A Big Week For Not Knowing The Law

Episode Notes

Transcript

Joe Patrice:

We meet again. See, when you do that, when I’m not doing the usual thing, it really ruins the whole process.

Kathryn Rubino:

I don’t think you have a usual thing anymore because you try

Joe Patrice:

To make you stop doing that.

Kathryn Rubino:

But I like it. You should just accept it. How you learn to stop worrying and love the interruptions. It’s

Joe Patrice:

A terrible, terrible. Alright, fine.

Kathryn Rubino:

It’s a thing now,

Joe Patrice:

I guess.

Kathryn Rubino:

Don’t sound so put upon by my mere presence.

Joe Patrice:

Welcome to another edition. Welcome to another edition of Thinking Like. A Lawyer. I’m Joe Patrice from Above the Law.

Kathryn Rubino:

Hi, Joe Patrice.

Joe Patrice:

Hi. That’s Kathryn Rubino and

Kathryn Rubino:

Also of Above the Law,

Joe Patrice:

I Guess.

Kathryn Rubino:

No Factually accurate.

Joe Patrice:

Yeah. So and we are here to, with our weekly show where we talk about the stories from the week that was in legal.

Kathryn Rubino:

Sure.

Joe Patrice:

The usual. Yeah. But as of course we begin with a little bit of

Kathryn Rubino:

Small talk. So what’s small in your talking world?

Joe Patrice:

Not much. Obviously, we don’t know. I might get bumped, but I’m slated at least to be on CNN on Friday to talk about your job. To talk about, yeah,

Kathryn Rubino:

What I was just saying, it’s less small talkie, it’s still about your job, which we appreciate. No,

Joe Patrice:

It’s not. Anyway, so I am scheduled for that. Obviously it’s possible to be bumped, but with the various issues with the Trump trial beginning this week, it’s likely that I will be. So it’s a return trip for me. There you go. Yeah. People, Eagle Eye folks should keep an eye on the social medias for information. You could watch me look like a pale ghost on your tv.

Kathryn Rubino:

Oh, you didn’t look too pale. A little

Joe Patrice:

I looked. Looked a little vampire. Not like in the good Twilight Way. I

Kathryn Rubino:

Was like, no sparkle.

Joe Patrice:

Yeah, no sparkle. Just the pale, which I am admittedly pretty pale, but

Kathryn Rubino:

Well listen, it’s almost spring, summer e time. Perhaps you will have a natural glow up this

Joe Patrice:

Summer. Well, the issue was not that. It’s that the makeup that they put on

Kathryn Rubino:

Tries to match your natural tone.

Joe Patrice:

Sure. But it’s that it washes it out a little bit. And that would be fine if my lips weren’t bright red. I think that was my issue. It’s like you

Kathryn Rubino:

Just feasted on the blood of some unsuspecting

Joe Patrice:

Soul. Yeah, that’s what it looked like. It really did kind of look like that. So I got to figure out whatever it is to make my lips look a little more muted. Then it’ll go with the,

Kathryn Rubino:

Well actually they say as you get older, the natural pigmentation in your lips decreases over time. So actually

Joe Patrice:

Mean someday I’ll get older. But right now

Kathryn Rubino:

I’m just saying it’s actually a sign of youth, so you shouldn’t try to get rid of it. Yeah,

Joe Patrice:

No, I mean I fair,

Kathryn Rubino:

Even if it’s a little vampire esque,

Joe Patrice:

I don’t want to get rid of it forever. I would just mask it on tv. That’s all I’m talking about. Sure.

Kathryn Rubino:

There’s all sorts of product to change the color of your lip, just factually accurate.

Joe Patrice:

Well, right, and that’s all I said was that I’m not disagreeing. I’m aware of these things. That’s why I’m saying that. I’m going to try to figure, so you’re

Kathryn Rubino:

Going to put on lipstick when you appear on CNN Next.

Joe Patrice:

I am going to have the C Nnn people put on lipstick of some kind. Yes. Love. But I feel like they probably have that in their stockpile. It’s a great department. They do a lot of stuff to make you look good on tv. And so I’m sure one of the things that they have is that, and I’ll point out that my lips show up a little weird and they’ll probably fix that. They probably have exactly the tool for that.

Kathryn Rubino:

Probably. I am in the middle of reading some very entertaining books that I enjoy. I’m in the AAR series, that’s a court of Thorn and Roses, which is very, very popular on the social medias book talk. I’ve been hearing a lot about them for a very long time, and I had started the first book a while ago, but I had gotten the hard copy version rather than a Kindle or on my e-reader sorts of situation. And it turns out reading an actual physical copy of a book is just more of a challenge for me than I thought it would be. When you have books on your phone or your e-reader, I just feel like it’s always with you. So you’re always like, oh, I can read a couple of pages here or there. So it’s just kind of more of a constant thing. And it was a little slow, I think the beginning of that book, but I finished it over the weekend and already halfway through the second book, I enjoyed it so much. I can’t wait to finish this series. There’s a whole bunch of books. There’s this series and then the author, SJ Mass has two other series that are also in the interconnected world. So I’m really looking forward to getting all in the mass averse.

Joe Patrice:

Oh, that’s great. Yeah, I have, it

Kathryn Rubino:

Really made me happy. Yeah,

Joe Patrice:

No, that’s true. I have a book that I need to read, but like you said, the audio books I go through relatively quickly. But the physical books, it’s just hard to find a

Kathryn Rubino:

Good, good time. Yeah, it’s like cumbersome. Talk about problems that you never imagined having in 1999. The whole concept of holding a book

Joe Patrice:

Just seems, I have to take your word for it. My lips are still

Kathryn Rubino:

Pig so young. You were alive in 1999. You’re an attorney. You certainly were alive. You’ve taken theBar, you have some age on you, you’re not

Joe Patrice:

In your twenties. You want to be really, really sad is you could be an attorney today having been born past the year 2000.

Kathryn Rubino:

Sure. But you wouldn’t have the experience that you boast about.

Joe Patrice:

Well, of course.

Kathryn Rubino:

Sure. But could you, I mean if you were born in the year 2000, you’d be like 23, 24.

Joe Patrice:

24. Well, you’d be turning 24. Yeah, turning

Kathryn Rubino:

24. I mean,

Joe Patrice:

You’d be just out of law school probably.

Kathryn Rubino:

I think

Joe Patrice:

In your last

Kathryn Rubino:

Year, maybe in your five you’d probably’d be in law school still.

Joe Patrice:

Potentially. Yeah,

Kathryn Rubino:

Probably. Unless you’re some sort of a Doogie Hauser situation.

Joe Patrice:

I don’t think it’s Doogie Hauser necessarily to be one year ahead.

Kathryn Rubino:

I guess.

Joe Patrice:

I mean, unless I missed the point of that reference, I feel like he was more than did Year Ahead.

Kathryn Rubino:

Did you know they remade that show?

Joe Patrice:

I did, yeah. With a woman as the main character. Yes.

Kathryn Rubino:

I think it’s a Pacific Islander woman. I believe it is. I haven’t watched it.

Joe Patrice:

Well great. Well I’m glad you brought it up. No, just kidding.

Kathryn Rubino:

No, I mean it’s just like a cool FYI friend. Fair,

Joe Patrice:

Fair, fair with all that we could.

Kathryn Rubino:

Yeah. Everything.

Joe Patrice:

Yeah, we’re done. We don’t have to be small anymore. We can be Big Talk.

Kathryn Rubino:

Big talk. Let’s go to Big Talk. Big talk.

Joe Patrice:

Alright.

Kathryn Rubino:

I think that what we whisper, it probably sounds like book talk, which we can

Joe Patrice:

Also, which already had just done need to. I can talk more if you want. We need to be done. So let’s talk about the US news Rankings some more. We talked about last week we were aware of the top 25 because that had leaked. We now have the full US News Rankings. Are there more thoughts?

Kathryn Rubino:

The updated Rankings are out there that sort of solidified around a couple of, especially in the top of the Rankings, a couple of places, right? I think that having Columbia at eight NYU at nine and Duke Tide with Harvard, those kind of three data points have really stuck out, I think to most people. And my question, knowing all that is you kind of think about winners and losers. Columbia, NYU are kind of the losers because they’ve fallen from their much higher traditional place on the Rankings. But Duke, is Duke a winner or a loser in the new Rankings? Yeah, they’re really high. But all anyone’s talking about is they’re not as good as Harvard. Interesting that it’s wild that they’re high. They’re not actually as good as their Rankings suggest. So is that a W for them or not?

Joe Patrice:

That’s an interesting question. Yeah. I don’t know if you’re in the news because everybody thinks it’s crazy that you should be in that slot.

Kathryn Rubino:

You’re tied for four, which is good, you would think. But really, I think especially in academia circles, what people are talking about is this proves how unserious the Rankings are because you’re tied with Harvard.

Joe Patrice:

So the methodology, there’s a long series of people who are writing articles about the methodology and there’s good and bad takes to them. One of the ones that I’ve struggled with the most is that one of the critiques is that while they rely too much on employment data, which of course the Above, the Law Rankings were created for the purpose of relying more on employment data than US news. And US news has increasingly moved closer and closer to what the Above, the Law Rankings do because that’s the smart thing for them to do. No one ever talks about it that way, but that is what they’re doing. But the reason why this is a criticism is, well, part of it is just law professors think employment is not nearly as important as them learning, which is untrue. But I understand why parochial law professors might think that, but the good reason why they argue that that’s a problem is that employment data can be particularly volatile and it can lead to these giant swings, which we do see, even though the US news has changed the methodology a little bit to make it an average over a couple of years as opposed to just year by year data.

We do see schools outside of the top 25, which we’ve already talked about a bit from last week. You see more of these schools with 20 point leaps up and down and so on, which that is weird. If you’re trying to provide something that can be guidance to prospective law students, it’s not particularly useful if it’s jumping around 20 slots in any given year, it means that it also signal, put aside whether or not it’s right, it signals to them that the decision they make based on this year’s ranking could easily be wildly different by the time they graduate. That is a real concern. I don’t think though that it’s fair to say that’s a problem of privileging employment Rankings. I think there’s more stuff at play in particular. I think that part of this is entirely the law school’s fault, and one of the complaints that is out there is that the peer scores, which is part of it, law schools rank each other.

And that is data that is black boxed and held by US News because a lot of the data in US News is Rankings is public data, but there are a few things that aren’t. Some of those, they get directly from the schools. Many of those schools then withdrew from the Rankings in a big kerfuffle, which we’ve talked about before, unjustified. But whatever the peer scores that those schools who have withdrawn from the Rankings submit us news is saying, well, we’re not counting your peer scores. You’ve withdrawn from the Rankings. And my takeaway from this is why did they, some people are complaining that that makes the Rankings wrong. They aren’t counting those. And my takeaway is, why in the world did they think that they should be counted? If you’ve withdrawn from the system, the chutzpah it takes to say, I’ve withdrawn and I won’t provide you my proprietary data, but I really think you should judge me judging all of the other schools.

Kathryn Rubino:

How in the

Joe Patrice:

Hell do they think they can?

Kathryn Rubino:

I hear your argument, but given the large, that’s what 25% of law schools that have pulled out. I think that it is less accurate when you’re only polling 75% of law schools than when it was a hundred or nearly a hundred. And I think that that is something worth talking about. I

Joe Patrice:

Mean, it does make these Rankings not nearly as good as does the lack of data coming from those schools who have pulled out. But I almost feel like, and again, it is such an awkward feeling to be on the side of US news in these sorts of fights, but

I feel like if the Rankings themselves suffer for a year or two to win this fight, that’s worth it for everyone’s benefit. The I idea that law schools can screw up the Rankings to benefit themselves, but want, it’s using it as a sword and shield that they want to not be part of the process to shield themselves from negative data, but they want to utilize their own input to punish other schools. That’s ridiculous. And yes, cutting that data out adds to the unreliability of the Rankings, but it’s an unreliability that was started by the schools themselves, and if they don’t like it, then they can get back on board with providing the data that they, by all rights should be providing anyway.

Kathryn Rubino:

I certainly hear what you’re saying, but if you think a system is fundamentally broken and you withdraw from it and the resulting is more broken in different ways, I think it’s okay to call that out too.

Joe Patrice:

I guess I don’t understand. What do you mean by that?

Kathryn Rubino:

I think that the concern is that without taking the withdrawn school’s opinions into account, they’re flawed. Right?

Joe Patrice:

But they were already flawed and the only reason that they aren’t being taken into account is because of the initial aggression of the law schools.

Kathryn Rubino:

I like that. You call it aggression too. Yeah.

Joe Patrice:

I mean, yeah,

Kathryn Rubino:

Aggression will not stand. Yeah.

Joe Patrice:

And I think obviously it’s unfortunate for US news to be losing their stranglehold on credibility cash cow.

Kathryn Rubino:

Yeah.

Joe Patrice:

I mean, I think it’s still going to be a cash cash, don’t worry. Sure. But there’s stranglehold on credibility that they’ve had for so long. But I think it’s a fight they need to have because the law schools, a small kind of selfish group of law schools have decided to try to break the system. Then they tried apparently to take advantage of the broken system and US News is not allowing them to do that. It makes it further broken, but I think that’s what US News has to do. And if these law schools want their data, their peer scores to start being counted again, then they can come back to the plate.

Kathryn Rubino:

So gun to your head, is Duke a winner or a looser in the new Rankings?

Joe Patrice:

Oh yeah. In that instance, I think it’s probably still a net win. I think worst case scenario, people look at it and say, well, maybe it’s not as good as Harvard, but I guess it’s still really is in the top five. I think that probably is a win a win, but the more people dig into it and think, well, maybe this has just happened. I guess it depends on what the overarching narrative around these Rankings are at the end of the day, right? Sure. If the overarching narrative is there’s some minor issues, but this still is generally credible, fine. If the overarching narrative becomes, this is all just an absolute blind darts at a board, then

Kathryn Rubino:

Over time, and I guess the answer is we don’t know quite yet, but I think that the way we’re talking about the Rankings this year is informed by what happened last year. And I think that that’s going to continue to be true until sort of the new normal settles in.

Joe Patrice:

I mean, Donald Tobin from Maryland Law School, he went through and went and created a different weighting of the data that exists and creating that different weighting, which he basically says that that’s what students should do, is play with the ratings themselves, which is a feature that I think we all think is a smart one. Sure. But he just took us news’s data that they have and played with how much it’s weighted in a way that he argues makes more sense. And his argument is not totally off base. And under that logic, duke clocks in at 11, Harvard clocks in at three.

Kathryn Rubino:

That feels, that feels more right?

Joe Patrice:

Stanford is one. Yale falls to two, Harvard falls to three

Kathryn Rubino:

Chicago raises. Harvard’s currently tied for four,

Joe Patrice:

Right? I guess that’s true. I guess that’s true. Chicago is four, Columbia is five, and NYU is six. What do you know? This feels right. That’s like H-Y-S-C-C-N, what we

Kathryn Rubino:

Know and appreciate about the Rankings. Right?

Joe Patrice:

So the data itself, if massaged in the way that makes a little bit more sense, just spits out the

Kathryn Rubino:

Yeah, and I think that there’s been some fair criticism of use news that even from last year to this year, there have been tweaking the weights of various components. Again in order to perhaps to avoid further free falls of some of the elite schools. But I think that we’re going to see where it all shakes up.

Joe Patrice:

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Kathryn Rubino:

Love that for us.

Joe Patrice:

Yes. Elon Musk is represented by a lot of big law firms in this world, but primarily he’s over the last several years has been represented by Quinn Emanuel, in particular partner Alex Spiro, who we’ve written about before. I’ve interviewed before a lawyer with a lot of celebrity clients In this instance, there’s a case currently pending in Texas, which was brought by a student against Mosca, who is now says they’re in Texas, brought by a student who there was a right wing brawl in Oregon, I believe it was Oregon. And there was a grainy picture of one of the neo-Nazis involved in this fight, and Musk did not come up with, but trumpeted a theory that this picture of one of these combatants looks kind of like this random student from California who says they want to work in government, so therefore they’re an FBI plant. And this is a false Flagg operation, which resulted in this student being bombarded by a bunch of insane, crazy trolls and threats and so on. And so he’s suing for defamation here. Now this case is, as I said in Texas, it’s been going on for a bit now. There was a deposition taken of Musk. Some of the all

Kathryn Rubino:

Seems pretty,

Joe Patrice:

Yeah. The transcript of which you might’ve read, it does not go well for Musk, surprisingly, does not seem to be a particularly good witness, admitted most of the elements of the actual complaint, which is not great. But the takeaway from an Above, the Law perspective about this is that this deposition, which Spiro defense has given rise to a ethical sanctions argument by the attorney who’s representing the student who we all may remember is the same attorneys who represented from the case suing Alex Jones successfully. And they make the argument among other things that Alex Spiro is not admitted in Texas, nor has he completed his pro HC Vijay.

Kathryn Rubino:

Well, that seems like something you’re supposed to do before defending a deposition in that state. It

Joe Patrice:

Does or jurisdiction. And apparently they have local Counsel, but local Counsel did not appear at this. There’s,

Kathryn Rubino:

That seems like Pennywise pound foolish right there.

Joe Patrice:

It does not seem great. And there’s also some arguments of part of the issue with how you may have read this transcript and it looks bad for Musk, apparently at the very end of it, Spiro asked for it to be kept under seal, which under the way Texas works is not how this works. You can’t actually do that post the discovery. It has to be a request made beforehand something, a local lawyer,

Kathryn Rubino:

Something local Counsel probably should have tipped you off to.

Joe Patrice:

Yeah. Anyway, the request for sanctions seeks to have him, his pro HAC petition denied and him off the case. But it’s also a lot of the, and I’m not making a judgment call on whether or not these sanctions are justified, whatever, but a major big law firm partner from a major big law firm, the transcript reads really problematically for them, putting aside whether or not it’s sanctionable, it’s combative and dismissive. And he’s warned multiple times about specific Texas rules for conducting depositions that he’s in violation of. He says he does. Rather than say, I disagree with that assessment, he basically just says, I don’t care. Multiple times it reads bad.

Kathryn Rubino:

I think it’s interesting because Alex Spiro’s gotten a lot of publicity for being kind of an attorney to Elon Musk or other big name kind of clients. But the truth is the best kind of lawyering, the kind of lawyering that big law’s really known for is the kind you don’t hear about. Right? Right. It kind of goes under the radar. It’s like rare cases that good lawyering makes news for the most part. It’s bad lawyering that gets you publicity or at least questionable lawyering. But big laws really, I think known for or should be known for, that kind of quiet, stayed reliable Counsel. And first of all, I don’t think that that’s what a client like Elon Musk values.

Joe Patrice:

Well, and that’s what I think, think you’ve stumbled into what I think is the big issue is that this is a client who seems from their social media presence at least to be batshit and who seems to value the idea of lawyers. I mean, remember he posted that thing where he wanted to fire the entire in-house legal department of his companies and replace them with hardcore lawyers, whatever that means,

Kathryn Rubino:

Which also shows that he doesn’t actually understand what makes excellent lawyering.

Joe Patrice:

Right. Well, I mean this is how he ended up owning

Kathryn Rubino:

X.

Joe Patrice:

He attempted to get out of that deal when somebody pointed out, remember when your actual lawyers told you you needed due diligence and you said no, he said Nah, and then this happened. So he seems to value this sort of combativeness over actual sound, and you got to wonder if this is the sort of situation where this is a firm who would’ve otherwise handled this differently, but they have a client who is a problem and what do you do with a problem client?

Kathryn Rubino:

I mean, I think that’s true, but I do think that the transcript reveals that there’s more than just a client leading the legal strategy. Right.

Joe Patrice:

Well, look, if this crosses the line into being sanctionable conduct, then obviously this is a problem. I’m saying let’s assume arguendo, it falls short of sanctionable even there it is not particularly professionally sound. It is not collegial in ways that make for a better Litigation environment. It is not fulfilling some of those core rules cannons of civility that you would want. And to that extent, even if this ends up not being over that line, and it’s not as though I’m a Texas ethics lawyer or anything like that, it just struck me as this is a problem for a firm to get so deep with a client that they start putting the reputation in these bad places professionally put aside whether it’s wrong,

Kathryn Rubino:

And I think that this is what potential clients are going to remember about your firm, which is probably not what you want.

Joe Patrice:

I mean, it reminded me a lot of, when we talked about this when we were talking about Trump’s civil fraud trial in New York and that email exchange where his attorney, I believe it was blanch writing the emails, they were written like a lawyer would, but a lawyer would, but making weird claims and increasingly as it came closer to the end, they started not even having the voice of somebody who understands the English language. They started sounding like Trump with saying insane short sentences that are gobbledygook almost as though he turned over his email straight up to the client, and that’s the sort of closeness of a relationship with a client. That becomes a little worrisome, I would

Kathryn Rubino:

Say. Yeah, I think that’s fair.

Joe Patrice:

Now we have a bit of a conundrum. We’ve gone way, way too long here, but we still

Kathryn Rubino:

In every segment too. I think each segment was just longer. So

Joe Patrice:

This is now where I allotted the time for what was supposed to be our longest segment, but I guess it won’t be. Last week, Dean Berkeley Law School, Chesky made some news because he and his wife, professor Fisk, were invited a bunch of students to their home, their private home, to graduating students, Hey, come here. Congratulations on graduating. Whatever. A protest broke out at the dinner, a viral video went around of the dean yelling at them to stop Professor Fisk trying to wrestle a microphone away from one of them. Ultimately, they would leave after some time. This has now launched into some questions of free speech and First Amendment stuff with a lot of protest supporters tweeting it and toing it around saying, watch, watch Berkeley’s administration assault this protester and we demand the resignation, yada yada. We’re going to do almost like a Skip Bayless and Shannon moment. Like now I’m always a supporter of right to protest, right?

Kathryn Rubino:

Sure,

Joe Patrice:

Yeah. But in this instance, I had to write the bit going, this is not really a winning battle for you all protesters in this instance, you are on private property, you were invited there, which is a plus. They then told you you weren’t welcome there anymore, which means you’re not welcomed there anymore. The First Amendment is not going to protect you at that point. Now that said, if you are willing to accept civil disobedience means part of civil disobedience, people kind of forget is it means you’re doing something you’re going to get in trouble for, get in trouble for, but you’re doing it for a purpose. It’s the good trouble as they used to say. So that is, if that’s what you were after, then fine. That is a thing that you did and you will accept the consequences of it and make that kind of the form of your protest is those consequences. It seems as though they did not really bargain for that. They wanted to just have this protest and thought that they were protected by the First Amendment, which they claim they consulted with lawyers who said they were. I don’t believe, from my understanding and my read of the law, I do not believe that was

Kathryn Rubino:

True. Well, I also wonder what information the attorney might’ve been given if it was like, we’re at an event and we’re doing this protest. Not necessarily were they given that information that this is in a private home in the state that has a castle doctrine. Well,

Joe Patrice:

I mean the Castle Doctrine, I make that joke in my article about it.

Kathryn Rubino:

I appreciate it,

Joe Patrice:

Obviously. Obviously that only applies if you’ve broken into somebody’s house, which obviously even if you’re, but you had been invited, it certainly there are still tools on the amount of force you can use for somebody you’re just kicking out of your house who you did invite in, obviously. But I make the quip to be like, this is a state that cares a lot about private property as seen by, in some cases they let you kill people for it. So

Kathryn Rubino:

I think you’re right that it certainly goes to the way that these laws are interpreted within the state jurisprudence. It is shocking that you think that you can protest outside the house on a public street inside, not so much, and I think that taking it to right outside as people are arriving to the event, great full protections, yes, you should be able to do all the things.

Joe Patrice:

Right. Now, obviously, and we talk about this a lot, there are obviously time, place, manner, in manner restrictions that can be placed on any sort of even legal demonstration. And so if the city comes out there and says, you can only do this until 7:00 PM and when everybody goes to their evening, you’ve got to go home. That is a legal restriction and maybe the event was scheduled in a way that would cause problems that whatever, those are fights that could be had later, but the idea that you can go into the house do it and that it’s somehow not the rights of the homeowner to then kick you out is a bit ridiculous. Additionally, the idea that the protestors were assaulted when the professor tries to take the microphone away, there’s some overly clever, probably one else in social media who have just learned the whole mere touching constitutes battery, which I mean, that’s a thing that whatever, but there’s also, you actually have to hurt somebody, and so this is not in any way something that would reach that level.

I mean, look, I also read a lawyer who made a point that if this is an officially universally sanctioned event, does it then cross over to being something that those protections come over as a state university? Whatever. The problem with that, I think is it’s a clever read. It’s just a weird read because what if, for instance, I mean we had a barristers ball. A lot of law schools do rent out a venue hall for that. Is this suggesting then that, because that’s an event, if somebody breaks rules at that venue that the venue can’t

Kathryn Rubino:

Have you bounce, right? If they get into a fight at the venue, of course the venue is allowed to kick them out.

Joe Patrice:

So even if it becomes a university sponsored event, the fact that it’s private property doesn’t trump that basically. And so it’s a little bit awkward to the extent that it’s the private property of the dean and professor, and that is also true. It’s not university housing or anything like that. It’s private. Yeah. It just strikes me as though they don’t really have that protection. I think that, again, if you want to do this as a civil disobedience thing, whatever, but they don’t have that protection. But the take that I had, which I think some people, there are a lot of people who are writing about this. I know David Lat has written a bunch on this too, check that out at his Twitter or his substack, but we’re coming at it slightly from different angles though, in that he kind of talks about like, oh, well, this isn’t protected.

And I put a lot of the blame on the, what we’ve talked about at Above, the Law, and here for a while, the increasing animosity and aggression that is being taken by various federal judges as well as other prominent commentators against the right to protest on campuses when people feel like the rules that are written down to protect their ability to protest are ignored for largely political reasons. The case at Yale Law or Stanford Law, and those protests, obviously those are private universities, but they do have rules that they have to follow the rules that they set up, and they explicitly said, what if we don’t?

When that sort of attack is happening, when you have Judge Ho saying that free speech should not be protecting protestors of somebody on a stage, when that’s the kind of mindset that gets built, you start getting a world in which people start saying, well, what’s the difference between me protesting in the quad or outside the house or whatever, where it would technically be protected? Why not just go into the house? It’s all the same. I’m going to get punished no matter what. Those protecting the right to do that within public areas has value because it also is what prevents it from getting to this point where you have protests happening in private homes, which I think all of us at some level think should probably be non-protected. You probably shouldn’t ever have the right to just bust into somebody’s house and

Kathryn Rubino:

Conduct a protest. Protest. Yes. Yeah, that doesn’t sound controversial

Joe Patrice:

Either. I would not think so. Anyway, it’s an interesting story. It’s a problematic one because of the way it has all played out, and this is not taking stance on whether or not they should have checked the protesters out or as opposed to listen to them engaged in a real dialogue, yada, yada, yada. All of those kind of moral questions are aside as a purely legal matter. No, the First Amendment does not let you do that, and no, somebody, a bouncer trying to kick you out of a private establishment. In this case, the bouncer was a professor, but a bouncer kicking you out of a private establishment is also legal.

Kathryn Rubino:

I think that that’s

Joe Patrice:

Fair. Anyway, I think that’s everything we had for this week. I think so, is it? Well, thanks everybody for listening. You should subscribe to the show, give it stars, write things, all of that good stuff. You should be reading Above the Law, so you read these and other stories before they come out. You can also check out the Jabot podcast that Kathryn hosts. I’m also a guest on the Legal Tech Week journalist round table. You should be following us on the social medias at ATL blog at Joseph Patrice, at Kathryn one, the numeral one also at Blue Sky, but I’m Joe Patrice over there. Oh, also, check out the shows on the Legal Talk Network, and now I think I have said everything. Peace. Okay, bye.

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