You’re A Grand Old Flag, You’re An Upside-Down Flag

Episode Notes

Transcript

Joe Patrice:

Hello. Hey, this is another edition of Thinking Like. A Lawyer. I’m Joe Patrice from

Kathryn Rubino:

Hi Patrice.

Joe Patrice:

Hi. That’s Kathryn Rubino also of the illustrious Above. the Law. We are a couple of the editors here, and we have this show every week to recap the big stories from the week that was in legal, right?

Kathryn Rubino:

That is what we do

Joe Patrice:

Here.

Kathryn Rubino:

That’s all we do. That’s the purpose of the show. That’s not all we do. In fairness, we also do a little small talkie section just to get to know one another

Joe Patrice:

A what?

Kathryn Rubino:

Small talk.

Joe Patrice:

Yeah, talk beginning where we talk about just whatever, make ourselves a little more human. How are you human?

Kathryn Rubino:

Yeah. So as I mentioned in the previous week, my daughter just turned one and my weekend was filled with very, very lucky and privileged to have many friends and family who give her many, many gifts. And now comes the part where I figure out where it lives in my house, and I have this vision in my head of each of the toys or kind of genres of toys, having their own corner or nook or sort of location in the house where, oh, you want to play with your little people. You go to this section. Almost like little stations like a preschool would have like, oh, now you’re in,

Joe Patrice:

You’re trying to turn your house into Disney World to have lands.

Kathryn Rubino:

Wouldn’t that make for the most idealized childhood? I mean, yes. Yes. That’d be great. So I’m trying to figure out, we got this little couch that comes in, all these pieces that the baby can climb up and over and you can create different things out of it. We got a play tent. We have a ball pit. So I’m trying to figure out where all these things live in the house to sort of maximize her enjoyment. So that’s what I spent a lot of my brain power on this weekend. How about you?

Joe Patrice:

It is that time of the not year and that time of the every two years that my bar license is due again, and as it happens and does every couple of years, I am woefully behind on my CLE. So I am cramming through all of that. I mean, I had several credits done, but I still need to watch a lot. So this weekend I watched several very, very informative videos. One about the college football NIL deals actually, which actually it was very interesting and that’s what I feel like CLE videos are. I’ve had to watch a lot about stuff that will never affect me in my life, but that one I was like, it probably won’t affect me either, but I was at least entertained

Kathryn Rubino:

By it. Well, I mean to the extent you enjoy ncaa, both the game as well as the video game is what I was going to talk

Joe Patrice:

About. Well, that’s a good transition,

Kathryn Rubino:

Right? Because I believe that that is being relaunched this year.

Joe Patrice:

Oh, it sure is.

Kathryn Rubino:

I never was a big player of it, but I follow enough in college football that I’m aware of the issues and that the game was halted because of various NIL related issues. And now that they’ve worked out a system, it’s coming back. Are you a fan? Did you play that game?

Joe Patrice:

Obviously. Okay. Yeah. Still I maintain a console that is capable of playing the 2014 version so that I can just

Kathryn Rubino:

Play

Joe Patrice:

Even after they got rid of it. Yeah, no. And so the new one is coming out. They just released their trailer over the weekend. It was a perfectly fine trailer, much better, and so far not getting struck down for copyright reasons. Thankfully, the fan community has been backing the trailer with other songs that are more appropriate than the kind of bland generic soundtrack that it was given by Yay. So I’ve been watching it that way. Yeah.

Kathryn Rubino:

So you’ve been watching other versions. What’s your favorite track to back it to?

Joe Patrice:

That’s an interesting one. I am not sure I’ve developed a favorite yet. I wonder,

Kathryn Rubino:

You could probably back it to the Alchemy. That would be sort of a fun

Joe Patrice:

Football. No, what you can do though is I saw one with then Lizzie’s Boys are back in town. That was very good. I saw one, what? It was a fixie or something like that was in there. I don’t know. There’ve been a few. Anyway, very exciting to have that back. A little trepidation though, because since 20 fourteen’s edition, it always did have a tight relationship with their other product, which was Madden. They were very similar games, even though they were thematically different, they had similar mechanics. And Madden has become all but unplayable since then.

Kathryn Rubino:

Oh no.

Joe Patrice:

It’s just obsessed with stupid stuff. Do this and then you get a 0.5 boost on all these things that are not really a football simulator,

Kathryn Rubino:

Just not the point of playing the game. I think that they have in other sports, I believe in the F1 game, you can either play sort of in manager mode or as in driver mode, and those are different games and different people enjoy different games and trying to mash the two together probably winds up a worst experience for people who both want the manager experience or the player experience.

Joe Patrice:

So two things there. One, the F1 thing you’re describing are actually two entirely different video games. One is entirely F1 manager and one is entirely F1. Also though it’s not even a player versus or coaching thing. The way Madden operates now is it’s weird arcade points. You got a first down. So that means that on the next play, your offensive line is going to be 0.5 tougher because it’s like you’ve unlocked a bonus. So from now on, your wide receiver’s better. And it’s like that has nothing to do with how a game actually flows, but whatever. It’s like an eSports kind of nonsense. I gather there’s a way to turn all that sort of stuff off, but the fact that the defaults are set that way has made the whole game be oriented around improving its ability to do those sorts of things and not improving the base play, which is annoying. Anyway, I’m hopeful that that’s not how the college game is going to be when it comes out, which is in July. So we’ll find

Kathryn Rubino:

Out for your sake, if not, you’ll have something else to bitch about in the future edition of Small Talk.

Joe Patrice:

Okay,

Kathryn Rubino:

Come on. That was a cute little thing that I did. Great. Come on.

Joe Patrice:

Hey, what is not a cute little thing to do?

Kathryn Rubino:

Flying a flag upside down.

Joe Patrice:

Certainly not if you aren’t in distress in the middle of the ocean. Yeah.

Kathryn Rubino:

Bombshell revelation from the New York Times. Jodi Cantor revealed that in January of 2021, you might remember that date. It’s going to come up in front of the Alito House. The United States flag was flying upside down.

Joe Patrice:

Were they in danger?

Kathryn Rubino:

Wow.

Joe Patrice:

Yeah. I have a thought ho

Kathryn Rubino:

Well played there. Joe, for those who may not know the symbolism that the upside down flag took on sort of in the post 2020 election world, it became a sign of sort of stop the steal or your support for the Stop the steal movement and of Donald Trump saying that Donald Trump should have won the 2020 election. Actual voters be damned.

Joe Patrice:

So the critical part about this, because whatever, first of all, I literally never want to hear about a flag burning case ever again. If we’re playing the disrespect the flag game, this seems like it’s already taken the cake. Two, you do whatever you want, but at this particular juncture, we already knew the Supreme Court already was in a position where they were going to be ruling on a series of election and January 6th related stuff. This becomes critical because the justices obviously are allowed to have their own personal opinions, but at the point that you believe the election was stolen and you are flying your flag about it, you probably are not the sort of person who should be making rulings on whether or not,

Kathryn Rubino:

And it at the exact same time that the flag was up, Alito was on the losing end of voting as to whether or not the Supreme Court should hear a 2020 election case. And I think that you kind of make it an interesting dichotomy that, well, the real problem is that Alito is in a position to hear cases related to these political beliefs. And that’s the problem. And I think that’s certainly part of the problem. But the other part of the problem is that our judicial code of ethics says that members of the judiciary should not display public partisan beliefs or they should not express their, because it could potentially go in front of them, but there’s actually a code written. Now, does that code apply to the Supreme Court? Supreme? Certainly Samuel Alito does not think so despite everyone’s best efforts to make it such. But regardless, he

Joe Patrice:

Was well, but it doesn’t, right.

Kathryn Rubino:

But I’m saying regardless, this is certainly a well known, certainly before he was on the Supreme Court, he was well aware of these sorts of ethical standards. And here’s the thing about ethical standards, even if it isn’t a, you get fined X number of dollars to get it. He certainly is aware that that is considered the proper way for judges to conduct themselves in this country.

Joe Patrice:

And we talked about this in other contexts too, like the lower court judges who are not going to hire any clerks from Columbia, this idea that these judges in particular, right-wing judges have that they are not just there to, they’ve received this job and this job is given paid for by taxpayers to adjudicate cases and controversies, yet they believe they fulfill some broader role in society where they get to social engineer whatever they want, they get to have, throw their weight around to try and change the way curriculums exist, change the way in which schools are administered. And in this instance, to throw up their flags as far let their literal freak flags fly. This

Kathryn Rubino:

Sam Alitos freak flag is in fact flying.

Joe Patrice:

He is an upside

Kathryn Rubino:

Down flag. Kind of appreciate that take.

Joe Patrice:

Yeah. So this is a problem and it’s a deeper problem than just the code of ethics because it suggests, I mean, it’s more fundamental because it’s not like one rule. It is people who seem to have no conception of what the point of their governmental appointed jobs are. If the head of the FDA started having a wild get a hair in their ass that they can talk about everything in the world, we’d rightly say, stay in your lane. Again, I probably should have done the NTSB or something like that with stay in your lane. But the point is, we understand that certain people have certain jobs and they should shut their mouth and do their job. Why federal judges think they’re exempt from that is beyond me. We do have a code of ethics that should inform those lower court judges not to do that.

We do not have that for the Supreme Court. The Supreme Court got a lot of flack about that because of the Clarence Thomas taking half a million dollars worth of stuff. Now we have one that is supposed to apply to them that they all signed off on as a way of making people leave them alone for a little bit. And since that new rule has gone into effect, which obviously this predated that new code, but since that new code has gone into effect, Alito specifically has refused to comply with it. It has a series of rules of how you’re supposed to recuse yourself in certain situations. He’s done none of that. He’s openly refused to state the reasons he’s recused. One of the things it says you’re supposed to do is that it’s foundational, I think is what I’m trying to get at.

Kathryn Rubino:

And one of the things that really got me about this entire incident though, is I think you’re very right about what the judiciary should be doing and that whole notion, but Sam Alito really took the shaggy defense of trying to deal with, it wasn’t me said when asked about it that he was like, I had no involvement whatsoever in the flying and the flag. It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs. And I believe what we’ve been able to suss out was it was 2020, there were the aftermath of the election of 2020. There were some very partisan signs. I believe there was the expletive. Trump was what people have been able to figure out. And in response, the Alito family had this flag flying, which you notice this denial such that it is, does not say the upside down flag was not meant as support of President Trump. And that does not signal that they believe that the 2020 election was stolen. None of that is in this non-denial. Denial, but rather just says, oh, well, it was somebody else in my family who by the way, has been married to a federal judge for 30 plus years and is well, I’m sure accustomed to all the sorts of restrictions that are put on them as a result of her husband’s

Joe Patrice:

Job. Well, I think she’s well aware of the restrictions that her husband believes in, which is none of them.

Kathryn Rubino:

Sure. I’m just saying that that family clearly knew what that flag meant clearly was meant in response to an anti-Trump sentiment. So it was put up for the express purpose of making a political statement.

Joe Patrice:

Now, I remember the big thing about this, as you point out, his attempt to explain this away seemed to miss the entire point. And it’s interesting because this isn’t the first time in the last year or so that Alito has needed to defend himself over improprieties. And much like the time that he was called out for taking private jets provided by people with business before the court to hang out and party with them in luxury resorts, his ability to defend himself is to admit all the parts of it that actually are a

Kathryn Rubino:

Problem. They’re a problem

Joe Patrice:

And miss the point of what he thinks is wrong, which is useful for those of us who are trying to write about it because having somebody admit that they committed illegal acts is great from our perspective. And here again, he seems to have misunderstood what the point was. He could have said, we had no idea or could have said, oh, I think we did it wrong, or whatever that is.

Kathryn Rubino:

No, it was a mistake. It was early in the morning.

Joe Patrice:

Yeah. He instead says, oh, yeah. I mean, we wanted to point out that we were supporting the idea that this was a stolen election, but it was my wife who did it, so therefore it’s okay. See, I don’t think you get what the point the problem was,

Kathryn Rubino:

Although there is in fact images that the Times was able to publish that other members of the neighborhood have shared. So it would be hard to say that it didn’t happen. I guess they could make the argument that it was an inadvertent mistake

Joe Patrice:

Or whatever. Look, I mean, the problem is also, I will say as a connected thing, we have a society that was prepared to back him up if he had said the most ridiculous thing, kind of going around an interview, they’d reached out to some outlet, had reached out to Steven Giller from NYU, who’s one of, if not the most prominent legal ethics scholars in the country. And his response to it was, oh, I mean, that couldn’t have happened because justice at the Supreme Court would never have done that. And it’s like, I don’t think you’re caught

Kathryn Rubino:

On here. Were you frozen in ice for, I don’t know, maybe the last 20, 25 years? Because, well, no,

Joe Patrice:

It’s more that his position was this couldn’t have been an ethical breach because Supreme Court Justice never would’ve done it. And it’s like, well, scoreboard. We know that it’s happened now, so now we need you to opine on the ethical breach. And he just seemed unable to do that. One person I know on Twitter responded to me posting that with this is the rare real life instance of the no true Scotsman defense, which is a logical fallacy where you say, whoa. I mean, that can’t have happened because it couldn’t have happened, and that’s the world of the legal institutions. We we’re fully prepared to defend him if he’d made something up and said, no, no, it’s a total accident, and yet he’s unwilling to, he’s going to run right ahead and say, oh, yeah, no, we did this. Yeah.

Kathryn Rubino:

Yeah. I mean, the notion that Alito had no idea what his wife did, if it wasn a wife that did it, and we just drove in and out of his driveway every day and just didn’t say anything for, however, there was several days, which they reported that it was up like that and just didn’t say anything to his wife about it or didn’t notice that that explanation stretches credulity. Right. Obviously, if not actively participated in, was at least aware at the time that it was going on and the political symbol that it represented.

Joe Patrice:

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Kathryn Rubino:

Abruptly.

Joe Patrice:

Abruptly. Yeah. So we will change gears abruptly. I was going to go to a different story, but now that we’ve changed gears abruptly, let’s talk about Elon Musk.

Kathryn Rubino:

Oh, I see. Because it’s about Tesla cars,

Joe Patrice:

Because it’s about cars. Yeah.

Kathryn Rubino:

Top gear.

Joe Patrice:

Tesla has gotten itself into the news. So let’s taking a step back. There’s already been a case. Elon Musk wants to be paid 56 billion by Tesla. Tesla for the record only has like a hundred billion in assets. So what he wants is a little more than half of the total assets of the company to be paid to him personally for his services as CEO. The board approved. This was challenged in Delaware because Delaware has corporate law, and it says maybe you can’t pillage a corporation and waste all its assets paying people. That case has been decided and was decided in favor of Tesla. Not that Tesla’s the one who brought it, but it’s the corporate entity on whose behalf the claim was being raised. That’s an important,

Kathryn Rubino:

Which is distinct from Elon Musk as a human.

Joe Patrice:

Right. This is the important intellectual thing you got to remember, is that Tesla, the entity is not supposed to just be Elon

Kathryn Rubino:

Musk, and that entity, let’s not forget, has First Amendment rights.

Joe Patrice:

Sure. So Tesla’s lawyers now said, oh, well, we’re going to set up a full shareholder vote, and assuming Musk wins that, then we can pay him all this money, and then we don’t need to worry about it. Obviously, the implication is that most of the shareholders, because it’s a meme stock, basically, most of his shareholders are just bros who love Elon and think that he’s smart, so they’re just going to give him all this money. So the case is moving forward into a conversation of whether or not that vote would be legal to get around this ruling. There’s a law professor who is an expert in Delaware law who had written an amicus brief in the original case saying, you can’t pay him this way. And the judge, the chancellor, when the opinion came out, cited this amicus brief extensively because it was an expert in the law who said, so this expert has asked to write another amicus brief on the subject of whether or not a full shareholder vote obviates this ruling.

At that point, according to this professor who had for years been on retainer at Holland Knight, Holland Knight would call him up for Delaware stuff, and he was their designated Delaware expert. He got a call from them saying that they had been told that he had to not file this or else they’d be fired because they have a partner who’s representing Tesla in some completely unrelated case, and that Tesla’s in-house folks were leaning on the firm to silence him or else they lose business. He wrote this in his motion seeking leave to file amicus brief. He says He has resigned from the firm and he wants to do this. Tesla has objected saying that it’s ridiculous that the implication that we were bullying, we were just pointing out a potential conflict. So that’s ludicrous. It’s ludicrous because their position is, oh, well, there’s a conflict here. And yes, pointing out a potential conflict is not in fact bullying. I am unclear what the conflict is because his brief is in support of Tesla, the company he has the

Kathryn Rubino:

Entity.

Joe Patrice:

It kind of proves too much about if the argument is Tesla’s kind of operating as a personal piggy bank for Elon Musk and not an independent organization, and when you say, Hey, he’s conflicted, saying Tesla should not be a personal piggy bank is a conflict with Tesla that

Kathryn Rubino:

Proves the Yeah. That kind of is the argument right there.

Joe Patrice:

I continue to be confused with Elon’s legal acumen, obviously. Well, he has none. Well, right. Obviously we saw what happened with Twitter where he wrote a deal where he waived due diligence and then tried to get out of it, and Tesla was not Tesla. Twitter was correctly, legally forced him to buy it. That said, so he did that, but he has lawyers. He has reasonably smart lawyers who work for him. He just tells them to do dumb things. Yeah. I

Kathryn Rubino:

Mean, I think that we’re seeing a similar issue, right? With Donald Trump’s criminal trial. When the client is too big a personality and has too many Yes, people in their lives telling them they’re always the best and they’re always the smartest, and that’s how things should be. They make for awful clients. And oftentimes clients that put attorneys in uncomfortable positions in the sense that they have to

Joe Patrice:

Do You mean the back of a Volkswagen?

Kathryn Rubino:

Okay. Okay. That was a nineties reference. Friends. Yeah.

Joe Patrice:

Oh, you remember that one?

Kathryn Rubino:

Chasing Amy?

Joe Patrice:

No, but

Kathryn Rubino:

Oh, no. Mo rats. It’s malls.

Joe Patrice:

It’s mall rats.

Kathryn Rubino:

Sorry. Kevin Smith. Ure often bleeds together, in my mind.

Joe Patrice:

Really good. Good catch

Kathryn Rubino:

Ben Affleck. Yeah. But regardless, oftentimes these kind of clients put, you put lawyers in a position of having to make arguments that they don’t believe are good legal arguments, but they feel that they need to in order to maintain that client relationship. And at the end of the day, the courts that are like, oh, well, that was a smart motion or not smart motion, aren’t the ones paying the bills. The clients are. Yeah. And as long as you’ve advised the clients that you don’t think it’s a winning argument. I mean, yeah.

Joe Patrice:

Well, the really ridiculous part from the big law perspective is Holland and Knight released a statement saying, Hey, we weren’t bullied on this. We just were informed about this, and we thought our legal obligations to our client involved recognizing this as a conflict. Which one? He theoretically resigned, so they didn’t have to say anything. But two, what gets me is both Tesla and Holland and Knight said nothing about this when the professor wrote the first amicus brief, so is Holland and Knight’s position that they allowed a conflict to happen already, and they just didn’t care before. That seems way worse. Why would you say that? That seems so much worse. I think the correct answer is we did not see a conflict, and we continue not to, but just embarrassing. Like you say, we continue to not see it, but in an abundance of caution, he has resigned from our retainer ship and yada, yada, yada.

Come on, people. But I think it goes to what you said, not knowing what’s going on behind the scenes, the way in which a firm might say that is if they’re being told by a client, they have to, it’s a dangerous road to go down when you start listening to the client a little too much. I mean, you are there to represent them, but of representing somebody is sometimes them telling them no giving. Yeah. So we’ll see. We are continuing to track this to see if the professor writes an amicus brief. My assumption is he will, but we’ll see. Alright. When you brought up Donald Trump in the middle of our Elon Musk story there, I thought it was really, it was good. You were kind of showing that you could apply a different situation to the set of facts that were provided almost

Kathryn Rubino:

Like we’re Thinking, Like, A, Lawyer. Yeah.

Joe Patrice:

I mean, that would serve you well on a bar exam, potentially.

Kathryn Rubino:

Oh, okay. I see where we’re going there. Okay.

Joe Patrice:

Yeah. So bar exams, that is a rite of passage in every state except Wisconsin if you happen to be in Wisconsin, Wisconsin. The California bar, however, has a bit of a problem.

Kathryn Rubino:

Notorious bar

Joe Patrice:

Exam, notorious bar exam, but it has a bit of a problem. And that problem is it’s broke many,

Kathryn Rubino:

Many, many, many.

Joe Patrice:

The state bar and in particular the subcommittee of the state bar that runs their licensing exam administration is out of money. They will, by the end of next year, be operating in the red. They had been squandering money. It costs them millions of dollars to do this every year. The NCBE is unhelpful to them on these questions as they’ve sought ways to use the NCBE, who’s the author or theBar exam across the country, trying to rely on them to come up with a solution that is not happening, and they proposed a rule that was on the most recent board’s agenda, which would have changed the author. The rules for theBar exam would continue to be the same. The standards that have to meet would continue to be the same, but instead, they would use Kaplan test services to write the exam. Kaplan, of course, it does bar prep.

So they’re very well versed in writing practice exams based on these rules, but they’ve never done it themselves, per se, and the plan was for California to move over to them. Now, why would this save money? One, they were going to be a little bit cheaper anyway, but also Kaplan, the NCBE, because it fancies itself a lot more important than it actually is, puts a bunch of strings on this. We saw this during the early days of the pandemic, when the NCB was pushing around and saying, states still had to do in-person exams and a few thousand people dying isn’t a problem to them, whatever. They ultimately relaxed that and allowed for some online stuff. Their standards were such that the online exams were kind of a disaster too. Probably should have done diploma privilege. But here

Kathryn Rubino:

We’re, wow. I mean, not in California, right? They have some A, B, a non-accredited schools there, and you can take the California bar exam with those degrees as well. So if we’re going

Joe Patrice:

To, sure, and to be fair, those schools and specifically those schools are the ones who are objecting to this move to Kaplan. But what Kaplan would allow them to do is they would write an exam. They would not have those strings on it, so one would be a little bit cheaper and save money out of the gate. But also, Kaplan has a number of facilities that they own. So instead of having to rent out large exhibit halls across the country, which is the biggest expense that they do, Kaplan would be willing to host in-person exams at some of their facilities. And the biggest on top of that is as a giant state, the third largest state or whatever, people take that exam and have to travel great distances to an in-person location and pay a lot of money to take it. And whatever hybrid, if not full remote options can be explored with Kaplan that the NCB would not allow. And so the argument is if they moved Kaplan, they can start exploring that and they could save money.

Kathryn Rubino:

Seems like a win-win except for the NCBE.

Joe Patrice:

Yes. This agenda item was taken off the agenda at the last minute with the excuse that things needed to be finalized before they could vote on it. It is unclear what that means, but as of now, the California bar seems to be willing to ride the NCBE train over a cliff and run out of money. Now, it seems like this is something that California could have thought about a few years ago, but hey, people were busy then. There was a pandemic. I guess people had bigger issues, but this is also something that this is a problem that’s been happening for a while. You don’t get to the point where you’re less than a year away from

Kathryn Rubino:

Running insolvency.

Joe Patrice:

Insolvency without seeing a problem dwell.

Kathryn Rubino:

Yeah.

Joe Patrice:

Alright. Is that anything else?

Kathryn Rubino:

I think that’s where we are.

Joe Patrice:

Cool. Thanks everybody for listening. You should be subscribed to the show. You should see I was thrown off by how you reacted to me switching gears there, so

Kathryn Rubino:

Get my head back. Did you want me to interrupt you some more?

Joe Patrice:

No, no. It was a mocking move, and so I reacted. Thanks everybody for listening. You should subscribe to the show so you get new episodes when they come out. You should leave reviews, write things, stars. All of that helps. You should be listening to other shows. Kathryn’s the host of the Jabot. I’m a guest every week on the legal tech.

Kathryn Rubino:

Come on, Joe. I didn’t even come close to interrupting you. This is all on

Joe Patrice:

You, the Legal Tech Week journalist round table. You should check out the other shows on the Legal Talk Network. You should be reading Above the Law, so you read these and other stories before they come out. You can check out social media at atl blog at Kathryn one, the numer one. I’m at Joseph Patrice on Blue Sky. Largely the same things except I’m at Joe. Patrice over there. Yeah, I think, I guess that’s pretty much it. Peace. All right. Talk to everybody later.

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