Intro: Hello. Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by my colleague Chris Williams, and we’re going to be going through some of the big stories of the legal week what was as usual, but first we always begin by not jumping into anything too quickly. We by having a little bit of our small talk with all the necessary fanfare. How are you doing over there?
Chris Williams: Doing pretty good. Pretty good.
Joe Patrice: Good.
Chris Williams: Enjoying the weather.
Joe Patrice: Oh, yeah. How warm is it there?
Chris Williams: Honestly, I feel like it’s like 80 or so, 80-90.
Joe Patrice: Okay. Yeah, it’s warmer than it is here.
Chris Williams: With the sun down.
Joe Patrice: Oh, yeah. Well.
Chris Williams: Yeah.
Joe Patrice: That’s what it’s like to be closer to the tropics or in the tropics even, are you? I’m not good with my geography off the top of my head.
Chris Williams: Yeah. I default law rather than geography as well.
Joe Patrice: Yeah. Fair, fair, fair. So, yeah. So, there’s not much happening small talk wise from my perspective. I guess I will flag this. This is not one of the stories we’re talking about this week, but it’s worth just flagging to let people know that we did see it. That Alan and Overy, who has tried and failed to merge with an American firm before not failed. I don’t mean to make it sound like a failure, but they’ve tried and it’s not worked out in the past. Shearman and Sterling, who has been trying and failing to merge with an international firm for a while, well, it works out. They’re going to get together. These crazy kids are going to make a go of it. So, A and O Shearman, we wish them all the best in their few future endeavors. I don’t know where they’re registered, but send them a little wedding gift.
But that’s about all that I have on the breaking news front, this just kind of happened as we were getting set to record, so we don’t really have any deep thoughts about it, I but wanted to make sure since you’re going to hear this a little later, that it doesn’t sound like we completely missed a major merger or anything like that. Well, with that said, unless there’s anything else we want to talk about that is small, we can start big talk.
Chris Williams: Yeah, I feel like medium to larger talk will be appropriate.
Joe Patrice: All right. So we’re going to transition to medium talk. Okay, so.
Chris Williams: So, World War III? No, no?
Joe Patrice: Yeah, yeah, yeah. Well, I mean, so far. Well, who knows by the time they listen to this. But for now we’re going to talk a little bit of — this is a story that I wrote last week that generated a lot of conversation that made me think it might be worth the deeper dive. So, Kamala Harris is once again. Now, some of these comments aren’t even comments she recently made, but they are being floated around on the social medias and the mainstream medias, which usually is a sign that someone in a politician’s office is floating a test balloon about various kinds of rhetoric to see how it might play with the public and there was a little burst of folks who were passing it around virally about how Harris started saying some stuff about public defenders and the criminal justice system, and it was getting a lot of good play. If she talked tough on crime like this, we would have voted for her in the primaries last time. A lot of that sort of rhetoric going around.
And it struck me from working at a legal blog as really problematic, that she is once again kind of leaning into and circulating this sort of rhetoric and allowing this conversation to be how she is defined. The way in which this went down was she put out this discussion that as a prosecutor, she would go after all of these people in predominantly black neighborhoods, and she said public defenders, she specifically decides to bash public defenders would put black people on the jury because they thought those jurors would be sympathetic but I knew better because I knew that black jurors don’t want crime in their neighborhood, and the public defender would always be shocked that they would end up losing, which I assume — well, I guess, first of all, let’s take that apart.
So, Chris, we talked about this a little bit. So what’s your take here? At least there’s a lot to break down.
Chris Williams: Well, before we even get to this, I’ve just always been suspicious of Kamala’s prosecutorial decisions once it got out there, like she was smoking weed herself and still putting people behind bars for it. I’ve just been just in generally suspicious of her choices. Then again, that’s what you get when you have a top cop as the vice president
Joe Patrice: There’s a lot here. I would say the one that I feel the most troubled by is — I think that I feel as though and of course prosecutors, often you get deeply involved in that job, you take on that mentality but I feel like she knows better, and I feel like she’s being deliberately obtuse here. She knows that that’s not why public defenders prefer having black jurors in cases with black defendants, because it’s not as though a criminal trial involves the defense attorney turning to the jury and saying, I mean, my client yeah —
Chris Williams: Come on, come on.
Joe Patrice: I mean, my client did it but you don’t care about that, right? That’s absurd. No one does that. That’s not at all what a criminal trial is about. And she knows that. What is a criminal trial about? Criminal trial is about that public defender is going to say, yeah, this is a very serious crime and my guy didn’t do it. My guy was picked up by cops who didn’t care enough to investigate and find out who really did it. He’s been railroaded through the system. He’s been prosecuted by an overzealous prosecutor who doesn’t have any interest in getting to the bottom, to this, just with closing her stats as quickly as possible. That’s what a defense is. And the argument is that more so than white suburban jurors, it’s marginally more possible that a black juror will understand that that could happen.
Chris Williams: Well, my thing with Kamala, and for me, the ones really stuck out back when there was the presidential debates going on, she’s really good with optics. I remember there was a point where somebody asked basically what would happen if Donald Trump doesn’t respect the results of the election and I think her response was like a deadpan. Well, we’ll see what happens, rather than being like, that’s treason or something like the rule of law will kick in. I think that she understands that there are social consequences that can be leveraged. And I think this is one of those things where, at least in the public imaginary, I feel like there’s an assumption that black people are always biased. They can’t see race neutrally in a way that, let’s assume that white folks can choose to not see race. And I don’t know, maybe this made more sense with whatever audience she was trying to appeal to as far as her get up and do it in this or, like, ability to win hard cases. It felt like I don’t even have to lean on the black jurors to get the job done.
Joe Patrice: Yeah, let’s focus on that, because that was one thing, I got a lot of pushback from on social media about this, and some folks were saying it is a long held racial stereotype that black people don’t care about crime, which is theoretically what Harris is trying to say she doesn’t agree with but my take was I think she’s almost saying the opposite. It’s that very subtle, like, oh, you know, everybody is crazy except you people, where she’s trying to make the statement by implying that she’s talking to the exception, not the rule. And given that we actually have statistical data showing that African-American jurors tend to acquit slightly more, but statistically significantly more than white jurors, largely because they ask questions about the defense and how it’s being structured, and do see the possibility that somebody might be railroaded by a system given that that actually happens when she says, “Oh, I know that’s not how things work. It’s a rhetorical device that actually reinforces that trope by claiming the opposite of it is her own experience, was mine —
Chris Williams: Yeah. It’s one of those things where it’s like sometimes you look at a thing and your gut reaction is you know the person is saying this be smart enough to where they know this is an anchor in truth. What are the benefits of them saying this thing as the thing that’s being deployed? And I’m like, yeah. Well, I don’t know if she’s trying to reach out to voters that wouldn’t necessarily — I think she’s trying to reach into the tough-on-crime crowd and, you know, trying to middle road it. I don’t even think this is anything about what’s happening in front of us.
Joe Patrice: What gets me about that is the tough-on-crime crowd like there are ways to sell yourself as a prosecutor right now like you could sell yourself by — I busted child molesters, I busted big companies who were poisoning people, I took guns off the street. These are ways in which a prosecutor could really juice their role vis-a-vis, the electorate and she seems historically to have been uninterested in those angles of the job of a prosecutor and more interested in the ones that don’t necessarily resonate with the voters that she has any chance of getting.
Chris Williams: Hey man, I’m not saying it’s a good move. I’m just saying it looks like a move to me.
Joe Patrice: Yeah. Oh no, I know. I agree. I agree. But anyway, this was an interesting legal question I thought because the ways in which we talk about the criminal justice system kind of matter especially when it’s being framed at the highest levels, and putting aside whether or not her story’s true or not, the way in which we have a major government official talking about public defenders as though they are stupid, as though they have these implicit racist assumptions about folks that you shouldn’t trust as a juror what the defense attorney is trying to say. Those struck me as real tangible ways in which the justice system is. Adding a little eroded just by the way in which the rhetoric that we choose and that I thought more so than anything else about it bugged me as a legal matter because, at a time when the rule of law is a little precarious all over the place, it’s not really helpful to be saying public defenders are crazy people out there who don’t know any better and you should ignore them, you know?
Chris Williams: Yeah, and what do you know, you’re not a vice president.
Joe Patrice: No, yeah but I mean maybe when he gets to that point.
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Joe Patrice: So, the next thing we want to talk about this is actually a couple of stories maybe we need to have a sound effect for this. I don’t even know what it would be, but this is kind of our Ron DeSantis watch because a couple of things came up. Now, we’ve talked about him in the context of his Disney travails before. A new one cropped up it turns out that so this is basic civ pro for anybody out there who’s trying to think but scratching their head back the first year of law school. This was a basic civil procedure question during the whole deal with the Disney Board where DeSantis passed the rule to change all the Board members, the old Board signed valid agreements turning all that power back over to Disney. They’re now trying to reverse the new Board filed a lawsuit in State Court trying to reverse that.
Meanwhile, the DeSantis Administration and the Republican supermajority legislature decided to pass a law mooting those contracts which meant that in the State Court where they want to be because they do not want to be removed from the federal court case that they have, Disney’s lawyers just walked in and said, “But given that law exists, you don’t have any standing anymore, like this case is moot.
It’s already gone. There’s no contract for you to claim his being injured.” It’s just wild like all they had to do, all they had to do Chris was just do nothing. They could have done nothing and the Board could have sued and they could have been in State Court like they wanted.
Chris Williams: You see, this is why people need to watch Avatar, The Last Airbender.
Joe Patrice: Okay.
Chris Williams: You know –
Joe Patrice: Interesting direction.
Chris Williams: It has real-world consequences. You’ve seen the show?
Joe Patrice: I am aware of it. I have not seen it.
Chris Williams: Oh, you’re missing out. You’re missing out.
Joe Patrice: So, explain to me because I’m interested in this, “How does that help you on civ pro?”
Chris Williams: I am happy.
Joe Patrice: Okay.
Chris Williams: So, anybody who has watched the show is more cultured than Joe, listen.
Joe Patrice: Fair, fair.
Chris Williams: I’m going to make my case. There’s a scene where King Bumi is locked up in a steel cage and he knows that come nightfall his enemies are going to be very strong and the day after they become normal strength. So, his allies are like, “What do we do? What do we do?” He’s like, “Just wait, just wait until the seizures are done and then after that” — let me clarify, there’s a night where they’re very strong, and then in the day they lose their power. He’s like, —
Joe Patrice: Okay.
Chris Williams: “Just wait until the seizures, in the daytime, Glenn, you literally just have to do nothing just wait.” It’s called negative jing. Strategy, you figure out that sometimes the best movement is no movement, you know? We’re like, “What are wargames?” Sometimes, I guess a game is to not play like that sort of thing.
Joe Patrice: Wow, okay. There’s an old reference.
Chris Williams: I know, I know my audience.
Joe Patrice: All right. Nice, nice, nice. So, some old-school 80s movie references. All right. So, but yes, no, that is exactly what I was thinking when I read this was that all they needed to do is not pass a law, and the Board could have challenged this. Now put aside whether or not the Board had any hope of winning it. They could have been there and the mere fact that they passed the bill means that the State Courts are now largely closed off to them, which is a problem if you like DeSantis, his lawyers have already argued believe that the Federal Court is biased against you. So, if your concern is the Federal Court is a problem, you’re the problem. It’s you. Do make some tailor references.
Chris Williams: Ooh.
Joe Patrice: Yeah. Now, I mean look, we’re pulling out all the stops on pop culture.
Chris Williams: I respect it. I don’t like it, I respect it.
Joe Patrice: Fair enough. So, what else has Ron been up to this week? He’s been having other fights with the Constitution.
Chris Williams: Yeah, specifically, the Fourteenth Amendment. So, —
Joe Patrice: It’s a good one. It’s one of my favorites.
Chris Williams: Yeah, it’s a little messy.
Joe Patrice: Yeah.
Chris Williams: It’s a little messy, but apparently, it’s not good enough for DeSantis. So, there was a bill that came to his desk and there was a law basically allows children to be seized from trans-parents. Again, that’s not invisible people just parents that are trans, you know?
Joe Patrice: Right, right, right. I know. I got it, got it.
Chris Williams: Yeah, yeah.
Joe Patrice: That’s a good one. Yeah.
Chris Williams: Just to be clear, you know. But yeah. So, like it says, like if the children are subject to or are threatened with being –
Joe Patrice: Well, hold on. Hold on, hold on. You said just to be clear so, you’re fine. You are not opaque in any way.
Chris Williams: That was a triple down. Uh-huh.
Joe Patrice: Yeah, I know, yeah. All right, go.
Chris Williams: Okay, yeah. Anyway, back to abduction. So, there’s a law saying if the children are subjected to or are threatened with being subjected to whatever the hell that means, gender-affirming care let’s say, puberty blockers or hormone replacement therapy, they can be seized. But like, how do you know if a person is threatened with being subjected to that? Like do you look there TikTok formulas and determine like what they’re being, anyway. It’s one of those things where the biggest thing here is not the vagueness, but the fact that it’s just violating due process.
Joe Patrice: Well, both probably.
Chris Williams: I mean it will also be a problem. The due process will also –
Joe Patrice: Equal protection definitely.
Chris Williams: Equal protect, there we go, there we go. Sometimes my mind blanks. There was a similar case and the court decided that no person should be denied access to medical care just because of their transgender status and this law spits on the face of that.
Joe Patrice: Well, so obviously you have an equal protection issue because you’re treating folks differently based stuff. Now whatever form of scrutiny these courts decide to give it probably not strict but whatever. So, you’ve got but I mean I think you raised the due process point and I think that one is also there because basically anytime you deal with child protective services style seizures it strikes me as though that it’s real precarious where it sits on the due process bounds, right? Like, we have a presumption that people get to parent their kids, so it requires a lot.
Chris Williams: Speaking of precarity, it’s Florida. It’s a fucking stand your ground state. You think somebody’s not going to get shot trying to take somebody’s kid?
Joe Patrice: Oh, my God. Yeah. Don’t worry, stand your ground is kind of arbitrarily applied. It really isn’t going to apply when the government’s trying to take somebody. But yeah. No, but it’s true. Because it doesn’t matter whether or not it really applies, right? It matters if people think it does.
Chris Williams: If they think it does?
Joe Patrice: Yeah, because if I think I have the right to shoot somebody, it doesn’t matter if I end up…
Chris Williams: If you know somebody’s coming in to seize your kid.
Joe Patrice: Yeah. It doesn’t matter if I’m going to lose on the back end. I’m going to feel emboldened to take the action on the front end. Yeah.
Chris Williams: I’ll tell you what, I haven’t experienced this first hand but I get the feeling that trans bullets feel the same as these ones.
Joe Patrice: Yeah. I was trying to see if there was another way to make an opaque, transparent joke there, but not.
Chris Williams: Were you having gender trouble?
Joe Patrice: No, it was more trying to quadruple down on that distinction.
Chris Williams: No, that was a Judith Butler reference.
Joe Patrice: Oh, yes.
Chris Williams: Yes, yes.
Joe Patrice: Well done. My brain is definitely not switched on to the recognizing Judith Butler references while I’m doing this show. So, you got me. All right. Yeah. So, it’s another trip to federal court inevitably for this administration. Don’t worry, the taxpayers of the state will be picking up the tab again.
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Joe Patrice: Okay, so the Supreme Court is a place.
Chris Williams: Never heard of it.
Joe Patrice: Yeah. It’s a place where we usually talk about how collegial things. Or historically, we talk about how collegial it is. Lately, we have not been talking about how collegial it is, but at least we’ve been talking about the collegiality divide being along somewhat political lines. That’s not the case this week. Yeah, no, we had a completely nonpartisan question about intellectual property, and it was a 72decision, and Kagan wrote for the dissent and got a little salty towards Justice Sotomayor.
Chris Williams: It was well seasoned.
Joe Patrice: Yeah. I’ll just read a bit of this footnote. Now, it’s fair to say that Justice Sotomayor did pointedly refer to things in the dissent as part of the majority opinion and would say the dissent makes this argument, but doesn’t really explain why this would be true, which is why we in the majority decide XYZ.
So, there’s a bit of a call out happening, but it’s a call out happening to address issues in the dissent. It’s not really personal. At least it didn’t seem to me. That brings us to Justice Kagan who opens her opinion with a footnote because you know things are off the rails when it’s in a footnote, right? The footnote is a powerful way to earmark that you’re going to write a dis track.
So, it begins. One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinion seldom are. Maybe that makes the majority opinion self-refuting. After all, a dissent with no theory and no reason is not usually thought to merit pages of commentary and fistfuls of comeback footnotes. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations. Instead, I’ll mainly rest on my original submission.
I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majorities, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on the reader’s good judgment.
Chris Williams: For those not as fluent in Latin, ipse dixit?
Joe Patrice: Is like an unproven statement.
Chris Williams: Got you, got you.
Joe Patrice: Yeah.
Chris Williams: Which is completely different from Dixie Cups.
Joe Patrice: It sort of. But yeah. I’m wondering, is it? I don’t know, as though they’re really cups. Anyway, point is, now I shouldn’t do that. They could be a sponsor someday. Anyway — but yeah, no. This is mean and snippy for people who have to work together tomorrow.
Chris Williams: I think it’s an olive branch. I don’t know, like one else, two or three years from not have to read through cases. The professor, “hey, look at this, look.”
Joe Patrice: Okay, so you’re taking the stance that they’re just trying to keep it interesting. It’s like a wrestling script. You got to have a little bit of drama in here.
Chris Williams: Yeah, they’re legitimacy is on the rocks anyway. I mean, they got to do something to keep people interested.
Joe Patrice: Yeah. Well, let’s talk really quick about the substance of this case, because I thought the substance of the case was interesting, too.
Chris Williams: I didn’t really like that. There was one point where I think the tension was just because they were like, you’re not getting the artistic merit of Andy Warhol and they’re like, just because it’s a famous person doesn’t mean that they get to do that. And I’m reading it, and I’m like, I don’t know. I kind of get it. Did you see the picture?
Joe Patrice: Yeah, yeah.
Chris Williams: Because when I saw the picture, it wasn’t just this is a picture of French. I mean, this is a picture of Prince. My thought was this is an Andy Warhol of Prince.
Joe Patrice: Yeah.
Chris Williams: I do think that there is some wiggle room where a person’s stature or popularity or the uniqueness of their art that they do in the field changes the nature of the thing.
Joe Patrice: Yeah.
Chris Williams: So, there are Basquiat. There would be a Basquiat. There could be a Basquiat, Andy Warhol. Their name is more than just the person that did it. It refers to their stature and art and things that can lead to —
Joe Patrice: At trial, yeah.
Chris Williams: — the aesthetic understanding of it.
Joe Patrice: Yeah. So take a step back, there was a photograph taken by a photographer of Prince years ago. It was licensed to a magazine for a one time use and the magazine said, we are going to bring in an artist to take your photo and make it into kind of an illustration. They brought in Andy Warhol and Andy Warhol made it purple, which makes sense.
Chris Williams: As one should.
Joe Patrice: Yeah, and they used it and that was fine. Years later, Princess died and other publications looking to put this picture back up and reaches out to the Andy Warhol Foundation and Andy Warhol’s Foundation is like, you know, “he actually did a bunch of these. He ended up making them all different colors,” and they ended up using the orange one. The original photographer is like, “what the hell, man?” I took this picture. I licensed it to be turned into an art piece once. But you don’t get to profit off my picture anymore. The fair use argument is, hey, this is transformative, this is now a Warhol which Warhol’s whole thing is this kind of pop art work where that makes sense. Like you said, you look at it and you can say, “oh, well, Warhol must have done this,” right?
Chris Williams: Yeah.
Joe Patrice: But the problem is, at a certain point, how much does that become? He’s one of the most famous people in the world, so he throws a prototype of an Instagram filter on somebody else’s photo and sells it as his? Is that really fair and transformative? I don’t necessarily think the majority opinion is the best way of describing where the line is in fair use, but I kind of sympathize with Sotomayor that the dissent basically has no line. The dissent’s version of things more or less boils down to, look, if somebody who says they’re an artist ever touches it, then it becomes their work and that seems, like that would be a real slippery slope real fast. It was an interesting case.
Chris Williams: Yeah. I do think that there are a couple of people that consider themselves artists that should be working for Dixie Cup.
I don’t know if they should be the ones that get the right to be able to copy and reproduce however their heart sees fit. But there’s a thing that happens in art, man. There’s one of my favorite paintings. I feel like it’s a transformative work. I think it’s by Francis Bacon. It’s like study after Velasquez. I think it’s I think it’s a rendition of this portrait of Pope Innocent and the way he did it, it had this ghastly ephemeral. You ever see in the Harry Potter movies and like, a dementor is sucking the soul out of somebody?
Joe Patrice: Yeah.
Chris Williams: Have that kind of like that shadowy wispiness to it and this is a beautiful thing. We look at it, it’s like, I know what this is from, but this is different. Or like, there are some musical samples where I’m like, I know that this is from, “I’m in Heaven.”
Joe Patrice: Okay.
Chris Williams: Tom Tom Club, you know what it is?
Joe Patrice: Yeah, yeah. Let’s not have you sing if possible.
Chris Williams: Well, I’m not the artist doing the transformation, but you get it. There are some musical samples. There are some musical samples where you hear them, you’re like, how did you do this? When J Dilla flipped Erykah Badu’s “Didn’t you know” made that. That was phenomenal. Like, there are just some works of artistry and it’s hard to deny them, but it’s like, “yeah. I see what you did with the source materials, but this is something different.”
Joe Patrice: Right. But especially in music, when you do that, when you take somebody’s work and transform it, you end up getting a credit usually on that piece and that’s the thing that’s not happening here which is problematic, but it’s true. I know that because I was going to make some sampling jokes in my article on this and I then realized, oh, that might not be the best because it might be a slightly different situation. Although probably a different situation because there’s a much more robust rights infrastructure than there is in art, which is mostly a money laundering scheme for people. But that’s neither here nor there. All right.
Chris Williams: Also, Tom Tom Club Genius of Love. That’s the song. I did a bad job of singing. If it made anyone else wonder, what the hell is that? You know what it is.
Joe Patrice: Perfect. All right. Hey, I think that’s everything. So we are going to chat with you later. You should be listening to this show, which you are but you should be listening to it all the time. A thing that would be easier if you subscribed to it and gave it reviews, stars, write something. It all helps. You should listen to — because I’m the guest on the LegalTech Week Journalist Roundtable, talking about some legal tech. You should listen to the other shows on the Legal Talk Network. You should be reading “Above The Law,” as always. So you read these and other stories before we chat about them. You should be following us on social media. I’m @josephpatrice. He’s @writesforrent. Then writes is the W, like he’s physically writing “Writes for Rent.” You should follow “Above The Law,” which is at ATL Blog.
I actually have moved. I’ve got a Bluesky account, but I haven’t really done much with it yet. But that’s Joe Patrice for whatever that’s worth. You should be what else? What else do I usually do here? Is that everything? Is that everybody I thank?
Chris Williams: You make your plugs and you tell them to come back next week and we send them off.
Joe Patrice: Come on back next week. All right, we’ll talk to you all later.
Chris Williams: Peace.