WEBVTT - High School Transgender Bathroom Ban Upheld

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<v Speaker 1>This is Bloomberg Law with June Brasso from Bloomberg Radio.

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<v Speaker 1>At the heart of this case is Drew, who testified

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<v Speaker 1>a trial that he knows with every fiber of his

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<v Speaker 1>being that he is a boy. Drew Adams, a transgender

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<v Speaker 1>high school student, suit his Florida school district in seventeen

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<v Speaker 1>because he wasn't allowed to use the boy's bathroom. His attorney,

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<v Speaker 1>Terra Borrelly, argued that the school's mandate that Adams used

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<v Speaker 1>the girl's bathroom or a gender neutral bathroom violated the

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<v Speaker 1>Constitution's guarantee of equal protection as well as his rights

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<v Speaker 1>under Title nine, the law barring sex discrimination by educational institutions.

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<v Speaker 1>The line that we're challenging here is not the one

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<v Speaker 1>that separates boys and girls under either claim. That's not

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<v Speaker 1>the line being challenged. The line being challenged is the

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<v Speaker 1>one that the school board has drawn around every transgender

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<v Speaker 1>student and only transgender students, and has said not you,

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<v Speaker 1>you shall not pass. We will padlock the restroom doors

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<v Speaker 1>to you. You're not fit to share that space with

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<v Speaker 1>your peers, and your mere presence in that space is unacceptable.

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<v Speaker 1>But the full Eleventh Circuit Court of Appeals in a

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<v Speaker 1>sharply divided opinion ruled that the school district's policy of

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<v Speaker 1>separating school bathrooms based on biological sex is constitutional because

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<v Speaker 1>it advances a governmental objective of protecting students privacy. Joining

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<v Speaker 1>me is Noah van Asher, a professor at the Elizabeth

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<v Speaker 1>Holps School of Law at Pace University. No, what's your

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<v Speaker 1>reaction to this divided seven to four decision. I am

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<v Speaker 1>angry this boy. I mean, if you read this case,

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<v Speaker 1>it's just heartbreaking because this is a case about a

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<v Speaker 1>particular boy who comes out as a boy right before

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<v Speaker 1>puberty and wants to use the bathroom. He's not bothering anyone.

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<v Speaker 1>His friends accept him, his teachers accept him, they used

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<v Speaker 1>the correct gender pronouns. But for some reasons the school

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<v Speaker 1>besides that he cannot use the bathroom, he and maybe

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<v Speaker 1>four other students out of two thousands, cannot use the

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<v Speaker 1>bathroom of their gender identity because someone, some anonymous person

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<v Speaker 1>might be offended. That's how wrong this decision is. In

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<v Speaker 1>all respect to the majority opinion rely heavily on privacy concerns.

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<v Speaker 1>So the decision legally is talking about the ego protection

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<v Speaker 1>clause and specifically about the idea of having different bathrooms

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<v Speaker 1>for boys and for girls, and for that purpose, the

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<v Speaker 1>court relies heavily on a legitimate state interests of privacy.

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<v Speaker 1>So in terms of the logic of the court, the

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<v Speaker 1>court is talking about privacy. Now, the court said that

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<v Speaker 1>the bathroom policy didn't violate the law because it's based

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<v Speaker 1>on biological sex, not gender identity. Quote. A policy can

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<v Speaker 1>lawfully classify on the basis of biological sex without unlawfully

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<v Speaker 1>discriminating on the basis of transgender their status. Will you

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<v Speaker 1>explain that difference, I would say, if we were to summarize,

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<v Speaker 1>the main problem with this decision is that particular definition

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<v Speaker 1>of biological sex which it relies on and is just

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<v Speaker 1>incorrect in terms of the medical science and expertise that

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<v Speaker 1>is out there. The way that the school policy defines

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<v Speaker 1>biological sex is basically about chromosomal sexts and about the

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<v Speaker 1>shape of the genitals as a doctor at birth assigned it.

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<v Speaker 1>That's the school's definition. Now, when we go to the

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<v Speaker 1>actual evidence that the district court had in front of it,

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<v Speaker 1>it talked to a lot of experts who testify that

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<v Speaker 1>as of today, that is simply not the medical definition

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<v Speaker 1>of facts, which today includes many factors some of which

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<v Speaker 1>are chromosomal sects, shape of genitals at birth, or internal organs.

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<v Speaker 1>But most importantly, gender identity has been left out of

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<v Speaker 1>the definition of biological sex as used by the county,

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<v Speaker 1>and that is what this whole case really turns off.

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<v Speaker 1>So the question is really what the definition of biological

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<v Speaker 1>sex is. The question is even the term itself biological

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<v Speaker 1>sext as is used, it no longer uses that way

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<v Speaker 1>by most prevalent medical experts. So what the district did

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<v Speaker 1>here is it took a definition of biological sex that

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<v Speaker 1>it is very narrow and also simply incorrect. And how

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<v Speaker 1>we understand predictors of sexts today Because just to be clear,

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<v Speaker 1>when a baby is born, nobody gives them chromosomal test.

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<v Speaker 1>What happens at the hospital. This is what happened with

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<v Speaker 1>this Clint Stiff as well. Is the doctor looks at

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<v Speaker 1>the genitals and says, oh, this is a girl or

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<v Speaker 1>this is a boy. In many cases, this is not

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<v Speaker 1>going to be the development. And even if it is,

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<v Speaker 1>there are other components that are just not part of

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<v Speaker 1>that initial definition. So the correct way to talk about

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<v Speaker 1>it today, according to the medical experts, that has been

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<v Speaker 1>followed by many courts is to talk about sex assigned

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<v Speaker 1>at birth. So you see there's a difference between talking

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<v Speaker 1>about biological sex versus talking about sex assigns at birth.

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<v Speaker 1>This was a ruling down ideological lines, seven to four,

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<v Speaker 1>with judges appointed by Republican presidents in the majority and

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<v Speaker 1>judges appointed by Democratic presidents in the minority. Why is

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<v Speaker 1>this an ideological dividing line? This issue is, as I've

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<v Speaker 1>written about and many others have noted, is one of

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<v Speaker 1>the hottest topics right now in the divide that we

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<v Speaker 1>sometimes called culture wars, and obviously one of them is

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<v Speaker 1>abortion what happened in the Dob's decision, But transgender identities

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<v Speaker 1>and rights have been an issue in the last least

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<v Speaker 1>five years, released since Alburger, phil since the rights of

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<v Speaker 1>same sex marriage, and so it is no surprise at

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<v Speaker 1>all that the divide here in the eleventh Circuit is

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<v Speaker 1>along ideological line. And I just want to go back

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<v Speaker 1>to the medical understanding of sex of biological sects. And

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<v Speaker 1>I'm going to quote here from the dissenting opinion, quoting

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<v Speaker 1>the medical expert testifying. So this ideological divide that you

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<v Speaker 1>and I are just talking about, it's really about what

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<v Speaker 1>sex means what do we mean when we say sex. So,

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<v Speaker 1>medical experts today and I'm quoting, recognize that a person's

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<v Speaker 1>sex is comprised of a number of components, including chromosomal sects,

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<v Speaker 1>go natal sex, fetal hormonal sex, internal morphologic sex, external

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<v Speaker 1>morphologic sex, hypostalmic sext puretal hormonal sex, neurological sex, and

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<v Speaker 1>gender identity. Enroll. That's the current medical definition of sex.

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<v Speaker 1>The Republican nominees and many conservatives just do not agree

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<v Speaker 1>with this definition of sex, so they come up with

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<v Speaker 1>policies that narrow it substantially, such that a transgender boy

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<v Speaker 1>such as this plaintiff is excluded from using the boys

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<v Speaker 1>back Circuit decisions creates a split with the Fourth and

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<v Speaker 1>Seventh Circuits, which both rule that transgender students can use

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<v Speaker 1>bathrooms that match their gender identities. So the Fourth Circuit,

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<v Speaker 1>in a famous case that almost was heard by the

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<v Speaker 1>Supreme Court, but the Supreme Court ended up de nying

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<v Speaker 1>hearing went the opposite direction and definitely held that gender

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<v Speaker 1>identity and again this is the key. Is gender identity

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<v Speaker 1>part of our understanding of the human being? And if so,

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<v Speaker 1>how important it is? And the Fourth Circuit went with

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<v Speaker 1>the plaintiff they're another transgender boy, and said that his

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<v Speaker 1>gender identity is critical and the school must allow access

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<v Speaker 1>to the bathroom that follows his gender identity. So that

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<v Speaker 1>happened at the Fourth Circuit. We also have a decision

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<v Speaker 1>like that in the Seventh Circuits where similar challenge on

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<v Speaker 1>a coal protection and ninth Title nine grounds. And I

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<v Speaker 1>want to say that these decisions all turn on the

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<v Speaker 1>definition of what we mean by sex and how we're

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<v Speaker 1>going to cabin the idea of of sex biological sex

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<v Speaker 1>versus gender identity. Do we include gender identity in the

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<v Speaker 1>definition of sex or do we exclude it and say

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<v Speaker 1>there is biological sex and then their gender identity. So

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<v Speaker 1>might the Supreme Court intervened to resolve that split. It's

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<v Speaker 1>hard to predict here. It is a question of whether

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<v Speaker 1>this Court has an appetite for this particular case. Given

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<v Speaker 1>its record from the last sitting, it seems that this

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<v Speaker 1>Court is willing to go all in and make this

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<v Speaker 1>very politically oriented decisions. So I wouldn't be surprised if

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<v Speaker 1>the Court takes this circuit split and goes with the

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<v Speaker 1>Eleventh Circuits. But I just wanted to emphasize that in

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<v Speaker 1>the Title nine domain. This particular case in the Eleventh

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<v Speaker 1>Circuit is an outlier and does not reflect for district

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<v Speaker 1>courts are in most of the country and circuit courts are.

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<v Speaker 1>Is the Supreme Court's ruling in the boss Dot case

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<v Speaker 1>that Title nine protects l g B T workers is

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<v Speaker 1>that persuasive here? Although that was when Justice Ruth Bader

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<v Speaker 1>Ginsburg was still on the Court, and it's a very

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<v Speaker 1>different court now. Bostock was decided on Title seven grounds,

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<v Speaker 1>which is an employment context and not in the school context,

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<v Speaker 1>so it's it's a different statutory grounding. And Justice Gore

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<v Speaker 1>such writing the decision for the majority specifically never talks

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<v Speaker 1>about gender identity, so he rules in favor of the

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<v Speaker 1>transgender plaintiff without talking about gender identity, but relying again

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<v Speaker 1>folding back on the idea of biological sex. And so

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<v Speaker 1>Bostock did not help put the plaintiff make his claim

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<v Speaker 1>regarding Title mind and the equal protection clause. It's going

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<v Speaker 1>to be hard to predict based on boss Stock, especially

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<v Speaker 1>the equal protection case regarding Title nine. I would say that,

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<v Speaker 1>you know, we could lead to a similar kind of

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<v Speaker 1>textual reading of what the congressmant in nineties seven to

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<v Speaker 1>two guarding Title nine what's sex needs. But even there,

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<v Speaker 1>you know, just the score such ended up in favor

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<v Speaker 1>of the transgender plaintiff. So I would say that we

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<v Speaker 1>cannot predict how the Supreme Court will decide this case.

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<v Speaker 1>In line of this decision, one Florida school district, Pasco County,

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<v Speaker 1>has already changed its rules to require students to use

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<v Speaker 1>restrooms based on their sex assigned at birth. So can

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<v Speaker 1>we expect some far ranging consequences of this decision? Absolutely

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<v Speaker 1>definitely from now on in Florida, Alabama, and Georgia school boards.

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<v Speaker 1>School districts can just decide to use this incorrect category

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<v Speaker 1>of biological sex that doesn't rely on any medical line,

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<v Speaker 1>and use it to deny access to transgender students to bathrooms.

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<v Speaker 1>And that, according to this particular decision, which is why

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<v Speaker 1>it's so harmful, is not in violation of the protection

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<v Speaker 1>clause and not in violation of Title mine. So these

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<v Speaker 1>three states will now be able to do that. Will

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<v Speaker 1>they all do that in all districts? Probably not so,

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<v Speaker 1>even in the eleventh circuits. Some school districts have other

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<v Speaker 1>policies that are more inclusive towards transgender students. The divide

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<v Speaker 1>right now. I don't think is necessarily by state, but

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<v Speaker 1>we have states like in Texas and Florida where we

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<v Speaker 1>have other legislation that is very anti trans specifically around

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<v Speaker 1>preventing care for trans youth, and Texas to course, the

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<v Speaker 1>more conservative leaning states have other policies in place to

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<v Speaker 1>discriminate against transgender students. There's so much to talk about here.

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<v Speaker 1>Do you have any closing thoughts for us? Well, I

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<v Speaker 1>just want to clarify that the main things that I

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<v Speaker 1>think went wrong in this decision are too right. The

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<v Speaker 1>first is that it really turns on this kind of

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<v Speaker 1>public debate that is happening now in the courts and

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<v Speaker 1>in Congress in a different levels around what transgender means

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<v Speaker 1>and if transgender is real, right, it's gender identity is

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<v Speaker 1>real or not? So in many ways, this decision, when

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<v Speaker 1>we read the descent, when we read the majority, is

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<v Speaker 1>really that debate about what gender means, the gender mean

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<v Speaker 1>what we are at birth, or does gender mean other

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<v Speaker 1>things but sex and gender? So I feel like we

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<v Speaker 1>we must understand that this is what's at stake, and

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<v Speaker 1>as you said earlier, it is an ideological question. Right,

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<v Speaker 1>we can turn to science and we can have medical

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<v Speaker 1>experts testify, and they have been, and they have been

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<v Speaker 1>testifying in favor of the transgender plaintiffs. So this is

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<v Speaker 1>this is number one in the debate. And another important

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<v Speaker 1>thing that I really want to clarify is that turning

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<v Speaker 1>this decision, as the majority did, into a debate about

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<v Speaker 1>whether sex segregated bathrooms are legitimate or not is not

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<v Speaker 1>the question. So the court averts the questions of excluding

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<v Speaker 1>transgender students in favor of a different question that whatether

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<v Speaker 1>raised by the clienttiffs, which is is it okay to

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<v Speaker 1>have boys rooms and girls rooms? Right? And so those

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<v Speaker 1>two misconcepts shows, I think lead to this decision that

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<v Speaker 1>seems highly ideological because it is that's Noah ben Asher,

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<v Speaker 1>a professor at the Elizabeth Hope School of Law at

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<v Speaker 1>Pace University. Republican attorneys general jointly challenging the Biden administration

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<v Speaker 1>have found their preferred venue. Nine of the forty five

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<v Speaker 1>multi state Republican lawsuits against the Biden administration have been

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<v Speaker 1>heard in the U. S. District Court for the Western

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<v Speaker 1>District of Louisiana, which stretches from the Arkansas state line

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<v Speaker 1>down to the Gulf of Mexico, and within that district,

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<v Speaker 1>they found an ideal judge in a rural farming parish

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<v Speaker 1>of less than fifty thousand people, best known for its

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<v Speaker 1>proximity to the Duck Dynasty reality TV show family Joining

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<v Speaker 1>me as Madison Alder Bloomberg Law reporter mass and we've

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<v Speaker 1>seen that Texas has been a preferred venue for Republican

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<v Speaker 1>attorney generals to sue in. But tell us what this

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<v Speaker 1>b Law and Now list has found. So we looked

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<v Speaker 1>at the data set by a Marquette University political science

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<v Speaker 1>Profesptor Paul Nolt, and we dove into this data and

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<v Speaker 1>found that the Western District of Louisiana has kind of

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<v Speaker 1>emerged as a preferred venue for Republican attorneys general when

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<v Speaker 1>they're filing a lawsuit together against the Bide administration. There's

0:14:24.920 --> 0:14:28.480
<v Speaker 1>a district judge in the Western District of Louisiana, and

0:14:28.560 --> 0:14:31.480
<v Speaker 1>Republican attorneys general have been trying to get him to

0:14:31.520 --> 0:14:34.320
<v Speaker 1>hear their suits. So within those the lawsuits that we

0:14:34.440 --> 0:14:37.400
<v Speaker 1>found that are going to the Western District of Louisiana,

0:14:37.920 --> 0:14:40.360
<v Speaker 1>there is one judge who has heard more of those

0:14:40.440 --> 0:14:44.400
<v Speaker 1>cases than any other judge in the district than any

0:14:44.400 --> 0:14:47.760
<v Speaker 1>other judge in the country, and that's Judge Terry Doughty.

0:14:48.000 --> 0:14:51.040
<v Speaker 1>He's based in Monroe. He has heard five of these

0:14:51.080 --> 0:14:55.480
<v Speaker 1>cases so far, and Republicans seemed to kind of find

0:14:55.600 --> 0:14:59.040
<v Speaker 1>him by accidents, but then returned to him time and

0:14:59.040 --> 0:15:03.480
<v Speaker 1>time again after he gave them a favorable ruling. And

0:15:03.800 --> 0:15:07.960
<v Speaker 1>you know, he has definitely become frequent target for for

0:15:08.040 --> 0:15:14.240
<v Speaker 1>this tex logation. He's given nationwide injunctions in some pretty

0:15:14.280 --> 0:15:17.600
<v Speaker 1>big cases. Tell us about some of the bigger cases

0:15:17.640 --> 0:15:21.520
<v Speaker 1>that he's been involved in. So the first case was

0:15:21.720 --> 0:15:25.720
<v Speaker 1>a case involving um oil and gas weeping on federal lands,

0:15:26.160 --> 0:15:29.360
<v Speaker 1>and that one was in the summer of that one

0:15:29.600 --> 0:15:33.400
<v Speaker 1>was initially filed in Lake Child's division, where he only

0:15:33.400 --> 0:15:35.640
<v Speaker 1>gets ten percent of the cases, So it was a

0:15:35.680 --> 0:15:37.640
<v Speaker 1>little bit by chance that they got him, but he

0:15:37.760 --> 0:15:40.880
<v Speaker 1>gave the Attorney General that filed that lawsuit is favorable ruling.

0:15:41.160 --> 0:15:45.320
<v Speaker 1>And then they returned to him again for a case

0:15:45.400 --> 0:15:49.680
<v Speaker 1>fighting Biden COVID nineteen vaccine mandates for healthcare workers and

0:15:49.760 --> 0:15:53.520
<v Speaker 1>had start teachers. And they've filed in the Monroe division,

0:15:53.560 --> 0:15:57.640
<v Speaker 1>where he's gotten anywhere between eighty percent of the cases

0:15:57.760 --> 0:16:02.000
<v Speaker 1>to a percent of the case, says several times after that.

0:16:02.800 --> 0:16:06.960
<v Speaker 1>How do the district courts decide who gets what case?

0:16:07.080 --> 0:16:09.040
<v Speaker 1>How do they divvy them up? Is it the same

0:16:09.120 --> 0:16:13.520
<v Speaker 1>for all are different, So it's different, and courts have

0:16:14.240 --> 0:16:18.960
<v Speaker 1>a lot of ability to how they assigned cases. Sometimes

0:16:19.000 --> 0:16:22.040
<v Speaker 1>it's more transparent than others. In these courts that happens

0:16:22.080 --> 0:16:26.040
<v Speaker 1>to be pretty transparent, they post their case assignment orders online.

0:16:26.560 --> 0:16:30.119
<v Speaker 1>Oftentimes you know they'll they'll break it down by division

0:16:30.520 --> 0:16:35.040
<v Speaker 1>or judge, and they'll be percentages assigned to those judges

0:16:35.520 --> 0:16:38.680
<v Speaker 1>in those divisions, which are based on geography, and that's

0:16:38.760 --> 0:16:42.560
<v Speaker 1>kind of what determines what cases go to which judges.

0:16:42.680 --> 0:16:46.520
<v Speaker 1>So in a small division Monroe, for example, um is

0:16:46.560 --> 0:16:49.560
<v Speaker 1>one of these small divisions, there might only be two

0:16:49.680 --> 0:16:54.080
<v Speaker 1>judges hearing the majority of the cases, and the percentages

0:16:54.120 --> 0:16:59.000
<v Speaker 1>could could vary between, you know, one judge and for

0:16:59.040 --> 0:17:03.600
<v Speaker 1>another judge, or for one judge for another judge, So

0:17:04.200 --> 0:17:07.520
<v Speaker 1>people filing lawsuits and the divisions can have a degree

0:17:07.560 --> 0:17:11.280
<v Speaker 1>of certainty about who the judge they're going to get.

0:17:11.320 --> 0:17:15.959
<v Speaker 1>This one of the important things in getting a judge

0:17:16.040 --> 0:17:20.360
<v Speaker 1>in Louisiana or Texas is that it goes to the

0:17:20.400 --> 0:17:24.080
<v Speaker 1>Fifth Circuit Court of Appeals which is one of the

0:17:24.240 --> 0:17:29.080
<v Speaker 1>most is not the most conservative circuits in the country, right,

0:17:29.200 --> 0:17:33.840
<v Speaker 1>and that that definitely adds to the appeal of um

0:17:34.280 --> 0:17:39.359
<v Speaker 1>pardon my pun, the musual of any court in the

0:17:39.359 --> 0:17:43.440
<v Speaker 1>Fifth Circuit. Um. If you file at a district court

0:17:43.520 --> 0:17:46.720
<v Speaker 1>that is in the Fifth Circuit, that would be appealed

0:17:46.920 --> 0:17:50.960
<v Speaker 1>to the Fifth Circuit. And the Fifth Circuit, as you said,

0:17:51.320 --> 0:17:54.800
<v Speaker 1>is um is known as one of the most conservative

0:17:55.000 --> 0:17:58.800
<v Speaker 1>circuit courts in the country. Um. And that, combined with

0:17:58.840 --> 0:18:01.359
<v Speaker 1>the fact that there is a conservative majority on the

0:18:01.400 --> 0:18:05.399
<v Speaker 1>Supreme Court right now, gives Republicans um the best shot

0:18:05.480 --> 0:18:09.040
<v Speaker 1>that they've had in a long time at at getting

0:18:09.680 --> 0:18:12.960
<v Speaker 1>a favorable ruling all the way up the ladder. Have

0:18:13.160 --> 0:18:17.879
<v Speaker 1>any of Judge Doty's decisions gone to the Fifth Circuit

0:18:17.960 --> 0:18:21.280
<v Speaker 1>and then been reviewed by the Supreme Court. In the

0:18:21.359 --> 0:18:25.600
<v Speaker 1>highest profile of those cases, which was the vaccine mandate

0:18:25.720 --> 0:18:31.200
<v Speaker 1>for healthcare workers, uh Dodi's ruling was limited by the

0:18:31.240 --> 0:18:35.520
<v Speaker 1>Fifth Circuit. Um he enjoined he had an injunction. They

0:18:35.560 --> 0:18:39.360
<v Speaker 1>limited it to the fourteen states that filed the litigation. Um,

0:18:39.440 --> 0:18:41.800
<v Speaker 1>but then they tossed it out or staff out in

0:18:41.920 --> 0:18:46.560
<v Speaker 1>light of the Supreme Court decision to allow the mandate

0:18:46.680 --> 0:18:50.439
<v Speaker 1>to take effect in a different case. And he doesn't

0:18:50.520 --> 0:18:55.600
<v Speaker 1>think that he's political. No, he said that he's making

0:18:55.640 --> 0:18:59.719
<v Speaker 1>determinations about you know, what he thinks the law is.

0:18:59.760 --> 0:19:02.439
<v Speaker 1>He's got to follow what he thinks the law is.

0:19:02.520 --> 0:19:06.560
<v Speaker 1>And he he told you Lydia that he he doesn't

0:19:06.560 --> 0:19:09.639
<v Speaker 1>believe that he's political, and he doesn't rule a particular

0:19:09.640 --> 0:19:13.520
<v Speaker 1>way because he was appointed by a certain president. And

0:19:13.720 --> 0:19:17.200
<v Speaker 1>he's not the only judge is he that Republican attorneys

0:19:17.240 --> 0:19:22.160
<v Speaker 1>general go to? As you mentioned, there is already kind

0:19:22.160 --> 0:19:27.119
<v Speaker 1>of this focus on Texas and UM Professor Stephen Laddick

0:19:27.359 --> 0:19:32.760
<v Speaker 1>has looked at some of the litigation in Texas, you know,

0:19:32.800 --> 0:19:36.520
<v Speaker 1>by the Texas a G by the Texas Governor UM,

0:19:36.600 --> 0:19:40.160
<v Speaker 1>and when litigation is filed in Texas UM, they can

0:19:40.160 --> 0:19:45.560
<v Speaker 1>similarly look for these divisions that have a majority of

0:19:46.000 --> 0:19:50.359
<v Speaker 1>the Republican appointees or have a very small number of

0:19:50.440 --> 0:19:52.560
<v Speaker 1>judges where they can be pretty sure about who they're

0:19:52.560 --> 0:19:55.919
<v Speaker 1>going to get. The Texas is already a an area

0:19:56.000 --> 0:20:00.320
<v Speaker 1>where this this happens and is well known that this happens.

0:20:00.320 --> 0:20:03.520
<v Speaker 1>Then I just want to point out there's nothing on

0:20:03.760 --> 0:20:08.600
<v Speaker 1>ethical in forum shopping. So forum shopping is something that

0:20:08.960 --> 0:20:14.600
<v Speaker 1>all litigants pans and and in a lot of scenarios

0:20:15.080 --> 0:20:19.360
<v Speaker 1>do as as a part of uh, you know, good lawyering.

0:20:19.560 --> 0:20:22.760
<v Speaker 1>And this is pointed out by a former judge UM

0:20:22.800 --> 0:20:26.800
<v Speaker 1>the Fifth Circuit, Um, Greg Costa, who recently left to

0:20:26.840 --> 0:20:30.000
<v Speaker 1>return to private practice, and he noted that, you know,

0:20:30.080 --> 0:20:34.960
<v Speaker 1>forum shopping is something that UM lawyers do to make

0:20:35.000 --> 0:20:38.119
<v Speaker 1>sure that they're they're going to have the best chance

0:20:38.680 --> 0:20:42.200
<v Speaker 1>uh you know, getting there, um getting a favorable ruling.

0:20:42.760 --> 0:20:47.240
<v Speaker 1>But um, you know, critics of forum shopping and judge

0:20:47.240 --> 0:20:51.960
<v Speaker 1>shopping also um point out that this is a way

0:20:52.000 --> 0:20:55.520
<v Speaker 1>that just because you can do it doesn't necessarily mean

0:20:55.760 --> 0:20:59.320
<v Speaker 1>that it's a good thing. And uh, you know, maybe

0:20:59.480 --> 0:21:03.000
<v Speaker 1>instances where you can really pinpoint who your judge is

0:21:03.040 --> 0:21:06.600
<v Speaker 1>going to be, there needs to be a change. And

0:21:06.800 --> 0:21:08.919
<v Speaker 1>the only change that could really happen there would be

0:21:08.920 --> 0:21:14.280
<v Speaker 1>a systematic change too, uh prevent people from targeting a

0:21:14.400 --> 0:21:19.080
<v Speaker 1>judge in in a particular area. So Judge Costa has

0:21:19.119 --> 0:21:23.720
<v Speaker 1>advocated for changes, and he's made a suggestion. Right there

0:21:24.000 --> 0:21:28.760
<v Speaker 1>is uh a proposal that that he has talked about

0:21:28.760 --> 0:21:33.400
<v Speaker 1>in the past, which is to have three judge panels

0:21:34.119 --> 0:21:39.199
<v Speaker 1>here cases that are seeking nationwide injunctions instead of a

0:21:39.240 --> 0:21:45.359
<v Speaker 1>single judge. There could still be forum shopping under that system.

0:21:45.400 --> 0:21:48.399
<v Speaker 1>You could still you know, choose a court in the

0:21:48.480 --> 0:21:51.960
<v Speaker 1>Fifth Circuit to have an appealed to the Fifth Circuits tents.

0:21:52.240 --> 0:21:56.480
<v Speaker 1>But it would prevent judge shopping, and it would it

0:21:56.480 --> 0:21:59.439
<v Speaker 1>would limit forum shopping some at least. This is what

0:21:59.760 --> 0:22:02.399
<v Speaker 1>got that says, you know, instead of being able to

0:22:02.400 --> 0:22:05.760
<v Speaker 1>target one judge, there's less certainty if two other judges

0:22:05.760 --> 0:22:09.520
<v Speaker 1>that you can't choose are added to that panel. Democratic

0:22:09.560 --> 0:22:11.720
<v Speaker 1>a g s also do forum shopping. Where do they

0:22:11.800 --> 0:22:16.520
<v Speaker 1>do their form shopping? So when Democratic Attorneys general forum shop,

0:22:16.640 --> 0:22:22.160
<v Speaker 1>they target the northern districts of California and the southern

0:22:22.160 --> 0:22:25.919
<v Speaker 1>districts of New York. Those are venues that saw quite

0:22:25.960 --> 0:22:30.520
<v Speaker 1>a few lawsuits during the Trump administration, and Democrats sued

0:22:30.560 --> 0:22:34.840
<v Speaker 1>the Trump administration a lot. There were more multi state

0:22:34.960 --> 0:22:39.320
<v Speaker 1>suits against the Trump administration than they're wordering a bomb administration.

0:22:39.880 --> 0:22:43.560
<v Speaker 1>Thanks so much, Madison. That's Madison Alder of Bloomberg Law.

0:22:44.200 --> 0:22:46.480
<v Speaker 1>And that's it for this edition of the Bloomberg Law Show.

0:22:46.840 --> 0:22:49.159
<v Speaker 1>Remember you can always get the latest legal news on

0:22:49.200 --> 0:22:53.480
<v Speaker 1>our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

0:22:53.680 --> 0:22:58.760
<v Speaker 1>and at www dot Bloomberg dot com slash podcast, Slash Law,

0:22:59.160 --> 0:23:01.760
<v Speaker 1>and remember to two to The Bloomberg Law Show every

0:23:01.800 --> 0:23:04.880
<v Speaker 1>week night at ten p m. Wall Street Time. I'm

0:23:04.960 --> 0:23:10.720
<v Speaker 1>June Grosso and you're listening to Bloomberg m