Debbie Does The Dormant Commerce Clause

Episode Notes

Transcript

Joe Patrice:

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

Kathryn Rubino:

Hi Joe Patrice.

Joe Patrice:

That’s Kathryn Rubino. We are the editors at Above the Law, and we are here as we are every week. To give you a quick rundown of some of the bigger stories in Legal of the Week that happened to have already happened.

Kathryn Rubino:

Yeah, the week that was

Joe Patrice:

Well, that’s what I usually say. I was trying to shake it up.

Kathryn Rubino:

Yeah, I mean, you shouldn’t be known for particular phrases. There’s no market for people who find comfort in that.

Joe Patrice:

I understand what you’re saying. I don’t think that they’re really blasting out T-shirts with the legal news for the week that was or anything.

Kathryn Rubino:

You don’t know until you start leaning into it. I guess that’s true.

Joe Patrice:

I guess that’s true. I wouldn’t have thought that handing out rubber little foam cheeseburgers was a thing until I went to the last show. Alright, well let’s talk small talk. Small talk. Yeah. What’s up?

Kathryn Rubino:

Didn’t do too many crazy things over the last few days, but I did go to visit friends who recently bought kind of a weekender house up in the Catskills and it was really cute. I had gone to the Catskills as a kid for vacation for a few years and also just really strong dirty dancing vibes the entire entire trip. It was really cute and everything I just kept on looking at, I was just struck by how it looks like it came from central casting, all the characters, all these kind of very eccentric locals. The roads that someone’s porch doubles as their record store and of course they used to own a record store in the city and this is now their retirement and they’re selling records literally from their house. It’s quite endearing and adorable and the scenery is just perfect. Fall in the Hudson Valley slash Catskills is just gorgeous and I’m feeling all my fall girl feels.

Joe Patrice:

Yeah, no, that’s astounding. Great.

Kathryn Rubino:

It was. You sound like you think the exact opposite.

Joe Patrice:

Yeah, no, no,

Kathryn Rubino:

You’re not in your fall. Girl feels.

Joe Patrice:

I am I gearing up for yet another tech conference? Because those

Kathryn Rubino:

Never end. Okay. Hap are you ready?

Joe Patrice:

Yeah.

Kathryn Rubino:

Too many legal tech conferences. There are too many.

Joe Patrice:

I don’t know that there are too many as a raw number. I think there may be too many between the last week of August and the last week of October. I think that I’m willing to say,

Kathryn Rubino:

I mean I gather, my assumption is that they assume that have lower attendance over the summer because people travel for their family stuff. But I don’t know, fall seems like a pretty big, pretty important month in the lifespan of life cycle of a family. What with new school, new schedules, new routines, and for half of the family to be gone because there’s another legal tech conference and let me ask you, I guess I’ve gone to a couple of legal taff conferences, but not a ton of them are the same players. Usually you see the same people week after week.

Joe Patrice:

Well, I mean obviously the legal tech press is the same for all of them, but the conferences other than the press, no one is going to all of these. So there are two kind of flavors of conference. There are the general interest conference, the association conferences, this is like your LTAs and stuff like that where everybody comes. But what I’m currently in the middle of are user conferences, so I’m going to go to Relativity Fest this week. That’s just going to be the Relativity people, right? Their competitors aren’t there. It’s not everybody in the legal tech universe is there. It does mean that those of us covering legal tech all see each other every couple of weeks, but none of the rest of the people are going to Everyone

Kathryn Rubino:

Got your little crew?

Joe Patrice:

Yeah.

Kathryn Rubino:

Do you have a cutesy name that you call each other besides the legal tech journalist Round table.

Joe Patrice:

Oh good. You got it right? No.

Kathryn Rubino:

Yes. I’m better at this than you are.

Joe Patrice:

I don’t know

Kathryn Rubino:

Typically. Okay. You all know. All you listeners know that he usually musts the name of the show that he, he’s on, not usually in the wrap up

Joe Patrice:

Segment like three years ago. I did it a couple of times and I’ve never gotten over that. No,

Kathryn Rubino:

I don’t think it’s been that long ago.

Joe Patrice:

It very much has and whatever. Yeah. Yeah, no. So I’ll see all of them. We are going to lovely Chicago, the Hyatt Regency where we do everything in legal tech, although the next year a tech show will not be there. I’m kind of excited. It’s a new location. It’s going to be at the down at McCormick Place. Yeah. So

Kathryn Rubino:

Because you see similar people at all these shows, or at least the Press Corps, do you feel like you need to have vastly different wardrobe moments when you’re packing?

Joe Patrice:

Not particularly.

Kathryn Rubino:

Maybe you should.

Joe Patrice:

Well, no. Okay. So I view as an opportunity to break out new stuff largely the first time that it’s the first conference in a while, so when it starts again, kicks off this season. But now that we’re in the middle of the season, I don’t feel a lot of pressure.

Kathryn Rubino:

You like you kind of know what I look like for good or for

Joe Patrice:

Bad. I mean I would hope so. Well, this has gone on way too long, so not really come to the conclusion of small talk and get right into what we wanted to talk about this week. The first thing we had on schedule was Diddy is in trouble.

Kathryn Rubino:

Oh yeah,

Joe Patrice:

Yeah.

Kathryn Rubino:

Oh yeah.

Joe Patrice:

He’s in a big Vata baby oil.

Kathryn Rubino:

Oh yeah. What is it? A thousand bottles?

Joe Patrice:

That’s too many bottles

Kathryn Rubino:

I have a baby and I don’t have that much baby oil.

Joe Patrice:

I wonder if there’s a deal at Costco if you buy it in bulk and maybe Diddy is just frugal. Maybe that’s what he is

Kathryn Rubino:

A option. But no, he has been arrested on a variety of and held without bail. It should also be noted on a variety of charges related to trafficking, recalling, et cetera. And welling is kind of a word. Don’t look at me like that, but this is sort of the culmination of years of rumors and allegations and civil lawsuits alleging all sorts of misconduct.

Joe Patrice:

But that is neither here nor there, not certainly what you’re coming to this show for. You probably have seen that elsewhere. What you come to the show for are the deep legal insights, and by those I mean the more embarrassing stories. What happened when they asked for bail

Kathryn Rubino:

Lawyers sent a letter as one does to the judge asking for there to be bail and stated, and unfortunately speaking of legal tech, although this is not even just legal tech, this is just straight bare computer competence left. The tract changes visible, so

Joe Patrice:

There’s a shame

Kathryn Rubino:

In the middle of the letter you can see comments that some reviewer left like this sentence reads awkward.

Joe Patrice:

So look, there are a few classic general legal tech problems. The first one is thinking that you’ve redacted A PDF when you’ve just put the black mark on it and all you need to do as a reader is highlight, highlight, copy, paste, and you get to read everything underneath those redactions don’t do that. There are ways not to do that, but it happens all the time. I’m basically, anytime some sensitive case comes down, it gets posted on the docket. The first thing we all who are familiar with this world do is grab it, control A, control C, control V in another window and C, if we get away with one, normally people are getting better about that. That is certainly a problem. The other is of course not turning off the fact that you had track changes on, which is where you get all of these edits. This is where you get, I mean either high tech or low tech with track changes. Actually it’s higher tech. Usually you can tell that you’ve not turned it off from afar before you get in trouble. The low tech version or the people who don’t trust track changes and instead of putting a note in the margin, just putting big brackets, insert something here and then they leave that in when they file the brief, which is never encouraging.

Kathryn Rubino:

Yeah. Okay. So it is obviously embarrassing and is paying a fair amount for his lawyers and goofs. This are never great to see, but what other sort of big lawyer goofs do you think are the most embarrassing? Obviously there’s putting the wrong person in the CC line like Joe PI meant Joe.

Joe Patrice:

Oh

Kathryn Rubino:

Right, that’s actually,

Joe Patrice:

I get that once. Yeah,

Kathryn Rubino:

That’s actually a plot line on a new book Rule 23 by Luba Cher. I actually just interviewed her for the Jabot podcast, my other podcast, but that’s actually a big plot line that it was sent to some news organization that felt awfully familiar rather than a co-counsel on the case. But you think you’re typing it in Joe P and instead of going to co-counsel, it goes to Joe Patrice at Above the Law dot com.

Joe Patrice:

Yeah, I mean that’s bad. The one time I ever did that mercifully, it had nothing to do with legal stuff. It was the associates at the firm got in a spirited argument and by spirited argument it was over the dumbest possible thing. It was like what year some historical event happened, what era that

Kathryn Rubino:

Happened. So it’s a nerdy version.

Joe Patrice:

It was very, very, very, and when I got back to my desk, I looked it up and sent to the group. Per our conversation, I’ve resolved. It was like 1247 or whatever year it was, and then somebody from that group wrote me back and went, did you mean to put the managing partner of this other firm on it? Which we were co-defendant counsel in a white collar case, and so it was fine and all, but he had the same initials and it

Kathryn Rubino:

Definitely, definitely happens. Double check that. I think some firms have actually taken the step, or at least did sort of in the early teens of taking off autofill.

Joe Patrice:

I turned it off after that.

Kathryn Rubino:

Yeah,

Joe Patrice:

I turned it off within an hour of that. Yeah.

Kathryn Rubino:

Oh, there’s actually a technological solution to my very technological problem.

Joe Patrice:

Well, because the weird thing is it defaulted to people within the firm generally, but because I was working so closely

Kathryn Rubino:

On this, and you probably emailed them most

Joe Patrice:

Recently, I emailed him most recently, and so it had overtaken it, so it had been correct millions of times and I’d never thought about it. So yeah, then you turn it off. Yeah, no, that’s definitely a common error.

Kathryn Rubino:

Yeah, that’s a pretty bad one. And the Supreme Court left some metadata in there about who made edits and when they did them, which kind of reveals a little bit of the behind the scenes info that they, well, we probably deserve as a society, but they are not excited to give us,

Joe Patrice:

Right? It’s all the stuff that by any sense of a transparent democratic country we should have. But the Supreme Court as an institution, hell,

Kathryn Rubino:

Low democracy,

Joe Patrice:

Hell bent on being anti-Democratic refuses to give. So there’s all that. Was there anything else to this topic?

Kathryn Rubino:

Those are pretty big ones, but

Joe Patrice:

Yeah, obviously the reply all has a long history. I actually wrote a story today that you’ll be able to read by the time this comes out where that was a point in a kind of a feel good copyright story. It’s a story about a

Kathryn Rubino:

Musician didn’t imagine feel good and copyright existing in the same sentence, but here we are.

Joe Patrice:

Yeah, musician who was taken advantage of for years by various increasingly large music recording publishers, but managed to get his rights back by virtue of provision in the 1976 copyright Act. That’s neither here nor there. It’s a fun little movie. It’s a 30 minute documentary about this that produced by comedian Russell Peters and Rayquan from the Wu-Tang clan put it together. So it’s very good, encourage people to watch that. But there is a reply all moment in this where a

Kathryn Rubino:

Classic genre

Joe Patrice:

Where a record executive who’s kind of playing dumb directly with them replies all to the various lawyers in the group. So here’s what we got to do, which is problematic leaving the other people on it. So don’t make those mistakes like Diddy did. So

Kathryn Rubino:

He made lots of mistakes, don’t do a lot of things. He did.

Joe Patrice:

Don’t do a lot of what he did because he is not coming home right now.

Kathryn Rubino:

Okay,

Joe Patrice:

Yeah. So we’re back. So let’s transition from a thousand bottles of baby oil to pornography in class because there’s a law school class where they saw a few minutes of hardcore pornography.

Kathryn Rubino:

Well, that is a transition.

Joe Patrice:

Good job.

Kathryn Rubino:

I guess.

Joe Patrice:

Yeah, well, thank you. I mean, it’s a gift. So

Kathryn Rubino:

It’s like the bottom of the barrel gift. It’s a thing that everyone else has already passed over kind of gift. It’s the bottom.

Joe Patrice:

Some people play in the NBA, I’m doing this. So yeah, so this was a law class where they showed they were covering obscenity as one does, and the professor feels at West Virginia felt the need to show some clips of hardcore porn about it.

Kathryn Rubino:

This is horseshit.

Joe Patrice:

It’s not great.

Kathryn Rubino:

It’s really just terrible and just kind of bad teaching if you can’t explain show, except everyone has a general idea of what’s going on. There’s not actually any benefit to the sort of education of the students to show it. It is a titter moment that you can kind of be like, oh, that teacher shows porn every year. I mean, it is the most kind of pick me bullshit kind of things that is incredibly likely to make many members of your very uncomfortable. You don’t know what anyone’s history with anything is in this kind of a teaching situation and why do it? There’s no benefit except for you get sort of a reputation of someone who doesn’t play by the rules.

Joe Patrice:

Yeah, it’s kind of edge lordy stuff. It’s unnecessary largely because you can explain these concepts. Law students are reasonably smart and you can say the rest of us managed to accomplish our law learning without visual aids.

Kathryn Rubino:

You take an entire class on crim law and probably another one on crim procedure without

Joe Patrice:

Having to be mugged about

Kathryn Rubino:

Being forced to be experience. These things you may have in your own life, but you’re not being forced by the teacher to experience them.

Joe Patrice:

You can talk about a lot of things and there are always the people who whine and complain like, oh, this generation of students, you can’t talk about this and the other, well put that aside, we’re not even talking here. If that is a problem, we can jump off that bridge when we come to it, but right now you should try your words when you’re talking about this. The problem with it,

Kathryn Rubino:

Use your words. That’s what lawyers get paid for.

Joe Patrice:

Yeah, exactly. So the problem I have with it is that you don’t need to show anything. An excellent point that was made by somebody on Reddit reacting this story is that the flip side is actually, if anything is educational, the flip side would be to show some movie like Last Tango in Paris, kind of a movie that is not considered generally pornography but was banned as obscene because that actually is more of an educational exercise than just showing hardcore porn, but neither here nor there. This reminds of course of all of those cases that we talk about with unfortunate regularity where teachers decide to use also usually in a law situation, use racial slurs in class to show that well, that’s what the facts of the case are. It is also useless there as students are also capable of understanding what happened when you just say, and then someone says some racial slurs without having to go through it in detail.

But the way in which these are similar is the arguments that I found to the extent people were defending this decision were the same arguments that always come up in those cases, which make no sense, but we’ll just run through them. They’re the argument that, well, how would they understand this otherwise? Which again, students smart, they made it to law school, use your words. And the other is some sort of argument that lawyers, well, you’ll never make it in this profession if you aren’t capable of handling this. You’ve got to be able to do this. Can you imagine what a prosecutor doing X, Y, Z has to go through? And I’m like, maybe not all of us are that job.

Kathryn Rubino:

And it’s a choice, right? Somebody who decides to be a prosecutor or deal in any genre of practice area where this comes up, they’ve made affirmative choices

And you haven’t made a choice to participate in law. You’re required to participate in law. You probably didn’t even get to pick your professor. You just got assigned one. So then it’s particularly galling in this situation and it almost feels like cruel for the sake of cruelty. The same with when these teachers are advised not to use the N word or the why. You have to be advised as opposed to just know that in your heart and your soul who can say, but despite that, still use the N word in class or show these things. These are potentially hurtful, but they don’t care because it’s not to them,

Joe Patrice:

Right? Yeah. It speaks to a lot of that. Look, I think that the ERISA lawyer, future ERISA lawyer out there does not need to deal with any of this stuff. They’re just trying to get through. Now granted, this is like law two. This is I think an advanced course, so it might not have necessarily been

Kathryn Rubino:

Assigned, which second semester potentially

Joe Patrice:

It’s two Ls. Yeah. But it also, it still doesn’t really require it. Even if you are interested in law for reasons, a field of this, which you may well be Kama, is a pretty big subject. You certainly don’t need to deal with it all. Obviously this is not necessarily, I don’t necessarily think it’s as wildly crazy as the racial slurs issue, largely because there is a spectrum between things that aren’t obscene and are obscene and there’ve been attempts to draw the line. So using a more detailed example than just racial slurs, what happened is necessary. That said, I think it is also something that you can describe much better or again, is better articulated in the negative of watching some movie that we would not think is obscene today and discussing how it was that it dealt with its issues. Well, we are back with a final story, which is, this is another one of those stories where the legal news story is interesting, but we are going to take it to a different place. The news story is ProPublica who has been doing a lot of the heavy lifting on finding judicial ethics issues. They’re the ones of course, who broke the Clarence Thomas and Sam Alito taking all this money from rich people stuff. Eileen Cannon has yet again been caught not disclosing her luxury travel that’s being paid for by right-wing groups

Kathryn Rubino:

Shame.

Joe Patrice:

So she’s on a list that has already been flagged for this. There were a lot of the judges who were on that list have made some changes or some belated disclosures. She actually made a few in response to it, but they found yet another one where she went to another little junket.

Kathryn Rubino:

Does she think that she has kind of gotten such a low under the radar sort of reputation that no one’s going to actually spend the 2.2 seconds figuring out whether or not her disclosure’s complete?

Joe Patrice:

Maybe this is why she’s so eager to get rid of that case that she’s been assigned was all

Kathryn Rubino:

She could have herself.

Joe Patrice:

This is all fun and games

Kathryn Rubino:

Before that she could have, but then she wouldn’t have done a favor to Donald Trump,

Joe Patrice:

Right? So at this point, yeah, the defenders are all like, well, it’s hard to keep track of all this stuff. ProPublica found that she was emailing with the institution and so here’s my receipt for this and can I get this and are you covering this? If you’re doing that sort of work, you can fill out your disclosure form. It’s really not that hard.

But once again, but where this, that’s the news story. What I found very fascinating about it is this was another thing at the we all know and love as law, the Anton and Scalia School of Law, which is not what they call it anymore, that is its original name, until, well, we started calling it as law, which then they tried to change it, but we will never forget. So that school, which is at George Mason, it involved that. That’s where one of her previous events that she had not disclosed was in her belated Catchup disclosure. She referred to it as George Madison University, which it’s not what it is, but that’s the part that I actually thought was interesting about it. You could say, Hey, this is kind of a petty flub on her part and perhaps, but on the other hand, this is somebody who used her nomination process to talk about how she’s a dedicated originalist and that’s figuring out what the framers intended and the original public meaning is so important, and you don’t instantly go, George Madison isn’t one of the founders. If this is the absolute nonsense lie, you want to base your life around that you are somehow connected Ouija board style with the framers, then you don’t get any luxury to go George Madison, you should probably have tattoos across your back of all of the framers names. You are that person if you want to do this.

Kathryn Rubino:

I mean, except that’s just a thin facade that they use.

Joe Patrice:

Oh, do you think it might just all be a disingenuous lie?

Kathryn Rubino:

I do.

Joe Patrice:

Interesting. That would, it’s weird.

Kathryn Rubino:

That would explain why explain.

Joe Patrice:

George

Kathryn Rubino:

Madison says,

Joe Patrice:

Yeah, wow. Do you think

Kathryn Rubino:

It’s all coming together?

Joe Patrice:

Wow,

Kathryn Rubino:

This is like the unifying theory of first century jurisprudence

Joe Patrice:

Here. I thought that Occam’s Razor was finally going to be defeated, but I guess not. Yeah, no. So it is indicative of the level of frivolity with which they treat the subject matter they claim gives them the right to rewrite the Constitution that they can’t keep straight in their head. Multiple framers, obviously, George Mason, kind of an architect of the Bill of Rights, to the extent he wrote the Virginia one, which was largely used as a model, and James Madison, obviously a Federalist paper author and the namesake of a different university that dropped 70 points on North Carolina this weekend,

Kathryn Rubino:

Football

Joe Patrice:

In football. If people thought that was basketball, that would make sense.

Kathryn Rubino:

Okay, that sounds no,

Joe Patrice:

The best tweet about that game in real time. Somebody on Twitter wrote called it Call This Game The Federalist Papers because James Madison is thoroughly and Condescendingly talking down to North Carolina, which I thought was really, really well played.

Kathryn Rubino:

That’s two points.

Joe Patrice:

Yeah. So anyway, that’s what’s going on with them. George Madison, I don’t know, like various framers. She jumbles names for George Jefferson who

Kathryn Rubino:

When they moved on up,

Joe Patrice:

Yeah, they live on the east side that’s there. Yeah. Anyway, so that’s the kind of sad Melan undercurrent to that is these people just don’t care.

Kathryn Rubino:

Yeah, it seems accurate,

Joe Patrice:

Exciting. Great, great little country you have there. I think that’s it. So thanks everybody for listening. You should subscribe to the show so you get new shows when they come out, leave reviews, write things, give stars. Those are all helpful. For more people finding the show, check out other shows. Catherine’s the host of the Jabot I, as we’ve discussed. I’m a guest on the Legal Tech Week journalist round table. There’s also a panoply of shows, not Pan God, I keep wanting to say that and shouldn’t. There’s also a whole bunch of shows at the Legal Talk Network, a myriad of shows, if you will. How about that? Including Lunch Hour, Legal, Marketing with the Little, little Hamburgers, cheeseburgers,

Kathryn Rubino:

Hamburg. There you

Joe Patrice:

Go. And then you should be reading Above the Law. Read these more stories before they come out and we talk about them, not before they come out, but before we talk about them here in this particular venue, you should be following us on social media at ATL blog, at Joseph Patrice, at Catherine one, the numeral one, also Blue Sky, where I’m Joe Patrice. And I think with all that, we’re done. Thanks.

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