this actually happened? I respond, don’t be mad at me. And then I sent him the congressional transcript.

Joe Patrice:

Yeah. Well this was all from the depositions that Robert Hur took, right? Yeah. So this was part of the investigation into the classified documents that Biden had. The distinction, of course. What prevents that from being a hey? Well they both do It is that Biden had one dossier locked in a desk at his office from dating back from when he was the vice president as opposed to boxes and boxes of them in his toilet, which is slight difference. And he also immediately turned them over as opposed to ordering them to be destroyed or moved, which is another problem with the comparison. Anyway, as part of that investigation, a number of depositions are taken and this was one of the issues that came up in that. So I mean, look, law students are different back then than they are today. That said, I can’t,

Chris WIlliams:

Not that different.

Joe Patrice:

I’m not going to believe they’re so different that they feel the need to applaud there. I’ve seen the paper chase, they don’t do that.

Kathryn Rubino:

I’m sure there was a reaction in the classroom when the professor said that. Yeah, and I’m sure in his mind it’s not the kind of fib that I think is a knowing lie at this point. I think that he’s probably told the story a bunch of times and you build it up into something that it wasn’t. I guarantee there was a reaction. I don’t think it was complimentary.

Chris WIlliams:

It’s hard to excuse whatever happened for a standing ovation. That’s a hard sell.

Joe Patrice:

So I’m going to go one more. What’s different about law professors that they would allow 10 minutes of their class to be taken up with somebody saying stuff that has nothing to do with the reading. That’s where they interrupt because they like to keep things moving.

Kathryn Rubino:

Well, I think that’s another, yeah, I’m sure it wasn’t 10.

Joe Patrice:

I guess actually with one exception I know of, we obviously told on this podcast before a story of a law professor who was very willing to let the class flounder for a long time to make a point over reading, which was back when Ellie was co-host of the show. He told us the story of he did not do the reading in Elena Kagan’s class once and she said, that’s fine, do it now. And they just sat there in silence while she made him read. So I guess that’s possible, but probably not letting you talk uninterrupted for a while unless the professor really finished it with the Billy Madison speech. Oh, not Billy Madison. Billy, yeah, Billy Billy Madison. Yeah, Billy Madison. Was

Chris WIlliams:

That out yet?

Joe Patrice:

No. No, obviously not. What

Chris WIlliams:

I’m saying is if at the end of Biden speaking the professor then soothed the future and read out a street from a movie that didn’t exist would’ve been more plausible.

Joe Patrice:

Yeah. I get confused on the Billy Madison part because his production company is Happy Madison. He combines Happy Gilmore and Billy Madison and I always say it and then immediately think, did I do this backwards? Okay. Finally, we have a fairly groundbreaking move in the federal courts, which is the judiciary conference came out with a new rule. This new rule, something that people have been asking about for a while for a lot of different reasons, and this new rule is as people may know, the courts have a system where cases are randomly assigned. So if a case comes in to a geographic area like say the Southern District of New York, unless it has something to do with the facts pattern of a previous case, it will be randomly assigned. They’ll spin a wheel and be like, goes to judge, so-and-so and they make some adjustments to make sure no judge ends up with too much of a workload, but that’s how it’s randomly assigned.

With that said, the rule about keeping it within the judges of a geographic area randomly assigned is all well and good until you deal with some of these much geographically bigger districts, which then have multiple courthouses. And the rule can be in some jurisdictions that it is a random assignment based on the number of judges in that district, which just so happens to be an issue if you are in a district like, well, if you’re in the Amarillo Courthouse in Texas for instance, there is one judge. So if you file it in that particular courthouse, the random assignment is a one out of one chance that he will be the judge. So it’s not too random. The national conference though, just put out a new order saying that all of the districts have to, in the spirit of living up to the preexisting and acknowledged rule that it has to be random.

They have to make some to allow that to happen. Part of it, there’s a balance of interest to allow somebody to have their case heard in the geographic area where it is related. If all the witnesses are in Amarillo and so on, you’d want it there. They said, and I think a fairly wise way, they wrote this rule, they said, look, if the case is about a nationwide injunction or something like that, then it’s not really about Amarillo. So we won’t go so far as to say that this has to go to DC or anything, but you have to bring in all of the different courthouses judges and spin the wheel. You can’t just let this one of one situation happen. This is of course relevant. Yeah, it seems incredibly logical and it’s relevant to the extent that things like the abortion pill case where one judge decided that the FDA must have been wrong when it actual scientists said that that pill was safe, that case was assigned in Amarillo to one of one judge. These are the sorts of cases that this rule is designed to prevent from being guaranteed that way.

Chris WIlliams:

It feels weird that this fail safe wasn’t there earlier. Yeah,

Joe Patrice:

It’s so logical.

Chris WIlliams:

So like people get into this profession, one because they have liberal arts degrees, don’t know what to do, and two, because they like looking at loopholes. This is a very obvious one.

Joe Patrice:

The flip side of this, of course is this rule is limited to this nation or statewide injunction sort of case. It’s very specifically aimed at cases like this one, cases like one that happened in a one active duty judge courthouse in Louisiana that banned covid vaccines for healthcare workers and stuff like that. All situations largely run where conservative judges are being given cases by conservative activist groups who are taking advantage of this one of one situation. This is a rule that the chief justice and another Republican judge who heads up the conference have championed. That said, it has led to a bunch of real vitriol from right-wing circles. Judge Ho and Judge Jones complained about how awful and tyrannical it is. Josh Blackman in the v conspiracy whined about it. Some conservative senators complained. It’s a little weird to complain about random. It really is somewhat telling on yourself when you’re complaining about the idea that to complain that it’s unfair if we aren’t allowed to make sure that one incredibly crazy person is the only one able to hear the case.

Chris WIlliams:

And I like to think about recent events in the Overton window. Do you even think the sorts of arguments that the opposing sides are making would’ve been viable to say in public 10 years ago? What do you think this says about current of even the ruse of the judiciary being the neutral part of the government can’t even keep that up anymore.

Joe Patrice:

Well, and the dumbest argument that I saw, and I believe this was Jones’s argument, however others have made some version of it, is to say, well, this is improper. They shouldn’t have this power, but also this is bad because they didn’t do this over patent Litigation, which is a reference to the fact that one of the most egregious places where this happens is not in the field of abortion pills or covid or various anti-discrimination laws, the sorts of situations which are very politically charged, but a lot of it was happening in a bipartisan way where companies would lodge their patent cases in particular courthouses because they really liked the way that judge dealt with IP cases of which whatever. If you think that’s bad, you can say that’s bad. The judges complaining about this have said, well, this is all invalid because they didn’t make this rule about that.

But the problem is, which these Fifth Circuit judges should know, is part of the reason they didn’t make a national rule out of this is that the local court already fixed this. A couple of years ago, the local court passed a rule saying, look, too many people are taking patent cases just to this Waco courthouse. We will require all patent cases to be randomly assigned throughout the district, which if anything became the model for this national rule, which is the way it is because they more or less trust that local courts can, as it is not particularly politically charged, local courts can make whatever rules they want to make about fixing the patent situation, but they can’t make those. Oh, and bankruptcy too, I guess. But this is one where it seems that there are political interests that are pushing toward not fixing this particular problem and therefore it required a national solution.

I mean, the biggest takeaway I had from it is that it underscores that the chief justice as well as some other Republican judges of a certain age that are part of his generation still do very much worry about the legitimacy of this system. While a bunch of other judges, people like Judge Ho, seem like it’s Yolo time, we are here and we can do whatever. We can legislate whatever we want from the bench. There is still a constituency on the courts, a conservative constituency on the courts to protect the legitimacy of the institution long term. And that might well be protecting it so they can do more conservative things down the road, but whatever the motivation, they care about the idea that the court not look like a joke. This had gotten to the point where it was making the courts look like a joke and the fact that this rule has been met with any pushback, any public pushback, I understand smoke-filled rooms and all, but to have people in particular judges publicly push back against it to publicly say, we object to the idea of this being potentially more fair is really damning for the court system and where we sit right now writ large, this undermines the credibility of it.

One would argue worse than any rule would, but that’s the situation right now and with the courts and that was an interesting resolution. I think a lot of people were concerned about that. I don’t know, as though many people thought anything was going to be done about it. I don’t know as though this is necessarily the best answer. I am one of those folks who think that if you are looking for a nationwide injunction, it probably needs to go through at least a three judge panel, that kind of a situation as opposed to letting any single judge do it. But hey, we’re not there yet. We’re at least at the point where we have to spin a wheel.

Chris WIlliams:

I think we’re at a point where the answer is to depoliticize the judiciary, but in lieu of a clear way of doing that, randomness is about as good as you can.

Joe Patrice:

Yeah, I mean look, term limits are right there. Make people go senior status after a certain period and force the judiciary not to be a place where you in a very, and this goes back to the beginning, right? This is what Marbury versus Madison’s all about, right? It should not be a place where you hide people to dead hand exert power for generations as opposed to a situation where it kind of is a lagging indicator of the will of the people, which theoretically a term limit based system would be. But we’re not there yet either, I guess. Oh, well. So with all that said, I think that brings us to the end. One little programming note before we end here. We will not have an episode next week where everyone’s running around traveling, so we will be back on April 3rd I believe. So we’ll have another action packed episode.

I want to thank everybody for listening. You should subscribe to the show, get new episodes when they come out. You should be giving reviews, stars, writing things. It all helps out. You should be listening to the Gibo Katherine’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable. You can check out other shows from the Legal Talk Network. You should be reading Above, the Law Always So you get these stories and others before they are discussed here. Each follows social media at ATL blog at Joseph Patrice, at Kathryn one at Rights for rent. All of the same things over on Blue Sky except on Joe Patrice there because advantage to get that. And with all that said, we are done. Talk to you later. Peace. Peace.

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