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Speaker 1: You're listening to Bloomberg Law. I'm Michael Best with June Grosso.

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Speaker 1: Section seven or two of the Foreign Intelligence Surveillance Act

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Speaker 1: allows the government to intercept the emails and phone calls

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Speaker 1: of non Americans who live outside the United States without

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Speaker 1: getting a warrant. But when the government does that, it

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Speaker 1: will also capture calls and emails made between Americans and

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Speaker 1: the targeted non Americans. Can the government use those Americans

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Speaker 1: communications and criminal investigations? The Ninth Circuit Court of Appeals

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Speaker 1: says yes. And here to discuss their decision and the

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Speaker 1: Foreign Intelligence Surveillance Act is the distinguished Constitutional Scholar from

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Speaker 1: Harvard Law School, Noah Feldman, who is also a Bloomberg

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Speaker 1: View contributor. No, welcome back to the program. Always a

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Speaker 1: pleasure to have you here. Thank you for having me um. So,

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Speaker 1: are there any limits under the Foreign Intelligence Surveillance Act

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Speaker 1: to what the government can read or listen to when

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Speaker 1: when they're intercepting communications by non Americans? Well, in general,

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Speaker 1: the answer his no. If you're a non American and

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Speaker 1: you're outside the United States, then you're not protected by

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Speaker 1: the law and the government can go ahead and listen

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Speaker 1: to you. What was at stake in this case, and

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Speaker 1: what makes this case so significant is that it's not

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Speaker 1: about communications solely involving non Americans outside the US. It's

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Speaker 1: about communications by Americans in the US recorded by the

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Speaker 1: US government inside the country. Now, will you explain the

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Speaker 1: situation a little bit what actually happened. Yeah, there was

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Speaker 1: an investigation that involved a man named Mohammed Mohammad who

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Speaker 1: was eventually convicted of an attempted bombing in Portland, Oregon,

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Speaker 1: on Black Friday of at a Christmas tree raising ceremony.

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Speaker 1: And as part of that investigation, the which incidentally came

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Speaker 1: out of a staying operation and FBI sting operation. So

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Speaker 1: as part of that investigation, the FBI had um traces

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Speaker 1: on communications of an unnamed person outside the US. It

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Speaker 1: may well have been someone with whom Mohammed was communicating

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Speaker 1: in Yemen, but we don't know that for sure from

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Speaker 1: the records, and the US government recorded, the FBI recorded

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Speaker 1: that Mohammed was sending emails from inside the US to

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Speaker 1: this person. The government then took those emails, read those emails,

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Speaker 1: and brought them to a U S court and got

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Speaker 1: a warrant to investigate Mohammed, and that led to the

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Speaker 1: process ultimately in which he was um stung and then

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Speaker 1: arrested that and sent to prison. And what did the

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Speaker 1: ninth Circuits say in upholding his conviction. The Ninth Circuit

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Speaker 1: said that as long as the initial wire tapping, that

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Speaker 1: is to say, the interception of the communications was targeted

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Speaker 1: not at Mohammud, but it's someone outside the US, non

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Speaker 1: American outside the US, then any emails by Americans written

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Speaker 1: in the US that the government happened to intercept and

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Speaker 1: read or quote unquote incidental to the initial investigation. And

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Speaker 1: because they were incidental, they were permitted without a wired

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Speaker 1: without a warrant under the Fourth Amendment of the Constitution.

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Speaker 1: No what so Section seven O two makes a distinction

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Speaker 1: between targeted and untargeted surveillance. If the government is allowed

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Speaker 1: to monitor emails of targeted non Americans living abroad without

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Speaker 1: a warrant, can that be done without happening to see

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Speaker 1: an Americans exchange with one of those people. Well, it's

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Speaker 1: definitely true that if the government is listening to the

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Speaker 1: communication of somebody outside the US US, sometimes that person

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Speaker 1: will get communications from Americans. I mean, that could certainly happen,

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Speaker 1: and I don't think anyone disputes that if that happens,

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Speaker 1: the government could capture those The question is, can the

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Speaker 1: government then read them and use them as evidence to

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Speaker 1: commence or participate in an investigation against an American or

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Speaker 1: does the government at that point need immediately to get

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Speaker 1: a warrant in order to read that. And that's the

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Speaker 1: essence of the question in the case, Well, how if

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Speaker 1: you allow this, If there's no Fourth Amendment problem with

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Speaker 1: this situation, then how is it that courts can prevent

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Speaker 1: the government from effectively doing a backdoor to get the

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Speaker 1: Americans communications without a warrant by saying, well, we know

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Speaker 1: this American is communicating with people outside the country, so

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Speaker 1: let's target them and then we'll get this Americans communications. Yeah,

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Speaker 1: that's the big risk, and I think they're sort of

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Speaker 1: two ways potentially to solve that problem. One would be

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Speaker 1: to say that if the government, let's say, wants to

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Speaker 1: spy on me and they know that I email with

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Speaker 1: a person I don't know in the United Kingdom, and

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Speaker 1: the government then goes and listens to that person's communications

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Speaker 1: and the hopes of capturing mine, that they were really

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Speaker 1: targeting me all along and that they weren't targeting the

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Speaker 1: other person, that it's not actually the case that they

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Speaker 1: were targeting them. The harder case is a scenario where

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Speaker 1: the very reason that the government is interested in someone

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Speaker 1: abroad us that they think that person might be talking

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Speaker 1: to Americans. Imagine it's an al Qaeda recruiter and our

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Speaker 1: great worries that the person might be talking to Americans,

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Speaker 1: and the government then targets quote unquote that person and

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Speaker 1: then says, oh, incidentally, we happen to have gotten all

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Speaker 1: these communications of Americans. That's the really tricky case, and

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Speaker 1: that's the case in which the Court said it's fine,

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Speaker 1: and in which my guess is other courts of appeal

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Speaker 1: around the country are going to disagree and say that

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Speaker 1: that's not incidental that the real targeting took place at

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Speaker 1: the level of knowing that there would be Americans whose

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Speaker 1: communications would be sent. No. In your Bloomberg You column,

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Speaker 1: you suggest that this is going to end up at

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Speaker 1: the Supreme Court. If it does, how is the court

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Speaker 1: likely to view this? That's going to depend on who

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Speaker 1: the justices are when it takes place. And it's a

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Speaker 1: great example of the kind of issue that may look

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Speaker 1: extremely different after Justice. Scalia is replaced by, you know,

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Speaker 1: by a Trump nominee, because the closest question on this

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Speaker 1: would be whether Justice Kennedy, as a swing voter as

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Speaker 1: he often is, would be on the liberal side of

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Speaker 1: the conservative side of the question. I think the liberal

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Speaker 1: side would be to say, no, they can't target and

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Speaker 1: and that this would count as targeting, and the conservative

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Speaker 1: side would be to accept the Ninth Circuits ruling. So

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Speaker 1: if this case were heard today, it might well be

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Speaker 1: a four four tie. But if the case is heard

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Speaker 1: after a new justice is added, then even then it

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Speaker 1: would you know, very possibly go five four for the government. Now,

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Speaker 1: this statute is controversial for this reason and some others

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Speaker 1: among people who are concerned about civil liberties. Is is

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Speaker 1: there something Congress what to do for I mean, you know,

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Speaker 1: if you've got the court saying this is okay, is

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Speaker 1: there a fixed legislatively that Congress should consider. Yeah. I

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Speaker 1: think Congress could clarify section seven or two of the

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Speaker 1: of the law to define what counts as targeting and

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Speaker 1: what counts is incidental. And they could say, for example

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Speaker 1: that if the government is choosing to listen to somebody

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Speaker 1: abroad because they think that there will be Americans communicating

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Speaker 1: with that person, then anything captured as part of that

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Speaker 1: communication shouldn't be treated as only incidental, but should be

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Speaker 1: treated as in fact um part of the targeting, and

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Speaker 1: therefore would require a warrant. The question is would a

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Speaker 1: Republican Congress with a Republican president be likely to amend

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Speaker 1: the law in that direction? And I have to say

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Speaker 1: that its team is relatively unlikely. No. What the Ninth

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Speaker 1: Circuit is considered one of the most liberal, if not

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Speaker 1: the most liberal. What was the panel like that it

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Speaker 1: came out with this decision? This was a panel dominated

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Speaker 1: by Republican pointees. And it is possible that there will

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Speaker 1: be a call for rehearing by the entirety of the

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Speaker 1: Ninth Circuit. That happens a lot at the Ninth Circuit,

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Speaker 1: more than in almost any other circuit in the country.

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Speaker 1: And they have a rigorous internal process whereby judges who

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Speaker 1: don't like a specific outcome will call for rehearing in

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Speaker 1: bank and then they have to vote on that. And

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Speaker 1: so I think it's quite possible that they will be

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Speaker 1: rehearing in bank on this issue. No One last thing

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Speaker 1: in about thirty seconds. Do you think this is the

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Speaker 1: kind of case the Supreme Court will take right away

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Speaker 1: if it's petitioned, or are they going to wait for

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Speaker 1: other courts to rule on it. My instinct is that

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Speaker 1: they will wait because it may be that all federal

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Speaker 1: courts that they agree with this position. They still might

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Speaker 1: take the issue then, but the need to do so

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Speaker 1: it would be lowered. But it's more likely would be

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Speaker 1: the kind of case for other circuits to say the

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Speaker 1: second circuit will come out the other way. And if

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Speaker 1: that happens, then the justices have a circuit split, which

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Speaker 1: is what they like to see before they take a case,

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Speaker 1: because it means the case has had a chance to,

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Speaker 1: as they say, percolate, meaning a chance for lots of

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Speaker 1: different judges to weigh in. And that gives everybody a

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Speaker 1: chance in the legal system to take positions and think

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Speaker 1: it over, and in theory it produces a better judgment

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Speaker 1: by the time the Supreme Court gets to the issue. Well,

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Speaker 1: thank you very much to Noah Feldman, Professor of Constitutional

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Speaker 1: and International law at Harvard Law School and a Bloomberg

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Speaker 1: View columnist. Coming up on Bloomberg Law, we're going to

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Speaker 1: talk about diversity at law firms, the diversity of partners

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Speaker 1: at law firms is frankly not very high, and Corporate

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Speaker 1: America is concerned about it and trying to pressure law

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Speaker 1: firms to promote more women and people of color into

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Speaker 1: partnership positions. If they're going to hire these firms to

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Speaker 1: represent them, that's coming up straight ahead on Bloomberg Law.

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Speaker 1: This is Bloomberg