Have You Considered Not Lying Under Oath?

Episode Notes

Transcript

[Music]

Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice.

Kathryn Rubino: You are. I didn’t know that.

Joe Patrice: Yes, you did.

Kathryn Rubino: I mean, I definitely did.

Joe Patrice: Why are setting the precedent of lying to our listeners?

Kathryn Rubino: I thought I was being cute, that’s why. I’m Kathryn Rubino though.

Chris Williams: It’s a thing. It’s a skit we do, you know. I think they know.

Kathryn Rubino: It’s part of our bit.

Chris Williams: Yeah.

Joe Patrice: It’s not a good bit. I’m Joe Patrice from Above the Law. As you heard, Kathryn Rubino and Chris Williams, both here. We do this every week where we talk about some of the bigger stories of the week in legal news. But first, obviously, we begin with a little bit of —

Kathryn Rubino: –a little bit about ourselves, a little bit about our weekend, who we are as people.

Joe Patrice: –in a segment we call Small Talk.

Kathryn Rubino: Small Talk.

Joe Patrice: Okay. Yeah, so I think we are all recovering from the emotional rollercoaster that was the spy balloon getting blown up now. We can now move on with our lives.

Kathryn Rubino: We can. How was your weekend, Joe Patrice?

Joe Patrice: Yeah, no, it was good. Went to a birthday thing, so you know.

Kathryn Rubino: I don’t know if you did. Did you watch any of the Pro Bowl weekend?

Joe Patrice: Yes, obviously, because it was fantastic.

Kathryn Rubino: I really cannot say enough awesome things about how much fun the whole Pro Bowl experience was this weekend. Not that I went, but I watched on television and it was a delightful time.

Joe Patrice: Yeah. It’s as though they finally figured out how this awkward product that they’ve had for years and never does well, how to actually make it exciting and interesting. And yeah, good for them.

Kathryn Rubino: It was great for those that don’t know there was a bunch of skills competitions, which were fun and kind of there was like an obstacle course, there was like a kicking tic-tac-toe. They had a kick like (00:02:02) you know, places on a board somewhere. But the sort of main event was a series of flag football games.

Joe Patrice: Yeah.

Kathryn Rubino: And it was so much fun first of all, because you know, risk of CTE significantly lowered in flag football, you know, which I appreciate. But also it was really great to —

Chris Williams: Why even watch? I think one of the things like one of the profane things everybody just accepts is like watching football is kind of like NASCAR like you watch it for the accidents, you know?

Joe Patrice: Yeah, I don’t think anybody watches NASCAR for the accidents either, but yes. But no, it’s great.

Kathryn Rubino: Yeah. And it was great to actually see the players’ faces. There’s no helmets. You could actually see and they looked like they were having a great time. And honestly, it’s fun to watch people have fun.

Joe Patrice: Yeah.

Kathryn Rubino: Like that’s a good time. I would 100% watch this all the time if this was — I was a little annoyed, there was no fantasy points on the line particularly Geno Smith was a damn machine in the first flag football game. But, you know, it was a great product that they’re selling us these days.

Joe Patrice: It was fun. I did see that, because I did the birthday thing Saturday, watched the Sunday coverage of that. Yeah, no, it was exciting stuff. How are you doing, Chris?

Chris Williams: I’m doing good. I just hit 99 room craft playing RuneScape this weekend and that was an accomplishment, months in the making.

Kathryn Rubino: Those are words.

Chris Williams: Yes.

Kathryn Rubino:  Congratulations then.

Chris Williams: Three people who know what these words mean, I finally did it, so excited, very happy.

Kathryn Rubino: And proud we are of all of them.

Chris Williams: Yeah, 13-year-old me is over overjoyed. Question. Joe, are you wearing a Black Sabbath(ph) shirt?

Joe Patrice: No, I am wearing a Black & White shirt, which is a bar that I frequented back in the day. So, yeah.

Chris Williams: It is not as cool it is on brand.

Kathryn Rubino: Unfortunately, another victim of COVID, closed down seemingly permanently.

Joe Patrice: I mean they claim they’re going to try to find a new location.

Kathryn Rubino: It’s 2023.

Joe Patrice: But at this point, they have not yet, so it is problematic. Yeah, no, so that is all of that. Now, I think that could be the end of Small Talk.

Kathryn Rubino: Small Talk.

Joe Patrice: Yeah. So, let’s get into some topics. Where do we want to get started do we think?

Kathryn Rubino: Dealer’s choice, my friends. Dealer’s choice. See, that’s what we say when we haven’t read the pre-recording email about what’s coming up, planning just to wing it.

Joe Patrice: I hate everybody. Hey, did you know? I don’t understand why even try to organize this. So, the nation’s largest and most elite law firms, I don’t know if you know this, but these large elite law firms that represent the biggest and most powerful corporations in the world are suffering from an outbreak of woke cancel culture.

(00:05:04)

Did you know that?

Kathryn Rubino: Bullshit.

Joe Patrice: Yeah, that is also true.

Chris Williams: Oh no. Are there blacks and gays getting uppity again?

Joe Patrice: That certainly seems to be the claim here. There was a lot of talk about this. David Lat, former Above the Law, himself put out an OP-ED in the Boston Globe talking about the cancel culture that has taken over big law. This prompted a lot of us to say, “What?”

Kathryn Rubino: “Bullshit.”

Joe Patrice: Yeah. This has become a topic of the week for those of us who cover a lot of the legal market, because of course this is a prominent allegation of a change in the way in which law firms operate.

Kathryn Rubino: Yeah and I think your sort of intro kind of flags the number one issue, how awoke can you truly be if your entire way of making money is representing multi-billion-dollar companies?

Joe Patrice: It does present a bit of a problem.

Kathryn Rubino: It’s like misusing the word to the point of utter meaninglessness.

Joe Patrice: Yeah, no, and that of course is more Jay Willies said “balls and strikes.” He wrote a piece in reaction to this and he leans a little bit more into that point that big law as an organization represents this fairly powerful transnational corporations, which suggests that you can’t really be all that woke. That said, I didn’t necessarily go down that route with my reaction to the piece. My reaction to the piece was more to focus in on the question of whether or not the anecdotes that make up this story were really justified. Because it is a piece, the globe piece is not really backed by a lot of hard numbers.

Kathryn Rubino: Just couple of incidents.

Joe Patrice: Yeah, some incidents.

Kathryn Rubino: Anecdotal stories, one of which I think the actual person’s name or firm is not known.

Joe Patrice: Right, one is —

Kathryn Rubino: So, it’s hard to fact check that one.

Joe Patrice: One is kind of an anonymous. But off the ones that we know about, the problem is that the framing of them all over look a few key details that changed it a little bit. My argument more was that — I made this argument at the time when one of these stories happened when Paul Clement and Erin Murphy left Kirkland right after winning the gun case at the Supreme Court. Clement wrote this very winey OP-ED about how all these law firms are out to get him, because he has unpopular views or whatever, which was overlooking a few things most importantly the fact that Kirkland’s clients were not particularly happy that the law firm that they attached their names to as a branding matter was —

Kathryn Rubino: Representing the NRRA.

Joe Patrice: Arguing for more school shootings in the world, which they get touchy about that. I don’t know, as though that’s a sign of wokeness as much as —

Kathryn Rubino: Capitalism. It’s pure capitalism.

Joe Patrice: Yeah, businesses kind of like making money and part of that is having customers not hate you.

Kathryn Rubino: Yeah, that was never woke. That was supposed to be with the market place of ideas was about.

Joe Patrice: Right.

Kathryn Rubino: Like definitionally.

Joe Patrice: So, yes. So, that’s the story there. The other story they get cited in this article is about Robin Keller, which who you’ve covered.

Kathryn Rubino: Yes, extensively.

Joe Patrice: Yeah, so now give us a quick update on what the Robin Keller story was.

Kathryn Rubino: Yeah, she was a retired partner at Hogan Lovells. And in the wake of the Dobbs decision, there was a women’s meeting discussing the ramifications of the decision. And at that meeting, she made claims about abortion being “black genocide.”

Joe Patrice: That one.

Kathryn Rubino: Yeah.

Joe Patrice: That one always comes up.

Kathryn Rubino: So, definitely trading in racist tropes about reproductive freedom, a number of people. Again, this was hundreds of people at the meeting. People were upset, people were offended, et cetera. As a result of that incident, the firm parted ways with Keller.

Joe Patrice: Yeah. And now in Lat’s coverage of this, it’s framed as she had unpopular views on Dobbs and therefore was kicked out, which seems to miss that little bit about telling all the black folks in the meeting that they’re responsible for a genocide.

Kathryn Rubino: Right. And I believe the reports that we have from folks that were on the meeting was that partners in real time very clearly and definitively shut her down, which was fantastic and wonderful to see. But yeah, no, definitely problematic.

Joe Patrice: Yeah, so my takeaway was much more focused on this is not some sort of a conversation about cancel culture.

(00:10:00)

This to the extent that isn’t actually a thing in the real world or as opposed to just a talking point, what’s really going on here is big law firms like making a lot of money and they care about that a lot more than your feelings. If you’re some sort of partner who wants to use your platform to mouth off about stuff, the firm is going to prefer to make money. And that’s the other thing, like these aren’t summer associates who decided to mouth off, like these are partners who had been there for a while. This is a situation, it’s not like the law firm has some sort of left leaning conscious. The law firm happily —

Kathryn Rubino: — employ these people.

Joe Patrice: — happily makes money off of these folks for —

Kathryn Rubino: –for years. In both of the instances, they were employed by the firm for a very long time. It was only when they became outspoken or in Clement’s case, very publically associated with these causes that they said, “This no longer makes sense for us as a monetary matter.”

Joe Patrice: Kirkland brought them on. Remember, he’d already written an OP-ED complaining about leaving King & Spalding when King & Spalding had the same issue over his marriage equality fight. So, this was going to happen, but it does mean that these firms are happy to make money off of folks right up until it starts looking like it’s going to hurt their bottom line. And when that happens, you can’t really complain about —

Kathryn Rubino: I mean people are complaining, they can, but they shouldn’t.

Joe Patrice: Yeah. I mean, look, you bought into a system, and that wheel comes around and you got to take your lumps when you no longer are the most important money-making part of the scheme.

Kathryn Rubino: Yeah, big law is not known for being a warm-and-fuzzy employer. They will cut ties with you if you are no longer making them money and that is all as true of partners as it is of associates.

Joe Patrice: It is interesting, though. There’s something to Lat’s argument that I find interesting, which is that the whole argument of these folks is somehow that law firms have this kind of liberal bias to them, which I don’t necessarily know if so that’s true. But I do wonder to what extent there is something there but it being more reflective of the way in which business has a minor liberal bent not because it’s, you know, trying to save the universe. I don’t think Exxon is trying to save the universe or anything, but that it does understand that the temperature of the market is one that prefers not rocking the boat.

Chris Williams: Honestly, I think that one dimension of it is that businesses are aversed to getting sued like one example that I would think of being like what I would imagine some people being like, “This is ramping woke culture,” when it’s actually just, “Oh no, this is just a (00:13:00) was that story where there’s a woman who was pregnant. She got accused like sitting on her ass because of — And I could imagine like a right wing response to that is see, people (00:13:12) work anymore. What happened to strong women who would like give birth on tables or like stool doing litigating as they were pushing? What happened to strong work cultures? Like no, we don’t do that. Like how come (00:13:24) being read is being like a woke response to “partner dies, long live the firm” culture, you know?

Joe Patrice: Given that I’m kind of leaning on the clients here, I wonder if to what extent that what Lat’s article describes as liberal is much more kind of a defense of the status quo, not rocking the boat. While there may be people on the “left” who are, you know, more progressive and agitate for change, the kind of corporate democrat middle layer is very, “Hey, let’s just stay the course,” which I think might be the mood.

Kathryn Rubino: Yeah, and I think that some of the evidence that he used to support the proposition that big law leans left, is that political donations at big law firms tend to lean towards democratic candidates. I mean, I think that progressives would certainly say that saying all democratic candidates are woke is false, is a false equivalency and again does damage to the meaning of that word; but that is what he uses. But I think that first of all, on a lot of cases, people are donating to multiple candidates, corporations donate to multiple people on the same election all the time. But I also think it’s a matter of personal politics that’s not necessarily what happens in the law firm.

Joe Patrice: I do think this is an interesting question though about whether or not that kind of centrist, left, center liberal position is the default state that major corporations want.

(00:15:00)

They don’t want anything certainly to the left of it, but they also don’t necessarily appreciate things to the right of it for no other reason than alienating —

Kathryn Rubino: Predictability.

Joe Patrice: — alienating potential customers, you know, like it is a much better place to be to kind of be generally fiscally conservative and socially liberal from the business’s perspective perhaps.

Kathryn Rubino: And I think that in the ‘90s, the Democratic Party took a turn towards corporate interests that is what is being reflected in those numbers. Mainstream democrats are very pro-corporations more than almost anything else. So, that just seems to make a lot of sense for people who make their money via corporations to lean towards the party that has branded themselves as very pro-corporation.

Joe Patrice: Yeah, interesting.

Chris Williams: I think it really is about wanting their profits knitting into like nothing prevents Nike from having a back to blue commercial in five years if that’s how the money sways.

Joe Patrice: Exactly. And I think that’s kind of the issue that it is how the money is going. And that to the extent, his article focuses on these donations like Kathryn’s saying, I think that’s right that that might just be that that is where the money is at least as companies see it.

Kathryn Rubino: As we currently define stuff. Yeah. I think that’s true.

Joe Patrice: Well, the sound effects aren’t working.

Kathryn Rubino: We can pretend.

Joe Patrice: We could pretend.

Kathryn Rubino: Have you heard about the whole thing about how like kids nowadays don’t use their hand to simulate a telephone the same way that like Gen X used to? You know how like for Gen X, usually like use of your pointer finger and your pinky to be like that’s the telephone? Now, they just hold it because it’s like a phone as a brick in their minds.

Joe Patrice: That’s actually fascinating and it makes sense.

Kathryn Rubino: Yeah. Well you know, if you’ve stopped thinking about telephones in general, it might be because you need a service for someone to take care of the —

Joe Patrice: Like a virtual receptionist —

Kathryn Rubino: That’s what I was going with.

Joe Patrice: Alright, so let’s hear from our friends from Posh.

[Music]

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[Music]

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Joe Patrice: Alright. Well, let’s talk now about something interesting that there were a few stories about over the last week I guess. So, Chris, you had a story about a judge who was punishing a woman, not really punishing but ordered a woman to take back some of the things she’d said publicly.

Chris Williams: Yeah, and this might be the tension that maybe we just want to talk about the story. So, the fact pattern was there’s a woman in North Carolina, she gotten some traffic trouble. The person she was driving with died and she presented herself as being a victim. She had a GoFundMe, she had statements made on Facebook, other social medias; trying to raise money. It turns out that wasn’t the case. Judge Lou Trosch — I’m not sure if I’m pronouncing that right, but he ordered her to apologize. And the weird thing about it was that he ordered her to apologize on social media, on Facebook, to apologize to people on GoFundMe. And he also ordered her to apologize and retell her story in traffic court. And for me, this sounds like just textbook compelled speech. It feels inquisitional. I mean we get it, the power of the state is that they have the purview to control bodies, right? I mean, it’s part of the reasons why the state is the only one that can enact legitimate violence, right? But they cannot police our thoughts or the expressions of our wills. I mean, that’s what the first amendment is about, compelled speech is unconstitutional.

Kathryn Rubino: She agreed to the terms of these conditions, right? So, is it compelled as much as something she agreed to?

Joe Patrice: Yeah, she’s being held to the plea agreement is kind of what I think —

Kathryn Rubino: That was one of the terms because she lied on social media in order to get money, was the allegations, right?

Chris Williams: Well, my think is like —

Kathryn Rubino: Doesn’t that reveal whether or not she’s truly earnest about her plea agreement whether or not she’s willing to now tell the truth about what happened?

(00:20:08)

Chris Williams: I think that the significance of like plea deals, one is like the one factor of our judicial system is that it is focused on getting plea bargain some people. Like that’s not a questions of like truth or anything. It’s about expediency in court, and court —

Kathryn Rubino: That’s certainly one of the factors, but I don’t think it’s the only one.

Chris Williams: I think it’s a major one and an example forwarding that, there are many people who for whatever reasons whether they did the crime or not have signed plea bargain saying that they are guilty of manslaughter or what have you, they get a relief sentence. The court gets the expediency of not having to go to trial and they are still able to say things like I did not commit murder or I did not do whatever amount of things that they agreed to —

Kathryn Rubino: Sure. They don’t have to go through the time or expense of a Trial.

Joe Patrice: Alright, so I mean I think that’s a good point, but breaking that down —

Chris Williams: What I’m saying is agreeing to a plea bargain doesn’t mean that your truth claims henceforth are able to be further ruled on.

Joe Patrice: One, I think it absolutely is and I think actually the terms of the plea agreement are that you are swearing that this actually happened. I mean it is lying under oath if your allocution where you say I did this and I feel bad about it, and then you turn around and say that’s not true, you lied under oath. That is important.

Chris Williams: But like there’s been a saying like — So, my response to it is okay, if the statements she said were fraudulent, order her to take down the GoFundMe or order her to reimburse the people that she frauded, but it is a different thing to make her say, “I am sorry,” because what if she’s actually not? Or like what (00:21:50) give some sob(ph) story 1 to 15 times in traffic court?

Joe Patrice: But that’s the thing. To get the plea, she did have to say under oath that she was sorry. If she lied about that then she does not get to have the benefit of the plea. This is the same to transition a little bit. This is the same thing actually that happened this week in court in DC, because one of the January 6 folks, Thomas Adams Jr. had taken a plea deal saying he did this and was sorry about it under oath like all plea deals function. And he’s been going around saying, “I didn’t do anything wrong, I would do it all again,” and the judge issued a show-cause order that on Friday like, “You give me any reason why I don’t take away your plea deal and put you in prison right now,” which is actually the right response to that I think.

Kathryn Rubino: You can’t lie to the court.

Chris Williams: Okay. And this might not be a legal argument. I think it is a human one like there are — I think that we can both agree that there are times where people can feel sorry for one thing and not feel sorry for it at another time, like there are time where I’ve been remorsal on Tuesday and not remorsal on a Wednesday. It could be the case (00:23:00) that she was sorry.

Kathryn Rubino: Sure, but when the January 6 defendants are trying to get publicity and trying to very much enrich themselves by going on these right wing media sources, trying to get publicity over it saying, “Oh, I would do it all again,” I think that the judge not only can but affirmatively should issue these show-cause orders to find out what’s really going on here.

Chris Williams: I think that this is especially insurrection. As a charged example, I’m just saying down to earth theoretically like down to earth practically, for you to say a person is necessarily lying for them to now say X. I don’t think that’s the case.

Kathryn Rubino: Well, they have to answer the show-cause order.

Joe Patrice: Right. They can answer the show-cause order, maybe they’ll have something. And I think that it —

Chris Williams: How would they show cause of not necessarily being sorry on a later date? Would there be a lie detector?

Joe Patrice: No. This is —

Chris Williams: How would you prove?

Joe Patrice: Very, very easily actually. This is a Central Park 5 sort of situation where because they were bullied and harassed by law enforcement and prosecutors, signed on to a plea agreement for the crime they did not commit, ultimately exonerated by raising that I agreed to this under duress and it was wrong. And you could say that that’s what happened, and I shouldn’t have agreed. And this literally gets to that expediency point, which I think is a good one. But I want to make a distinction here, which is from the prosecutor’s perspective, they’re looking for expediency. The judge is in a different position.

The judge’s job is to make sure that the person agreeing to it actually is telling the truth and not under duress and has agreed to it willingly, and is saying the truth when they say that they did it and they’re sorry. And that’s why, and it doesn’t happen nearly often enough, but that’s why you have these instances where folks show up and say, “Here’s my guilty plea,” and judges go, “I’m rejecting that. I don’t think that really happened here.” It doesn’t happen enough, but that is what the judge’s role on this is, which is distinct from the prosecutors who like you said are very much trying to be efficient.

(00:25:07)

Chris Williams: I also think that is important to be like even if it is the case that there are fears of justice where it is effective to be interested in the mental states of the accused and like evaluating the truth, the veracity of the things that they say, maybe in the instance and maybe in the interest of expediency where there’s a benefit to them to lie, I think it’s also important to think about if this is actually a constitutional issue, we should start with the constitution and not with the matter of the events that happened, because it could be the case that ultimately what happened was unconstitutional.

Joe Patrice: Sure. Right and you can have those challenges too. And I think that that’s a good example where you don’t take as given necessarily what they have sworn to, because maybe it was under duress and whatever and that challenge can happen. But if a person has agreed to a guilty plea who is not prepared to challenge that they did it under duress but is just like, “Yep. I lied under oath to get the benefit of this deal,” then that deal can be revoked. It would strike me.

Chris Williams: So, what is the constitutional basis for a person needing to apologize publicly?

Joe Patrice: Yeah. To take a guilty plea like one of the standards of that is you then have to actually go then you give it what’s called an allocution where you actually stand up and under oath tell the judge, “I am not doing this for any gain,” like “I’m not under duress. I’m really serious. I absolutely committed the following acts that were illegal and these things are bad.” And the judge then can evaluate whether or not they think you’re actually telling the truth about that and if you aren’t, they can say no. There was a very high-profile situation of this several years ago where it was a corporate thing. And I can’t remember which big bank or whatever was saying, “Yep. We did this. So, therefore we deserve the slap on the wrist the prosecutors are giving us,” and the judge was like, “Nope. We don’t think you’re telling the truth about being sorry about this.” And that is obviously not something that happens enough in our system but probably it does speak to what the judge’s role is supposed to be in this equation.

But I thought this was an interesting story, because you had written that and then like the day after we had the story about the January 6th situation. And I thought it was worthy of a discussion, because there are a lot of these like at what point, how do we deal with the fact that these sorts of agreements exist. And it is a problem that there’s overcharging and so on.

Chris Williams: Again to return to the constitutionality point of it, there’s a case, Barnett and the standard that they found. And they had to be like the compelling speech, what have you or whatever, had to be something that was necessary to prevent a grave and imminent danger.

Joe Patrice: Right, but it’s not compelled speech, because it’s an agreement. It’s basically like a contractual thing. If you contract to agree to do something, you can’t then turn around and breach that. It’s functionally a contract.

Chris Williams: I mean, if that’s the route you want to take like, isn’t it vague to say that there’s a requirement that she has to apologize at traffic court without specifying the number of apologies or like length of the —

Joe Patrice: Not really, no.

Chris Williams: Because it’s just like an oopsy quick sorry, because I feel like under that then the judge would be like, “Oh, you’re not sorry enough. You’re proving you’re sorry enough.”

Joe Patrice: Yes, correct. That is the judge’s job. The judge’s job is to say that.

Chris Williams: But if it’s like a contractual thing, then how would one know that there’s been performance? (00:28:56)

Joe Patrice: That’s the judge’s role, right? That’s the unique role that the judge is in, is to evaluate that.

Kathryn Rubino: Right, based on what happened, her words, et cetera.

Joe Patrice: Right. And then if ultimately she doesn’t want to do all that, we can go through the full trial and give her the full benefit of whatever the sentence would be in full.

Chris Williams: So, in your mind, it makes sense that there could have been like say somebody stole a loaf of bread at 1800 and a judge told the person has stolen the bread —

Joe Patrice: They didn’t compel anything.

Kathryn Rubino: Right. They accepted a plea agreement.

Joe Patrice: Right. They voluntarily agreed to an agreement. Now again, this is a Central Park 5 thing, which is a serious issue, you can challenge whether or not it was justified that whether you were under duress yati-yata for that. But yeah, if you have voluntarily signed on to the agreement and want to get the benefit from it, then yes. Now, if you want to say, “I don’t want to get the benefit of it anymore. I am not really sorry,” then you go through the full criminal process.

(00:30:01)

And that’s just really the whole situation. Alright, we still have another story to get to real quick. Your clients are expecting you to know a lot of things about a lot of things even topics like domain names.

Kathryn Rubino: Domains were definitely not covered in my law school classes.

Joe Patrice: Worse yet, your client might want a domain name to protect their brand or support a product launch that’s already taken.

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Female Speaker: As you know, it’s important to keep your voice down when you’re inside a library but it would be really annoying to talk like this all the time, So I’m happy to say that even though the ABA Journal’s Modern Law Library Podcast discusses a new book with its author every episode, it doesn’t take place inside a library so we don’t whisper on the show. What a silly idea that would be. The Modern Law Library Podcast, part of the Legal Talk Network. Follow along wherever you get your podcasts.

Joe Patrice: Alright, so real quick to conclude with a thing that happened, domestic abusers can now buy guns, which is you know —

Kathryn Rubino: The damn Fifth Circuit, Joe. What is going on in the Fifth Circuit?

Joe Patrice: So, the Fifth Circuit issued a ruling where they determined that after Bruin, which was the Supreme Court case in which Justice Thomas said that if it was a gun restriction that nobody would have put on the books in the late 1700s then therefore it can’t be a restriction on gun ownership today, and in the Fifth Circuit they ruled that a law that punishes people for having restraining orders against them for domestic abuse, a rule that said therefore they can’t have guns, wouldn’t be valid, because in the late 1700s there’s no evidence that people really cared about domestic abuse. You think that’s hyperbole, no. That is actually the opinion. And so, given that, the Fifth Circuit struck (00:32:07).

Kathryn Rubino: They also didn’t think women should vote. Those things might be related.

Joe Patrice: — if these problems continue to be issues. Anyway, what was kind of interesting about it though is Judge Ho, famous recently for trying to boycott Yale Law clerks.

Kathryn Rubino: Man is a thirsty, thirsty judge.

Joe Patrice: So, he also cares a lot about cancel culture I guess or more posturing, so that he can be beloved by the people who might give him a promotion someday. With that said, he wrote a concurrence where he talked about the historical precedent involved here and how clearly wrong this was. He did cite a few cases from before the 2000s.

Kathryn Rubino: And what happens when you look at those cases, Joe?

Joe Patrice: It’s interesting. See, because here’s the problem with the whole historical interpretation of the Second Amendment, meaning you get to have guns and have an individual right to them. That’s not what the constitution or the law has ever said until 2000s when the Supreme Court started going down that road. And so, if you start trying to cite cases from before the 2000s, you’re going to have a bad time. And Judge Ho did, he found some cases from the ‘50s and ‘60s, and decided to cite those as proof that the Second Amendment covers always his respected gun rights. I don’t think he read these cases before he put them up.

Kathryn Rubino: Or more perhaps accurately banked on very few people doing that reading.

Joe Patrice: I guess, I mean, it was really from my perspective, it was really rough because it was just like so shoddy like people get fired for this at law firms, you know, where you cite the case without reading.

Kathryn Rubino: This is a fireable offense.

Joe Patrice: Yeah.

Kathryn Rubino: Unfortunately, he has a lifetime of abatement.

Joe Patrice: So, the biggest one was he put in this Konigsberg case, and he cited to one of the footnotes saying that the Second Amendment is an unqualified right. That footnote is interesting. The case is actually about the First Amendment. And one side had argued the first amendment is unqualified and the justice in writing the opinion says, “No, it is not.” He says it may textually look unqualified but you know, there’s tons the qualifications to it. There’s defamation law, there’s you know, yati-yata. And he goes through that and then he says, “Likewise the Second Amendment reads like it’s unqualified, but nobody’s stupid enough to think it’s unqualified either,” is functionally what this footnote say. And this is the footnote that Ho decides to put in there.

Kathryn Rubino: Bless.

Joe Patrice: It’s not like Westlaw and Lexus and case that — it’s not like these things don’t exist. You can look them up.

Kathryn Rubino: Very easy to read. All of the cases that you cite, one might argue you should. You even have a professional responsibility to read the decisions you cite. It’s also insane that in a defense that like, “Oh, the Second Amendment has always said this,” all he could come up with was a First Amendment case having a footnote that casts shade on the whole leg.

Kathryn Rubino: (00:35:06) reads the opposite.

(00:35:08)

Joe Patrice: Yeah. Man. It was Judge Ho, man.

Kathryn Rubino: Joe, how else are you going to catch the attention of the political powers that be that you are willing and able to cast your vote for whatever the current Republican agenda is regardless of the case law if you’re not willing to put out a concurrence like Judge Ho just did?

Joe Patrice: Yeah, it does speak to another story here just real quick before we go, another story you had, Chris, about it seems as though the existence of people like Judge Ho might be impacting whether or not judges on the other side are taking senior status.

Chris Williams: Yeah, there was a good old neutral branch that is the court. Turns out looking at the data, they’re not neutral. They’re a bunch of Judges that were going to — What was the name of it? It’s like a semi-retirement state.

Joe Patrice: It seemed they’re taking senior status largely to avoid the RBG situation.

Kathryn Rubino: Which you know, good for learning.

Joe Patrice: Yeah. It’s time.

Chris Williams: And the best students, Republicans. And it’s one of those things where it’s like nothing makes leftists matter than looking at the left. It’s like I get really, really pissed off by people that copy that Michelle Obama, “When they go low, we go high.” I’m like, “Fuck that.” If they go low, we go to hell. The Republican judges have been doing this very well since like Bush Jr., right? (00:36:37).

Joe Patrice: Yeah. Anyway, the point is they’re retiring.

Chris Williams: They’re retiring and it’s happening on both sides, but we need to be better at it.

Joe Patrice: Yeah, right, folks are starting to figure that out and because of people like Ho. Anyway, with all that said, we are done, so you should all be subscribed in the show, get new episodes when they come out. Leave reviews, stars, write something. It’s all great. You should be reading Above the Law every week. Check out the other shows, the Jabo, the Legaltech Week Journal’s Roundtable, all the other things in Legaltalk Network. Follow us at various social media things @atlblog, @josepatrice, @kathryn1 @rightsforrent. And I think all of that is the end. We will be back.

Kathryn Rubino: Peace.

Joe Patrice: Bye.

[Music]

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