1 00:00:02,160 --> 00:00:04,080 Speaker 1: This is Bloomberg Law. 2 00:00:04,160 --> 00:00:08,280 Speaker 2: Are plaintiff's leries involved in a kind of competition in Congress? 3 00:00:08,280 --> 00:00:10,360 Speaker 2: Force a judicial code on the justices? 4 00:00:10,440 --> 00:00:13,680 Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts. 5 00:00:13,800 --> 00:00:16,759 Speaker 2: My guest is former federal prosecutor Robert Mint Joining me 6 00:00:16,800 --> 00:00:19,080 Speaker 2: is Bloomberg Law reporter Kyle Janner. 7 00:00:18,760 --> 00:00:22,120 Speaker 1: And analysis of important legal issues, cases and headlines. 8 00:00:22,320 --> 00:00:25,520 Speaker 2: Is it unusual a grand jury like this to suspect 9 00:00:25,560 --> 00:00:27,920 Speaker 2: people aren't telling the truth? One of the first times 10 00:00:27,920 --> 00:00:30,440 Speaker 2: the Justice Department has called for the breakup of a 11 00:00:30,480 --> 00:00:31,240 Speaker 2: major company. 12 00:00:31,360 --> 00:00:34,560 Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. 13 00:00:39,360 --> 00:00:42,320 Speaker 2: Welcome to the best of Bloomberg Law. I'm June Grosso. 14 00:00:42,880 --> 00:00:46,720 Speaker 2: Ahead in this hour, the Supreme Court will consider overturning 15 00:00:46,760 --> 00:00:50,280 Speaker 2: a decade's old doctrine on the power of agencies. The 16 00:00:50,520 --> 00:00:53,760 Speaker 2: justices signal there's a high bar for when speakers can 17 00:00:53,800 --> 00:00:57,720 Speaker 2: be punished for so called true threats. The next defamation 18 00:00:57,920 --> 00:01:02,280 Speaker 2: case against Fox and the Supreme Court justices are richer 19 00:01:02,320 --> 00:01:04,240 Speaker 2: than ninety percent of Americans. 20 00:01:10,040 --> 00:01:13,720 Speaker 3: Two and a half years of sending somebody unwanted emails 21 00:01:14,400 --> 00:01:17,400 Speaker 3: when that person has consistently tried to block them, and 22 00:01:17,440 --> 00:01:22,080 Speaker 3: tried to stop them, some of those emails being pretty violent, 23 00:01:22,520 --> 00:01:27,119 Speaker 3: die don't need you f off permanently. Others of those 24 00:01:27,160 --> 00:01:33,240 Speaker 3: emails suggesting pretty strongly that he is watching the person. 25 00:01:34,040 --> 00:01:37,240 Speaker 3: Only a couple of physical sightings with it was that 26 00:01:37,440 --> 00:01:40,000 Speaker 3: you and the white cheap. So I want to take 27 00:01:40,040 --> 00:01:43,200 Speaker 3: it as a given that this can be objectively. 28 00:01:42,560 --> 00:01:47,240 Speaker 2: Terrifying, just as Elena Kagan described the online threats made 29 00:01:47,280 --> 00:01:51,080 Speaker 2: to a Colorado musician for years, threats that made her 30 00:01:51,160 --> 00:01:54,000 Speaker 2: so fearful that, after trying to block them and getting 31 00:01:54,040 --> 00:01:59,000 Speaker 2: a protective order, she canceled planned performances. Billy Kounterman was 32 00:01:59,080 --> 00:02:01,960 Speaker 2: convicted of stalking and sentenced to four and a half 33 00:02:02,120 --> 00:02:06,200 Speaker 2: years in prison. The Supreme Court was considering Counterman's appeal 34 00:02:06,560 --> 00:02:09,320 Speaker 2: and his argument that his speech should have been protected 35 00:02:09,360 --> 00:02:12,600 Speaker 2: by the First Amendment because it wasn't what's known as 36 00:02:12,880 --> 00:02:17,079 Speaker 2: true threats. Many of the justices indicated that the speaker's 37 00:02:17,120 --> 00:02:20,880 Speaker 2: state of mind was important, and whether the speaker intended 38 00:02:20,919 --> 00:02:23,880 Speaker 2: to cause fear here's Justice Sonya Sotomayor. 39 00:02:24,240 --> 00:02:28,760 Speaker 4: But here the court and the prosecutor argued that the 40 00:02:28,800 --> 00:02:33,760 Speaker 4: intent was irrelevant, that he couldn't present any evidence about 41 00:02:33,760 --> 00:02:34,680 Speaker 4: his intent. 42 00:02:34,480 --> 00:02:37,239 Speaker 5: Correct that is exactly what about his mental state. 43 00:02:37,120 --> 00:02:40,840 Speaker 4: About what he thought. They precluded him completely from doing that. 44 00:02:41,160 --> 00:02:45,359 Speaker 2: But several justices like Brett Kavanaugh expressed concerns about the 45 00:02:45,440 --> 00:02:50,440 Speaker 2: implications for cases involving stalking, domestic violence, school threats, and 46 00:02:50,480 --> 00:02:53,280 Speaker 2: the like if the court were to require an approach 47 00:02:53,400 --> 00:02:55,520 Speaker 2: based on the speaker's intent. 48 00:02:55,919 --> 00:02:59,480 Speaker 5: A defense like the one that would be present with 49 00:02:59,520 --> 00:03:02,440 Speaker 5: your men would make it too easy for someone to 50 00:03:03,200 --> 00:03:05,320 Speaker 5: say I was just joking, I was just kidding, And 51 00:03:05,320 --> 00:03:10,480 Speaker 5: therefore threats that would be really quite dangerous in terms 52 00:03:10,520 --> 00:03:12,960 Speaker 5: of leading to the next step of actually carrying through 53 00:03:13,000 --> 00:03:16,480 Speaker 5: with the threat will not be addressed. 54 00:03:16,880 --> 00:03:20,000 Speaker 2: Joining me is mc snaila, a partner with the Complex 55 00:03:20,000 --> 00:03:24,680 Speaker 2: Appellate Litigation group MC explain what's meant by a true threat. 56 00:03:25,080 --> 00:03:27,639 Speaker 6: So, if it's determined to be a true threat, then 57 00:03:28,080 --> 00:03:31,440 Speaker 6: the whole question of what the constitutional floor, which is 58 00:03:31,480 --> 00:03:34,400 Speaker 6: where the prosecution sort of goes away saying Okay, if 59 00:03:34,440 --> 00:03:37,240 Speaker 6: it's a true threat, then we're not concerned about first 60 00:03:37,320 --> 00:03:42,720 Speaker 6: mement implications because we don't see societal value and protecting 61 00:03:43,080 --> 00:03:45,840 Speaker 6: in that kind of speech, because we're more concerned in 62 00:03:45,920 --> 00:03:48,960 Speaker 6: that context about individuals fear from violence. You know that 63 00:03:48,960 --> 00:03:52,880 Speaker 6: that's speech and genders. So because of that value judgment, 64 00:03:53,160 --> 00:03:55,920 Speaker 6: if it's a true threat, then we're outside of this 65 00:03:55,960 --> 00:03:58,640 Speaker 6: whole question for cementa production and. 66 00:03:58,560 --> 00:04:00,840 Speaker 2: What was the core is in this case? 67 00:04:01,440 --> 00:04:04,200 Speaker 6: In this case, the question is what kind of intent 68 00:04:04,360 --> 00:04:08,200 Speaker 6: is required? As a constitutional matter, Is some kind of 69 00:04:08,320 --> 00:04:14,760 Speaker 6: specific intent required to convict someone of stocking or crimes 70 00:04:14,840 --> 00:04:18,440 Speaker 6: involving threats? And so if it is a true threat 71 00:04:18,560 --> 00:04:20,640 Speaker 6: and we're outside that, you're not going to have any 72 00:04:20,720 --> 00:04:23,120 Speaker 6: kind of requirement because the First Amendment doesn't put on 73 00:04:23,160 --> 00:04:26,560 Speaker 6: another layer on top of the criminal statues or even 74 00:04:26,600 --> 00:04:29,560 Speaker 6: the civil statutes. So that's the question really a narrow 75 00:04:29,640 --> 00:04:35,040 Speaker 6: intent question, but it has major ramifications, as the State 76 00:04:35,080 --> 00:04:38,480 Speaker 6: of Colorado and the Slister General pointed out, at arguments 77 00:04:38,560 --> 00:04:42,159 Speaker 6: of what kinds of crimes will we be able to 78 00:04:42,480 --> 00:04:46,200 Speaker 6: charge and what kind of crimes will go unredressed if 79 00:04:46,200 --> 00:04:47,880 Speaker 6: a specific intent is required. 80 00:04:48,480 --> 00:04:52,440 Speaker 2: So in Colorado they look at whether the victim would 81 00:04:52,560 --> 00:04:56,360 Speaker 2: reasonably experience the fear of physical violence because of the 82 00:04:56,480 --> 00:04:59,200 Speaker 2: nature of the threat. So in Colorado they're taking it 83 00:04:59,240 --> 00:05:02,720 Speaker 2: from the victims point of view, and the defendant here 84 00:05:02,800 --> 00:05:05,000 Speaker 2: says you should take it from the defendant's point of 85 00:05:05,040 --> 00:05:06,560 Speaker 2: view what the defendant's intent is. 86 00:05:07,400 --> 00:05:10,360 Speaker 6: Well, it's kind of both. Counterman Council says, Okay, that's 87 00:05:10,360 --> 00:05:13,919 Speaker 6: fine if you have this objective reasonable recipient of the 88 00:05:14,000 --> 00:05:16,599 Speaker 6: thread test in the law, But you need more than that. 89 00:05:17,000 --> 00:05:20,120 Speaker 6: You also need to look at what was the intent 90 00:05:20,400 --> 00:05:25,400 Speaker 6: of the speaker. Did the speaker know in making her 91 00:05:25,440 --> 00:05:29,840 Speaker 6: comments that the reasonable person receiving them would interpret them 92 00:05:29,880 --> 00:05:32,920 Speaker 6: as being threatening or fear physical violence as a result 93 00:05:32,960 --> 00:05:35,600 Speaker 6: of that, And so they're really arguing kind of both 94 00:05:35,680 --> 00:05:36,400 Speaker 6: of those requires. 95 00:05:36,720 --> 00:05:40,120 Speaker 2: So in this case it's so over the top. She 96 00:05:40,240 --> 00:05:44,040 Speaker 2: got a temporary restraining order, she stopped going outside. I mean, 97 00:05:44,120 --> 00:05:47,400 Speaker 2: I don't understand how this could be considered not a 98 00:05:47,440 --> 00:05:48,080 Speaker 2: true threat. 99 00:05:48,560 --> 00:05:52,400 Speaker 6: Yeah, I mean, that's putainly what we argued in our 100 00:05:52,560 --> 00:05:55,160 Speaker 6: Meekas brief, and what we pointed out was the importance 101 00:05:55,200 --> 00:05:59,120 Speaker 6: of the constellation of behavior. That stocking statues in particular 102 00:05:59,240 --> 00:06:03,120 Speaker 6: usually require two or three threats or overt acts. It 103 00:06:03,240 --> 00:06:06,160 Speaker 6: is the pattern itself that gives rise to the stocking 104 00:06:06,320 --> 00:06:10,760 Speaker 6: charge or convictions. And here there were thousands of emails 105 00:06:10,800 --> 00:06:15,120 Speaker 6: over many years and direct messages on Facebook to her, 106 00:06:15,720 --> 00:06:18,599 Speaker 6: and many of those seemed to indicate that he might 107 00:06:18,640 --> 00:06:23,080 Speaker 6: physically be tracking her also and had some threats within 108 00:06:23,400 --> 00:06:27,160 Speaker 6: some of the discrete messages, like die and things like that, 109 00:06:27,520 --> 00:06:30,479 Speaker 6: which JEEF Justice Roberts pointed out a argument, But in 110 00:06:30,560 --> 00:06:34,159 Speaker 6: his questions that argument, he took each of those statements 111 00:06:34,320 --> 00:06:38,880 Speaker 6: that had particularly fairy language in them and said, well, 112 00:06:39,080 --> 00:06:42,200 Speaker 6: would someone interpret this as a threat? Couldn't it be 113 00:06:42,240 --> 00:06:45,680 Speaker 6: interpreted in some other way? Don't we need more context? 114 00:06:46,080 --> 00:06:48,839 Speaker 6: And the context that we argued, and that is really 115 00:06:48,960 --> 00:06:52,479 Speaker 6: part of stocking and domestic violence, is the entire context 116 00:06:52,560 --> 00:06:55,960 Speaker 6: of that relationship and prior threats and prior behaviors. So, 117 00:06:56,000 --> 00:07:00,520 Speaker 6: in other words, looking at one discrete direct message wouldn't 118 00:07:00,560 --> 00:07:03,040 Speaker 6: be sufficient, because you'd have to look at the thousands 119 00:07:03,080 --> 00:07:07,040 Speaker 6: of emails that happened despite her blocking this person on 120 00:07:07,080 --> 00:07:10,560 Speaker 6: Facebook six times at least, thereby indicating hey, you know, 121 00:07:10,760 --> 00:07:13,560 Speaker 6: don't reach out to me, and then the language in 122 00:07:13,600 --> 00:07:17,040 Speaker 6: them escalates and indicates that there might be some physical 123 00:07:17,040 --> 00:07:19,240 Speaker 6: stocking conduct going on with it. So when you look 124 00:07:19,280 --> 00:07:22,640 Speaker 6: at it, particularly in the context of the whole constellation 125 00:07:23,320 --> 00:07:27,480 Speaker 6: of threats and behaviors and the doggedness and determination that 126 00:07:27,520 --> 00:07:30,920 Speaker 6: this particular person seemed to have in communicating with. 127 00:07:30,920 --> 00:07:34,480 Speaker 2: Her, dude, most of the justices seem to be leaning 128 00:07:34,600 --> 00:07:40,080 Speaker 2: toward the notion that the speaker's intent is important. Justice 129 00:07:40,120 --> 00:07:44,200 Speaker 2: Sodo Mayors said that this Colorado man convicted of stalking 130 00:07:44,480 --> 00:07:48,440 Speaker 2: wasn't given the opportunity to explain the intention behind the speech. 131 00:07:49,200 --> 00:07:52,440 Speaker 6: Yeah, that was an interesting part of the argument, which 132 00:07:52,680 --> 00:07:55,800 Speaker 6: was the difference between being allowed to testify and explain 133 00:07:55,880 --> 00:07:58,600 Speaker 6: whatever you want to explain in a case like this 134 00:07:58,960 --> 00:08:03,240 Speaker 6: and having that an element or a requirement that the 135 00:08:03,280 --> 00:08:07,080 Speaker 6: prosecution proved that you specifically intended something. In other words, sure, 136 00:08:07,120 --> 00:08:08,680 Speaker 6: you can go up and say that if you like, 137 00:08:08,960 --> 00:08:11,360 Speaker 6: but as a First Amendment matter, you know, it's not 138 00:08:11,480 --> 00:08:14,960 Speaker 6: required for the prosecution to prove that kind of intent 139 00:08:15,000 --> 00:08:18,760 Speaker 6: beyond a reasonable doubt. That discussion came up because in 140 00:08:18,800 --> 00:08:22,760 Speaker 6: this particular case, as a result of the conclusion that 141 00:08:22,760 --> 00:08:25,760 Speaker 6: there was no First Amendment requirement for this specific intent, 142 00:08:25,880 --> 00:08:29,000 Speaker 6: the court in this case ended up not allowing Tuntermen 143 00:08:29,160 --> 00:08:32,839 Speaker 6: to testify about what he meant or didn't mean in 144 00:08:32,880 --> 00:08:35,880 Speaker 6: this circumstance. Perhaps there might have been another reason they 145 00:08:35,920 --> 00:08:38,839 Speaker 6: didn't do that, which is that he had two prior 146 00:08:38,880 --> 00:08:42,320 Speaker 6: convictions for stocking other women, one of which had ended 147 00:08:42,360 --> 00:08:44,800 Speaker 6: up in violence. So perhaps they wouldn't want that to 148 00:08:44,800 --> 00:08:45,160 Speaker 6: come out. 149 00:08:45,400 --> 00:08:47,679 Speaker 2: So does it seem as if the justices are going 150 00:08:47,720 --> 00:08:50,800 Speaker 2: to end up requiring some kind of proof of intent 151 00:08:51,080 --> 00:08:51,960 Speaker 2: in these cases. 152 00:08:52,280 --> 00:08:56,240 Speaker 6: There was one possible somewhat middle ground, which was a 153 00:08:56,240 --> 00:08:58,400 Speaker 6: ground that we urged if the court is going to 154 00:08:58,440 --> 00:09:01,880 Speaker 6: require some kind of intent First Amendment matter, that at 155 00:09:01,880 --> 00:09:05,520 Speaker 6: the most it should require a recklessness standard, a recklessness 156 00:09:05,600 --> 00:09:09,360 Speaker 6: standard rather than specific intent with regard to knowledge as 157 00:09:09,360 --> 00:09:12,479 Speaker 6: to whether what they were doing would cause a reasonable 158 00:09:12,520 --> 00:09:16,959 Speaker 6: person to bear violence. So that's an alternate standard also 159 00:09:17,040 --> 00:09:19,400 Speaker 6: that the SG urged, and so that got a lot 160 00:09:19,400 --> 00:09:22,160 Speaker 6: of airtime at argument in terms of would this be 161 00:09:22,520 --> 00:09:25,240 Speaker 6: something that you might be a middle ground for the 162 00:09:25,480 --> 00:09:29,920 Speaker 6: justices like Soda, Mayor, Gorsich and Alito who seemed, you know, 163 00:09:29,960 --> 00:09:33,440 Speaker 6: maybe somewhat skeptical of not having any intent requirement at all, 164 00:09:33,720 --> 00:09:36,720 Speaker 6: and then those like Higgan and Tabnaugh who were sympathetic 165 00:09:36,840 --> 00:09:41,720 Speaker 6: to the question of would you be impeding prosecutions if 166 00:09:41,760 --> 00:09:44,240 Speaker 6: you required some kind of specific intent. 167 00:09:44,760 --> 00:09:48,200 Speaker 2: It's an important case. Thanks so much, MC. That's mc 168 00:09:48,400 --> 00:09:52,520 Speaker 2: sun Gaila of the Complex Appellate Litigation Group. Coming up 169 00:09:52,520 --> 00:09:56,400 Speaker 2: next on the Bloomberg Lawn Show. The next defamation case 170 00:09:56,440 --> 00:10:01,240 Speaker 2: against Fox is also being brought by a voting machine company, 171 00:10:01,679 --> 00:10:04,679 Speaker 2: and later in the show, the Supreme Court will consider 172 00:10:04,800 --> 00:10:10,480 Speaker 2: overturning a decade's old doctrine on the power of agencies. Plus, 173 00:10:10,720 --> 00:10:16,480 Speaker 2: the Supreme Court justices are richer than ninety percent of Americans. Remember, 174 00:10:16,520 --> 00:10:19,200 Speaker 2: you can always get the latest legal news by listening 175 00:10:19,200 --> 00:10:22,040 Speaker 2: to our Bloomberg Lawn podcasts. You can find them on 176 00:10:22,120 --> 00:10:27,120 Speaker 2: Apple Podcasts, Spotify and at www dot Bloomberg dot com, 177 00:10:27,160 --> 00:10:32,199 Speaker 2: Slash podcast, Slash Law and attorneys looking for legal research. 178 00:10:32,480 --> 00:10:35,680 Speaker 2: Whether you're an in house council or in private practice, 179 00:10:35,800 --> 00:10:38,680 Speaker 2: Bloomberg Law gives you the edge with the latest in 180 00:10:38,800 --> 00:10:43,640 Speaker 2: AI powered legal analytics, business insights, and workflow tools. With 181 00:10:43,800 --> 00:10:46,719 Speaker 2: guidance from our experts, you'll grasp the latest trends in 182 00:10:46,760 --> 00:10:50,320 Speaker 2: the legal industry, helping you achieve better results for the 183 00:10:50,400 --> 00:10:53,679 Speaker 2: practice of law, the business of law, the future of law. 184 00:10:53,960 --> 00:10:57,800 Speaker 2: Visit Bloomberg Law dot com. I'm June Grosso and you're 185 00:10:57,880 --> 00:10:58,959 Speaker 2: listening to Bloomberg. 186 00:11:02,520 --> 00:11:07,320 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 187 00:11:08,400 --> 00:11:11,560 Speaker 7: Foxers did apologize. We got them to be held accountable 188 00:11:11,960 --> 00:11:16,200 Speaker 7: and we got them to pay us a historic settlement amount. 189 00:11:16,200 --> 00:11:19,480 Speaker 7: I believe it is the largest settlement in the history 190 00:11:19,559 --> 00:11:22,360 Speaker 7: of any defamation suit by a factor of several. 191 00:11:22,559 --> 00:11:26,080 Speaker 2: But will the nearly eight hundred million dollars settlement between 192 00:11:26,160 --> 00:11:30,680 Speaker 2: Fox News and voting machine company Dominion remain the largest 193 00:11:30,679 --> 00:11:34,840 Speaker 2: defamation settlement and historic, as attorney da Vita Brooks said. 194 00:11:35,320 --> 00:11:39,840 Speaker 2: Next up is Smartmatic, another voting machine company, suing Fox 195 00:11:40,040 --> 00:11:43,760 Speaker 2: in a very similar defamation case over false twenty twenty 196 00:11:43,800 --> 00:11:48,680 Speaker 2: election claims. Only Smartmatic is asking for two point seven 197 00:11:48,760 --> 00:11:52,520 Speaker 2: billion dollars. That's one point one billion more than Dominion 198 00:11:52,600 --> 00:11:55,640 Speaker 2: was suing. Four Joining me is an expert in defamation, 199 00:11:56,040 --> 00:12:00,800 Speaker 2: David Korzenik of Miller Corsenic Summrs Raymond it. Outside of 200 00:12:00,800 --> 00:12:05,600 Speaker 2: the monetary amount, how significant is this settlement, It's. 201 00:12:05,640 --> 00:12:09,320 Speaker 8: Worth considering what the impact is of this settlement on 202 00:12:09,440 --> 00:12:14,600 Speaker 8: the law on Fox News, on democracy propaganda from an 203 00:12:14,640 --> 00:12:17,720 Speaker 8: historical point of view, and what it will do for 204 00:12:17,880 --> 00:12:22,040 Speaker 8: libel claiming in the future. So on the issue of 205 00:12:22,120 --> 00:12:24,640 Speaker 8: impact on libel law, I think it will have no 206 00:12:24,760 --> 00:12:29,160 Speaker 8: immediate impact, but it probably affirms the viability of the 207 00:12:29,240 --> 00:12:32,880 Speaker 8: soundness of New York Times versus Sullivan and the actual 208 00:12:32,920 --> 00:12:37,920 Speaker 8: malice standard. Because it shows that that standard works. Second, 209 00:12:38,240 --> 00:12:41,720 Speaker 8: as far as the impact on Fox News going forward, 210 00:12:42,120 --> 00:12:44,840 Speaker 8: hard to know. I don't think that it will change. 211 00:12:44,920 --> 00:12:47,840 Speaker 8: They are reporting because in a certain way, Fox is 212 00:12:47,920 --> 00:12:51,040 Speaker 8: riding at Tiger and can't get off it. But the 213 00:12:51,120 --> 00:12:55,120 Speaker 8: recent shift with Doucar Carlson is interesting but may or 214 00:12:55,160 --> 00:12:58,680 Speaker 8: may not be indicative of anything on that point. But 215 00:12:58,840 --> 00:13:01,960 Speaker 8: another thing to keep in mind here is that while 216 00:13:02,120 --> 00:13:06,200 Speaker 8: Fox dead in the settlement that they acknowledge the judge's decision, 217 00:13:06,600 --> 00:13:10,840 Speaker 8: the judge's decision has actually more force here than just that. 218 00:13:11,440 --> 00:13:14,960 Speaker 8: It's a factual ruling and a legal ruling on falsehood 219 00:13:15,240 --> 00:13:19,640 Speaker 8: that's legally binding on Fox going forward and legally binding 220 00:13:19,720 --> 00:13:24,160 Speaker 8: on them well collateral estopel as to any plaintiff that 221 00:13:24,640 --> 00:13:28,960 Speaker 8: goes after them based on related facts. The second, there 222 00:13:28,960 --> 00:13:32,280 Speaker 8: are obviously these other inbound suits that are taking place. 223 00:13:32,400 --> 00:13:36,920 Speaker 8: There is the Smartmatic case that's really advancing kind of 224 00:13:36,960 --> 00:13:40,400 Speaker 8: feverishly while we were paying attention to Dominion, But it's 225 00:13:40,440 --> 00:13:44,280 Speaker 8: the huge numbers of filings and decisions in that lawsuit, 226 00:13:44,559 --> 00:13:48,600 Speaker 8: and that's advancing. There's evidence on the public record that 227 00:13:48,760 --> 00:13:52,360 Speaker 8: was extracted in the course of the dominion case that 228 00:13:52,440 --> 00:13:56,640 Speaker 8: will be accessible and usable by anyone who makes claims 229 00:13:56,640 --> 00:14:01,199 Speaker 8: against Fox, not just pr wise but legally obviously. Then 230 00:14:01,240 --> 00:14:06,000 Speaker 8: there's also shareholder actions that are now underway, and they 231 00:14:06,000 --> 00:14:09,880 Speaker 8: may be more significant than we realized. Still to evaluate 232 00:14:09,960 --> 00:14:14,080 Speaker 8: their impact, but they're quite serious because they are shareholder 233 00:14:14,160 --> 00:14:19,960 Speaker 8: claims about the irresponsibility of Fox promoting these fictions when 234 00:14:20,000 --> 00:14:22,120 Speaker 8: it was clearly going to be to the detriment of 235 00:14:22,200 --> 00:14:23,440 Speaker 8: the company financially. 236 00:14:23,760 --> 00:14:27,920 Speaker 2: How do the judge's rulings in the Dominion case help Smartmatic? 237 00:14:28,320 --> 00:14:30,400 Speaker 2: What does it have to prove? What doesn't it have 238 00:14:30,480 --> 00:14:30,880 Speaker 2: to prove? 239 00:14:31,400 --> 00:14:33,960 Speaker 8: Well, it has to prove that to the extent that 240 00:14:34,160 --> 00:14:38,680 Speaker 8: the Fox broadcasts they're attacking are different in substance from 241 00:14:38,720 --> 00:14:42,280 Speaker 8: the allegations made against Dominion, but they do seem to 242 00:14:42,320 --> 00:14:46,280 Speaker 8: be overlapping because they do relate more broadly about whether 243 00:14:46,480 --> 00:14:48,840 Speaker 8: or not there was any evidence at all to support 244 00:14:49,000 --> 00:14:53,760 Speaker 8: the election fraud claim. And second, there is a kind 245 00:14:53,760 --> 00:14:57,880 Speaker 8: of overlap between Dominion and Smartmatic in the sense that 246 00:14:58,120 --> 00:15:02,960 Speaker 8: dominions machines use this is smartmatic software, so that even 247 00:15:02,960 --> 00:15:06,760 Speaker 8: though smart Matic chains were only used in LA and not, 248 00:15:07,120 --> 00:15:11,320 Speaker 8: as Fox had allege, in many of the swing states. Nonetheless, 249 00:15:11,440 --> 00:15:16,680 Speaker 8: at issue is the vote switching features of the software 250 00:15:17,240 --> 00:15:19,520 Speaker 8: that was used as well at dominions. So there's a 251 00:15:19,520 --> 00:15:23,440 Speaker 8: lot of overlap there, and there's no question that ruling 252 00:15:23,760 --> 00:15:27,160 Speaker 8: by Judge Davis in the dominion case will work to 253 00:15:27,240 --> 00:15:31,840 Speaker 8: the advantage locked in advantage of smart Matic not on everything, 254 00:15:32,000 --> 00:15:34,240 Speaker 8: but on a lot of it. Also, keep in mind 255 00:15:34,240 --> 00:15:36,520 Speaker 8: that the smart Matic case is pending in New York. 256 00:15:36,640 --> 00:15:40,240 Speaker 8: The dominion case was pending in Delaware, but there was 257 00:15:40,320 --> 00:15:44,440 Speaker 8: no question that New York law of libel applied in 258 00:15:44,560 --> 00:15:48,760 Speaker 8: both cases. Though the law applies just as well here 259 00:15:48,920 --> 00:15:51,160 Speaker 8: in the Smartmatic case in Manhattan. 260 00:15:51,360 --> 00:15:57,040 Speaker 2: So Fox said that Smartmatics damages claims are implausible, disconnected 261 00:15:57,080 --> 00:16:00,440 Speaker 2: from reality, and on its face, intended to chill First 262 00:16:00,440 --> 00:16:04,120 Speaker 2: Amendment freedoms. Does that sound a lot like claims that 263 00:16:04,120 --> 00:16:06,720 Speaker 2: the judge dismissed in the dominion suit. 264 00:16:07,200 --> 00:16:10,200 Speaker 8: Yes, you know, there's always an issue when there's a 265 00:16:10,280 --> 00:16:15,960 Speaker 8: product disparagement claim about the adequacy of damage pleading, the 266 00:16:16,040 --> 00:16:20,400 Speaker 8: specificity of those pleadings, and the ability to show causation. 267 00:16:20,840 --> 00:16:24,920 Speaker 8: But if the claims are really just straight libel claims, 268 00:16:25,480 --> 00:16:29,880 Speaker 8: corporate plaintiffs still has real obstacle to proving things. Corporate 269 00:16:29,920 --> 00:16:33,280 Speaker 8: plantiffs if it points to any specific loss is going 270 00:16:33,360 --> 00:16:36,800 Speaker 8: to have to show causation, and once that happens, becomes 271 00:16:36,840 --> 00:16:41,000 Speaker 8: more complicated for them. So yeah, damages for a human being, 272 00:16:41,080 --> 00:16:44,400 Speaker 8: for an individual is very different in libel than damages 273 00:16:44,480 --> 00:16:48,280 Speaker 8: for a corporation, So they are hard to show. And 274 00:16:48,360 --> 00:16:52,640 Speaker 8: it probably would have been a complicated battle for dominion, 275 00:16:52,960 --> 00:16:54,760 Speaker 8: and though those of all the different parts of their 276 00:16:54,760 --> 00:16:58,000 Speaker 8: case that would have been perhaps the more vulnerable that 277 00:16:58,040 --> 00:16:59,960 Speaker 8: would have been it, And that will be the case 278 00:17:00,200 --> 00:17:03,320 Speaker 8: here too. But you know, you do have punitives that 279 00:17:03,400 --> 00:17:07,080 Speaker 8: are eventually in the wings here, and those could really 280 00:17:07,160 --> 00:17:10,439 Speaker 8: kick up the value of the claim, even if the 281 00:17:10,520 --> 00:17:14,840 Speaker 8: underlying actual damage to the plaintiffs is less. 282 00:17:15,119 --> 00:17:17,360 Speaker 2: Fox said one has nothing to do with the other. 283 00:17:17,440 --> 00:17:20,159 Speaker 2: But the fact that they settle the dominion is that 284 00:17:20,680 --> 00:17:24,520 Speaker 2: sort of an indication that they'll settle the smartmatic as well? 285 00:17:25,080 --> 00:17:27,440 Speaker 8: It could be. I mean, I think we all feel 286 00:17:27,480 --> 00:17:31,000 Speaker 8: that the reason for the settlement was the risk of 287 00:17:31,119 --> 00:17:34,919 Speaker 8: having all these news anchors having to testify and the 288 00:17:35,080 --> 00:17:38,240 Speaker 8: damage that that could do to Fox over a long 289 00:17:38,320 --> 00:17:40,920 Speaker 8: and extended period of time while the trial was going on. 290 00:17:41,400 --> 00:17:44,240 Speaker 8: That can happen here too, And just because an anchor 291 00:17:44,359 --> 00:17:47,000 Speaker 8: or someone isn't named as a party to the lawsuit 292 00:17:47,040 --> 00:17:49,160 Speaker 8: doesn't mean that they won't be a witness to it, 293 00:17:49,359 --> 00:17:54,440 Speaker 8: because remember the dominion cases really just against the Fox entities. Here, 294 00:17:54,520 --> 00:17:59,480 Speaker 8: they're also against Bartiromo and Hero and Dobs and specific 295 00:18:00,640 --> 00:18:02,720 Speaker 8: but they don't have to be named in order to 296 00:18:02,840 --> 00:18:06,480 Speaker 8: land a punch on Fox. And so I would guess 297 00:18:06,600 --> 00:18:10,480 Speaker 8: I would think when you read this three hundred page complaint, 298 00:18:11,200 --> 00:18:13,719 Speaker 8: there are a lot of different names of anchors who 299 00:18:13,880 --> 00:18:17,520 Speaker 8: come up here other than Dobbs and Bartiromo and Piro, 300 00:18:18,119 --> 00:18:20,119 Speaker 8: and there's no reason that they couldn't be brought in 301 00:18:20,400 --> 00:18:23,399 Speaker 8: as witnesses too, and that may be something that's going 302 00:18:23,480 --> 00:18:26,119 Speaker 8: to be very hard fought, and there'll be more discovery 303 00:18:26,119 --> 00:18:30,000 Speaker 8: that probably comes out in this case. So yeah, they're 304 00:18:30,040 --> 00:18:34,199 Speaker 8: probably great incentives for settlement as well. But then you know, 305 00:18:34,280 --> 00:18:37,960 Speaker 8: in the wings again there's the shareholder actions that could 306 00:18:38,040 --> 00:18:42,520 Speaker 8: be problematic. Employees who either resigned or fired that could 307 00:18:42,520 --> 00:18:45,159 Speaker 8: create a problem. Is one of them that I know of. 308 00:18:45,280 --> 00:18:48,200 Speaker 8: It's problematic for them. There's a lot happening, and there's 309 00:18:48,240 --> 00:18:50,440 Speaker 8: a lot of blood in the water, and it makes 310 00:18:50,480 --> 00:18:53,960 Speaker 8: it both more valuable for them to settle, but also 311 00:18:54,080 --> 00:18:55,439 Speaker 8: more difficult to settle. 312 00:18:55,880 --> 00:18:58,120 Speaker 2: What do you think the long term impact of these 313 00:18:58,200 --> 00:19:00,280 Speaker 2: cases is going to be? 314 00:19:01,080 --> 00:19:03,080 Speaker 8: So I think that what's going to happen is that 315 00:19:03,200 --> 00:19:06,840 Speaker 8: because of a case like this, it will fuel plaintiffs 316 00:19:06,840 --> 00:19:11,120 Speaker 8: imagination and they will all be trying to frame their 317 00:19:11,160 --> 00:19:15,120 Speaker 8: own Fox type cases that they think they have against 318 00:19:15,119 --> 00:19:18,840 Speaker 8: some other news organization. I don't think that those will 319 00:19:18,840 --> 00:19:22,359 Speaker 8: be successful. They will be attempted, but I think they'll fail, 320 00:19:22,560 --> 00:19:25,440 Speaker 8: partly because I don't think that you can actually get 321 00:19:25,560 --> 00:19:30,639 Speaker 8: the kind of discovery of news organization's internal deliberations and 322 00:19:30,840 --> 00:19:34,399 Speaker 8: sourcing as was the case here. Because this was unusual, 323 00:19:34,600 --> 00:19:37,960 Speaker 8: they were able to get inside stuff and overcome what's 324 00:19:38,000 --> 00:19:42,840 Speaker 8: called the reporter's privilege that protects against disclosure of internal 325 00:19:43,000 --> 00:19:46,520 Speaker 8: editorial deliberations in contact with sources and so on. They're 326 00:19:46,520 --> 00:19:48,560 Speaker 8: able to get around it because you know, there were 327 00:19:48,680 --> 00:19:52,320 Speaker 8: insiders who were talking to news organizations saying I saw 328 00:19:52,400 --> 00:19:55,439 Speaker 8: this email, I was in that meeting. Once you have 329 00:19:55,560 --> 00:19:58,640 Speaker 8: that kind of specificity and you say there was this email, 330 00:19:58,760 --> 00:20:00,440 Speaker 8: I know it was there, I know it, they said, 331 00:20:00,520 --> 00:20:03,439 Speaker 8: then you're more likely than to be able to get it. 332 00:20:03,480 --> 00:20:05,760 Speaker 8: If you don't know what you're looking for, you can't 333 00:20:05,800 --> 00:20:06,200 Speaker 8: get it. 334 00:20:06,280 --> 00:20:09,320 Speaker 2: Thanks so much for your insights, David. That's David Korzenic 335 00:20:09,440 --> 00:20:13,600 Speaker 2: of Miller Corsenic, Summrs Raymond. Coming up next, the Supreme 336 00:20:13,640 --> 00:20:17,120 Speaker 2: Court will consider reversing a forty year old president. You're 337 00:20:17,160 --> 00:20:18,159 Speaker 2: listening to Bloomberg. 338 00:20:21,440 --> 00:20:26,240 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 339 00:20:28,400 --> 00:20:31,840 Speaker 2: The Supreme Court will consider overturning a nearly forty year 340 00:20:31,880 --> 00:20:35,920 Speaker 2: old legal precedent called the Chevron Doctrine. It's given federal 341 00:20:35,960 --> 00:20:39,960 Speaker 2: regulators brought power to define their authority, and it's something 342 00:20:40,080 --> 00:20:43,720 Speaker 2: conservatives have been pushing to get rid of for years, 343 00:20:43,760 --> 00:20:48,879 Speaker 2: saying it's empowered the administrative state. Several conservative justices have 344 00:20:49,080 --> 00:20:52,520 Speaker 2: soured on the doctrine, and Justice Neil Gorsich is one 345 00:20:52,520 --> 00:20:55,800 Speaker 2: of them. He was even questioned about Chevron during his 346 00:20:55,840 --> 00:21:00,480 Speaker 2: Senate confirmation hearings because he'd criticized the doctrine in a opinion, 347 00:21:00,840 --> 00:21:05,480 Speaker 2: saying it allowed quote, executive bureaucracies to swallow huge amounts 348 00:21:05,520 --> 00:21:08,000 Speaker 2: of core judicial and legislative power. 349 00:21:08,920 --> 00:21:11,639 Speaker 9: I thought the judges were supposed to say what the 350 00:21:11,720 --> 00:21:18,800 Speaker 9: law is. I thought that's what Justice Marshall said, and 351 00:21:18,840 --> 00:21:21,440 Speaker 9: I thought the point of having judges decide the law 352 00:21:22,040 --> 00:21:25,119 Speaker 9: is because you wanted someone who's neutral and independent to 353 00:21:25,160 --> 00:21:28,719 Speaker 9: say what the law means, someone who doesn't have a 354 00:21:28,880 --> 00:21:29,639 Speaker 9: dog in the hunt. 355 00:21:30,560 --> 00:21:34,200 Speaker 2: And next term the justices will consider a case testing 356 00:21:34,240 --> 00:21:37,280 Speaker 2: the doctrine. Joining me is an expert on the separation 357 00:21:37,400 --> 00:21:41,000 Speaker 2: of powers, Harold Krant, a professor at the Chicago Kent 358 00:21:41,160 --> 00:21:44,439 Speaker 2: College of Law. How will you explain just what the 359 00:21:44,520 --> 00:21:45,600 Speaker 2: Chevron doctrine is? 360 00:21:46,240 --> 00:21:49,199 Speaker 10: The ship on doctrine sets the tone, or if you will, 361 00:21:49,440 --> 00:21:54,359 Speaker 10: between the reviewing court and the agency which is promulgated 362 00:21:54,440 --> 00:21:58,960 Speaker 10: rule or conducted an adjudication to settle rights between the 363 00:21:59,040 --> 00:22:03,240 Speaker 10: government and either you know, individuals or regulated businesses. And 364 00:22:03,760 --> 00:22:08,160 Speaker 10: oftentimes agencies engage in very complicated decision making, dealing with 365 00:22:08,400 --> 00:22:12,879 Speaker 10: questions about hearing rights for disabled, questions about kinds of 366 00:22:12,960 --> 00:22:16,719 Speaker 10: nuclear discharge, how to gauge it, what kind of drugs 367 00:22:16,720 --> 00:22:19,160 Speaker 10: should be regulated, how do we know if it's safe. 368 00:22:19,640 --> 00:22:23,280 Speaker 10: There's so many areas in which regulators have to make decisions, 369 00:22:23,520 --> 00:22:27,240 Speaker 10: and Congress can't foresee all of the details. Congress therefore 370 00:22:27,280 --> 00:22:31,040 Speaker 10: gives of why leash to agencies, leeway to the agency 371 00:22:31,280 --> 00:22:35,360 Speaker 10: to flesh out those regulations as social conditions and indeed 372 00:22:35,480 --> 00:22:40,400 Speaker 10: as political conditions change, subject to the oversight of the President. 373 00:22:40,640 --> 00:22:43,000 Speaker 10: But the Court is fighting back. The Court is thought 374 00:22:43,040 --> 00:22:46,400 Speaker 10: that agencies shouldn't have this power. It's okay if Congress 375 00:22:46,440 --> 00:22:50,760 Speaker 10: cuts the details itself, but the Court doesn't want agencies 376 00:22:50,840 --> 00:22:54,800 Speaker 10: to have the ability to reinterpret their own enacting statues, 377 00:22:54,840 --> 00:22:59,280 Speaker 10: to reinterpret and refashion rules as these conditions change, and 378 00:22:59,320 --> 00:23:03,720 Speaker 10: therefore trying to straight jacket administrative agency power. 379 00:23:03,920 --> 00:23:06,960 Speaker 2: And the doctrine has sort of a two step approach. 380 00:23:07,320 --> 00:23:10,680 Speaker 10: The Chamon doctrine is a two step doctrine which first 381 00:23:10,720 --> 00:23:14,480 Speaker 10: asked if Congress has clearly specified what the agency should do, 382 00:23:14,560 --> 00:23:16,879 Speaker 10: and if it does, then the Court will just either 383 00:23:16,960 --> 00:23:21,520 Speaker 10: say agency acted appropriately or not. But if there is ambiguity, 384 00:23:21,680 --> 00:23:25,439 Speaker 10: and there's almost always ambiguity, then the doctrine suggests that 385 00:23:25,520 --> 00:23:28,960 Speaker 10: the Court will agree to any kind of reasonable interpretation 386 00:23:29,320 --> 00:23:32,840 Speaker 10: of the satutory language that the agency has reached. So 387 00:23:32,880 --> 00:23:35,480 Speaker 10: they are giving deference, in other words, to agencies because 388 00:23:35,480 --> 00:23:38,439 Speaker 10: the agencies are more expert, They have more experience in 389 00:23:38,480 --> 00:23:43,800 Speaker 10: the areas of pollution, of drug safety, of labor management relations, 390 00:23:44,040 --> 00:23:46,359 Speaker 10: and therefore they should be the ones to decide the 391 00:23:46,480 --> 00:23:49,680 Speaker 10: issue as long as they're acting reasonably. But the Court, 392 00:23:49,720 --> 00:23:53,520 Speaker 10: i think, has battled back because it thinks that it's 393 00:23:53,600 --> 00:23:56,959 Speaker 10: not right for agencies to share with the Court the 394 00:23:57,000 --> 00:24:01,160 Speaker 10: power to interpret congressional language. The Court thinks it's their 395 00:24:01,200 --> 00:24:06,000 Speaker 10: own prerogative to interpret what Congress says, and therefore to 396 00:24:06,160 --> 00:24:09,800 Speaker 10: share it with agencies. By giving this leeway to reasonable 397 00:24:09,920 --> 00:24:14,000 Speaker 10: agency interpretation of satutory language would be to limit their 398 00:24:14,000 --> 00:24:17,800 Speaker 10: own power. So, in some ways, Chevron is an ideological 399 00:24:17,920 --> 00:24:21,840 Speaker 10: war that the Court is waging in order to affirm 400 00:24:21,880 --> 00:24:25,920 Speaker 10: its own superiority in terms of satutory interpretation. 401 00:24:26,440 --> 00:24:29,439 Speaker 2: The Court has chipped away at Chevron, including in a 402 00:24:29,520 --> 00:24:34,280 Speaker 2: case last month involving the SEC and the FTC. But 403 00:24:34,440 --> 00:24:37,320 Speaker 2: is this the first direct challenge to Chevron. 404 00:24:38,000 --> 00:24:41,119 Speaker 10: So the Court has not upheld a case on the 405 00:24:41,160 --> 00:24:45,399 Speaker 10: basis of the Chevron doctrine for over six years. Lower courts, however, 406 00:24:45,520 --> 00:24:49,840 Speaker 10: have continuously applied Chevron. But the Court has occasionally asked 407 00:24:49,880 --> 00:24:53,240 Speaker 10: whether the Chevron doctrine should be not just limited, which 408 00:24:53,280 --> 00:24:56,239 Speaker 10: it has done, but whether it should be overruled in 409 00:24:56,280 --> 00:24:58,359 Speaker 10: its entirety. And this case may or may not be 410 00:24:58,480 --> 00:25:01,280 Speaker 10: the right vehicle in this case. There's a very narrow 411 00:25:01,400 --> 00:25:04,800 Speaker 10: question has to do with a herring fishing industry about 412 00:25:04,840 --> 00:25:08,840 Speaker 10: whether the industry itself has to pay for agency observers. 413 00:25:08,960 --> 00:25:13,320 Speaker 10: And agency observers are unquestionably permitted under the statutory scheme 414 00:25:13,520 --> 00:25:17,440 Speaker 10: to make sure that the fishing boats conserve resources, don't overfish, 415 00:25:17,680 --> 00:25:19,520 Speaker 10: et cetera. So there's question is that they have to 416 00:25:19,520 --> 00:25:21,840 Speaker 10: pay for it. Maybe it's implicit in the statute, but 417 00:25:21,920 --> 00:25:25,040 Speaker 10: it's not explicit. And the Court has taken two questions 418 00:25:25,080 --> 00:25:27,600 Speaker 10: on the case. One is whether the Chevan doctrine should 419 00:25:27,720 --> 00:25:30,679 Speaker 10: be overruled in its entirety, and the second is whether 420 00:25:30,880 --> 00:25:34,680 Speaker 10: the fact that there is no explicit power given by 421 00:25:34,720 --> 00:25:38,360 Speaker 10: Congress to the agency to make the private fishing industry 422 00:25:38,400 --> 00:25:41,680 Speaker 10: pay for observers, whether the fact that there's congressional silence 423 00:25:41,880 --> 00:25:45,919 Speaker 10: should be a reason to deprive the agency of the 424 00:25:45,960 --> 00:25:49,520 Speaker 10: power to determine that the fishing industry should pay for 425 00:25:49,600 --> 00:25:50,359 Speaker 10: these observers. 426 00:25:50,840 --> 00:25:52,679 Speaker 2: Do you think that they intend to get rid of 427 00:25:52,840 --> 00:25:56,679 Speaker 2: Chevron because the justices didn't have to take this case, 428 00:25:57,080 --> 00:26:00,359 Speaker 2: there's no split in the circuits. The administration said the 429 00:26:00,400 --> 00:26:05,119 Speaker 2: fishery dispute has no practical importance now because the monitoring 430 00:26:05,160 --> 00:26:08,639 Speaker 2: program is on hold, and the court took an unusually 431 00:26:08,720 --> 00:26:11,159 Speaker 2: long time to decide how to handle the case. It 432 00:26:11,320 --> 00:26:14,640 Speaker 2: scheduled it for potential discussion at five private conferences. 433 00:26:15,119 --> 00:26:18,800 Speaker 10: This is a minor regulatory issue about who pays, so 434 00:26:18,880 --> 00:26:21,320 Speaker 10: this is not like a major questions case. This case 435 00:26:21,359 --> 00:26:23,640 Speaker 10: is all about the Supreme Court, and the only reason 436 00:26:23,640 --> 00:26:26,120 Speaker 10: the Court took this case is because they wanted some 437 00:26:26,200 --> 00:26:28,959 Speaker 10: kind of context in which they could decide whether to 438 00:26:29,280 --> 00:26:32,359 Speaker 10: scuttle Chevron, to inter it completely, or whether it to 439 00:26:32,560 --> 00:26:34,679 Speaker 10: limit it even more than it has been in the 440 00:26:34,720 --> 00:26:38,200 Speaker 10: prior ten years. And again, I think the challenge of Chevron, 441 00:26:38,400 --> 00:26:39,919 Speaker 10: I don't think it makes that big of a difference 442 00:26:39,960 --> 00:26:43,160 Speaker 10: in terms of number of cases the agency's winner lose. 443 00:26:43,600 --> 00:26:46,600 Speaker 10: But it's a thorn in the Court's side because the 444 00:26:46,600 --> 00:26:50,080 Speaker 10: Court thinks that they have the superiority in terms of 445 00:26:50,119 --> 00:26:54,800 Speaker 10: interpreting statutes, and to publicly announce that agencies should have 446 00:26:54,840 --> 00:26:58,560 Speaker 10: a role in interpreting language of Congress as well as 447 00:26:58,600 --> 00:27:01,280 Speaker 10: they do, it's sort of an insult to the court. 448 00:27:01,400 --> 00:27:04,240 Speaker 10: To the Court I think wants to wipe this insult away. 449 00:27:04,720 --> 00:27:07,639 Speaker 2: There's a lot of gloom and doom about what would 450 00:27:07,680 --> 00:27:11,399 Speaker 2: happen if Chevron were eliminated. Do you think that's warranted. 451 00:27:11,720 --> 00:27:14,119 Speaker 10: Well, what I think is interesting is to think about 452 00:27:14,119 --> 00:27:17,800 Speaker 10: what happened before Chevron, Because before Chevron, what courts would 453 00:27:17,800 --> 00:27:20,199 Speaker 10: do would say, you know, this is a kind of 454 00:27:20,320 --> 00:27:24,359 Speaker 10: complicated agency issue. Agencies have more expertise than we do. 455 00:27:24,680 --> 00:27:26,760 Speaker 10: We'll defer to agency. And there was this sort of 456 00:27:26,960 --> 00:27:31,719 Speaker 10: patchwork of deference that grew up amongst courts. And what 457 00:27:31,880 --> 00:27:34,639 Speaker 10: Chevron did was to try to take this kind of 458 00:27:35,000 --> 00:27:38,800 Speaker 10: scheme of uncertain deference and try to give it a 459 00:27:39,240 --> 00:27:44,679 Speaker 10: uniform two step package, which would then unify and systematize 460 00:27:44,840 --> 00:27:49,400 Speaker 10: difference across the country. So even if Chevron is wiped out, 461 00:27:49,720 --> 00:27:52,480 Speaker 10: I think over time courts would say, you know, I 462 00:27:52,480 --> 00:27:56,400 Speaker 10: don't really know about nuclear discharge. What the agency did 463 00:27:56,440 --> 00:28:00,480 Speaker 10: here there is technical, It seems pretty minor. Refer to 464 00:28:00,880 --> 00:28:05,040 Speaker 10: the agency, because who knows what Congress really intended, and 465 00:28:05,359 --> 00:28:08,840 Speaker 10: the agency is familiar with it. The agency is applying 466 00:28:08,880 --> 00:28:12,160 Speaker 10: the statute, It has the expertise, it knows what Congress 467 00:28:12,200 --> 00:28:14,800 Speaker 10: meant by that vague language better than we do. So 468 00:28:14,880 --> 00:28:18,640 Speaker 10: I think that over time, even if the court scuttles Chevron, 469 00:28:18,920 --> 00:28:21,840 Speaker 10: it's not going to make a dramatic difference on the 470 00:28:21,880 --> 00:28:25,160 Speaker 10: other side of the coin if the court really cares 471 00:28:25,200 --> 00:28:27,880 Speaker 10: about an issue, the Court's going to come up with 472 00:28:27,920 --> 00:28:31,359 Speaker 10: a decision as to what the statute means, irrespective of 473 00:28:31,359 --> 00:28:34,400 Speaker 10: whether Chevron applies or not. And we've seen many instances 474 00:28:34,440 --> 00:28:34,720 Speaker 10: of that. 475 00:28:35,000 --> 00:28:40,680 Speaker 2: Early on, Conservatives embraced the Chevron doctrine. What happened to change. 476 00:28:40,320 --> 00:28:44,280 Speaker 10: That Chevron grew in the midst of the Reagan administration, 477 00:28:44,320 --> 00:28:46,880 Speaker 10: and the Reagan administration was engaging in somewhat of a 478 00:28:46,960 --> 00:28:51,440 Speaker 10: radical deregulation at the time, and the Republicans supported Chevron 479 00:28:51,520 --> 00:28:55,400 Speaker 10: because they supported the regulatory regime that the Reagan administration 480 00:28:55,560 --> 00:28:58,640 Speaker 10: was forwarding. And it was only during the Obama administration 481 00:28:58,840 --> 00:29:03,080 Speaker 10: when Republicans then began to attack Chevron because they saw 482 00:29:03,320 --> 00:29:07,959 Speaker 10: that Chevron helped the Obama administration's effort in Obamacare, effort 483 00:29:08,040 --> 00:29:11,400 Speaker 10: in reforming the welfare system, that they thought that having 484 00:29:11,680 --> 00:29:16,120 Speaker 10: stricter judicial controls on the administration would be more beneficial 485 00:29:16,280 --> 00:29:20,200 Speaker 10: to their political interests. So Chevron's really neutral. It can 486 00:29:20,240 --> 00:29:24,920 Speaker 10: help administrations, whether the Republican or Democratic. It just suggests 487 00:29:25,000 --> 00:29:28,680 Speaker 10: a reality of our political system, which is Congress doesn't 488 00:29:28,840 --> 00:29:31,160 Speaker 10: like to deal with details. There's a lot of gridlock 489 00:29:31,200 --> 00:29:34,520 Speaker 10: in Congress. But even aside from the gridlock. Congress looks 490 00:29:34,560 --> 00:29:37,600 Speaker 10: at some issues, but it prefers only to look at 491 00:29:37,760 --> 00:29:40,480 Speaker 10: some issues, and it doesn't want to get into details 492 00:29:40,520 --> 00:29:44,160 Speaker 10: of vaccines, the details of even the herring industry, not 493 00:29:44,280 --> 00:29:48,080 Speaker 10: to mention pollution, labor management relations, and so much more. 494 00:29:48,400 --> 00:29:51,720 Speaker 10: And so for years, Congress has decided that it's better 495 00:29:51,800 --> 00:29:54,600 Speaker 10: to have agencies take the first crack at many of 496 00:29:54,640 --> 00:29:57,720 Speaker 10: those important issues, and it sits back and only gets 497 00:29:57,720 --> 00:30:00,800 Speaker 10: involved if they are convinced that the agencies have messed 498 00:30:00,800 --> 00:30:03,200 Speaker 10: it up. That's been a reality of our governance now 499 00:30:03,320 --> 00:30:04,200 Speaker 10: for generations. 500 00:30:04,400 --> 00:30:06,560 Speaker 2: Well, we'll have to wait until next term to find 501 00:30:06,560 --> 00:30:09,240 Speaker 2: out what they do about Chevron. Thanks so much. How 502 00:30:09,520 --> 00:30:12,400 Speaker 2: that's Professor Harold Krent of the Chicago Kent College of 503 00:30:12,520 --> 00:30:16,320 Speaker 2: Law coming up, the abrupt reversal of the North Carolina 504 00:30:16,360 --> 00:30:19,960 Speaker 2: Supreme Court. You're listening to Bloomberg coming up, how many 505 00:30:20,000 --> 00:30:23,920 Speaker 2: Supreme Court justices are multimillionaires. This is Bloomberg. 506 00:30:27,080 --> 00:30:35,360 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 507 00:30:51,080 --> 00:30:55,040 Speaker 2: From Pink Floyd to Lil Wayne, artists of every genre 508 00:30:55,120 --> 00:30:58,400 Speaker 2: have sung about the corrupting influence of money, and it 509 00:30:58,480 --> 00:31:01,240 Speaker 2: seems that the nine justices on the Supreme Court have 510 00:31:01,320 --> 00:31:04,880 Speaker 2: done well in amassing wealth and leading a privileged lifestyle. 511 00:31:05,160 --> 00:31:09,000 Speaker 2: In fact, they're significantly richer than ninety percent of Americans. 512 00:31:09,320 --> 00:31:12,520 Speaker 2: According to an analysis by Bloomberg News, at least six 513 00:31:12,560 --> 00:31:16,160 Speaker 2: of the Supreme Court justices are multimillionaires, with as much 514 00:31:16,240 --> 00:31:19,640 Speaker 2: as twenty seven million dollars in assets, and the numbers 515 00:31:19,720 --> 00:31:22,960 Speaker 2: could be even higher. Joining me is Bloomberg Legal reporter 516 00:31:23,040 --> 00:31:27,160 Speaker 2: Emily Burnbaum, who's look at the numbers. Emily explain why 517 00:31:27,200 --> 00:31:31,640 Speaker 2: you just can't get specific numbers about the justice's wealth. 518 00:31:32,120 --> 00:31:36,880 Speaker 11: The Supreme Court justices are required to file these annual 519 00:31:37,120 --> 00:31:41,760 Speaker 11: financial disclosures, but the disclosures aren't meant to tell you 520 00:31:42,280 --> 00:31:46,080 Speaker 11: the justices net worth. Basically when they were constructed, they 521 00:31:46,080 --> 00:31:49,520 Speaker 11: were constructed pretty narrowly, and they're just supposed to tell 522 00:31:49,600 --> 00:31:53,920 Speaker 11: you about potential conflicts of interest. And so there's definitely 523 00:31:54,000 --> 00:31:58,400 Speaker 11: been a lot of discussion about why don't justices have 524 00:31:58,560 --> 00:32:02,440 Speaker 11: to disclose the value of their personal residences on the forums, 525 00:32:02,800 --> 00:32:06,480 Speaker 11: or why do the justices have to disclose how much 526 00:32:06,520 --> 00:32:10,080 Speaker 11: money they have in their government retirement account That is 527 00:32:10,400 --> 00:32:12,960 Speaker 11: sometimes a place where justice can keep a lot of 528 00:32:13,000 --> 00:32:15,480 Speaker 11: money and the public doesn't know about it, So it's 529 00:32:15,600 --> 00:32:17,960 Speaker 11: a law with a lot of loopholes essentially. 530 00:32:17,920 --> 00:32:19,720 Speaker 2: So who is the richest justice. 531 00:32:20,160 --> 00:32:23,680 Speaker 11: The richest justice is Chief Justice John Roberts. So he 532 00:32:24,120 --> 00:32:27,760 Speaker 11: reported in twenty twenty one between nine point nine million 533 00:32:27,840 --> 00:32:32,160 Speaker 11: and twenty seven million dollars in assets. He owns two 534 00:32:32,200 --> 00:32:36,160 Speaker 11: properties on a little remote island in Maine that that's 535 00:32:36,200 --> 00:32:39,720 Speaker 11: only accessible by boats. He owned part of a cottage 536 00:32:39,760 --> 00:32:43,520 Speaker 11: in Ireland, and he has a really nice house worth 537 00:32:43,600 --> 00:32:46,960 Speaker 11: you know, over two million dollars in Chevy Chase, Maryland. 538 00:32:47,160 --> 00:32:50,440 Speaker 11: So Chief Justice John Roberts is the richest buy a 539 00:32:50,440 --> 00:32:54,400 Speaker 11: pretty significant amount, followed by Justice Neil Gorses, who has 540 00:32:54,440 --> 00:32:57,440 Speaker 11: between four million and twelve million dollars in assets. 541 00:32:57,800 --> 00:33:01,080 Speaker 2: Justice Samuel Alito, who comes into the race on the list, 542 00:33:01,600 --> 00:33:04,479 Speaker 2: has a lot of stock and that's caused him to 543 00:33:04,760 --> 00:33:06,960 Speaker 2: have to recuse himself several times. 544 00:33:07,600 --> 00:33:12,040 Speaker 11: Yeah, there's no rules barring the justices from owning stock 545 00:33:12,120 --> 00:33:16,760 Speaker 11: and individual companies, but there is increasingly a culture that 546 00:33:16,880 --> 00:33:20,360 Speaker 11: discourages it. So there's been a lot of scrutiny on 547 00:33:20,680 --> 00:33:25,920 Speaker 11: Justice Alido for the individual stock he owns in dozens 548 00:33:25,960 --> 00:33:29,120 Speaker 11: of companies. So he is the only Supreme Court justice 549 00:33:29,120 --> 00:33:31,280 Speaker 11: that owns that much stock in individual companies. 550 00:33:31,760 --> 00:33:35,479 Speaker 2: And some of the justices have made a lot of 551 00:33:35,560 --> 00:33:36,880 Speaker 2: money from book deals. 552 00:33:37,480 --> 00:33:41,200 Speaker 11: Yes, this is an increasing trend among Supreme Court justices. 553 00:33:41,680 --> 00:33:45,240 Speaker 11: You know, some of them have gotten a million dollars 554 00:33:45,280 --> 00:33:49,360 Speaker 11: in advances, two million dollars for advances. Justice Amy Cony 555 00:33:49,400 --> 00:33:54,640 Speaker 11: Barrett broke records by getting a huge advance for her autobiography. 556 00:33:54,760 --> 00:33:57,920 Speaker 11: So Garrett collected about four hundred and twenty five thousand 557 00:33:58,000 --> 00:34:00,920 Speaker 11: dollars in royalties for her book in twenty twenty one, 558 00:34:01,240 --> 00:34:02,680 Speaker 11: and it hasn't been released yet. 559 00:34:03,040 --> 00:34:05,560 Speaker 2: Justice Barrett is number four on the list, followed by 560 00:34:05,920 --> 00:34:09,520 Speaker 2: Justices Elena Kegan and Sonia Sotomayor, who also had a 561 00:34:09,600 --> 00:34:12,319 Speaker 2: huge book deal something like three million dollars a few 562 00:34:12,360 --> 00:34:15,160 Speaker 2: years ago. So who is the justice at the bottom 563 00:34:15,200 --> 00:34:15,720 Speaker 2: of the list. 564 00:34:16,120 --> 00:34:19,080 Speaker 11: At the bottom of the list is Brett Kavanaugh, which 565 00:34:19,320 --> 00:34:21,920 Speaker 11: you know, was kind of surprising when he was being 566 00:34:22,280 --> 00:34:26,279 Speaker 11: considered by the Senate. He was framed in public as 567 00:34:26,400 --> 00:34:29,400 Speaker 11: this rich guy. He comes from the suburbs in Maryland, 568 00:34:29,400 --> 00:34:33,160 Speaker 11: he went to private school. But he has reported between 569 00:34:33,280 --> 00:34:37,800 Speaker 11: fifteen thousand and sixty five thousand in asset. What's possible 570 00:34:38,040 --> 00:34:41,280 Speaker 11: is that he has a lot of money in places 571 00:34:41,320 --> 00:34:43,440 Speaker 11: that he doesn't have to disclose. So for instance, it 572 00:34:43,440 --> 00:34:47,560 Speaker 11: could be in his government retirement plan, or it could 573 00:34:47,560 --> 00:34:50,160 Speaker 11: come down to his personal residence. But it's possible that 574 00:34:50,280 --> 00:34:53,200 Speaker 11: he's worth more than he has to close on Zillo. 575 00:34:53,239 --> 00:34:56,640 Speaker 2: His home is worth about one point seven million dollars, 576 00:34:56,680 --> 00:34:59,640 Speaker 2: so that just shows how it's so hard to figure 577 00:34:59,680 --> 00:35:03,480 Speaker 2: out what they're worth. Thanks Emily. That's Bloomberg Legal reporter 578 00:35:03,560 --> 00:35:06,040 Speaker 2: Emily Burned Bown and that's it for this edition of 579 00:35:06,040 --> 00:35:09,360 Speaker 2: the Bloomberg Law Show. I'm June Grosso and you're listening 580 00:35:09,480 --> 00:35:10,160 Speaker 2: to Bloomberg