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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: The late Justice Antonin Scalia was a conservative icon and

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Speaker 1: the courts champion of originalism, the approach to constitutional law

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Speaker 1: that adheres tightly to the words of the founding fathers,

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Speaker 1: say what did these concepts mean when when they were adopted? Now,

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Speaker 1: as as for the difficulty of figuring that out, the

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Speaker 1: historical problem, yes there is this. I'm not pretending that

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Speaker 1: the doing it by text and the original leaning of

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Speaker 1: that text is perfect, that it's going to solve every problem,

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Speaker 1: but it solves an awful lot of problems, especially the

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Speaker 1: most controversial ones. While Justice Stephen Brier is an advocate

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Speaker 1: of the living Constitution, the belief that the Constitution is

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Speaker 1: an evolving document that changes over time. Brier and Scalia

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Speaker 1: debated the efficacy of the two approaches, and the Constitution,

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Speaker 1: in application of it, adapts to the circumstance in order

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Speaker 1: to keep the values the same. The issue is whether

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Speaker 1: a judge can say the living Constitution has morphed, and

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Speaker 1: so what used to be okay is now not bad?

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Speaker 1: Is now bad? That that's that's the living Constitution I'm

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Speaker 1: talking about, and it's it's the one that I wish

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Speaker 1: would die. Now, six years after Justice Scaliah's death, it

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Speaker 1: appears he's won the debate. Originalism is deeply ingrained in

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Speaker 1: the current Court's decisions, employed by a majority of the justices,

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Speaker 1: and even invoked by the liberal justices. But is originalism

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Speaker 1: fulfilling Scaliah's pledge that it would keep judges from injecting

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Speaker 1: their personal views into the law. My guest is Elizabeth Widra,

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Speaker 1: president of the Constitutional Accountability Center. People here both terms

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Speaker 1: originalism and textualism. What's the difference. The originalism is slightly

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Speaker 1: different from textualism, although it should start from the words

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Speaker 1: of the Constitution, and that it shares with textualism of course,

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Speaker 1: as textualism the name suggests, But originalism goes a little

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Speaker 1: bit more broadly, and when it's looking to what's the

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Speaker 1: word in the Constitution mean, it looks to what's termed

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Speaker 1: original public meaning, So that's you know, what was the

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Speaker 1: general understanding of the words that were written into the

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Speaker 1: Constitution at the time they were ratified. The late Justice

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Speaker 1: Antonin Scalia was the courts champion of originalism. I don't

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Speaker 1: remember hearing much about it before Scalia Scalia was definitely

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Speaker 1: the most prominent I think jurist who ascribes the originalist philosophy.

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Speaker 1: It definitely came to the four I think during the

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Speaker 1: Reagan years. There were several prominent members of the Reagan

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Speaker 1: legal administration, like for example Ed Nice, who used the

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Speaker 1: originalism philosophy, and then a lot of conservative academic would

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Speaker 1: also ascribe themselves to the originalist philosophy. But it has

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Speaker 1: gone through some changes over time. Sort of the way

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Speaker 1: was first used, and I think even before Reagan you

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Speaker 1: could trade it back to around the time of school

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Speaker 1: desegregation cases. It was originally used as this kind of

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Speaker 1: what would the founders have done? Kind of mind meld,

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Speaker 1: though the kind of academic term for that is original

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Speaker 1: expected application of the term, and that quickly went out

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Speaker 1: of fashion because it became very clear that that wasn't

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Speaker 1: any way to interpret a constitution in the modern world.

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Speaker 1: And so it has kind of more even in conservative

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Speaker 1: spheares to this quote unquote original public meaning, which looks

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Speaker 1: more to a broad understanding of you know what did

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Speaker 1: equal protection mean? You know what did freedom of speech mean?

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Speaker 1: That kind of understanding as opposed to expressly limiting ourselves

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Speaker 1: to what the drafters of that language would have thought

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Speaker 1: and applied to at the time. You know, there's a

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Speaker 1: allows us to take into account, for example, of changes

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Speaker 1: in technology or changes in society. Women can vote now,

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Speaker 1: so we're part of society. So it's that kind of

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Speaker 1: shift in the conservative originalist philosophy has taken place. I

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Speaker 1: remember events where Justice Scalia and Justice Brier would talk

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Speaker 1: about originalism versus the living Constitution, But it seems like

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Speaker 1: even the liberal justices are almost afraid to use that

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Speaker 1: phrase living constitution anymore. Yeah, I definitely think that in

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Speaker 1: some way conservatives have won the branding war in terms

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Speaker 1: of coming up with a narrative around why the conservative

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Speaker 1: at least claim of originalism is better. Their idea was that, look,

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Speaker 1: originalism is tied to the Constitution's text and histories, so

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Speaker 1: it restrained judges from injecting their personal views into things.

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Speaker 1: You know, it isn't just based on changing policy preferences.

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Speaker 1: But that's where I think concern of it is have

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Speaker 1: gotten into trouble now that they actually you know, it's

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Speaker 1: like the dog finally catching the car. I think they're

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Speaker 1: getting into trouble because what we're actually seeing when they

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Speaker 1: apply originalism is that a lot of those claims of

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Speaker 1: why originalism was better than any other method in terms

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Speaker 1: of restraining justices and keeping it tied to the Constitution

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Speaker 1: doesn't seem to be playing out in these big cases

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Speaker 1: we've seen in the Supreme Court. Yeah, Justice Scalia said

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Speaker 1: the originalism would keep judges from injecting their personal views

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Speaker 1: into the law. But then why do we have cases

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Speaker 1: where the originalists on the court differ, For example the

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Speaker 1: boss Stock case where Justice course it's joined with the liberals.

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Speaker 1: So Justice Scaliah himself would acknowledge that, you know, originalism

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Speaker 1: and constitutional interpretation were not, in his word, as easy

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Speaker 1: as pie. But a lot of it depends on the

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Speaker 1: question you ask. So if you look back to say,

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Speaker 1: you know, what does the word equal mean in the

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Speaker 1: fourteenth Amendment, what does the term liberty means? You can

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Speaker 1: take a broad lens to that or you can take

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Speaker 1: a narrow lens to that. So the whole idea that

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Speaker 1: somehow originalism is like putting a question into a computer

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Speaker 1: and it fits out an answer that's just wrong. And

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Speaker 1: we've seemed that with the way that, for example, just

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Speaker 1: as Alado takes the constitutional text and comes up the

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Speaker 1: very limited vision of liberty, and another person can take

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Speaker 1: that same text, that same original public meaning of the

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Speaker 1: fourteenth Amendment, for example, and have a much broader vision

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Speaker 1: of liberty following up on that. In some of the

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Speaker 1: most controversial decisions of the term, the case you mentioned

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Speaker 1: that took away the constitutional right to abortion and the

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Speaker 1: case that established a constitutional right to carry a handgun.

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Speaker 1: Rather than the words of the Constitution, the majority opinions

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Speaker 1: used historical analysis going back as far as twelfth century

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Speaker 1: England to justify the results. Is that the correct way

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Speaker 1: to apply originalism absolutely not. I think the first step

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Speaker 1: of an originalist constitutional interpretation would be to look at

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Speaker 1: the words of the Constitution and have them be their guide.

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Speaker 1: And what we saw in both of the cases, and

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Speaker 1: I think especially in the abortion case, was this conservative

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Speaker 1: majority on the court using dates, practices, and centuries old

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Speaker 1: history to subvert the actual words of the Constitution. Instead

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Speaker 1: of using history to enlighten the meaning of those words,

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Speaker 1: they were using history too, in many ways guts the

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Speaker 1: meaning of the words of the Constitution, And I think

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Speaker 1: that points out a very big flaw in conservative originalism,

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Speaker 1: which is that it focuses very much on the Constitution

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Speaker 1: as it stood in seventeen nine. But it really fails

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Speaker 1: to grapple with the radical changes to the Constitution made

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Speaker 1: after the Civil War, particularly in the Fourteenth Amendment, which

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Speaker 1: wrote into our constitution sweeping guarantees of equality and liberty.

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Speaker 1: And when you look at the original public meaning of

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Speaker 1: those words, which again is kind of the second step originalism,

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Speaker 1: after you look at the text, we see that the

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Speaker 1: concerns that motivated writing those words into Constitution were very

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Speaker 1: much about righting the wrongs of enslavement and the deep

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Speaker 1: deprivation of rights and oppression that took place under the

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Speaker 1: slave system. And so the Fourteenth Amendment, in the words

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Speaker 1: of its own drafters, was intended to be a constitutional revolution.

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Speaker 1: That's how one of the members of Congress at the

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Speaker 1: time described it. And conservative originalists, and we're seeing this

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Speaker 1: on the court. We thought, especially in the abortion case,

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Speaker 1: do not grapple with that constitutional revolution that wrote into

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Speaker 1: our constitution broad concepts of liberty. Justice. Alito's opinion called

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Speaker 1: the most important historical fact the state of the law

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Speaker 1: in eighteen sixty eight when the Fourteenth Amendment was adopted,

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Speaker 1: and then he pointed out that in eighteen sixty eight

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Speaker 1: three quarters of the states made abortion a crime, at

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Speaker 1: least in the early stages. So I think what is

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Speaker 1: really remarkable about that is that if you think about

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Speaker 1: the Fourteenth Amendment, you know, is drafted right after the

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Speaker 1: Civil War. Half the states where slave, half the states

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Speaker 1: were free. It was intended to disrupt discriminatory state practices.

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Speaker 1: The idea that you would use the Fourteenth Amendment to

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Speaker 1: enshrine into amber discriminatory and unjust state practices goes against

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Speaker 1: the very concept of the Fourteenth Amendment, much less the

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Speaker 1: language contained within it. So using those state practices at

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Speaker 1: the time of the Fourteenth Amendment, and you know, historians

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Speaker 1: also disagree with the way that Alito describes that. I'll

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Speaker 1: leave that to them, but it doesn't matter of constitutional law.

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Speaker 1: The idea that you would take a constitutional amendment like

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Speaker 1: the Fourteenth Amendment that was intended to disrupt discriminatory state

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Speaker 1: practices and instead use it to enshrine those discriminatory state

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Speaker 1: practices demonstrates the real, frankly misunderstanding of the Fourteenth Amendment.

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Speaker 1: And you know, in the E. P A case this term,

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Speaker 1: Chief Justice Roberts wrote the majority opinion, all of a sudden,

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Speaker 1: they came out with this major questions doctrine. I mean,

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Speaker 1: where did that come from? And how is that part

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Speaker 1: of their philosophy of originalism. Yes, that is an extremely

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Speaker 1: good point because the flaws in what conservative originalism has

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Speaker 1: wrought on the Supreme Court. You know that the problems

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Speaker 1: of conservative originalism on this court are not just limited

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Speaker 1: to individual fundamental rights. There's also this view of the

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Speaker 1: federal government that is truly untethered from constitutional text and history.

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Speaker 1: And that case is a perfect example. If you claim

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Speaker 1: to be a jurist who is limited to constitutional text,

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Speaker 1: coming up with a major doctrine that limits the ability

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Speaker 1: of the federal government to act in times of national crises.

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Speaker 1: That is quite a departure from you know, this restrained

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Speaker 1: method of suristprudence that con servative originalists have promised. And

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Speaker 1: what we're seeing, I think with this court on questions

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Speaker 1: ranging from the structure of the government, rule of law,

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Speaker 1: all the way to individual fundamental rights, we're seeing a

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Speaker 1: very aggressively conservative court not being restrained at all by

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Speaker 1: any labels of conservative originalism or anything else. Justice Kagan,

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Speaker 1: at her confirmation hearings in said we're all originalists, and

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Speaker 1: Justice Katangi Brown Jackson said originalism had become the established

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Speaker 1: method of constitutional analysis in your analysis? Is that true?

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Speaker 1: You know, I think it is true in a very

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Speaker 1: basic sense. Look, if you are a judge and you

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Speaker 1: have a constitutional question presented to you, you're going to

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Speaker 1: first look at the words of the relevant constitutional provision

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Speaker 1: and then you're going to think about what those words means.

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Speaker 1: And so to the extent that originalists have kind of

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Speaker 1: co opted that common sense constitutional interpretation, again, I think

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Speaker 1: it's probably a great feat of branding, you know, the Yes,

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Speaker 1: that's true, and progressives as well as conservative should claim

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Speaker 1: the Constitution should argue based on its text in history,

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Speaker 1: and you know, there are many strong progressive arguments in

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Speaker 1: that text in history. And I think that's what we're

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Speaker 1: seeing reflected in more progressive juris like Justice brown Jackson

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Speaker 1: and Justice Kagan noting that, yeah, we do that too.

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Speaker 1: It seems astonishing to me. It's it's only been six

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Speaker 1: years since the passing of Justice Scalia and the rise

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Speaker 1: of originalism is sort of astonishing to me. Yes, well,

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Speaker 1: you know Justice Scalia, after he passed, he created the opportunity,

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Speaker 1: you know, through Mitch McConnell blocking Garland getting on the

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Speaker 1: court after he was nominated by President Obama and then

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Speaker 1: allowing for President Trump to build those feats. They allowed

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Speaker 1: for a really radical shift to the Supreme Court, which

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Speaker 1: was already a conservative court under Chief Justice John Roberts.

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Speaker 1: It wasn't as if it was this great liberal court

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Speaker 1: and then President Trump, but people in the bention it

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Speaker 1: became suddenly conservative. Was already very conservative. But what happened

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Speaker 1: was after Justice Lee is passing, we saw a substantial

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Speaker 1: number of justices added that ascribes to an originalist philosophy,

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Speaker 1: which is really the predominant conservative method of looking at

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Speaker 1: the Constitution. But again, in some ways it is just

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Speaker 1: basic constitutional interpretation, but with a label that kind of

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Speaker 1: makes it seem like it's more objective and not tied

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Speaker 1: to any sort of ideological agenda. Question whether or not

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Speaker 1: that is true, and I think a lot of people

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Speaker 1: the hollowness of the conservative originalist label and instead, you know, really,

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Speaker 1: I think people who have been critics of conservative originalism

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Speaker 1: are saying, look, this is what we've been saying. It

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Speaker 1: is all along, just a label that covers up, you know,

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Speaker 1: a regressive and very conservative ideological agenda. Thanks for coming

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Speaker 1: on the Showizabeth. That's Elizabeth Widra, president of the Constitutional

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Speaker 1: Accountability Center. Hold the way he just got paid, Bacon

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Speaker 1: Energys andropay the crowd. Beyonce's track Energy on her new

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Speaker 1: album Renaissance is missing something. The portion of the two

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Speaker 1: thousand three R and B dance hit Milkshake that was

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Speaker 1: in the song originally. After musician Callise complained that she

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Speaker 1: was not properly credited as a songwriter on the album,

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Speaker 1: Beyonce removed that portion of the song. This situation is

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Speaker 1: a warning to emerging artists who could find themselves locked

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Speaker 1: out of lucrative royalties if they don't secure the credit

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Speaker 1: for their contributions upfront. My guest is Robert Clarida, who

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Speaker 1: had the intellectual property practice at Reitler, Callis and Rosenblatt.

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Speaker 1: So Beyonce did credit Calise, who was twenty four the

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Speaker 1: song debuted nearly two decades ago, as the performer and

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Speaker 1: Farrell Williams and Chat Hugo as the songwriters. What does

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Speaker 1: an artist who wants to use someone else's work in

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Speaker 1: their song have to do? What kind of permissions do

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Speaker 1: they have? To get what kind of royalties do they

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Speaker 1: have to pay. Typically, the way that works is, and

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Speaker 1: you know, there's really two different kinds of copyrights involved. Here.

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Speaker 1: There's the copyright in the song and then there's the

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Speaker 1: copyright in the recording of the song, and those are

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Speaker 1: two different things. Sometimes they are owned by the same person,

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Speaker 1: sometimes they're not. Frequently they're not. The record label will

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Speaker 1: often own the copyright and the sound recording, and the

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Speaker 1: songwriter will own the copyright in the song. My understanding

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Speaker 1: in the case of the Energy track is that it

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Speaker 1: was not a sample of the sound recording. It was

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Speaker 1: Beyonce actually singing the melody. It wasn't a recording of

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Speaker 1: Callis's voice singing it. So if that's the case, then

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Speaker 1: it would only be the songwriter that would have to

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Speaker 1: be approached about that. And typically in a situation like that,

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Speaker 1: where a small piece of a song is used to

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Speaker 1: call and interpolation is the term that's often used in

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Speaker 1: the industry, now there will be some kind of a

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Speaker 1: fractional percentage paid from the revenues of that song. You know,

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Speaker 1: the person who owns the piece that was interpolated, we'll

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Speaker 1: get some small percentage of the of the royalties generated

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Speaker 1: by the song. But it's a negotiated thing. There's not like,

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Speaker 1: you know, standard price. It's all you know, how popular

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Speaker 1: was the first record, how big is the second record?

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Speaker 1: You know, what kind of bargaining power does everybody have.

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Speaker 1: It doesn't seem like Beyonce did anything wrong here. I mean,

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Speaker 1: I can certainly imagine that if the song on the

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Speaker 1: Plice record was credited to for All Williams and Chad

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Speaker 1: Hugo and they say to Beyonce, sure you can use it.

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Speaker 1: If I were on Beyonce's team, I would say, okay,

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Speaker 1: we've got the writer's permission here, We're fine, and they

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Speaker 1: would put the credit on the record accordingly. I mean,

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Speaker 1: if there is some kind of backstory that the credits

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Speaker 1: on the Police track we're not accurate, how is Beyonce

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Speaker 1: going to know that? I mean, you know, for All

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Speaker 1: Williams and Chad Hugo presumably would know that if that

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Speaker 1: were case, but Beyonce wouldn't know that necessarily. So I'm

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Speaker 1: not sure that Beyonce did anything wrong here other than

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Speaker 1: taking somebody's word for something, to the extent that someone

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Speaker 1: on her team had looked up the credits on the

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Speaker 1: Callise record, they would have seen those two names on it,

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Speaker 1: and they would have had no reason to think there

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Speaker 1: was a red flag there about anything. Colice said she

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Speaker 1: took part in the writing it was supposed to be

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Speaker 1: thirty three thirty three thirty three? Do young artists have

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Speaker 1: to get a lawyer to make sure their rights are

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Speaker 1: protected when they're involved in projects like this. They need

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Speaker 1: to have someone with some industry experience, whether it's a

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Speaker 1: manager or a lawyer. You know, the actual title doesn't

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Speaker 1: much matter, but it has to be somebody with some

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Speaker 1: industry experience who can know sort of what the pitfalls are,

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Speaker 1: and that's often not the case, particularly when artists are

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Speaker 1: first starting out. I'm not familiar with Callie's career. I

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Speaker 1: don't know how many records she had made previously. Maybe

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Speaker 1: she had a lot of experience in the industry, But

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Speaker 1: it seems in that case that if she did participate

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Speaker 1: in the writing of the song, and it was her

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Speaker 1: understanding that it would be one third splits all around,

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Speaker 1: there should have been a piece of paper somewhere, and

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Speaker 1: someone representing her should have made sure that there was

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Speaker 1: a piece of paper somewhere that set that out. That

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Speaker 1: that's what the splits would be. Oftentimes that's handled in

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Speaker 1: a very kind of, you know, quick and dirty way,

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Speaker 1: with what they call a split sheet. At the recording session,

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Speaker 1: somebody will just memorialize what the splits are for a

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Speaker 1: particular song, and maybe that was done, maybe it wasn't done.

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Speaker 1: But there should be a piece of paper that's actually

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Speaker 1: got signatures on it and has some legal enforceability in

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Speaker 1: order to prevent this sort of thing happening. For Rell

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Speaker 1: and Hugo could renegotiate her credit on Milkshake, But would

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Speaker 1: that open them up to needing to make an accounting.

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Speaker 1: That's really a question that goes to, uh, what kind

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Speaker 1: of a claim could Plice have against them. It's a

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Speaker 1: difficult in a situation like that because if there was

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Speaker 1: some piece of paper that she signed off on about

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Speaker 1: what the songwriting credits were and what the splits were,

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Speaker 1: that would be very hard for her to undo that.

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Speaker 1: You know, there are certain things you can say about

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Speaker 1: a contract. You know that you were fraudulently induced into

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Speaker 1: signing it because somebody told you something that you relied

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Speaker 1: on that wasn't true or whatever. There are arguments like

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Speaker 1: that that theoretically somebody could make. I don't know if

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Speaker 1: the facts here would support any of that, but I

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Speaker 1: would put it this way, nothing in this situation would

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Speaker 1: happen unilaterally. I don't think if there were to be

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Speaker 1: a revision in the credit of the of the Milkshake track,

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Speaker 1: it would be something that Calise would sign off on,

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Speaker 1: and then it would be negotiated, you know, among the parties,

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Speaker 1: and it would be some a way of forestalling any

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Speaker 1: other legal action. Police signed a contract that she says

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Speaker 1: she didn't understand. That's a hard argument to win. I mean,

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Speaker 1: there was a really awful case involving Frankie Lyman and

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Speaker 1: the teenagers who had some big hits in the fifties

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Speaker 1: like do Up Records, and they signed to a really,

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Speaker 1: really awful contract with this sort of a notoriously shady

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Speaker 1: record producer who sort of took all the credit and

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Speaker 1: all the money. And Frankie Lyman was fifteen years old

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Speaker 1: at the time or whatever, and he said, hey, I

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Speaker 1: was fifteen, what did I know? But he didn't come

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Speaker 1: forward until much later, many years had gone by, and

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Speaker 1: he sort of said, Okay, now I'm going to make

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Speaker 1: an issue out of this, and it was too late.

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Speaker 1: You know, you can't sleep on your rights that long

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Speaker 1: and then later come out of the woodwork and say, hey, well,

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Speaker 1: now that this song is valuable and I'm an adult

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Speaker 1: and I understand what happened. You know, it's just unfortunate

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Speaker 1: that the legal system draws a line and says, nope, sorry,

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Speaker 1: you can't do that. And you know, obviously, in some situations,

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Speaker 1: like outside of the copyright world, you know, the statute

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Speaker 1: of limitations can be told for certain reasons, but something

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Speaker 1: like that would be really, really hard to come back

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Speaker 1: after the fact. There's typically a three year statute of

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Speaker 1: limitations for copyright infringement. So if you're a young artist

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Speaker 1: and you're working with some established artists, do you risk

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Speaker 1: the established artists telling you, you know, forget about it.

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Speaker 1: You're contribution isn't worth it, It isn't worth the trouble,

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Speaker 1: isn't worth the money. Oh sure, absolutely, And you know

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Speaker 1: it's really a matter of bargaining power. I mean, you

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Speaker 1: can stand on principle and say, well, you can't use

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Speaker 1: my contribution if you're not going to credit me as

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Speaker 1: a writer. But that's probably not just gonna result in

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Speaker 1: that particular record not happening, But that may have further

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Speaker 1: consequences down the road. It turns developer of reputation for

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Speaker 1: being difficult to work with. Whatever you ruin whatever relationship

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Speaker 1: you thought you were trying to build with this established artist.

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Speaker 1: You know there can be all kinds of other sort

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Speaker 1: of reputational consequences and so on. So yes, you are

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Speaker 1: faced with that dilemma. But you know in every business,

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Speaker 1: you know there are dilemmas like that that people face.

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Speaker 1: You know what trade offs do I make now to

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Speaker 1: sort of go along and get ahead versus standing on

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Speaker 1: principle every time? Thanks for joining us, Bob. That's Robert Clarida,

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Speaker 1: a writler Callis and Rosenblatt, And that's it for this

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Speaker 1: edition of the Bloomberg Lash. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, And remember

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Speaker 1: to tune into The Bloomberg Law Show every week night

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Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

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Speaker 1: you're listening to Bloomberg