1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,960 --> 00:00:11,920 Speaker 2: I just think that the law firms have to behave themselves, 3 00:00:12,680 --> 00:00:15,080 Speaker 2: and we've proven that we have others that want to 4 00:00:15,120 --> 00:00:18,800 Speaker 2: make a settlement also having to do with the election 5 00:00:19,000 --> 00:00:22,680 Speaker 2: and other things. They behave very badly, very wrongly, and 6 00:00:23,079 --> 00:00:25,480 Speaker 2: I appreciate the one. You know, these are the biggest firms. 7 00:00:25,840 --> 00:00:29,600 Speaker 3: President Donald Trump has been complaining about a legal system 8 00:00:29,840 --> 00:00:32,960 Speaker 3: rigged against him for many years, and he seems to 9 00:00:33,000 --> 00:00:35,919 Speaker 3: think that any law firm that has challenged him in 10 00:00:36,000 --> 00:00:40,440 Speaker 3: court has behaved quote very badly, and to get those 11 00:00:40,560 --> 00:00:45,440 Speaker 3: firms to behave themselves, he's punishing them with executive orders 12 00:00:45,479 --> 00:00:49,240 Speaker 3: that threaten their businesses and their ability to represent clients. 13 00:00:49,600 --> 00:00:53,080 Speaker 3: In the last month, he's targeted four major law firms 14 00:00:53,159 --> 00:00:56,800 Speaker 3: with executive orders. Three of the firms chose to defy 15 00:00:56,920 --> 00:01:01,320 Speaker 3: Trump by suing him, but one firm, Paul Weiss, chose 16 00:01:01,360 --> 00:01:04,800 Speaker 3: to surrender by cutting a forty million dollar deal in 17 00:01:04,880 --> 00:01:09,240 Speaker 3: pro bono services with the administration, and another firm, scad 18 00:01:09,280 --> 00:01:13,080 Speaker 3: and Arps, caved before an executive order was even issued 19 00:01:13,120 --> 00:01:16,680 Speaker 3: against it, cutting a similar one hundred million dollar deal. 20 00:01:17,000 --> 00:01:20,479 Speaker 3: My guest is an expert in the legal profession, Matthew Diller, 21 00:01:20,560 --> 00:01:23,960 Speaker 3: a professor at Fordham Law School. Trump's attack on the 22 00:01:24,080 --> 00:01:26,959 Speaker 3: legal system has really been multi pronged. 23 00:01:27,360 --> 00:01:31,720 Speaker 4: The Trump administration has really broad out its attack. Initially 24 00:01:31,840 --> 00:01:34,959 Speaker 4: started with its attacks on the judiciary, and now it 25 00:01:35,160 --> 00:01:38,760 Speaker 4: is continuing to attack the judiciary and has added in 26 00:01:39,480 --> 00:01:42,399 Speaker 4: attacks on the legal profession really as a whole. And 27 00:01:42,440 --> 00:01:46,399 Speaker 4: the attacks go to the fundamental ethos and role of 28 00:01:46,440 --> 00:01:49,560 Speaker 4: the legal profession in our society. So from the very 29 00:01:49,600 --> 00:01:53,360 Speaker 4: start of the administration, government lawyers, the lawyers who worked 30 00:01:53,400 --> 00:01:56,600 Speaker 4: for the federal government were under siege. And those lawyers 31 00:01:56,640 --> 00:02:00,760 Speaker 4: play a critical role in our system of law enforcements 32 00:02:00,960 --> 00:02:05,040 Speaker 4: and upholding rules and making sure the government is not abusive. 33 00:02:05,280 --> 00:02:07,880 Speaker 4: And so almost as soon as he came into office, 34 00:02:08,000 --> 00:02:12,600 Speaker 4: President Trump began to remove the most experienced leaders within 35 00:02:12,639 --> 00:02:14,519 Speaker 4: the Department of Justice. And I'm not talking about the 36 00:02:14,560 --> 00:02:17,160 Speaker 4: political appointees. I'm talking about the career lawyers of the 37 00:02:17,160 --> 00:02:20,440 Speaker 4: Department of Justice. We saw this with the blow up 38 00:02:20,520 --> 00:02:23,400 Speaker 4: over the lawyers working on the Eric Adams case, quite 39 00:02:23,400 --> 00:02:26,200 Speaker 4: a few of whom resigned. But there's also Denise Chung, 40 00:02:26,440 --> 00:02:30,680 Speaker 4: the top prosecutor in the DCUs Attorney's Office who resigned 41 00:02:30,720 --> 00:02:34,440 Speaker 4: when she was asked to launch an investigation without any basis. 42 00:02:34,520 --> 00:02:38,240 Speaker 4: The Chief Irs Council was pushed out, the all the 43 00:02:38,280 --> 00:02:42,200 Speaker 4: inspector generals and the different agencies, and so the lawyers 44 00:02:42,240 --> 00:02:46,840 Speaker 4: in key positions who have put a premium on making 45 00:02:46,880 --> 00:02:50,720 Speaker 4: sure that government follows the law, who put an allegiance 46 00:02:50,800 --> 00:02:54,240 Speaker 4: to the law first, are being removed and being replaced 47 00:02:54,280 --> 00:02:57,680 Speaker 4: with the lawyers who focused on loyalty to the administration. 48 00:02:58,200 --> 00:03:02,400 Speaker 4: And that to me is scary because those government lawyers 49 00:03:02,400 --> 00:03:05,160 Speaker 4: play a critical role. And then what's happened over the 50 00:03:05,200 --> 00:03:08,160 Speaker 4: past few weeks is that the attack has broadened out 51 00:03:08,200 --> 00:03:10,519 Speaker 4: to cover the private bar, and really the elements in 52 00:03:10,560 --> 00:03:13,320 Speaker 4: the private bar that are the ones that the administration 53 00:03:13,480 --> 00:03:15,880 Speaker 4: views as the biggest threat, which are the major of 54 00:03:15,919 --> 00:03:18,400 Speaker 4: private law firms that have a lot of resources and 55 00:03:18,440 --> 00:03:21,200 Speaker 4: a lot of experience in litigating against the government. 56 00:03:22,040 --> 00:03:25,960 Speaker 3: So it started with a memo attacking Covington Burling, and 57 00:03:26,000 --> 00:03:30,959 Speaker 3: then executive orders targeting Perkins, Cooey, Paul Weiss, jennerin Block 58 00:03:31,160 --> 00:03:34,680 Speaker 3: and Wilmer Hale tell us about the executive orders and 59 00:03:34,720 --> 00:03:37,119 Speaker 3: whether there's any legal basis for them. 60 00:03:37,520 --> 00:03:41,760 Speaker 4: Those executive orders just simply shocked me. They are astounding 61 00:03:41,840 --> 00:03:45,840 Speaker 4: documents to read. So the executive orders are really attempts 62 00:03:45,920 --> 00:03:49,400 Speaker 4: to take down these firms because they go far beyond 63 00:03:49,520 --> 00:03:54,080 Speaker 4: revoking security coherences. They also terminate all contracts with the firms, 64 00:03:54,120 --> 00:03:56,400 Speaker 4: so that if the government, any arm of the government, 65 00:03:56,440 --> 00:03:59,280 Speaker 4: has hired the firms to do anything mose contracts would end. 66 00:04:00,000 --> 00:04:03,640 Speaker 4: And the single most devastating piece of it, they require 67 00:04:04,080 --> 00:04:08,160 Speaker 4: businesses that have relationships with the firms to disclose those 68 00:04:08,200 --> 00:04:13,600 Speaker 4: relationships and then instruct the agencies to terminate their contracts 69 00:04:13,680 --> 00:04:16,880 Speaker 4: with those businesses. So what that does is it strikes 70 00:04:16,960 --> 00:04:19,599 Speaker 4: at the client of the firm. So what it says 71 00:04:19,640 --> 00:04:22,359 Speaker 4: to the firm's clients is that if you continue to 72 00:04:22,440 --> 00:04:25,720 Speaker 4: retain these firms, you will lose all your government contracts, 73 00:04:25,760 --> 00:04:28,279 Speaker 4: and that, of course strikes at the heart of these 74 00:04:28,320 --> 00:04:31,320 Speaker 4: firms and their business model and their basic income and 75 00:04:31,400 --> 00:04:34,120 Speaker 4: ability to survive as a firm. And you asked about 76 00:04:34,160 --> 00:04:36,840 Speaker 4: the legal basis for these orders, the orders cite no 77 00:04:37,000 --> 00:04:40,760 Speaker 4: legal basis. Typically in executive order and the pre Trump 78 00:04:40,880 --> 00:04:43,880 Speaker 4: euro we'd most often start with a recitation of what 79 00:04:43,960 --> 00:04:46,080 Speaker 4: the legal basis for the order is and what the 80 00:04:46,120 --> 00:04:49,359 Speaker 4: authority is where the statutes are. These orders don't do 81 00:04:49,440 --> 00:04:52,080 Speaker 4: that in any way, shape or form, and in fact, 82 00:04:52,160 --> 00:04:55,400 Speaker 4: they include a lot of language that shows that the 83 00:04:55,440 --> 00:04:59,520 Speaker 4: purposes of these orders are clearly unconstitutional and illegal, and 84 00:04:59,720 --> 00:05:02,360 Speaker 4: just flush that out of it. First of all, they 85 00:05:02,400 --> 00:05:04,640 Speaker 4: make claim that the basis of the order is that 86 00:05:04,720 --> 00:05:10,000 Speaker 4: the administration doesn't like representations that have been undertaken by 87 00:05:10,200 --> 00:05:12,400 Speaker 4: lawyers of these firms, and so those lawyers have a 88 00:05:12,520 --> 00:05:16,280 Speaker 4: right they undertake those representations. You know, the First Amendment 89 00:05:16,920 --> 00:05:19,760 Speaker 4: gives them the right to both express their use. There's 90 00:05:19,800 --> 00:05:23,280 Speaker 4: a right of access to the court system. These firms 91 00:05:23,279 --> 00:05:27,720 Speaker 4: have no obligation to only undertake litigation and representations that 92 00:05:27,800 --> 00:05:31,640 Speaker 4: President Trump approves of. And then secondly, they did this 93 00:05:31,720 --> 00:05:35,120 Speaker 4: without any hearing of any kind. So these orders just 94 00:05:35,200 --> 00:05:38,359 Speaker 4: came completely out of the blue. There was no hearing, 95 00:05:38,760 --> 00:05:42,719 Speaker 4: an opportunity for these firms to contest whatever the quote 96 00:05:42,800 --> 00:05:46,799 Speaker 4: charges might be against them. And then a final element 97 00:05:47,240 --> 00:05:49,960 Speaker 4: that's very concerning is that it really impinges on the 98 00:05:50,040 --> 00:05:53,320 Speaker 4: rights of the clients of these firms to choose their lawyers. 99 00:05:53,400 --> 00:05:57,560 Speaker 4: In our country, the basic system for regulating lawyer conduct 100 00:05:57,960 --> 00:06:00,159 Speaker 4: is governed by the states and by the courts, and 101 00:06:00,200 --> 00:06:03,760 Speaker 4: there are proceedings and rules about what happens when a 102 00:06:03,839 --> 00:06:08,040 Speaker 4: lawyer is accused of unethical or improper conduct. Those lawyers 103 00:06:08,240 --> 00:06:11,640 Speaker 4: received notice of the charges basically in an opportunity to 104 00:06:11,680 --> 00:06:15,600 Speaker 4: defend themselves. Nothing like that happened in these cases. And indeed, 105 00:06:15,880 --> 00:06:19,240 Speaker 4: the executive branch of the federal government, the president, has 106 00:06:19,320 --> 00:06:23,800 Speaker 4: no general free roaming authority to impost discipline on lawyers. 107 00:06:23,839 --> 00:06:28,320 Speaker 4: SENI laterally, so I'm unaware of any arguments. I have 108 00:06:28,440 --> 00:06:31,799 Speaker 4: trouble even thinking of an argument of how these orders 109 00:06:31,839 --> 00:06:32,440 Speaker 4: can be legal. 110 00:06:32,760 --> 00:06:35,680 Speaker 3: So Paul Weis caved and made a deal. But three 111 00:06:35,800 --> 00:06:40,560 Speaker 3: law firms are fighting the executive order suing the Trump administration. 112 00:06:41,080 --> 00:06:44,960 Speaker 3: That's Perkins Coohy, Wilmer and Hale and generin Block. Let's 113 00:06:44,960 --> 00:06:48,919 Speaker 3: talk about the Perkins Cooey suit because they were targeted first, 114 00:06:49,040 --> 00:06:51,080 Speaker 3: and that suit has gone the farthest. 115 00:06:51,440 --> 00:06:55,159 Speaker 4: So Perkins Coohy immediately filed a lawsuit and sought a 116 00:06:55,360 --> 00:06:58,400 Speaker 4: temporary restraining order, which the judge granted, and the judge 117 00:06:58,440 --> 00:07:02,560 Speaker 4: said the executive order against he sent chills down her spine. 118 00:07:02,680 --> 00:07:06,000 Speaker 4: And today the government has not put in any papers 119 00:07:06,040 --> 00:07:09,760 Speaker 4: defending the legality of the executive order against Perkins. Instead, 120 00:07:09,960 --> 00:07:13,240 Speaker 4: the government has sought to remove the judge, arguing that 121 00:07:13,320 --> 00:07:15,960 Speaker 4: she's biased. So I don't know what the government's argument 122 00:07:16,000 --> 00:07:18,840 Speaker 4: will be on why the order against Perkins was legal. 123 00:07:18,880 --> 00:07:21,480 Speaker 4: We haven't seen that yet. Paul Weiss took a very 124 00:07:21,520 --> 00:07:24,680 Speaker 4: different path. Instead, The ahead of Paul Weise met with 125 00:07:24,880 --> 00:07:28,520 Speaker 4: President Trump directly one on one. The meeting was said 126 00:07:28,560 --> 00:07:32,400 Speaker 4: to be three hours long, and then President Trump and 127 00:07:32,440 --> 00:07:34,920 Speaker 4: Brad carp who's head of Paul Weis, ironed at an 128 00:07:34,920 --> 00:07:38,680 Speaker 4: agreement and President Trump withdrew the executive order. And I 129 00:07:38,720 --> 00:07:40,720 Speaker 4: think there are a couple of things to really focus 130 00:07:40,760 --> 00:07:43,560 Speaker 4: on here. So the biggest one is that this was 131 00:07:43,600 --> 00:07:46,240 Speaker 4: a shakedown of Paul Weiss that Paul Wise. You know, 132 00:07:46,280 --> 00:07:48,480 Speaker 4: there's a lot of debate now about whether Paul Weis 133 00:07:48,800 --> 00:07:51,680 Speaker 4: did the right thing by reaching an agreement with President Trump. 134 00:07:51,880 --> 00:07:54,640 Speaker 4: But I think the larger picture to look at is 135 00:07:54,640 --> 00:07:56,760 Speaker 4: that Paul Whites never should have been in this situation 136 00:07:57,000 --> 00:08:00,200 Speaker 4: in the first but that the White House really put 137 00:08:00,200 --> 00:08:04,120 Speaker 4: Paul Wess under an existential threat that never should have 138 00:08:04,200 --> 00:08:07,720 Speaker 4: been there. I myself, I'm disappointed that it has played 139 00:08:07,720 --> 00:08:10,840 Speaker 4: out this way because if firms like Paul Weiss don't 140 00:08:11,080 --> 00:08:14,680 Speaker 4: push back against illegal executive orders like this, then who will? 141 00:08:14,840 --> 00:08:17,360 Speaker 4: So it sends a message to the legal profession that 142 00:08:17,480 --> 00:08:21,080 Speaker 4: is very disheartened because the Trump administration has made plain 143 00:08:21,520 --> 00:08:24,480 Speaker 4: that they're not stopping with Jess Perkins, Pooty and Paul Weiss. 144 00:08:24,520 --> 00:08:26,400 Speaker 4: They're going to continue to target firms. 145 00:08:26,920 --> 00:08:30,680 Speaker 3: And to demonstrate the chilling effect of these orders, Scadden 146 00:08:30,800 --> 00:08:34,040 Speaker 3: Arps reached a one hundred million dollars deal for pro 147 00:08:34,160 --> 00:08:38,320 Speaker 3: bono services to avoid being targeted in one of these 148 00:08:38,360 --> 00:08:42,360 Speaker 3: executive orders by Trump. So what's the message if firms 149 00:08:42,480 --> 00:08:45,720 Speaker 3: like Paul Weiss and scad and Arps won't stand up 150 00:08:45,720 --> 00:08:46,240 Speaker 3: to Trump? 151 00:08:46,720 --> 00:08:50,080 Speaker 4: So I think it really reflects the incredible power of 152 00:08:50,080 --> 00:08:53,000 Speaker 4: the federal government that Trump is really harnessing here in 153 00:08:53,040 --> 00:08:57,439 Speaker 4: illegitimate ways. Now, Paul Waits's calculation was, even when they 154 00:08:57,520 --> 00:09:00,600 Speaker 4: won the lawsuit, and you can be sure were highly 155 00:09:00,640 --> 00:09:04,319 Speaker 4: confident of winning this lawsuit, it wouldn't save them because 156 00:09:04,360 --> 00:09:07,240 Speaker 4: it would send the message to all their clients that 157 00:09:07,360 --> 00:09:10,080 Speaker 4: do business with the federal government, to all the criminal 158 00:09:10,120 --> 00:09:13,440 Speaker 4: defendants whom they are represented or being prosecuted by the 159 00:09:13,440 --> 00:09:16,600 Speaker 4: federal government, that they will not get fair treatment from 160 00:09:16,640 --> 00:09:19,040 Speaker 4: the federal government as long as they're represented by a 161 00:09:19,120 --> 00:09:22,440 Speaker 4: firm that the administration doesn't like, and so that's an 162 00:09:22,520 --> 00:09:25,520 Speaker 4: existential threat for a firm like Paul Weite, and they 163 00:09:25,559 --> 00:09:28,320 Speaker 4: never should have been in that situation. One thing that's 164 00:09:28,360 --> 00:09:32,360 Speaker 4: interesting is there are some discrepancies between the way the 165 00:09:32,600 --> 00:09:35,080 Speaker 4: White House has described the agreement and the way Paul 166 00:09:35,080 --> 00:09:38,840 Speaker 4: Weite has described it. Paul Weiss has really broadcast that 167 00:09:38,920 --> 00:09:42,079 Speaker 4: it didn't agree to much beyond what it would ordinarily do. 168 00:09:42,200 --> 00:09:44,840 Speaker 4: And if the agreement is true to the firm's values 169 00:09:45,040 --> 00:09:46,880 Speaker 4: and some of the things in the agreement, like a 170 00:09:47,000 --> 00:09:50,679 Speaker 4: commitment to not accept clients and matters based on the 171 00:09:50,720 --> 00:09:54,760 Speaker 4: politics and political leanings of the clients, is the value 172 00:09:54,800 --> 00:09:57,439 Speaker 4: that Poul Wite says it has always had, and saying 173 00:09:57,480 --> 00:09:59,800 Speaker 4: that pol Weis would do pro bono work on behalf 174 00:09:59,800 --> 00:10:03,760 Speaker 4: of it veteran combat anti Semitism. Paul Weiss's position is 175 00:10:03,960 --> 00:10:06,600 Speaker 4: that's all fine with them today, would do this work anyway. 176 00:10:06,840 --> 00:10:08,800 Speaker 4: But to me, there are a couple of aspects of 177 00:10:08,880 --> 00:10:12,440 Speaker 4: the agreement that don't strike me as business as usual. 178 00:10:12,840 --> 00:10:15,280 Speaker 4: So one is Paul Weiss has agreed to an audit 179 00:10:15,600 --> 00:10:20,280 Speaker 4: of its employment practices by a mutually agreed expert. So 180 00:10:20,360 --> 00:10:23,439 Speaker 4: that means that Paul Weiss now has to reach an 181 00:10:23,440 --> 00:10:27,320 Speaker 4: agreement with the administration as to who will review their 182 00:10:27,320 --> 00:10:33,079 Speaker 4: employment practices. And the administration has taken a position, particularly 183 00:10:33,160 --> 00:10:37,240 Speaker 4: around issues of race and gender discrimination that is really 184 00:10:37,559 --> 00:10:41,320 Speaker 4: incredibly aggressive and not at all clear that is required 185 00:10:41,320 --> 00:10:43,920 Speaker 4: by law. And so we'll see what happens with that 186 00:10:44,160 --> 00:10:47,160 Speaker 4: the audit of Paul Weis's hiring practices. And then the 187 00:10:47,240 --> 00:10:50,959 Speaker 4: second piece of language that particularly concerns me is that 188 00:10:51,080 --> 00:10:53,960 Speaker 4: the commitment to do forty million dollars worth of pro 189 00:10:54,040 --> 00:10:57,000 Speaker 4: bono work, it lists a couple of projects and then 190 00:10:57,040 --> 00:11:00,680 Speaker 4: it says and mutually agreed project. Does that mean that 191 00:11:00,679 --> 00:11:04,360 Speaker 4: Paul Wise needs to go back to the Trump administration 192 00:11:04,920 --> 00:11:08,959 Speaker 4: to get approval as to whether particular pro bono representations 193 00:11:09,040 --> 00:11:12,640 Speaker 4: counter don't count towards the forty million dollars. That troubles 194 00:11:12,720 --> 00:11:15,720 Speaker 4: me in terms of giving the White House or direct 195 00:11:15,880 --> 00:11:19,480 Speaker 4: voice in what cases Paul Wise now will select. We'll 196 00:11:19,480 --> 00:11:21,240 Speaker 4: see how it plays out. I mean, I think it's 197 00:11:21,360 --> 00:11:24,679 Speaker 4: very unclear what this agreement will mean in practice, but 198 00:11:24,720 --> 00:11:27,480 Speaker 4: those are some of my particular concrens with the substance 199 00:11:27,520 --> 00:11:30,240 Speaker 4: of it. Of course, the message sent by the agreement 200 00:11:30,320 --> 00:11:32,880 Speaker 4: is far broader, and it's the message that Paul Weis 201 00:11:32,960 --> 00:11:35,920 Speaker 4: won't stand up to the Trump administration than who will. 202 00:11:35,960 --> 00:11:38,760 Speaker 4: And I think that that's an important question to ask. 203 00:11:39,160 --> 00:11:42,240 Speaker 3: I guess we'll find out as Trump continues to target 204 00:11:42,440 --> 00:11:45,920 Speaker 3: law firms. Thanks for being here. That's Professor Matthew Diller 205 00:11:46,000 --> 00:11:49,560 Speaker 3: of Fordham Law School coming up next. The Supreme Court 206 00:11:49,679 --> 00:11:52,840 Speaker 3: takes a look at Louisiana's map. I'm June Grosso. When 207 00:11:52,880 --> 00:11:54,559 Speaker 3: you're listening to Bloomberg. 208 00:11:55,000 --> 00:11:57,400 Speaker 5: We're in the business of complying with federal court decisions, 209 00:11:57,679 --> 00:11:59,360 Speaker 5: and when they told us that we needed to draw 210 00:11:59,400 --> 00:12:01,920 Speaker 5: a second mait black district, that's what we did. 211 00:12:02,920 --> 00:12:07,400 Speaker 3: That's how Louisiana Solicitor General Ben Aguinaga summed up his 212 00:12:07,520 --> 00:12:11,200 Speaker 3: state's position in the challenge to its congressional map at 213 00:12:11,240 --> 00:12:14,199 Speaker 3: the Supreme Court. At issue is the map drawn by 214 00:12:14,240 --> 00:12:19,000 Speaker 3: Republicans to create a new majority black district as required 215 00:12:19,040 --> 00:12:21,680 Speaker 3: by a court order, and at the same time to 216 00:12:21,800 --> 00:12:26,839 Speaker 3: protect incumbent Republicans, including House Speaker Mike Johnson. So it's 217 00:12:26,880 --> 00:12:31,000 Speaker 3: a case that involves the interplay between race and politics 218 00:12:31,040 --> 00:12:35,079 Speaker 3: in drawing political boundaries and the oral arguments signaled a 219 00:12:35,120 --> 00:12:38,760 Speaker 3: deep divide among the justices over whether race was the 220 00:12:38,800 --> 00:12:42,360 Speaker 3: predominant factor driving the new map, which the Court has 221 00:12:42,400 --> 00:12:47,480 Speaker 3: said is unconstitutional. Chief Justice John Roberts mocked the new district, 222 00:12:47,520 --> 00:12:51,200 Speaker 3: which runs a jagged course over two hundred and fifty miles, 223 00:12:51,320 --> 00:12:54,040 Speaker 3: saying it looked like a snake that runs from one 224 00:12:54,160 --> 00:12:55,760 Speaker 3: end of the state to the other. 225 00:12:56,480 --> 00:12:58,520 Speaker 6: And you think the drawing of this district was not 226 00:12:58,559 --> 00:13:01,560 Speaker 6: predominantly based on rape. I think that it runs from 227 00:13:01,600 --> 00:13:03,520 Speaker 6: one side of the state angling up to the other, 228 00:13:03,600 --> 00:13:06,640 Speaker 6: picking up popular black populations as it goes along. 229 00:13:07,000 --> 00:13:11,400 Speaker 3: But the three liberal justices suggested the district shape was 230 00:13:11,440 --> 00:13:15,600 Speaker 3: a product of politics, something the Court has previously said 231 00:13:15,720 --> 00:13:20,600 Speaker 3: is a permissible factor. Here's Justice Katanji Brown Jackson questioning 232 00:13:20,679 --> 00:13:22,559 Speaker 3: Attorney Stuart Nathy. 233 00:13:22,800 --> 00:13:25,280 Speaker 5: Is the reason why we're looking at a snake like 234 00:13:25,440 --> 00:13:29,720 Speaker 5: map rather than the compact map is because of political considerations. 235 00:13:29,840 --> 00:13:32,400 Speaker 5: Politics is the only reason that the state chose that 236 00:13:32,520 --> 00:13:34,000 Speaker 5: map over the compact maps. 237 00:13:34,320 --> 00:13:37,640 Speaker 3: Joining me is elections. Law expert Richard Brofald, a professor 238 00:13:37,679 --> 00:13:41,880 Speaker 3: at Columbia Law School. Rich explained the issue before the justices. 239 00:13:42,160 --> 00:13:45,360 Speaker 7: This is a very strange and unusual case in order 240 00:13:45,400 --> 00:13:47,319 Speaker 7: to discuss the issue, you actually have to go back 241 00:13:47,559 --> 00:13:50,360 Speaker 7: to a prior case. And so a couple of years ago, 242 00:13:50,600 --> 00:13:54,440 Speaker 7: lawsuit was brought in Louisiana by black voters claiming that 243 00:13:54,480 --> 00:13:58,600 Speaker 7: the congressional map in Louisiana discriminated against black voters because 244 00:13:58,600 --> 00:14:02,320 Speaker 7: they were underrepresented that had a discriminatory effect. Louisiana is 245 00:14:02,360 --> 00:14:06,440 Speaker 7: something like one third black. The state has six congressional districts, 246 00:14:06,440 --> 00:14:08,880 Speaker 7: but only one of them had a black majority. The 247 00:14:08,880 --> 00:14:12,559 Speaker 7: plaintiffs said it was relatively easy to create a compact 248 00:14:12,559 --> 00:14:15,960 Speaker 7: district that followed traditional districting patterns in part of the 249 00:14:16,000 --> 00:14:18,839 Speaker 7: state that would create a second black majority district. They 250 00:14:18,880 --> 00:14:21,040 Speaker 7: went to court and they won. It was a five 251 00:14:21,120 --> 00:14:24,200 Speaker 7: day trial, lots of exhibits, lots of witnesses. They wanted 252 00:14:24,280 --> 00:14:26,400 Speaker 7: the district court, and that was subsequently affirmed by the 253 00:14:26,480 --> 00:14:28,480 Speaker 7: Fifth Secret Court of Appeals, which is itself a pretty 254 00:14:28,480 --> 00:14:29,440 Speaker 7: conservative court. 255 00:14:29,640 --> 00:14:33,000 Speaker 3: And how did the Louisiana legislature come up with this map? 256 00:14:33,240 --> 00:14:36,000 Speaker 7: The plaintiffs had a map that they liked which would 257 00:14:36,000 --> 00:14:39,040 Speaker 7: have created that second black majority district, but the usual 258 00:14:39,120 --> 00:14:41,920 Speaker 7: rules to allow the legislature to crack at it and 259 00:14:42,000 --> 00:14:44,000 Speaker 7: to see if they can do it in time, otherwise 260 00:14:44,000 --> 00:14:45,800 Speaker 7: a court will create a map. So this went to 261 00:14:45,840 --> 00:14:48,800 Speaker 7: the Louisiana legislature and the governor said, we need to 262 00:14:48,800 --> 00:14:50,600 Speaker 7: do a map. We would have liked to fight this 263 00:14:50,720 --> 00:14:53,880 Speaker 7: case more, but we've already lost twice in the district court, 264 00:14:53,880 --> 00:14:55,640 Speaker 7: in the Court of Appeals. We need to write our 265 00:14:55,720 --> 00:14:58,240 Speaker 7: own map rather than having a court imposmon on us. 266 00:14:58,280 --> 00:15:00,960 Speaker 7: When the legislature sat down to draw, they had a 267 00:15:01,000 --> 00:15:06,040 Speaker 7: problem because it's a Republican majority legislature, Republican governor, Republican delegation, 268 00:15:06,280 --> 00:15:08,840 Speaker 7: and several of the Republican members of Congress and Louisiana 269 00:15:08,840 --> 00:15:10,840 Speaker 7: are very powerful, including the Speaker of the House, the 270 00:15:10,840 --> 00:15:13,360 Speaker 7: majority leader, and somebody else they really liked. And so 271 00:15:13,520 --> 00:15:17,440 Speaker 7: they decided, the legislature in Louisiana that they would sacrifice 272 00:15:17,680 --> 00:15:21,800 Speaker 7: one Republican district, but not the district that made sense 273 00:15:22,280 --> 00:15:25,520 Speaker 7: in terms of the plaintiff's original lawsuit seeking a black 274 00:15:25,560 --> 00:15:29,000 Speaker 7: majority district. They kind of cobbled together a new district 275 00:15:29,000 --> 00:15:32,120 Speaker 7: that stretched across the state and got rid of a 276 00:15:32,200 --> 00:15:36,280 Speaker 7: different white Republican congressman in order to preserve the districts 277 00:15:36,360 --> 00:15:38,880 Speaker 7: of the Speaker, the Majority leader, and a member of 278 00:15:38,960 --> 00:15:41,520 Speaker 7: Congress who they favored. This news district is a black 279 00:15:41,560 --> 00:15:44,760 Speaker 7: majority district that comes out of this lawsuit. Now, some 280 00:15:44,920 --> 00:15:49,040 Speaker 7: white plaintiffs have sued, claiming that this district is unconstitutional 281 00:15:49,280 --> 00:15:53,320 Speaker 7: because it's unconstitutionally race based. That is a racial gerrymander, 282 00:15:53,600 --> 00:15:56,160 Speaker 7: that the decision to draw this district was primarily based 283 00:15:56,160 --> 00:15:58,560 Speaker 7: on race, and the Supreme Court has for some time 284 00:15:58,640 --> 00:16:02,400 Speaker 7: said that that's on constitution. The state is defending it, 285 00:16:02,600 --> 00:16:05,840 Speaker 7: as are the original plaintiffs, the black voters, on the 286 00:16:05,840 --> 00:16:10,720 Speaker 7: grounds that no, it's not racially predominant, it's really politically predominant. 287 00:16:11,040 --> 00:16:14,520 Speaker 7: The reason this district has this odd shape is not 288 00:16:14,640 --> 00:16:18,360 Speaker 7: really because of race, but because the legislature wanted to 289 00:16:18,640 --> 00:16:23,120 Speaker 7: basically protect Republican incumbents. And a different lower court than 290 00:16:23,160 --> 00:16:25,360 Speaker 7: the one that heard the original case said, no, this 291 00:16:25,480 --> 00:16:29,080 Speaker 7: is racial predominance. The only reason this district exists is 292 00:16:29,120 --> 00:16:31,960 Speaker 7: to create a black majority district. And that's the argument 293 00:16:31,960 --> 00:16:34,520 Speaker 7: before the Supreme Court. And it's kind of an odd one. 294 00:16:34,560 --> 00:16:37,840 Speaker 3: And what are the Supreme Court precedents on this question? 295 00:16:38,280 --> 00:16:41,080 Speaker 7: Supreme Court has said in the past that if something 296 00:16:41,160 --> 00:16:44,040 Speaker 7: is drawn primarily from the basis of race, and there's 297 00:16:44,080 --> 00:16:47,680 Speaker 7: no other justification for it, then it may be unconstitutional 298 00:16:47,720 --> 00:16:50,359 Speaker 7: on the legal protection clause. But if it's done primarily 299 00:16:50,400 --> 00:16:53,680 Speaker 7: for party, that's parties in gerrymandering, and you can challenge that. 300 00:16:54,080 --> 00:16:56,360 Speaker 7: And the question of whether something is based on race 301 00:16:56,520 --> 00:16:59,240 Speaker 7: or on party has really been before the court several times. 302 00:16:59,360 --> 00:17:01,240 Speaker 7: But that's kind of what they have to decide here. 303 00:17:01,720 --> 00:17:06,240 Speaker 7: Is this district primarily based on partisanship because that's why 304 00:17:06,280 --> 00:17:08,720 Speaker 7: the legislature drew it the way they did it, Or 305 00:17:08,760 --> 00:17:10,560 Speaker 7: is it based on race because they wouldn't have been 306 00:17:10,640 --> 00:17:14,200 Speaker 7: drawing a new district at all but for the earlier 307 00:17:14,280 --> 00:17:18,280 Speaker 7: judgment that Louisiana needed a second black majority district. Obviously 308 00:17:18,320 --> 00:17:21,720 Speaker 7: you couldn't remedy Voting Rights Act violations unless you took 309 00:17:21,800 --> 00:17:24,800 Speaker 7: race into account in drawing the remedy. But the question 310 00:17:24,880 --> 00:17:27,240 Speaker 7: is sort of when does race too much? That's where 311 00:17:27,280 --> 00:17:29,520 Speaker 7: the court has settled out over the less several decades. 312 00:17:29,640 --> 00:17:31,800 Speaker 7: You can't ignore race, and sometimes you have to take 313 00:17:31,880 --> 00:17:34,399 Speaker 7: race into account. But if you give race too much attention, 314 00:17:34,440 --> 00:17:37,679 Speaker 7: they use the notion of predominance, and unless it's justified 315 00:17:37,920 --> 00:17:40,399 Speaker 7: by something else like the Voting Rights Act, then it 316 00:17:40,480 --> 00:17:42,040 Speaker 7: violates ecal protection clause. 317 00:17:42,520 --> 00:17:46,439 Speaker 3: Did you hear a divide between the conservative justices and 318 00:17:46,520 --> 00:17:50,679 Speaker 3: the liberal justices on the use of race in this case. 319 00:17:51,240 --> 00:17:54,040 Speaker 7: Well, the conservative justices, who I think, yes, they were 320 00:17:54,040 --> 00:17:56,920 Speaker 7: troubled by it. I think they were slightly frustrated by 321 00:17:56,920 --> 00:17:59,959 Speaker 7: the fact that to the Louisiana Conservative Republican let's state 322 00:18:00,280 --> 00:18:03,480 Speaker 7: is defending the map, and the state basically kept making 323 00:18:03,520 --> 00:18:06,600 Speaker 7: the point the reason we did this is because we 324 00:18:06,640 --> 00:18:09,040 Speaker 7: had a judgment against us, and I think some of 325 00:18:09,040 --> 00:18:11,440 Speaker 7: the conservatives maybe kind of wondered, you know, maybe you 326 00:18:11,440 --> 00:18:13,840 Speaker 7: should have challenged that, do you agree with that judgment 327 00:18:13,880 --> 00:18:15,719 Speaker 7: against you? And of course the state's position is now, 328 00:18:15,760 --> 00:18:17,639 Speaker 7: we don't agree with the judgment against us, but we 329 00:18:17,720 --> 00:18:20,240 Speaker 7: lost twice and we didn't want the courts to impose 330 00:18:20,280 --> 00:18:23,160 Speaker 7: a map on us. So I think the conservatives were 331 00:18:23,200 --> 00:18:27,560 Speaker 7: somewhat frustrated in this case because they're not directly reviewing 332 00:18:27,840 --> 00:18:31,320 Speaker 7: the original lower court case that said Louisiana violated the 333 00:18:31,400 --> 00:18:34,200 Speaker 7: Voting Rights Act. They never took that case. What they're 334 00:18:34,200 --> 00:18:38,879 Speaker 7: reviewing is the state's remedy, in which, although it's clear 335 00:18:38,920 --> 00:18:42,000 Speaker 7: that race plays an important role in their redoing the 336 00:18:42,040 --> 00:18:45,560 Speaker 7: map altogether, I think the states argument was that this 337 00:18:45,680 --> 00:18:50,320 Speaker 7: particular configuration reflects our political judgment that if we had 338 00:18:50,359 --> 00:18:54,879 Speaker 7: to sacrifice one white Republican congressman, we chose Congressman X 339 00:18:54,920 --> 00:18:56,280 Speaker 7: and not Congresswoman Why. 340 00:18:56,720 --> 00:18:59,879 Speaker 3: There's been a lot of talk lately about the stand 341 00:19:00,160 --> 00:19:04,000 Speaker 3: off between the Trump administration and the courts, and the 342 00:19:04,080 --> 00:19:08,879 Speaker 3: question of whether the Trump administration is actually following complying 343 00:19:08,920 --> 00:19:13,320 Speaker 3: with court orders. Did you see subtle references to that 344 00:19:13,560 --> 00:19:16,879 Speaker 3: during the oral arguments? You had the Louisiana Solicitor General 345 00:19:16,960 --> 00:19:20,520 Speaker 3: saying right, we're in the business of complying with federal 346 00:19:20,520 --> 00:19:26,680 Speaker 3: court decisions, and Justice Jackson clarifying with him later that 347 00:19:26,960 --> 00:19:30,400 Speaker 3: the court order was the reason why Louisiana drew up 348 00:19:30,440 --> 00:19:32,840 Speaker 3: the map, and it didn't matter whether the order was 349 00:19:33,000 --> 00:19:33,720 Speaker 3: right or wrong. 350 00:19:34,040 --> 00:19:36,800 Speaker 5: The question is whether or not the fact that you 351 00:19:36,920 --> 00:19:39,679 Speaker 5: had a court order was good enough reason for you 352 00:19:39,720 --> 00:19:42,119 Speaker 5: to do it. Is that what you understand the basic 353 00:19:42,280 --> 00:19:44,639 Speaker 5: question to be. That's correct, not just one order, but 354 00:19:44,640 --> 00:19:47,840 Speaker 5: two layers of orders. Yes, you're honor and I guess 355 00:19:47,840 --> 00:19:50,760 Speaker 5: I'm still a little confused as to why it matters 356 00:19:50,800 --> 00:19:54,120 Speaker 5: whether the court order was right or not. You were 357 00:19:54,200 --> 00:19:59,720 Speaker 5: still being compelled by the court to do what you 358 00:19:59,760 --> 00:20:02,719 Speaker 5: did in this case. Correct, That's correct, Justice Jackson. 359 00:20:03,240 --> 00:20:05,479 Speaker 7: That was my impression as well, is that this listener 360 00:20:05,480 --> 00:20:09,280 Speaker 7: general was being very good about saying, we follow court orders. 361 00:20:09,480 --> 00:20:11,840 Speaker 7: We lost once, we took an appeal, and then we 362 00:20:11,920 --> 00:20:14,360 Speaker 7: follow the court orders. And some of the justices were 363 00:20:14,359 --> 00:20:16,760 Speaker 7: pressing him, well, what if it was completely wrong? You know, 364 00:20:16,920 --> 00:20:19,280 Speaker 7: would you follow it if it was completely wrong? And 365 00:20:19,320 --> 00:20:20,919 Speaker 7: he was saying, you know, we're not going to get 366 00:20:20,960 --> 00:20:23,080 Speaker 7: the judgment of deciding whether there's completely wrong. 367 00:20:23,160 --> 00:20:24,040 Speaker 1: We didn't like it. 368 00:20:24,119 --> 00:20:26,080 Speaker 7: We defended our position, we thought we were right, we 369 00:20:26,119 --> 00:20:28,000 Speaker 7: took an appeal, we thought we ran an appeal, we 370 00:20:28,040 --> 00:20:30,560 Speaker 7: lost the appeal, and I think our solution was, instead 371 00:20:30,600 --> 00:20:32,960 Speaker 7: of keeping fighting, we want to be able to control 372 00:20:33,200 --> 00:20:33,920 Speaker 7: our own map. 373 00:20:34,200 --> 00:20:36,480 Speaker 3: Which do you have any inkling for what the court 374 00:20:36,560 --> 00:20:37,200 Speaker 3: might do here? 375 00:20:37,480 --> 00:20:40,080 Speaker 7: First off, never partict the Supreme Court, but I think 376 00:20:40,160 --> 00:20:43,280 Speaker 7: there seemed to be enough understanding of this by at 377 00:20:43,359 --> 00:20:45,680 Speaker 7: least some of the justices that you might say that 378 00:20:45,840 --> 00:20:49,239 Speaker 7: justice is in the middle, like Kavanaugh and Barrett, of 379 00:20:49,280 --> 00:20:52,480 Speaker 7: the tight squeeze that the state was in, and the 380 00:20:52,560 --> 00:20:56,200 Speaker 7: idea that the state should have some space, some discretion 381 00:20:56,560 --> 00:20:59,800 Speaker 7: to accommodate a court and also to accommodate its own 382 00:20:59,800 --> 00:21:04,480 Speaker 7: political preferences. Corsa, Glito, and Thomas were clearly very unhappy 383 00:21:04,520 --> 00:21:07,120 Speaker 7: with this map. Roberts said very little as far as 384 00:21:07,119 --> 00:21:10,480 Speaker 7: I could tell, and I think maybe I'm overreading it, 385 00:21:10,520 --> 00:21:12,639 Speaker 7: but I think there was some sympathy I saw in 386 00:21:12,760 --> 00:21:16,000 Speaker 7: Barrett and Cavanaugh for the situation that the state was in. 387 00:21:16,160 --> 00:21:19,159 Speaker 7: You have the impression from the very conservative justices and 388 00:21:19,240 --> 00:21:21,560 Speaker 7: even from some of the justices in the middle, that 389 00:21:21,640 --> 00:21:24,800 Speaker 7: they may be looking to rethink the Voting Rights Act 390 00:21:24,800 --> 00:21:28,080 Speaker 7: and rethink how much attention race should be given in districting. 391 00:21:28,320 --> 00:21:30,400 Speaker 7: But my impression is at least some of the justices 392 00:21:30,440 --> 00:21:33,560 Speaker 7: may be realizing that this is not the vehicle for that, 393 00:21:34,119 --> 00:21:38,919 Speaker 7: because given the state's defenses so heavily based on partisan considerations, 394 00:21:39,160 --> 00:21:41,240 Speaker 7: which I think they were pretty good at showing were 395 00:21:41,280 --> 00:21:43,320 Speaker 7: real and not pretend. 396 00:21:43,640 --> 00:21:46,520 Speaker 3: Tell us a little bit about how the Supreme Court 397 00:21:46,520 --> 00:21:49,480 Speaker 3: has sort of been chipping away at the power of 398 00:21:49,520 --> 00:21:50,280 Speaker 3: the Voting. 399 00:21:50,040 --> 00:21:52,480 Speaker 7: Rights Act, well, I mean, candidly. The one case that's 400 00:21:52,520 --> 00:21:55,080 Speaker 7: most relevant is the case that they didn't the Albama 401 00:21:55,080 --> 00:21:57,639 Speaker 7: redistrict in Case Milligan, which was as ided two years ago, 402 00:21:57,680 --> 00:22:00,280 Speaker 7: and this case follows immediately on it, where by a 403 00:22:00,280 --> 00:22:02,720 Speaker 7: five to four vote. They actually upheld the lower court 404 00:22:02,800 --> 00:22:06,200 Speaker 7: judgment that the Alabama congressional district being planned had a 405 00:22:06,280 --> 00:22:09,560 Speaker 7: racially disparate impact and that it denied fair representation to 406 00:22:09,600 --> 00:22:12,639 Speaker 7: black voters in Alabama and required the creation of a 407 00:22:12,880 --> 00:22:15,520 Speaker 7: second black majority district in Alabama. That was a five 408 00:22:15,600 --> 00:22:17,520 Speaker 7: to four case, and it was a bit of a 409 00:22:17,560 --> 00:22:20,920 Speaker 7: surprise because they previously issued a stay against the lower 410 00:22:20,960 --> 00:22:22,840 Speaker 7: court order in that case, so that he allowed the 411 00:22:22,920 --> 00:22:24,960 Speaker 7: old map to be used one more election. You know, 412 00:22:25,200 --> 00:22:27,760 Speaker 7: in other areas, the court has certainly cut back. They 413 00:22:27,760 --> 00:22:31,160 Speaker 7: have made it now almost impossible for plaintiffs to bring 414 00:22:31,320 --> 00:22:35,680 Speaker 7: voting right sack claims challenging various mechanisms like voter ID 415 00:22:36,040 --> 00:22:38,280 Speaker 7: and issues with a claim is that certain you know, 416 00:22:38,440 --> 00:22:42,480 Speaker 7: voter registration and voter ID rules the disparate impact on 417 00:22:42,720 --> 00:22:44,920 Speaker 7: black or other minority voters to court in the case 418 00:22:44,960 --> 00:22:47,439 Speaker 7: called Bernovich some years ago threw that out. Now more 419 00:22:47,480 --> 00:22:49,560 Speaker 7: than ten years ago. They got rid of Section five, 420 00:22:49,600 --> 00:22:52,600 Speaker 7: which was the preclearance requirement, which was probably the most 421 00:22:52,600 --> 00:22:56,000 Speaker 7: important piece of the voting rightsack requiring certain states which 422 00:22:56,040 --> 00:22:58,800 Speaker 7: had a very bad track record of racial discrimination to 423 00:22:58,840 --> 00:23:01,480 Speaker 7: get their voting law. Change is preclued by the Department 424 00:23:01,520 --> 00:23:03,920 Speaker 7: of Justice now about ten years ago, and they've been 425 00:23:03,920 --> 00:23:06,320 Speaker 7: sending signals at least a number of justices that they 426 00:23:06,359 --> 00:23:09,200 Speaker 7: are troubled by the reader which the Voiding Rights Act 427 00:23:09,280 --> 00:23:12,399 Speaker 7: is being used to challenge voting laws, voting rules, and 428 00:23:12,480 --> 00:23:16,520 Speaker 7: things like districting plans. But right now, the most recent case, 429 00:23:16,600 --> 00:23:18,960 Speaker 7: that Alabama case, is one where they actually are continuing 430 00:23:18,960 --> 00:23:21,680 Speaker 7: to enforce it. Some people are seeing this as another challenge. 431 00:23:21,680 --> 00:23:23,720 Speaker 7: I think if the Court is going to start cutting 432 00:23:23,800 --> 00:23:25,920 Speaker 7: back on the role of Section two the Voting Rights 433 00:23:25,960 --> 00:23:28,200 Speaker 7: Act in challenging districting plans, I'll go out on a 434 00:23:28,240 --> 00:23:30,520 Speaker 7: limb and say this is probably not the case, but 435 00:23:30,720 --> 00:23:33,719 Speaker 7: you could imagine it happening in the not too distant future. 436 00:23:34,280 --> 00:23:36,520 Speaker 3: I mean, you were surprised by that Alabama case. I 437 00:23:36,600 --> 00:23:39,960 Speaker 3: was stunned, and I'm wondering if it's an exception rather 438 00:23:40,000 --> 00:23:42,560 Speaker 3: than the rule, because it sort of stood out right. 439 00:23:42,680 --> 00:23:45,000 Speaker 7: But this case is an immediate follow on. The thing 440 00:23:45,080 --> 00:23:47,480 Speaker 7: is this case is not a direct review of that case. 441 00:23:47,640 --> 00:23:50,040 Speaker 7: In some ways, it is arguably an indirect review of 442 00:23:50,080 --> 00:23:53,320 Speaker 7: that case. But the Louisiana case was very, very similar 443 00:23:53,359 --> 00:23:56,000 Speaker 7: to the Alabama case, so it would be a real 444 00:23:56,280 --> 00:23:58,720 Speaker 7: stretch I think to say that the district is racially 445 00:23:58,760 --> 00:24:02,160 Speaker 7: predominant when the state was acting because of a court order, 446 00:24:02,200 --> 00:24:05,199 Speaker 7: and the factors that led to this particular district design 447 00:24:05,440 --> 00:24:07,960 Speaker 7: work at least to some degree political. There's an interesting 448 00:24:08,040 --> 00:24:11,000 Speaker 7: bit of dialogue between Justice Cavanon one of the advocates 449 00:24:11,080 --> 00:24:14,000 Speaker 7: about how do you decide whether something is racially predominant 450 00:24:14,119 --> 00:24:17,119 Speaker 7: or politically predominant? It fifty to fifty is a sixty 451 00:24:17,160 --> 00:24:20,200 Speaker 7: forties and seventy thirty, and the Swister General for Louisiana saying, 452 00:24:20,280 --> 00:24:23,080 Speaker 7: we think this is about seventy percent political, and that 453 00:24:23,160 --> 00:24:25,399 Speaker 7: if it's in the sixty eighty percent political, ought to 454 00:24:25,400 --> 00:24:28,280 Speaker 7: be seen as politically predominant or not racially predominant. 455 00:24:28,320 --> 00:24:30,840 Speaker 3: I wonder how he came up with those numbers. Thanks 456 00:24:30,880 --> 00:24:34,720 Speaker 3: so much, rich That's Columbia Law School professor Richard Brefault 457 00:24:35,040 --> 00:24:38,880 Speaker 3: coming up next. Only works created by humans can get 458 00:24:38,880 --> 00:24:42,760 Speaker 3: a copyright. I'm June Grass. When you're listening to Bloomberg, we. 459 00:24:42,760 --> 00:24:45,880 Speaker 4: Are fat in five four. 460 00:24:47,720 --> 00:24:51,640 Speaker 6: Now here's mister midnight jack. 461 00:24:52,160 --> 00:24:57,800 Speaker 1: Down, Oh good evening night owls, and thank you for 462 00:24:57,880 --> 00:24:59,399 Speaker 1: allowing me into your living rooms. 463 00:25:01,240 --> 00:25:04,600 Speaker 6: You're meddling with things you don't understand well, ladies. 464 00:25:04,359 --> 00:25:07,679 Speaker 1: And gentlemen, please stay tuned for a live television first 465 00:25:08,119 --> 00:25:10,520 Speaker 1: as we attempt to commune with the Devil. 466 00:25:12,400 --> 00:25:15,320 Speaker 3: The horror movie Late Night with the Devil is about 467 00:25:15,359 --> 00:25:19,120 Speaker 3: a seventies talk show host who keeps the cameras rolling 468 00:25:19,280 --> 00:25:23,840 Speaker 3: during a live demonic possession that goes horribly awry. It 469 00:25:23,960 --> 00:25:27,919 Speaker 3: sounds scary, right, but what actually scared a lot of 470 00:25:28,040 --> 00:25:32,240 Speaker 3: filmgoers and critics even more was the use of AI 471 00:25:32,480 --> 00:25:36,760 Speaker 3: to create art in three still images used in transitions 472 00:25:36,760 --> 00:25:40,760 Speaker 3: of the talk show. The social media backlash even included 473 00:25:40,800 --> 00:25:44,320 Speaker 3: calls to boycott the movie. The use of AI in 474 00:25:44,440 --> 00:25:48,879 Speaker 3: creative works can be a controversial and murky area, but 475 00:25:49,040 --> 00:25:52,639 Speaker 3: now a federal appellate court has made one thing about 476 00:25:52,800 --> 00:25:58,840 Speaker 3: artificial intelligence clear. A work completely generated by AI cannot 477 00:25:58,880 --> 00:26:03,560 Speaker 3: get copyright proteid. In a landmark decision, the DC Circuit 478 00:26:03,600 --> 00:26:08,480 Speaker 3: Court of Appeals found unanimously that human authorship is required 479 00:26:08,600 --> 00:26:11,199 Speaker 3: to get a copyright for a work. My guest is 480 00:26:11,240 --> 00:26:16,240 Speaker 3: intellectual property litigator Terrence Ross, a partner Katon Neutchen Rosenmann. 481 00:26:16,640 --> 00:26:19,440 Speaker 3: So Terry tell us about the issues in this case 482 00:26:19,480 --> 00:26:23,560 Speaker 3: before the DC's Circuit Court, where a computer scientist wanted 483 00:26:23,600 --> 00:26:27,680 Speaker 3: a copyright for an AI generated piece of art. 484 00:26:28,440 --> 00:26:34,280 Speaker 1: Now we have the first appellate court decision on whether 485 00:26:34,359 --> 00:26:38,760 Speaker 1: or not artificial intelligence can create works that can be copyrighted, 486 00:26:38,800 --> 00:26:41,159 Speaker 1: and this involves a computer scientist by the name of 487 00:26:41,359 --> 00:26:45,160 Speaker 1: doctor Stevens. Paller, and he came up with his own 488 00:26:45,280 --> 00:26:49,720 Speaker 1: generative artificial intelligence, which he has dubbed the Creativity Machine. 489 00:26:49,760 --> 00:26:52,960 Speaker 1: And just so everybody understands, AI gets used in a 490 00:26:53,000 --> 00:26:57,080 Speaker 1: lot of misleading contexts and commercials and advertising. Nowadays, real 491 00:26:57,160 --> 00:27:01,640 Speaker 1: artificial intelligence is called generative AI because it's capable of 492 00:27:01,800 --> 00:27:06,840 Speaker 1: learning and it improves itself without human interaction. And so 493 00:27:07,119 --> 00:27:10,159 Speaker 1: doctor Toller came up with this creativity machine, and he 494 00:27:10,280 --> 00:27:13,400 Speaker 1: asked it to paint a picture for him and rendered 495 00:27:13,440 --> 00:27:16,320 Speaker 1: a lovely work, multi colored work of what appeared to 496 00:27:16,320 --> 00:27:19,280 Speaker 1: me to be a garden scene. But doctor Toller gave 497 00:27:19,320 --> 00:27:22,639 Speaker 1: it the name A Recent Entrance to Paradise, and he 498 00:27:22,920 --> 00:27:26,119 Speaker 1: printed that off. He took it to the US Copyright 499 00:27:26,160 --> 00:27:30,320 Speaker 1: Office and filed an application to register that work for 500 00:27:30,440 --> 00:27:34,320 Speaker 1: copyright registration purposes, and on the form said it was 501 00:27:34,560 --> 00:27:39,440 Speaker 1: created by this creativity machine. Not surprisingly, the US Copyright 502 00:27:39,480 --> 00:27:43,399 Speaker 1: Office denied that application for registration and by way the 503 00:27:43,480 --> 00:27:46,680 Speaker 1: historical background, this didn't come as a surprise to anybody. 504 00:27:47,160 --> 00:27:51,240 Speaker 1: Way back in nineteen seventy three, the US Copyright Office, 505 00:27:51,280 --> 00:27:56,040 Speaker 1: in its internal regulations announced that only humans can obtain 506 00:27:56,440 --> 00:28:00,440 Speaker 1: copyright registrations. So this is a really long standing position 507 00:28:00,520 --> 00:28:03,480 Speaker 1: of the Copyright Office, not something unique to this case 508 00:28:03,600 --> 00:28:05,760 Speaker 1: or unique to the current trend in AI. 509 00:28:06,280 --> 00:28:10,920 Speaker 3: Also not really surprising. When doctor Toller appealed the decision 510 00:28:10,920 --> 00:28:13,560 Speaker 3: of the Copyright Office, he lost. 511 00:28:13,920 --> 00:28:17,560 Speaker 1: The DC Circuit affirmed the District Court, which in turn 512 00:28:17,640 --> 00:28:21,240 Speaker 1: had affirmed the US Copyright Office. The DC Circuit agreed 513 00:28:21,320 --> 00:28:23,400 Speaker 1: with everybody else who had looked at this and said 514 00:28:23,440 --> 00:28:28,760 Speaker 1: that copyright registrations can't be granted to robots. I think 515 00:28:29,040 --> 00:28:32,120 Speaker 1: the consensus was the case would come out this way, 516 00:28:32,400 --> 00:28:36,719 Speaker 1: and it's really driven by the factual predicate. Doctor Toller 517 00:28:37,000 --> 00:28:41,440 Speaker 1: was unequivocal in telling the Copyright Office and every step 518 00:28:41,520 --> 00:28:47,240 Speaker 1: on appeal that he was not the creator of this drawing, 519 00:28:47,440 --> 00:28:51,120 Speaker 1: that it was the creativity machine, a generative AI, that 520 00:28:51,320 --> 00:28:55,040 Speaker 1: had rendered the drawing. So there was no dispute on 521 00:28:55,080 --> 00:28:57,240 Speaker 1: the facts. There was no line drawing to be done, 522 00:28:57,360 --> 00:29:00,840 Speaker 1: there's no gray areas, had a nice crisp clear presentation 523 00:29:01,400 --> 00:29:04,800 Speaker 1: of that central fact. Given that lack of de speed 524 00:29:04,840 --> 00:29:07,720 Speaker 1: on facts, it was really then driven by the law. 525 00:29:08,120 --> 00:29:13,320 Speaker 1: And the interesting thing about the DC Circuit's opinion, which 526 00:29:13,360 --> 00:29:17,320 Speaker 1: differed from a Copyright Office decision in the District Court decision, 527 00:29:17,880 --> 00:29:21,320 Speaker 1: is a laser like focus by the DC Circuit on 528 00:29:21,440 --> 00:29:24,640 Speaker 1: the text of the Copyright Act in nineteen seventy six. 529 00:29:24,840 --> 00:29:28,080 Speaker 1: And this is sort of the trend in appellate courts 530 00:29:28,120 --> 00:29:30,760 Speaker 1: and the Supreme Court these days what is referred to 531 00:29:30,800 --> 00:29:34,640 Speaker 1: by lawyers as textual analysis. It is no longer some 532 00:29:35,040 --> 00:29:40,600 Speaker 1: right wing theory propagated by Justice Scalia. This concept of 533 00:29:40,720 --> 00:29:44,280 Speaker 1: textual literalism has just seized the appellate courts. In the 534 00:29:44,280 --> 00:29:47,440 Speaker 1: Supreme Court, you see both the so called liberal justice 535 00:29:47,440 --> 00:29:49,560 Speaker 1: of the Supreme Court and the conservative justices on the 536 00:29:49,600 --> 00:29:53,320 Speaker 1: Supreme Court agreeing that you apply this sort of textual 537 00:29:53,360 --> 00:29:56,320 Speaker 1: analysis whenever there's a statute of constitution. This is a 538 00:29:56,400 --> 00:29:59,360 Speaker 1: sea change from twenty years ago, and here you see 539 00:29:59,360 --> 00:30:02,160 Speaker 1: it being done by the DC Circuit in connection with. 540 00:30:02,120 --> 00:30:05,000 Speaker 3: This case and take us through the process. The DC 541 00:30:05,560 --> 00:30:06,960 Speaker 3: Circuit Court went through. 542 00:30:07,040 --> 00:30:10,400 Speaker 1: The DC Circuit marched through the Copyright Act and they said, 543 00:30:10,520 --> 00:30:13,440 Speaker 1: you know, there's a distinction in the text of the 544 00:30:13,440 --> 00:30:18,240 Speaker 1: Copyright Act between machines and authors, and they laid out 545 00:30:18,320 --> 00:30:22,400 Speaker 1: that machines don't own property because under the Act, copyrights 546 00:30:22,400 --> 00:30:26,240 Speaker 1: are property and authors get to own copyrights, but machines 547 00:30:26,280 --> 00:30:29,920 Speaker 1: don't own property. Machines don't have a lifetime because copyright 548 00:30:30,000 --> 00:30:33,680 Speaker 1: registrations are measured in part by the lifetime of the 549 00:30:33,760 --> 00:30:37,000 Speaker 1: author plus a certain number of years. But machines don't 550 00:30:37,040 --> 00:30:40,760 Speaker 1: have a lifetime. Machines have no errors. There's nobody who 551 00:30:40,800 --> 00:30:43,080 Speaker 1: inherits from machine, in part because it doesn't have a death, 552 00:30:43,120 --> 00:30:45,400 Speaker 1: it doesn't have a lifetime. And yet there's a provision 553 00:30:45,480 --> 00:30:49,959 Speaker 1: in there that says the errors of authors obtain their rights, 554 00:30:50,000 --> 00:30:51,840 Speaker 1: So how do you account for that? And then there's 555 00:30:51,880 --> 00:30:55,400 Speaker 1: also provision in the text about the nationality and domicile 556 00:30:55,480 --> 00:30:59,680 Speaker 1: of authors. Yet machines don't have nationality. Machines don't have 557 00:30:59,720 --> 00:31:03,280 Speaker 1: don't Indeed, the court pointed out that in the text 558 00:31:03,280 --> 00:31:06,120 Speaker 1: of the Copyright Act nineteen seventy six, every time a 559 00:31:06,280 --> 00:31:10,800 Speaker 1: machine is referenced, it is as a tool being used 560 00:31:10,840 --> 00:31:13,400 Speaker 1: by human authors. And they thought that was telling. And 561 00:31:13,480 --> 00:31:17,480 Speaker 1: there's an express reference to computer programs. Computer programs don't 562 00:31:17,480 --> 00:31:20,680 Speaker 1: get to register themselves. They're simply a tool used by 563 00:31:20,880 --> 00:31:23,640 Speaker 1: human beings to create works. And they thought that this 564 00:31:23,760 --> 00:31:28,400 Speaker 1: distinction between machines and authors in the text was determinative here. 565 00:31:28,560 --> 00:31:30,240 Speaker 1: And if you follow their logic, if you agree with 566 00:31:30,280 --> 00:31:33,480 Speaker 1: the logic that we followed, the text seems inescapable that 567 00:31:33,560 --> 00:31:36,000 Speaker 1: an author for purposes of copyright has to be a 568 00:31:36,080 --> 00:31:36,600 Speaker 1: human being. 569 00:31:37,000 --> 00:31:40,040 Speaker 3: What arguments did doctor Toller make to try to get 570 00:31:40,080 --> 00:31:40,760 Speaker 3: a copyright? 571 00:31:41,080 --> 00:31:44,040 Speaker 1: So Teller makes a couple arguments. The only one that 572 00:31:44,120 --> 00:31:47,520 Speaker 1: they gave much credence to was dictionary definition. There are 573 00:31:47,760 --> 00:31:52,000 Speaker 1: dictionary definitions where you look up creator and the definition 574 00:31:52,080 --> 00:31:55,080 Speaker 1: suggests it could be a machine. But as VC Circuit 575 00:31:55,120 --> 00:31:59,760 Speaker 1: pointed out, we don't go to a dictionary definition unless 576 00:31:59,760 --> 00:32:03,040 Speaker 1: they're ambiguity in the statue. And here they said, you know, 577 00:32:03,080 --> 00:32:06,560 Speaker 1: we're doing a textual analysis. Here, we're looking strictly the text, 578 00:32:06,560 --> 00:32:09,720 Speaker 1: and the text is clear as can be that there 579 00:32:09,800 --> 00:32:13,160 Speaker 1: is a distinction drawn between authors who get copyrights and 580 00:32:13,200 --> 00:32:16,680 Speaker 1: machines who are merely tools used by authors, and therefore 581 00:32:16,920 --> 00:32:19,520 Speaker 1: we don't need to look at any dictionary definition. Now. 582 00:32:19,640 --> 00:32:22,920 Speaker 1: The rest of the arguments made by Taller they described 583 00:32:22,960 --> 00:32:26,560 Speaker 1: as public policy arguments. And again this is telling. They said, 584 00:32:26,680 --> 00:32:29,160 Speaker 1: on all these other public policy arguments you have, you 585 00:32:29,200 --> 00:32:32,479 Speaker 1: take those to the Congress. And there's a great quote 586 00:32:32,480 --> 00:32:36,240 Speaker 1: in here. They say, our duty as a court is 587 00:32:36,320 --> 00:32:40,040 Speaker 1: to apply the statute as written. That's a quote, apply 588 00:32:40,160 --> 00:32:43,760 Speaker 1: the statute is written. I mean, this would make Justice 589 00:32:43,800 --> 00:32:47,800 Speaker 1: Scalia so happy that this has become the norm. 590 00:32:47,920 --> 00:32:52,760 Speaker 3: Now, so this work was created wholly by AI. What 591 00:32:52,920 --> 00:32:56,960 Speaker 3: about works that are created with a mixture of human 592 00:32:57,320 --> 00:32:59,840 Speaker 3: and AI input? Are they copyrightable? 593 00:33:00,240 --> 00:33:04,000 Speaker 1: So this is the issue that is really getting all 594 00:33:04,120 --> 00:33:07,360 Speaker 1: the discussion in the academic circles that I run in. 595 00:33:07,480 --> 00:33:11,560 Speaker 1: And Taller made arguments like that which the DC Circuit 596 00:33:12,040 --> 00:33:15,800 Speaker 1: again lumped into the public policy type arguments. And what 597 00:33:15,840 --> 00:33:19,000 Speaker 1: they said is that we only decide cases that are 598 00:33:19,040 --> 00:33:23,440 Speaker 1: presented to us. These what they described as line drawing arguments. 599 00:33:23,520 --> 00:33:25,520 Speaker 1: You know, where do you draw the line between a 600 00:33:25,600 --> 00:33:29,240 Speaker 1: human author and a machine author? These line drawing arguments 601 00:33:29,280 --> 00:33:32,360 Speaker 1: aren't presented to us here, and so we're not going 602 00:33:32,440 --> 00:33:36,880 Speaker 1: to decide those. And they recognize that there were disagreements 603 00:33:36,920 --> 00:33:40,800 Speaker 1: over how much of a contribution by AI makes it 604 00:33:40,840 --> 00:33:44,080 Speaker 1: a machine generated work as opposed to human generated work, 605 00:33:44,080 --> 00:33:46,080 Speaker 1: and the d C Circus said that's not this case. 606 00:33:46,200 --> 00:33:49,040 Speaker 1: Doctor Toller has never made that argument. He's been crystal 607 00:33:49,080 --> 00:33:52,920 Speaker 1: clear that the machine, the robot, did all the drawing here, 608 00:33:53,160 --> 00:33:54,959 Speaker 1: and that's all we have to decide. 609 00:33:55,160 --> 00:33:57,880 Speaker 3: So I read that the Copyright Office how's allowed the 610 00:33:57,960 --> 00:34:03,600 Speaker 3: registration of works made by humans who use AI? 611 00:34:04,000 --> 00:34:06,400 Speaker 1: That is correct. There have been several of those because 612 00:34:06,520 --> 00:34:09,480 Speaker 1: those were allowed. I'm not sure how we ever get 613 00:34:09,640 --> 00:34:12,319 Speaker 1: a review in a court of law. That at some 614 00:34:12,440 --> 00:34:16,200 Speaker 1: point we will have a case where the copywriter says 615 00:34:16,239 --> 00:34:20,279 Speaker 1: not enough human involvement, too much machine involvement, and then 616 00:34:20,320 --> 00:34:22,480 Speaker 1: that will get us a review and we might understand 617 00:34:22,480 --> 00:34:25,080 Speaker 1: this better. But think about it in these terms. Humans 618 00:34:25,760 --> 00:34:30,799 Speaker 1: use machines all the time to create works. As a newsperson, 619 00:34:30,840 --> 00:34:33,560 Speaker 1: you're doing that with your typewriter. Authors are doing that 620 00:34:33,600 --> 00:34:37,520 Speaker 1: with their typewriters, laptops. Journalists, news networks are doing it 621 00:34:37,520 --> 00:34:41,640 Speaker 1: with cameras. Radio newscasters are sticking a microphone in front 622 00:34:41,680 --> 00:34:44,080 Speaker 1: of the sports hero and recording his thoughts. Does that 623 00:34:44,160 --> 00:34:46,600 Speaker 1: mean the humans not involved? I don't think so. Humans 624 00:34:46,760 --> 00:34:49,879 Speaker 1: use machines all the time and there should be no 625 00:34:49,920 --> 00:34:53,279 Speaker 1: difference with respect to using AI to help. So I 626 00:34:53,280 --> 00:34:55,920 Speaker 1: think that's the answer to that question, it's simply the 627 00:34:55,960 --> 00:34:59,400 Speaker 1: machine being used by human. It's not the machine getting 628 00:34:59,560 --> 00:35:00,840 Speaker 1: a cop right registration. 629 00:35:01,080 --> 00:35:04,440 Speaker 3: Maybe I'll have AI assistance in writing the lead into 630 00:35:04,480 --> 00:35:05,520 Speaker 3: this segment. 631 00:35:05,600 --> 00:35:07,360 Speaker 1: Oh god, I'm sure you could. 632 00:35:07,560 --> 00:35:11,239 Speaker 3: Explain the importance of this decision. What the stakes are here? 633 00:35:11,760 --> 00:35:15,600 Speaker 1: No, Jude, this is a surprisingly important issue. If you remember, 634 00:35:16,120 --> 00:35:19,040 Speaker 1: almost two years ago, the Writer's Guilt of America went 635 00:35:19,080 --> 00:35:23,200 Speaker 1: on strike and stopped all production of film and television shows, 636 00:35:23,239 --> 00:35:26,960 Speaker 1: and one of the core issues that was presented was 637 00:35:27,080 --> 00:35:31,240 Speaker 1: the use by the studios of artificial intelligence to write scripts. 638 00:35:31,400 --> 00:35:36,160 Speaker 1: The writers viewed this as an existential threat to their work, 639 00:35:36,520 --> 00:35:39,440 Speaker 1: that it would put writers out on the street because 640 00:35:39,560 --> 00:35:43,239 Speaker 1: artificial intelligence would simply take over and do all the 641 00:35:43,239 --> 00:35:46,440 Speaker 1: script writing. And that was one of the concessions that 642 00:35:46,480 --> 00:35:49,040 Speaker 1: they obtained when that strike was settled. But the point 643 00:35:49,080 --> 00:35:54,840 Speaker 1: here is that if artificial intelligence scripts cannot be copyrighted, 644 00:35:55,120 --> 00:35:58,840 Speaker 1: then that shifts the bargaining power to the writers, because 645 00:35:59,000 --> 00:36:01,960 Speaker 1: a studio spending two hundred fifty million dollars on a 646 00:36:01,960 --> 00:36:04,880 Speaker 1: big hit score generate a billion dollars in revenues cannot 647 00:36:04,960 --> 00:36:07,160 Speaker 1: afford to go without a copyright. And so this is 648 00:36:07,200 --> 00:36:10,600 Speaker 1: actually very important. In the computer context. Artificial intelligence is 649 00:36:10,600 --> 00:36:14,640 Speaker 1: being used to help coders write new applications, new software. 650 00:36:15,040 --> 00:36:18,680 Speaker 1: If again, those companies, the Microsofts of the world, can't 651 00:36:18,760 --> 00:36:21,920 Speaker 1: get copyrights on their new computer programs because of the 652 00:36:22,040 --> 00:36:26,000 Speaker 1: use of artificial intelligence, that will limit their willingness to 653 00:36:26,120 --> 00:36:29,520 Speaker 1: employ artificial intelligence in that way, and so again the 654 00:36:29,719 --> 00:36:33,120 Speaker 1: computer scientists, the coders will keep their jobs. So this 655 00:36:33,200 --> 00:36:36,280 Speaker 1: is really important. And the problem is people don't understand 656 00:36:36,320 --> 00:36:40,080 Speaker 1: the extent of which copyright impacts the economy. It is 657 00:36:40,239 --> 00:36:43,040 Speaker 1: really critical, and the founders saw it this way. The 658 00:36:43,200 --> 00:36:47,120 Speaker 1: Founders viewed copyright. It's one of the most important drivers 659 00:36:47,200 --> 00:36:51,040 Speaker 1: of the US economy and that came to fruition. And 660 00:36:51,520 --> 00:36:58,600 Speaker 1: by stopping robots from getting copyrights, we preserve enormous amounts 661 00:36:58,680 --> 00:37:03,279 Speaker 1: of creative position in the economy across multiple businesses. And 662 00:37:03,320 --> 00:37:06,480 Speaker 1: that's why this decision is so important, not just in 663 00:37:06,520 --> 00:37:10,600 Speaker 1: an abstract sense, but as a very real consequence for 664 00:37:10,760 --> 00:37:12,840 Speaker 1: United States economy in multiple industries. 665 00:37:13,040 --> 00:37:16,080 Speaker 3: That's what's defined as a high stakes case. Always a 666 00:37:16,080 --> 00:37:19,480 Speaker 3: pleasure Terry, thanks so much. That's Terrence Ross of Catain 667 00:37:19,520 --> 00:37:22,000 Speaker 3: Muchen Rosenman. And that's it for this edition of The 668 00:37:22,040 --> 00:37:25,000 Speaker 3: Bloomberg Law Show. Remember you can always get the latest 669 00:37:25,040 --> 00:37:28,160 Speaker 3: legal news on our Bloomberg Law Podcast. You can find 670 00:37:28,160 --> 00:37:32,759 Speaker 3: them on Apple Podcasts, Spotify, and at www dot bloomberg 671 00:37:32,800 --> 00:37:36,600 Speaker 3: dot com, slash podcast slash Law, and remember to tune 672 00:37:36,600 --> 00:37:39,840 Speaker 3: into The Bloomberg Law Show every weeknight at ten pm 673 00:37:39,920 --> 00:37:43,480 Speaker 3: Wall Street Time. I'm June Grosso and you're listening to 674 00:37:43,520 --> 00:37:44,040 Speaker 3: Bloomberg