Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio
Speaker 1: for years in exchange. Epic Game's parody of Apple's famous
Speaker 1: commercial was only part of the massive pr campaign it
Speaker 1: launched in addition to suing Apple for antitrust violations, and
Speaker 1: the high stakes battle taking place in a California courtroom
Speaker 1: is worthy of epics popular Fortnite game. Joining me is
Speaker 1: Joshua Davis, a professor at the University of San Francisco
Speaker 1: Law School. So tell us what Epic is complaining about.
Speaker 1: So epics complaint against Apple is that pule is forcing
Speaker 1: people to pay Apple rather than just Epic when it purchases,
Speaker 1: specifically in regard to Fortnite, which is a popular game,
Speaker 1: and Epic says not only does Apple force those customers
Speaker 1: to pay Apple in order to operate on the Apple system,
Speaker 1: but also that Apple charges much higher prices than it
Speaker 1: should of those users. So the Epic basically doesn't want
Speaker 1: to have to give up some of its profits to
Speaker 1: Apple when people play Fortnite on an iPhone. So in
Speaker 1: deciding whether Apple has monopoly power, the first question is
Speaker 1: going to be what's the market? How is that determined?
Speaker 1: They're claiming that Apple has monopoly power, which is the
Speaker 1: power to charge higher prices than it could in the
Speaker 1: competitive market. And so how can Epic prove monopoly power
Speaker 1: is a really big issue, not only in this case,
Speaker 1: but in the future resolution of tech cases against Google
Speaker 1: and Apple and in that space generally, you know, big picture,
Speaker 1: there's two ways pretende to prove that Apple does in
Speaker 1: fact have monopoly power. One is called through direct evidence,
Speaker 1: and monopoly power is just the power to charge prices
Speaker 1: that are higher than what happened in the competitive market.
Speaker 1: And Epic wants to say the lifts look at your
Speaker 1: profits and we'll see that they're much too high for
Speaker 1: a competitive market. Clearly, you have the ability to charge
Speaker 1: super competitive prices because you did. You're charging much more
Speaker 1: than your costs, and this is really profitable for you.
Speaker 1: For that reason, that's somewhat controversial, as strange as it sounds,
Speaker 1: to show that Apple actually did cards really high prices
Speaker 1: and that shows it has the power to charge really
Speaker 1: high prices. But sometimes courts say, no, no, no, you
Speaker 1: can't use direct evidence. You have to use circumstantial evidence.
Speaker 1: You have to define a market and show that Apple
Speaker 1: has a really high percentage of that market, And so
Speaker 1: under that approach, Apple gets to argue, well, the markets
Speaker 1: not just us and our iPhones or iPhones and our computers.
Speaker 1: It's other smartphones, it's other computers or similar devices, and
Speaker 1: we have a relative LEAs small percentage if you define
Speaker 1: the market that broadly. So that's one of the really
Speaker 1: big battles will be Does Ethic get to prove its
Speaker 1: case through direct evidence, Hey, you actually did charge really
Speaker 1: high prices, much higher than can be explained through competitive forces,
Speaker 1: or do they have to go through this other process
Speaker 1: of saying, well, let's define the market, what products are
Speaker 1: in theory substitute herbal for Apple's iPhones in regard to Fortnite,
Speaker 1: and what percentage does Apple have of that market. That's
Speaker 1: going to be one of the really hotly contested issues,
Speaker 1: not only in this case, but in the related or
Speaker 1: similar antitrust tech cases that have already started and more.
Speaker 1: There are no doubt coming down the pipe. Who do
Speaker 1: you think has the better argument on the market what
Speaker 1: constitutes the market here? I think as a matter of economics,
Speaker 1: ethic has the better position that direct evidence should be
Speaker 1: enough by itself. You know, I think they're right as
Speaker 1: a matter of economic theory, which is what the law
Speaker 1: is supposed to incorporate. That if Apple did in fact
Speaker 1: charge super competitive prices, prices above competitive levels and and
Speaker 1: surely had the power to do so. Now I don't know.
Speaker 1: I haven't seen the information to say whether Apple in
Speaker 1: fact does that. I suspect it does, but I think
Speaker 1: that would be a matter of evidence, you know, the
Speaker 1: evidence that's become. And as a matter of law, it
Speaker 1: gets mess here because there is a case actually that's
Speaker 1: in the Ninth Circuit that may be binding that says
Speaker 1: direct evidences enough, but there's been more recent Supreme Court
Speaker 1: case law that muddies those waters. So as a matter
Speaker 1: of law, it's a little tricky. I mean, honestly, I
Speaker 1: think lawyers sometimes mess up the economics on which they're
Speaker 1: supposed to be relied, and that this that's created some
Speaker 1: confusion in this area. So the question is whether Apple
Speaker 1: had monopoly power, and then whether Apple abused its monopoly
Speaker 1: power in violation of the antitrust laws. What kind of
Speaker 1: evidence will be introduced by EPIC to prove that Apple
Speaker 1: abused its monopoly power? So having a monopoly by its
Speaker 1: shelf is not illegal, but there are various sorts of
Speaker 1: ways of acquiring or maintaining or abusing market power that
Speaker 1: would be. And one of the arguments that Epic has
Speaker 1: made is that Apple has tied accessing Fortnite through the
Speaker 1: Apple App Store with paying for that service. And so
Speaker 1: that's one kind of argument that could be an abusive
Speaker 1: market power trying together one service or good, which defend
Speaker 1: it has monopoly power to another one to force people
Speaker 1: to pay more than they would in a competitive market.
Speaker 1: And Apple's response, in part is no, no, no, that's
Speaker 1: one service. Those two are not separable, and therefore there
Speaker 1: can't be a tie. And we'll have to see if
Speaker 1: that or any of the other arguments Epic makes are
Speaker 1: persuasive to the court. Couple also says that it has
Speaker 1: business reasons, and one of those reasons being ensuring security
Speaker 1: on its platform, right, and so um, now there is
Speaker 1: some evidence that's come to light. That's the jet that
Speaker 1: Apple really can't provide the kind of security um that
Speaker 1: it claims is a justification for its conduct. And Epics
Speaker 1: presumably will try to prove that security can be maintained
Speaker 1: just as well through an alternative approach to payment. And
Speaker 1: so I would imagine that's another factual or evidentiary issue
Speaker 1: that will be important in the case. Ethic will argue
Speaker 1: that's a pretext, that security is the pretext apples offering
Speaker 1: an Apple will say no is a legitimate business justification
Speaker 1: for its conduct. So something that seems sort of odd
Speaker 1: to me is that Apple wants the courtroom closed when
Speaker 1: EPIC calls an expert witness to testify about the profitability
Speaker 1: of the app store. Also, even I think in papers,
Speaker 1: when Epic reference the profitability of the app store that
Speaker 1: was redacted for the public. Why shouldn't the public hear
Speaker 1: those numbers? Why should that be a secret? This is
Speaker 1: a larger issue as well, and it's pretty much standard
Speaker 1: operating procedures for antitrust defendants pre trial and even sometimes
Speaker 1: during trial. They really want to keep it much of
Speaker 1: their information secret as possible, and they would say that
Speaker 1: this is proprietary information that if others competitors have it,
Speaker 1: it will place them at a competitive disadvantage. They may
Speaker 1: even say that sharing this sort of information could facilitate
Speaker 1: anti competitive conduct, and you know, there can sometimes sometimes
Speaker 1: there is truth to that. You know, sometimes there are
Speaker 1: trade secrets or special sauce that they don't want everyone
Speaker 1: to know. The recipe too. On the other hand, a
Speaker 1: lot of times this is really an effort to prevent
Speaker 1: other potential plaintiffs from gaining access to the evidence that
Speaker 1: they would use in their own litigation. And it really
Speaker 1: isn't justified in any legitimate way. And the closer you
Speaker 1: get to a final decision when your trial, for example, well,
Speaker 1: the more reluctant courts tend to be to keep this
Speaker 1: information secret. That burden is going to be pretty high
Speaker 1: in Apple to persuade the court that this information should
Speaker 1: be kept from the public. Because trials are not only
Speaker 1: a private dispute resolution mechanism. There are a public event
Speaker 1: and a democracy like ours, and citizens and elected officials
Speaker 1: who are paying very close attention to the various high
Speaker 1: tech markets right now are very interested in and so
Speaker 1: the court may be reluctant kees information from them. Why
Speaker 1: is the amount of profit that Apple gets Why is
Speaker 1: that information important in this case? When you know Apple
Speaker 1: developed the system and the app store, and people buy
Speaker 1: its iPhone because they like its product, Why shouldn't they
Speaker 1: be able to charge what they want to charge and
Speaker 1: make as much profit as they can. So the short
Speaker 1: answer is, monopoly power is not itself an antitrust violation,
Speaker 1: and so um, the mere fact that they're charge in
Speaker 1: let's say they have very high profits would not itself
Speaker 1: be illegal, but it is relevant to the case in
Speaker 1: a couple of ways. One is, if Apple has really
Speaker 1: high profits, that can be an indication that it has
Speaker 1: monopoly power, that is, it has the ability to charge
Speaker 1: much higher prices than are competitive. Now, that wouldn't be illegal,
Speaker 1: but it would be one of the things that FIC
Speaker 1: has to prove that Apple, if it engaged in anti
Speaker 1: competitive conduct, has the power to cause the real harm.
Speaker 1: And a second issue to which it can be relevant,
Speaker 1: uh that is Apple's profits can be relevant is Ethic
Speaker 1: is going to argue that not only did it have
Speaker 1: the power to cause this anti competitive harm, and not
Speaker 1: only did it act in violation of the anti trust laws,
Speaker 1: but it in fact did harm Epics and the purchasers
Speaker 1: from Ethics And so there's real antitrust harm here. And
Speaker 1: so those really high profits that they exist can speak
Speaker 1: to two of three kind of central issues in the case.
Speaker 1: One is, does Apple have market power? Is it capable
Speaker 1: of causing the kind of harm the antitrust laws are
Speaker 1: meant to prevent? And if Apple has really high profits
Speaker 1: that could support the conclusion yes, it has those power
Speaker 1: that power. And then second, if Apple engage in anti
Speaker 1: competitive conduct, did it? Did it? Did it in fact
Speaker 1: cause harm? And here too, the Apple's really high profits
Speaker 1: could show yeah, it really did cause harm if it
Speaker 1: engaged in anti competitive behavior, but those profits wouldn't address
Speaker 1: that you suggested. The third issue of did Apple engage
Speaker 1: in anti competitive behavior? Their epic has to rely on
Speaker 1: other epics. So the high profits are relevant to keep
Speaker 1: parts of the case, but they don't necessarily resolve They
Speaker 1: shouldn't resolve the entire case. Ethics still needs to show
Speaker 1: that not only does Apple have monopoly power, and not
Speaker 1: only did it use it to charge higher prices, but
Speaker 1: that it either acquired or maintained or abused that monopoly
Speaker 1: power um through inappropriate and a competitive means. Epic has
Speaker 1: engaged in a PR campaign, and I'm wondering what the
Speaker 1: point of that is. When you have one judge making
Speaker 1: the decision, it's not a jury, right, Well, so you
Speaker 1: have one judge making the decision, but there's two points.
Speaker 1: One reason to engage in that PR campaign is that
Speaker 1: the judge is probably not the only audience for EPICS
Speaker 1: litigation and for its pr right now, Congress is considering
Speaker 1: amending the antitrust laws, especially as they pertain or maybe exclusively,
Speaker 1: as they pertain to the high tech sector. And so
Speaker 1: you do have these strange times where there is a
Speaker 1: sort of bipartisan skepticism of big tech and its market power.
Speaker 1: I think that comes from the Democrat side because of
Speaker 1: a general, at least right now, a general concern about
Speaker 1: that kind of market power. And it comes from the
Speaker 1: Publican side in part because I think the Republicans feel
Speaker 1: like big tech has been um political in the way
Speaker 1: they don't like. And so there's a possibility of congressional action.
Speaker 1: So EPIC is not only talking to this judge, So
Speaker 1: EPIC is also talking to Congress saying, you know, so
Speaker 1: EPIC could lose this case, win in Congress, and bring
Speaker 1: this case again and win depending on if Congress and
Speaker 1: actual net legislation and what that legislation might look like.
Speaker 1: And then the other thing is, you know, judges um
Speaker 1: that they are not completely oblivious to or indifferent to
Speaker 1: public reaction. And so I'm not you know, this judge
Speaker 1: is a very good judge. I'm sure she will exercise
Speaker 1: her independent judgment. But you know, there's a possibility that
Speaker 1: Epic is hoping that um PR can have some influence
Speaker 1: in court as well, So that's another possibility. There's a
Speaker 1: lot of gloom and doom from Apple about what would
Speaker 1: happen if it loses the case. That would threaten iOS security,
Speaker 1: turn the app store into a flea mark it. What
Speaker 1: do you think about the possibilities if Apple loses, It's
Speaker 1: really hard to know. I suspect that the result would
Speaker 1: be that the market would reconfigure. I also suspect that
Speaker 1: the sky would not fall. I mean, it's standard standard
Speaker 1: operating procedure for defend in the case like this to
Speaker 1: argue the sky will fall. And that's smart as a
Speaker 1: matter of law because it is relevant. Right if in
Speaker 1: fact there are pro competitive benefits to what Apple is doing,
Speaker 1: that then those could be destroyed by an adverse ruling
Speaker 1: against Apple, and that's relevant as a matter of law.
Speaker 1: It also will make a judge nervous. I mean, judges
Speaker 1: in antitrust cases do tend to be very nervous about
Speaker 1: the possibilities they'll rule in such a way that they'll
Speaker 1: destroy the market that they're trying to protect, because you know,
Speaker 1: it's hard to predict what exactly the economic effects of
Speaker 1: a strong judicial ruling might be, and so Apple is
Speaker 1: understandably playing into that. And of course Apple may be right.
Speaker 1: I myself, I'm skeptical. I think Apple has an extraordinarily
Speaker 1: profitable company. Many aspects of how it was business are profitable,
Speaker 1: and I suspect that while it would lose some profits,
Speaker 1: even significant profits, if Epic were to win, I think
Speaker 1: the market would be able to function just fine. And so,
Speaker 1: but it's hard to know. And you know, I don't
Speaker 1: envy the judge having to make that decision. Do you
Speaker 1: have an opinion about which side has a stronger case?
Speaker 1: I don't at this point. Really, as the evidence comes out,
Speaker 1: I think we'll have a much better sense. For me,
Speaker 1: it's it's pretty speculative at this point. I'm not I
Speaker 1: don't have any sort of special access. You know, the
Speaker 1: burden is pretty heavy for Epics for the reasons I've said,
Speaker 1: I just tend to be pretty cautious about disrupting existing markets,
Speaker 1: established markets, and so I think that, you know, a
Speaker 1: heavy burden for Epic to carry. But we're at a
Speaker 1: funny moment historically in this country where folks of a
Speaker 1: lot of different political persuasions think that maybe we have
Speaker 1: not been aggressive enough in enforcing our antitrust laws when
Speaker 1: it comes to big tech, and I think, for me,
Speaker 1: i'd need to see the evidence to form a consider
Speaker 1: judgment about how this case should come out. If Epic wins,
Speaker 1: that might mean that consumers have to pay less for
Speaker 1: the apps. Does that play anywhere in this trial? Absolutely? Absolutely. So.
Speaker 1: It's the standard principle of antitrust law in this country
Speaker 1: that the antitrust laws are not designed to protect competitors.
Speaker 1: They're designed to protect competition. And what that means is,
Speaker 1: you know, whether Epic makes more or less or Apple
Speaker 1: makes more or less, it's not really ultimately the point.
Speaker 1: The point is what about consumers? And so this is
Speaker 1: the case in some ways best understood as with the
Speaker 1: market function perfectly well. Eth Epic wins, and in fact
Speaker 1: better so that consumers still get the products they want,
Speaker 1: but they get them at a cheaper price. If that's
Speaker 1: what the court ultimately concludes, then it really should rule
Speaker 1: for Epic. If, on the other hand, Apple's right, and
Speaker 1: either prices wouldn't go down or they would, but the
Speaker 1: change in the market structure would cause all sorts of
Speaker 1: new problems, which is a loss of security or certain
Speaker 1: products games not being available anymore, where consumers becoming frustrated
Speaker 1: and having a difficult time doing what they were able
Speaker 1: to do in the past, than Apple Cannon should win. Really,
Speaker 1: the consumer perspective tends to be dominant in antitrust law,
Speaker 1: and so yet it's very important whether consumers would pay
Speaker 1: more or less, and also whether the same services and
Speaker 1: goods would be available to consumers if the Court were
Speaker 1: to rule in favor of Epics. Thanks for being on
Speaker 1: the Bloomberg Law Show. That's Professor Joshua Davis at the
Speaker 1: University of San Francisco Law School. As the Supreme Court
Speaker 1: waited into the War on drugs this week, there was
Speaker 1: an unusually lopsided set of litigants, so lopsided that the
Speaker 1: Court had to appoint an outside lawyer to argue to
Speaker 1: uphold the Lawn issue after the Biden administration Swiss sides
Speaker 1: and back the defendant. The question was whether the lowest
Speaker 1: level drug offenders are eligible for retroactive relief under the
Speaker 1: First Step Act and can seek resentencing. Lawmakers from both parties,
Speaker 1: both conservative and liberal groups, and the Biden Administration say,
Speaker 1: Congress intended for the law to encompass low level offenders,
Speaker 1: but many of the justices sounded skeptical that the statutory
Speaker 1: language would allow that interpretation. Kara Johnson says Stephen Bryer
Speaker 1: and Brett Kavanaugh, But I can't get away from this statute.
Speaker 1: Why didn't Congress just say everyone who's been sentenced for
Speaker 1: crack offenses under one is eligible for resentencing? Something simple
Speaker 1: like that. Joining me is Mark Ostler, a professor at
Speaker 1: the University of St. Thomas School of Law who specializes
Speaker 1: in sentencing policy. So Mark, tell us a little bit
Speaker 1: about the First Step Act. Sure, the First Step Act
Speaker 1: that was tasked to it had a number of provisions. UM.
Speaker 1: It was it was created new metrics of data within
Speaker 1: the Bureau of Prisons UM and handsome reentry provisions. But
Speaker 1: one of the primary things that did was make retroactive
Speaker 1: prior law the Fair Sentencing Acts in and what that
Speaker 1: did was changed the hundred to one ratio between powder
Speaker 1: and crack cocaine. In other words, in both the sentencing
Speaker 1: guidelines and the statutes that created mandatory minimums, you were
Speaker 1: sentenced the same for five grams of crack because you
Speaker 1: were for five grams of powder cocaine. And this had
Speaker 1: really disparate impacts in terms of race. And I was
Speaker 1: a thorough prosector in the Detroit. There were a lot
Speaker 1: of crack cases coming through that office, and of course
Speaker 1: it was all or almost all um, black defendants in
Speaker 1: those cases. And in time that noticed and in they
Speaker 1: changed the law, but they didn't make it retroactive. And
Speaker 1: that was a continuing problem because you had people who
Speaker 1: were sentenced under the old law who didn't have the
Speaker 1: advantage of the change and attitude and the adjustment that
Speaker 1: had been made, and that festered for a long time. Um.
Speaker 1: You know, the Obama administration wasn't able to fix it.
Speaker 1: And eventually there was a bipartisan movement in uh Congress
Speaker 1: that pushed for that change, among others, and it came
Speaker 1: through in the first step Act of that was signed
Speaker 1: by Donald Trump. Um, you know, notably the name indicated.
Speaker 1: It was supposed to be one of a series of bills,
Speaker 1: but it was the only one to get through. Mark
Speaker 1: the issue here is a bit technical tell us about it. Yeah,
Speaker 1: it's a little bit complicated. But the original law, the
Speaker 1: mandatory minimum that regards crack and a number of other drugs.
Speaker 1: That's three different tiers. And the top tier previously was
Speaker 1: over fifty grams of cracks and over five grams of
Speaker 1: cracks for the middle tier, and then the bottom tier
Speaker 1: was under five grams. And then those thresholds all went
Speaker 1: up under the Fair Sentencing Act. And that's what the
Speaker 1: First Step Act made retroactive. And so in other words,
Speaker 1: people could go back and say, I want to be
Speaker 1: resentenced under the current law, and that meant that, let's say,
Speaker 1: if you had been sentenced under the top tier for
Speaker 1: you know, sixty grams of craft, now you're not meaning
Speaker 1: that threshold, and so they could be resent now. The
Speaker 1: problem was that the First Step Act said explicitly that
Speaker 1: it applied to sentences in menta minums have been modified
Speaker 1: by the Fair Sentencing Act. And the argument from the
Speaker 1: government under the Trump administration was that that meant that
Speaker 1: the top two tiers, which had been changed explicitly that
Speaker 1: people who have been sentenced under those was got relieved,
Speaker 1: but people for whom they weren't charged with a threshold
Speaker 1: of over five grams of crack, that they didn't have
Speaker 1: the benefit of this change. That's an argument that doesn't
Speaker 1: make much sense. In terms of policy, why you would
Speaker 1: give relief to people that were more culpable but not
Speaker 1: people who are less culpable. But that's what is the
Speaker 1: heart of this is the Eleventh Circuit upheld the decision
Speaker 1: below that Mr Terry, the petitioner, did not have the
Speaker 1: ability to have his sentence reviewed under the First Step
Speaker 1: Act because he wasn't in those top two tiers. On
Speaker 1: the date when the government's main brief in the case
Speaker 1: was due, the Biden administration informed the court that it
Speaker 1: was changing positions from the Trump administration and now siding
Speaker 1: with the defendant in the case. So the court appointed
Speaker 1: an outside lawyer to argue the case against the defendant
Speaker 1: and the reduced sentence. Why did the Biden administration change
Speaker 1: positions at the last minute. I think that they had
Speaker 1: pressure from reformers certainly that they should do so. That
Speaker 1: there are a number of people, including myself, who had
Speaker 1: taken up these First Step Back cases pro bono and
Speaker 1: it had noticed the problems with them, and frankly, it
Speaker 1: was inconsistent with the very bipartisan spirit that was behind
Speaker 1: the First Step Back in the first place. You know,
Speaker 1: one thing that fascinates me about this, especially in our
Speaker 1: current political climate is that there was amacust brief that
Speaker 1: was submitted in support of the first step back applying
Speaker 1: to Mr Terry, that was submitted by four Senators Durban Booker,
Speaker 1: Grass Lake against Senator Mike Lee. Now that's a pretty
Speaker 1: incredible lineup, I mean, from one end of the ideological
Speaker 1: spectrum to the other, and it really reflects the Biparsan
Speaker 1: consensus that was behind the first step back. Was there
Speaker 1: more questioning about the intent of the act or about
Speaker 1: the statutory language? The justices were interested both in what
Speaker 1: the intent was, but also you know what injustices does
Speaker 1: this create? And underneath it all is you look at
Speaker 1: what Mr Terry was sentenced to fifteen and a half
Speaker 1: years in prison for four grams of craft. It's shocking.
Speaker 1: And you know, I'll say, I'm talking to you right
Speaker 1: now from downtown Minneapolis. I'm about a mile away from
Speaker 1: where Derek Chauvin is, a police officer who killed George Floyd,
Speaker 1: is going to be sentenced shortly, and most people are
Speaker 1: saying that what he'll get for that whole blooded killing
Speaker 1: that America saw is going to be about fifteen years.
Speaker 1: And that's the same as Mr Terry got for having
Speaker 1: the four grams of craft. Some of the justices seemed
Speaker 1: sympathetic to Terry's plight to his sentence being excessive, but
Speaker 1: for example, Justice Brier said, I can't get away from
Speaker 1: this statute. And even Justice Sonia Soto Mayor, who is
Speaker 1: considered one of the justices who is more sympathetic to
Speaker 1: criminal defendants, even she seemed to indicate that you just
Speaker 1: can't get around the words of the statute. Yeah, and
Speaker 1: I'm hoping that you know, the argument will prevail in
Speaker 1: mes that you know what's in the statute is is
Speaker 1: modified and what you know, the parties and this is
Speaker 1: something that the Senator said was their intent was that
Speaker 1: that means something different than amended, because obviously Tier two
Speaker 1: and Tier three, the upper two tiers were specifically amended.
Speaker 1: But that also modifies that bottom tier by raising the
Speaker 1: level from five grams to grams. I think it was
Speaker 1: and that is that's the probably the best argument going
Speaker 1: to the statutory language. I mean, one thing about about
Speaker 1: Justice Brier is that his history and sentencing is complicated.
Speaker 1: That it's it's one where he's been. He was on
Speaker 1: the Sentencing commission that drafted the original sentencing guidelines that
Speaker 1: were mandatory that in the Booker decision, he argued that
Speaker 1: that there should they should not be converted to being advisory.
Speaker 1: So he's somebody who has a complicated history with these issues,
Speaker 1: and the fact that you know he was sticking to
Speaker 1: the language of the statute is really in keeping with
Speaker 1: some of his prior Churich prudence in this area. During
Speaker 1: the oral arguments, did any of the justices seem inclined
Speaker 1: to adopt that argument? It seemed that most of the
Speaker 1: justice has thought the statutory language was a problem for
Speaker 1: Terry and wouldn't support a retroactive interpretation. Yeah, and you
Speaker 1: know that of course reflects the circuit split that they
Speaker 1: were presented with that four of the circuits had been
Speaker 1: on the side of the leven circuit was that this
Speaker 1: new law did not apply to Mr Terry, and there
Speaker 1: were I believe two circuits had held that he would
Speaker 1: have so, you know, the lay of the land was
Speaker 1: in favor of that that reading the statute. Were there
Speaker 1: any questions from the textualists on the court which which
Speaker 1: indicated which way they might go? You know, I don't
Speaker 1: recall specifically if there were, but you know, even if
Speaker 1: you are a textualist that that question of is modified
Speaker 1: different than amend is something to take seriously. So will
Speaker 1: you explain the modify versus amend argument? Yeah, Well, there's
Speaker 1: no question that if the statute had said amended, those
Speaker 1: portions that were amended, they would only apply to the
Speaker 1: top two tiers, because it's it changed explicitly the thresholds
Speaker 1: that had to be meant for them to apply to
Speaker 1: enhance cracks. And however, it did also modify, even though
Speaker 1: it didn't expressly amend the bottom tier, it did modify
Speaker 1: or change that bottom tire because it was it was
Speaker 1: expanded basically from five to eight clans. So that's, you know,
Speaker 1: that's that's going to be the distinction that they'll be
Speaker 1: talking about in conference. I'm curious. I don't know if
Speaker 1: you know the answer to this. Terry is about to
Speaker 1: be finished serving his sentence. So is it just that
Speaker 1: this case took that long to get through the system. Well,
Speaker 1: there's a couple of things. He's on home confinement right
Speaker 1: now and he'll be done in September, I believe, uh,
Speaker 1: and it you know, it could be just this is
Speaker 1: the case that got up to the Supreme Court. There
Speaker 1: resolved the issue. Um, you know, it's it's not moved
Speaker 1: h And you know the fact that he's on home
Speaker 1: confinement is a function of of the COVID pandemic, where
Speaker 1: under the Trump administration and administration, many people who are
Speaker 1: towards the end of their sense are being switched over
Speaker 1: to home confinement. But you know, one thing is people
Speaker 1: will say, you know, that's we're talking about about three
Speaker 1: or four months, that that matters. You know, if you
Speaker 1: think back in your own life of the past three
Speaker 1: or four months, if they were just gone, you know,
Speaker 1: if you had been in prison for that period of time,
Speaker 1: that would matter. And and too often we discount the
Speaker 1: value of time when it's a smaller button time on
Speaker 1: top of the larger sentence. How many people might be
Speaker 1: affected if you know by the Supreme Court's decision here,
Speaker 1: I don't know. I don't have a handle on that.
Speaker 1: I mentioned before that I've represented some people pro bono.
Speaker 1: I had four clients all in the sixth Circuit, and
Speaker 1: none of them were in this situation. UM. And because
Speaker 1: people in that lowest here do tend to get shorter sentences. UM,
Speaker 1: it's not going to be the number of prison people
Speaker 1: in prison isn't going to be as great as the
Speaker 1: people in the upper tiers. I have to say, this
Speaker 1: seems like such a technical argument. You know, you've got
Speaker 1: the sentencing guideline book that's inches thick, that is like
Speaker 1: a tax code at this point, and that's part of
Speaker 1: the problems. Part of the problem is is that complexity,
Speaker 1: the tears and those things, they become normative. You know,
Speaker 1: when we say that the that the right sentence for
Speaker 1: five grams of crack is five years, that becomes normative.
Speaker 1: It sounds scientific, but that masks crazy realities. You know
Speaker 1: that someone for programs of crack got fifteen and a
Speaker 1: half years. That that's irrational. No one was being denied
Speaker 1: cracked by the fact that this one person who is
Speaker 1: selling is out of commission um and yet we're taking
Speaker 1: on the societal costs of that imprisonment um. Yeah. So
Speaker 1: that complexity, that technicality of it um. Yeah, that does
Speaker 1: bar people from digging into it. But once we do,
Speaker 1: we find that really ugly reality. When judges had more discretion,
Speaker 1: there was a problem with judges having discretion to people
Speaker 1: were upset that some judges were giving sentences that were
Speaker 1: out of the ballpark. So where's the happy medium. Yeah,
Speaker 1: that's what that's we're trying to find, is that happy
Speaker 1: medium between judges having so much discretion that bias comes
Speaker 1: into play and you have incredibly disparate sentences, and where
Speaker 1: we don't have these mandatory laws that buying judges and
Speaker 1: create these frankly pret ridiculous sentences as we suffer for
Speaker 1: Mr Terry in this case. You know, there's been a
Speaker 1: back and forth over decades between uniformity and discretion for judges.
Speaker 1: It's like watching a ball roll back and forth in
Speaker 1: a cup, and at some point it's going to have
Speaker 1: to come to an equilibrium. In this case, is a
Speaker 1: part of that. If the court decides against Mr Terry,
Speaker 1: does that just leave everything in place as it was before.
Speaker 1: It will leave everything else in place, so the other
Speaker 1: two tiers will be unaffected. Um, and you know, those
Speaker 1: people who are doing longer terms under this are going
Speaker 1: to have to pursue other avenues, for example, clemency. One
Speaker 1: would hope that if the Biden administration loses this case,
Speaker 1: that their reaction will be to identify those people like
Speaker 1: Mr Terry can let them out under the power of clemency.
Speaker 1: Thanks for being on the Bloomberg Law Show. That's Professor
Speaker 1: Mark Osler of the University of St. Thomas School of Law,