John Roberts Suffers The Slings And Arrows Of Pure Rage Trump

Episode Notes

Transcript

Joe Patrice:

Hello, welcome to another edition of Thinking Like Lawyer. I’m Joe Patrice from Above the Law. I am joined as usual by my colleague, Kathryn Rubino.

Kathryn Rubino:

Hey friends.

Joe Patrice:

And we meet as we do to talk about the big stories from legal from the week that was. Do a

Kathryn Rubino:

Little chitty chatty.

Joe Patrice:

Yeah. Yeah. Stuff

Kathryn Rubino:

Like that.

Joe Patrice:

Yeah. All right. So we’ll engage in some small talks.

Kathryn Rubino:

You sound like you don’t want to and you’re bequeathing me some gift by engaging in basic banter. Yeah. That is correct. That is basically how I feel.

Joe Patrice:

No, I mean, I absolutely. Welcome to March. Lousy Smarch

Kathryn Rubino:

Weather.

Joe Patrice:

Yeah. Well, that’s the 13th month. This is Lowsy Smarch weather. Welcome to March.

Kathryn Rubino:

I mean, the problem with small talk in this particular moment is that there’s little small to talk about and lots of big things in the world going on.

Joe Patrice:

Right. Yeah. So obviously we just began Operation Epstein Fury, or what I think we’re calling it.

Kathryn Rubino:

Very accurately dubbed.

Joe Patrice:

Yeah. Yeah. Somebody mentioned this on social media. What copy editor was looking at? They wanted to name it Epic Fury. And who wasn’t there to point out, “Hey guys, wait, maybe.”

Kathryn Rubino:

You know the letter is the same. Maybe

Joe Patrice:

We don’t start this with EP.

Kathryn Rubino:

And you know what? That isn’t even a super common way to start a word.

Joe Patrice:

Yeah.

Kathryn Rubino:

It’s not like, I don’t know, T or S or something like that, that is just super common, lots of words, one of the basics there.

Joe Patrice:

I also saw someone on social media talk about just how you can chart the decline in America’s seriousness with the names of our military operations. In 1944, it’s like Overlord and Neptune and stuff. And then it kind of drifted into Desert Shield and then it’s- Desitt

Kathryn Rubino:

Storm, I remember.

Joe Patrice:

Desert Storm, which was the next half of that. And now we’re like epic fury. We moved from a serious country to a monster truck rally so gradually over the last

Kathryn Rubino:

Century. I mean, that definitely tracks with the zeitgeist, I guess, of the moment, which is probably disturbing. The real problem, well, I mean, there are lots of problems with this war, but one of the unique issues that I’m having right now is that it’s just really overload at the moment between how many wars have we started? The man who’s really upset that he didn’t win the Peace Prize is going to take it out by starting all the wars.

Joe Patrice:

He won the FIFA Peace Prize. Sure,

Kathryn Rubino:

Sure. But it just feels really overloaded. And then attacked a

Joe Patrice:

FIFA nation, like a FIFA participant who is now, I gather, withdrawn from the tournament.

Kathryn Rubino:

Well, that checks out.

Joe Patrice:

Yeah.

Kathryn Rubino:

But it definitely feels like a lot more removal of sovereign leaders than you might have thought that you probably had on your bingo card. Maybe you had won on your bingo card, but two?

Joe Patrice:

Yeah. Well- Might have

Kathryn Rubino:

Been aggressive.

Joe Patrice:

We’re going to talk a little bit more about this operation as part of a later topic kind of tangentially. So we’ll close off a small talk here.

Kathryn Rubino:

So put a pin on the existential dread of yet another Middle Eastern War.

Joe Patrice:

Sort of. Well, I mean, just tangentially where you were going. I thought you touched on a later topic, but let’s begin with a conversation about … So tariffs.

Kathryn Rubino:

What

Joe Patrice:

Up with that? Yeah. So we talked about the tariff decision last time around, I believe, but the big stories of the week were the fallout of these stories. So the biggest story was I referred to John Roberts as occupying the Cook Chair.

Kathryn Rubino:

I mean, that’s a turn of phrase the right

Joe Patrice:

Thing. Yeah. And my logic on this is this is somebody whose commitment to getting rid of the Voting Rights Act is so extreme that he’s willing to put himself in a position where he gets ritualistically humiliated by the president, both in the press conference immediately after the decision, then the state of the union where last year he had his hand shook and told- Never forget this. We’ll never forget this. Thanks for all you’ve done for me.

Kathryn Rubino:

Right, because that was in the immediate wake of the immunity decision, of course.

Joe Patrice:

Right. But now skipped over him and shook only Kavanaugh’s hand on his way.

Kathryn Rubino:

I mean, here’s really the question, and maybe you have some thoughts about the state of the union. I thought that Trump would get more aggressive with the court at the state of the union, and certainly they took their lumps, but I kind of thought it would be more forceful. What about you?

Joe Patrice:

Yeah. I mean, we put together a drinking game for it, as

Kathryn Rubino:

We usually do. As one does.

Joe Patrice:

As is a quasi-annual tradition for us. And yeah, I did think that there would be a few more pot shots taken, but he was not nice. He did call them out, he did refer to them as being bad and that he was going to impose tariffs anyway, which is not the same as disregarding the opinion. He’s going to try to find a different statute to authorize them under. Now, query how estoppel works. Apparently his new plan is to utilize a statute that over the course of the arguments in this case, the government took the official position that the reason they needed the authorization they needed was because that new statute that he’s pointing to would not allow him to legally do it. So they have taken the position that the statute-

Kathryn Rubino:

Do that.

Joe Patrice:

One would think you cannot do that. They have taken a position in court that this statute would not support the tariffs he’s talking about, and now he’s doing them. So I would view that as some kind of an estoppel. Another thing I would point to is there now there’s a flurry. A lot of law firms are hearing from clients that they need help to get their refunds, which I assume-

Kathryn Rubino:

I want my money.

Joe Patrice:

Right. Which I assume would then not be passed on to the consumer the way that they passed on the cost to the consumer. So it’ll just be a giant windfall for these companies, but the government is taking the stance that folks are never going to see that. That’s actually what the treasury secretary explicitly said in an interview that we’ll never see that money.

Kathryn Rubino:

Despite the fact that in court-

Joe Patrice:

Well, that’s the thing. And all the legal challenges leading up to this, the argument that was made by the government for why they didn’t have to … Why a injunction wasn’t necessary was if we end up losing in the long term, we will immediately process with all of these refunds. And so they’ve taken the position that that’s what was going to happen. That’s what they told courts. And now they are saying they’re not going to do that, which means they yet again lied to courts.

Kathryn Rubino:

Yeah. Well, they lied or the treasury secretary lied when they said, “We are unable to process these.”

Joe Patrice:

Yeah, maybe they’ll

Kathryn Rubino:

Do it. Or they could do it, but are now choosing not to do it, which is slightly nuanced there. But I think overall what we’re learning is we’re not learning, but these two facts that we were just talking about is another shining example of how little the current administration respects courts. They think that whatever they say in court is just something they’ve said, not anything that binds them in the future. Certainly when they, in numerous instances, we’ve seen where courts make orders and they don’t think they have to follow them. If we’re talking about the second example where the Treasury Secretary’s just like, “I mean, I could give back the money, but I’m not going to. ” And I think that it just over and over, they don’t care what courts do, what courts say. They think it’s just a mere distraction from their power grab.

Joe Patrice:

And this brings us back to why the answer is discipline on the back end. I was on the Dan Abrams radio show recently to talk about that article and how he pressed me a lot because I walked away from disbarring every government lawyer. But in my article, I wasn’t really talking about disbarring everybody. I was talking about disbarring the leadership. He also framed it with the story of a JAG lawyer who we’ve heard the JAG lawyer who got parachuted into Minnesota and instantly hit with contempt because he inherited a million or one habeas cases that were already clustered. So he got hit with contempt. And I did walk back from necessarily dinging that guy’s license because at the end of the day, unlike people in the US Attorney’s office or something like that, the JAG lawyer doesn’t really have the option to just say, “I’m walking out people.

” The military doesn’t give you that option as much. So I feel for him a little bit.

Kathryn Rubino:

But what I’d almost say though, I think the answer is that there should be a presumption that everyone who has worked for the government during this kind of window should face disciplinary action. And if there are unique circumstances such as the one you’re talking about, okay, we can pull back, but I think the way that the presumption should flip should be, we presume that you’ve done something that’s unethical.

Joe Patrice:

Yeah. All right. Well, let’s take a break here and we’ll be back in a moment. All right. Well, so while we have John Roberts experiencing existential crises as he stares into the abyss of the hell of his own making, young lawyers, people just starting on their path to the career, we had the bar exam last week- We did. … in major jurisdictions here like New York and New Jersey, jurisdictions that had over that weekend leading up to the bar exam suffered-

Kathryn Rubino:

Blizzar apocalypse.

Joe Patrice:

A snowicane, as they called it.

Kathryn Rubino:

Snow again.

Joe Patrice:

Because we have to talk about the weather in every episode as a-

Kathryn Rubino:

I mean, it is pretty epic in fairness. That’s the thing about cataclysmic climate change, right? We get some pretty epic weather.

Joe Patrice:

Yeah. So the bar exam, 10,000 flights were canceled into New York, of course. The roads- It

Kathryn Rubino:

Was a state of emergency. You were not allowed to leave.

Joe Patrice:

Yeah. Manhattan had the bridges and tunnels closed. Travel was blocked for a lot of that time. Long Island was hit even worse. That’s another place where the bar exam, there’s a location in Manhattan and one in Long

Kathryn Rubino:

Island. On Long Island.

Joe Patrice:

On Long Island, sure. And there’s obviously also Albany, and New Jersey has it. And the response of the bar examiners to this crisis was, “Screw you kids.”

Kathryn Rubino:

“Hey kids, screw you kids.

Joe Patrice:

“Yeah. So they told everybody that they would be marked as having withdrawn from the exam if they didn’t show up, even though it was for several, an impossibility to show up. And for the ones remaining, it was the actual local authorities were telling you, ” Please do not try to travel. “The bar exam’s response to that was, ” We do not care, “which was another example of a bar exam who has no real concern for actually finding competent attorneys and protecting the public, but a massive concern in enforcing stupid rules of their own making to make themselves look big.

Kathryn Rubino:

Yeah. I wonder, and you might have an opinion on this, if it had been the July bar exam, so the February bar exam is a lot smaller than the July one. Would you think the reaction would’ve been quite the same?

Joe Patrice:

Interesting question. I think if there was a blizzard in July, the reaction would’ve been- Well,

Kathryn Rubino:

There could be

Joe Patrice:

Cataclysmic weather, Joe. I know, I know. But yeah, no, I think the reaction would’ve been the same. I think that the blowback would have been more extreme. There would be way more- It’d be

Kathryn Rubino:

A bigger PR disaster for them.

Joe Patrice:

Yeah, absolutely.

Kathryn Rubino:

Than just kind of us in the ABA Journal complaining.

Joe Patrice:

I’ll tell you, one of the interesting stories I heard about New Jersey, now New Jersey at least delayed the exam for a couple hours, but still forced everybody to get there, but their attempt at managed cruelty blew up in their faces because the test sheets didn’t arrive. So even delayed, they still were delaying the market. Because there was a blizzard, y’all. They’re a blizzard. The vendors didn’t show up. It goes again, like the bar exam is dumb. It’s a antiquated and not particularly efficient way to determine who is competent to practice law. We need to have serious conversations about licensing reform. And we don’t have those conversations because we’ve had this one system for so long and there’s a massive nonprofit I put in quotations because it is in fact a nonprofit organization that just happens to have something like $120 million in assets.

Kathryn Rubino:

Just sitting around.

Joe Patrice:

As nonprofits do. As one does. And it uses that.

Kathryn Rubino:

Well, isn’t the NFL also a nonprofit?

Joe Patrice:

Yeah. Right up there with them.

Kathryn Rubino:

Yeah. But here’s … I’m not going to push back about the utility of the bar exam right here, but I am going to push back about what should aBar Association do. If you’re in the business of having the exam, the law currently is you can’t change it when you’re hit with sudden weather. You can’t say, okay, now you guys are lawyers because you signed up for the February bar exam that has a notoriously low pass rate. You can’t do that, but what can you do? Because what stuck out for me in the response is there’s no word about refunds about, oh, well, you’re automatically enrolled in the July bar exam. Is there an option? I know it’s a large logistical nightmare to have a bar exam, so the option of another one later is probably prohibitive, but no even kind of conversation of that, “Well, we’ve explored this option.

However, we cannot do it. Therefore, we will give you all … You are automatically enrolled in the July exam.” There’s none of that kind of dialogue even happening.

Joe Patrice:

Yeah. No, absolutely not. And it’s a real problem. There are so many problems with this, and it goes to the ultimate failure of the bar exam as a concept, right? Because the reason why they can’t just say, “We’ll book some places and have a makeup exam in a couple of weeks,” is, “Well, you can’t do that because they’ll have access to the questions and we only write one bar exam for every opportunity.” And why? And see, the issue is the argument is why is because they grade these things on a curve and they decide, “Oh, this amount of people are going to get through. This is what we’re setting it this year.” Which if the point of the exam is to-

Kathryn Rubino:

Minimum competency.

Joe Patrice:

… find minimum competency, then what’s a curve doing there? And if minimum competency is all you’re after, give a different exam. You can give infinite numbers of exams, and if they hit the minimum number, then you’re fine. There’s no reason to do it this way other than it’s alive from the start. Sure. The bar exam’s one of those tests that just like … I mean, I took it, I passed it. It didn’t have issues or anything like that, but I also don’t think that other people should go through the hazing ritual that I did just because I did it. And I don’t think the profession and the public should be having to deal with a world in which this is how we decide who gets to be a lawyer. There are better ways to decide who’s competent.

Kathryn Rubino:

Yeah, that is certainly true. I will say though, I think that there is a perception in the profession that it is a rite of passage to do it. And I think particularly amongst the bigger law firms, the people go to the sort of top tier schools, there’s a, “Oh, what did you do for your bar trip?” Meaning after you’ve taken the bar exam, there’s usually a period of time between taking the bar exam and starting your big law where you have some free time on your hands, you can have some fun. You often will get early paycheck or money from your firm, so you have cash, but I’m just saying that that’s all part of the ambiance of starting your career in that way. And I think that there’s that kind of nostalgia for that, that a lot of lawyers have that is part of what keeps the system in place.

I

Joe Patrice:

Don’t think we need to keep this test in order for people to take a vacation.

Kathryn Rubino:

Well, I mean, it’s harder to take a vacation in law firm life than perhaps you’re

Joe Patrice:

Recalling. Right. Give them the summer off, give them something else to do. I actually don’t think that testing is bad. I think that the kind of curved testing or whatever that makes kind of a mockery of the minimum context is bad, but you can have other kinds of tests. I think that there should be certificates by subject matter. It is unnecessary for someone who’s going to be an M&A lawyer to know all the rules of evidence. I think these are the sorts of issues that are deep problems with how we license people, but yeah, I don’t know. Anyway, well, the bar exam showed-

Kathryn Rubino:

Exactly as much as empathy as you might expect. Yeah.

Joe Patrice:

And as usual, and here we are. All right. Well, let’s take another break and return in a moment. Hey.

Kathryn Rubino:

Hey. You

Joe Patrice:

Know what time it is?

Kathryn Rubino:

Is it time to talk about legal technology?

Joe Patrice:

It sure is.

Kathryn Rubino:

Oh, I was waiting for this moment.

Joe Patrice:

Look, you all make fun of me having to talk about this, but it keeps coming up in our top stories, which proves that the audience is with me on this.

Kathryn Rubino:

I think it’s that you’re flooding the zone. Oh,

Joe Patrice:

So I think we might’ve even mentioned this in passing in a previous episode, but- I

Kathryn Rubino:

Think so.

Joe Patrice:

We had the decision in New York that determined that asking AI for stuff, those prompts are discoverable, even if what you were doing was asking them on behalf of your own legal strategy, which seems problematic to me. I think that the standard opens the door to a lot of mischief, especially if the standard is, oh, it went to a third party, especially with AI being embedded in stuff. We talked about that.

Kathryn Rubino:

The follow-up is, okay, AI is the third party, but what about cloud servers?

Joe Patrice:

Right, exactly. Under the same standard, lots of other and terms of service arguments, lots of just your stuff on the cloud would be exposed. We actually had a contrary opinion out of, I think Michigan at the same time, which we didn’t know when we were first discussing this big New York

Kathryn Rubino:

One.

Joe Patrice:

Yeah. So we had a contrary opinion where the facts are a little bit different, but the interesting part is, I thought the reasoning in this was a little bit better and there were some different facts, but I think it sets up a conversation for the future. Sure.

Kathryn Rubino:

It’s blit.

Joe Patrice:

Yeah, sort of. Yeah. And in this instance, we had a pro se litigant who was using a commercial AI product to help put together their legal defense and the other side wanted access to all of that. And the judge was like-

Kathryn Rubino:

That seems particularly crappy.

Joe Patrice:

Well, right. So there is a level to which when you’re acting in your own defense, your own behalf, I should say, when you’re acting on your own behalf, that actually is direct reflection of your work product. Correct. And so it should extend to that, which is a little bit different than when you’re working with a law firm. However, in the New York case, he’d already engaged Quinn Emanuel and he was creating documents that he thought would help Quinn Emanuel understand what was going on, what he wanted to tell them. That sure seems like something that we would … If he’d done that by handwritten notes, it would have been protected. So I don’t know. So that’s why I say even though there’s this difference with being pro se or not, you string it out and it’s not really that much of a difference because that would have been protected in that instance, but here it’s not.

Well, what about because it’s the terms of service says that putting in a prompt isn’t necessarily covered? Well, that’s true of the woman acting in her own defense. So that can’t be the distinction. We don’t really have rules based set up to deal with this situation.

And this is where we kind of transitioned a little bit to talk about the thing we previewed earlier and … The war. The war. It’s

Kathryn Rubino:

Not just like a little thing.

Joe Patrice:

On the war side, we learned that the Department of Defense was utilizing Claude as part of its war planning, which was interesting considering that they also announced that they were not only dropping Claude, but they were going to invoke powers that they have to make every other company in the world basically stop working with Claude. Basically, anybody who works with the Department of Defense is now ordered to drop all work with Claude. Now that is probably not legal. There should be firewalls put up under that statute, but that is certainly not the administration’s take.

Kathryn Rubino:

No kidding.

Joe Patrice:

And they’re arguing that, for instance, Microsoft has to stop working with Claude or else. It’s going to be interesting.

Kathryn Rubino:

Yeah, because as a financial decision, their contract with the government is probably not as big.

Joe Patrice:

Yeah. You would think Microsoft’s contract with the government would be massive, but as it turns out, it’s like a third of the amount of money they currently book as expected revenue from Claude. So now you’ve got a situation where … And now again, a lot of this AI revenue is-

Kathryn Rubino:

Theoretical.

Joe Patrice:

… fictitious and theoretical, but has the AI bubble gotten to a point where it is so big and so necessary to the existence of these companies

Kathryn Rubino:

That- You just kind of got to assume it’s going to come.

Joe Patrice:

Yeah. Yeah. If Microsoft says we are giving up the 30 billion that we have on our books that is incoming revenue from Claude to protect three billion from the government, shareholders not happy in a way that is real bad for that company. And there are other companies for whom it would be existential.

Kathryn Rubino:

Right. And the other part, and part of this is these threats that the federal government is making really takes the turn towards arbitrating capricious because the same time they’ve switched their stuff over to ChatGPT or they’re supposed to, but ChatGPT is saying that they are requiring the same things that Claude required in terms of not using it for autonomous weapons, et cetera. And they said that they got those same promises that they wouldn’t make to Claude, which feels a lot like they’re just putting their hands on the levers there.

Joe Patrice:

Right. Well, now to turn this back to law, now what do you do there? Now, I think Anthropic probably has some sort of a legal case. If OpenAI really does get the same conditions that they fired Anthropic over, then I think Anthropic has some real breach contract arguments to be made. And I also think the arbitrary and capricious application of this rule on them. But also as a negotiating tactic, what does the Department of Defense … What do they really have? I think they think that they’re in the big seat, but if Microsoft says,” No, we’ve looked at it and it’s just too valuable to stick to pull this off, “if that’s what they say, then what’s the Department of Defense going to do? Get rid of all of its computers? They can’t turn on a dime and start buying computers elsewhere. They can’t

Kathryn Rubino:

Stop using- Loaded onto every government computer. Right.

Joe Patrice:

They don’t have the option of just moving on from that on a whim. And for that matter, what’s the alternative? Google Workspace, Google may have issues here too. Now, Google, of course, as making its own frontier model probably isn’t getting as much from Claude, but I don’t really know those finances as well. I’m

Kathryn Rubino:

Sure

Joe Patrice:

That-

Kathryn Rubino:

And it’s still the new deal that has to be done and negotiated and implemented.

Joe Patrice:

I

Kathryn Rubino:

Mean, if there’s any lesson that the government should have, probably didn’t, but should have taken away from the Doj fiasco is that just wanting something to be true does not mean it can be implemented as on a whim.

Joe Patrice:

Yeah. Wild times, we’ll see how this deal turns out. I do expect Anthropic to litigate against the government over this because it is a- It should. It is a contract. And sovereign immunity is sovereign immunity, but when you engage in a contract, the capacity to not just cancel it. And the government does have broad authority to cancel contracts because what if the budget gets cut and then you have to whatever. This though, I think there is an argument that that’s not what’s happening here, right? Yeah.

Kathryn Rubino:

And all they wanted was an assurance that it would not be used for illegal purposes. That does not seem ridiculous in the slightest.

Joe Patrice:

What gets me is that a lot of people are reacting to it as though like, oh, well, they’re making national defense weaker. And I was like, well, put aside, maybe they aren’t high-minded about preventing autonomous weapons. I think what they might well be doing, and based on the words from their statements, what they’re doing is, our product occasionally deletes your whole hard drive when you ask it to do things. Maybe we don’t give it nukes. I think that’s a different question, and that seems to be the one they’re talking about.

Kathryn Rubino:

It’s trying to minimize the risk. Yeah. I mean, that’s

Joe Patrice:

Fair. And well, and we also had that study that came out where strategy analysts had run all of the models through various war game scenarios, and all of them, I think 95% of the time, all the models went directly to screw it, Newcomb. There was no chill in any of these models.

Kathryn Rubino:

Yeah. They don’t really understand mutually assured destruction in quite the same

Joe Patrice:

Visceral

Kathryn Rubino:

Way as a human does. Screw

Joe Patrice:

It. So anyway, so that’s going on too, slightly different question, but it goes back to the conversation we were having about privilege and all that is

We are in a weird time for AI, a weird time where one of the major companies could go under because the government’s acting arbitrarily. We have lawsuits happening over it. Whether or not you think AI is long-term going to be earth shattering, and I have some doubts about that, it is very much foundational to everything economic right now and it’s in chaos. All right. Well, we should probably wrap up. Thanks everybody for joining us. You should subscribe to show to get new episodes when they come out, leave reviews, stars, all those things. It helps us out. You should check out The Jabo Kathryn’s other show. I’m a guest on the Legal Tech Week Journalist Roundtable. There are other programs on the Legal Talk Network that you can listen to. So subscribe to any and all of these things. You should be reading above the Law to read these and other stories before we talk about them here.

Follow Kathryn at Kathryn1. I’m at Joe Patrice over at Blue Sky mostly, but we maintain some Twitter presence occasionally, just not by choice, but by necessity of there’s too many people over there I have to monitor. And with all that, I think we’re good to go. Hey, bye.

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