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Speaker 1: This is Bloomberg Law.

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Speaker 2: What does a prosecutor have to prove in order to

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Speaker 2: get a rico conviction? Tell us why this solicitor General

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Speaker 2: is sometimes referred to as the tenth Justice.

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Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts.

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Speaker 2: That's Jennifer k for Bloomberg Law. Joining me is former

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Speaker 2: federal prosecutor Robert.

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Speaker 1: Miss and analysis of important legal issues, cases and headlines

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Speaker 1: is the.

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Speaker 2: Toughest hurtle for prosecutors proving Trump's intent. Alito took on

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Speaker 2: Congress saying Congress has no power to regulate the Supreme Court.

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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: Welcome to a special edition of the Bloomberg Law Show.

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Speaker 2: I'm June Grosso. Ahead in this hour, we'll look at

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Speaker 2: some of the high profile cases the Supreme Court heard

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Speaker 2: in twenty twenty three and one they might hear in

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Speaker 2: twenty twenty four. We'll discuss double Jeopardy, trademarks and baseball's

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Speaker 2: antitrust exemption. All that's ahead, But first make.

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Speaker 3: Sure that every ring, single justice up in that court

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Speaker 3: knows we are here, we are watching, and we demand

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Speaker 3: that they put our lives over the interests of the

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Speaker 3: gun lobby.

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Speaker 2: Hundreds of protesters took to the Supreme Court this fall

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Speaker 2: to support the federal ban on domestic abusers having guns,

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Speaker 2: and inside, the justices seem to agree, suggesting during oral

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Speaker 2: arguments that they'll preserve the ban and it didn't even

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Speaker 2: seem like a hard issue. Both liberals and conservatives sounded

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Speaker 2: persuaded that the ban is in line with the long

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Speaker 2: standing practice of disarming dangerous people, and the defendant undoubtedly

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Speaker 2: fit in that category. Here's Chief Justice John Roberts questioning

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Speaker 2: his attorney.

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Speaker 4: You don't have any doubt that your client's a dangerous person,

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Speaker 4: do you.

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Speaker 2: I would want to know what dangerous person means.

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Speaker 4: That's iding someone who's shooting at people. That's a good start.

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Speaker 2: My guest, is Second Amendment expert Adam Winkler, a professor

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Speaker 2: at UCLA Law School. Let's start with the big question.

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Speaker 2: Did it seem like justices across the board were inclined

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Speaker 2: to uphold this federal gun ban.

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Speaker 5: It did. It felt very one sided in the Supreme Court,

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Speaker 5: and it felt like almost all the justices, if not

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Speaker 5: all the justices, were inclined to uphold the federal ban

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Speaker 5: in this case.

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Speaker 2: This is the first test of last year's ruling in

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Speaker 2: Bruin that established a constitutional right to carry a handgun

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Speaker 2: in public. So in order to understand it, I think

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Speaker 2: we have to take a look at the historical analysis

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Speaker 2: test established in Bruin that's caused so much confusion in

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Speaker 2: the lower courts and led to them striking down gun

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Speaker 2: control laws that have been on the books for decades.

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Speaker 2: So tell us about that test, Adam.

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Speaker 5: In the Bruin case, Justice Thomas's majority opinion said that

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Speaker 5: for gun laws to be constitutional and permissible today, they

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Speaker 5: must have historical analogs in the seventeen and eighteen hundreds

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Speaker 5: when Second Amendment was adopted and the Fourteenth Amendment was adopted,

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Speaker 5: incorporating the Second Amendment to apply.

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Speaker 6: To the states.

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Speaker 5: As a result, courts have really struggled over the last

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Speaker 5: year or so trying to find gun laws back in

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Speaker 5: those days that are sufficiently analogous to many common sense,

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Speaker 5: mainstream gun laws that we have today. Truth be told,

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Speaker 5: many of our gun laws are kind of twentieth century inventions,

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Speaker 5: bans on felons possessing firearms, bans on the mentally ill

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Speaker 5: possessing firearms, and the issue into this case ban on

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Speaker 5: domestic abusers possessing firearms. These are laws that don't have

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Speaker 5: any obvious analog in the seventeen and eighteen hundreds, and

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Speaker 5: so this law was struck down by the Fifth Circuit,

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Speaker 5: just like courts around the country have been striking down

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Speaker 5: gun laws for lack of a clear historical precedent.

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Speaker 2: So then how did the justices get around that lack

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Speaker 2: of a clear historical precedent and all end up seemingly

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Speaker 2: in favor of this bank.

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Speaker 5: First of all, I think it's important to know what

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Speaker 5: Elizabeth Proligar, the Flicitor General, began her oral argument with

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Speaker 5: by noting the statistics that show that domestic abusers with

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Speaker 5: firearms are an incredibly deadly mix, and that forty eight

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Speaker 5: states and the federal government have prohibited domestic abusers from

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Speaker 5: possessing firearms, showing that what she intended to do was

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Speaker 5: not just rely on the history and tradition, but on

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Speaker 5: the common sense idea that some people are too dangerous

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Speaker 5: to have firearms. But the court seemed to be inclined

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Speaker 5: to do is allow the government to frame their gun

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Speaker 5: laws at a higher level of generality. You don't have

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Speaker 5: to show that there's a history and tradition of domestic

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Speaker 5: abusers being prohibited from possessing firearms, and of course there

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Speaker 5: isn't a long history and tradition of that, but maybe

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Speaker 5: you could show that there's a history and tradition of

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Speaker 5: prohibiting dangerous people from possessing firearms, and domestic abusers are

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Speaker 5: just a modern day understanding of people who are just

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Speaker 5: too dangerous to have come.

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Speaker 2: Did the Liberal justice does seem like they wanted to

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Speaker 2: use this case to revisit that history based test. Here's

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Speaker 2: Justice Katanji Brown Jackson.

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Speaker 7: What's the point of going to the founding era? I mean,

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Speaker 7: I thought it was doing some work, but if we're

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Speaker 7: still applying modern sensibilities, I don't really understand the historical framing.

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Speaker 5: It did seem like she was pressing that it's very

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Speaker 5: hard to defend this domestic violence abuser ban when people

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Speaker 5: are subject to a restraining order in light of the

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Speaker 5: history and tradition of which that the Bruin Court offered.

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Speaker 5: Although Bruin said that you should look for analogous laws,

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Speaker 5: I think that at the end of the day, the

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Speaker 5: government is hard pressed to draw a very close analogy. Instead,

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Speaker 5: the analogies are very General and didn't exactly apply on point.

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Speaker 2: Did a majority of the conservative justices seem to want

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Speaker 2: to limit any decision to the facts here? Justice Neil

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Speaker 2: Gorsitch said at one point, do we need to get

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Speaker 2: into any of that?

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Speaker 5: It did seem like several was a this is, including

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Speaker 5: Justices Gorsich, Thomas, and Alito. We're looking for ways to

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Speaker 5: narrow the consequence of ruling against Rahemi in this case

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Speaker 5: and in favor of upholding the law, talking about whether

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Speaker 5: there might be different as applied challenges that someone could bring,

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Speaker 5: or whether there might be some common law defenses that

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Speaker 5: one could bring to a charge that one was possessing

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Speaker 5: a firearm illegally in violation of the domestic violence restraining order,

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Speaker 5: and several of the justices released. Justice Alito expressed some

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Speaker 5: discomfort with the idea that these domestic violence restraining orders

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Speaker 5: could be very long lasting and yet don't have very

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Speaker 5: serious procedural requirements that correspond with broad notions of due process.

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Speaker 2: Perhaps, the Solicitor General said the Court should use the

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Speaker 2: present case to give more guidance to the lower courts

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Speaker 2: and to correct lower courts quote profound misreading of the

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Speaker 2: bruined decision. Do you think we'll get any major statements

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Speaker 2: out of this ruling.

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Speaker 5: I think that's going to be one of the big questions.

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Speaker 5: Is this a really narrow ruling that just cobbles together

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Speaker 5: a majority, or is it an opinion that will provide

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Speaker 5: more guidance to the lower courts. Justice Kagan specifically asked

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Speaker 5: about that and about the necessity, and the Solicitener General

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Speaker 5: had a very clear and precise answer that there were

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Speaker 5: three errors being committed by the lower courts. They were

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Speaker 5: only looking to regulation and not looking to other historical sources.

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Speaker 5: They were looking at regulation, but we're really looking for

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Speaker 5: twins rather than for historical analogs. And also that the

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Speaker 5: absence of regulation should not always be read against the government,

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Speaker 5: especially when a problem like domestic violence was not really

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Speaker 5: thought of as a problem back then.

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Speaker 2: So I admit that I find this historical analysis test

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Speaker 2: with Second Amendment cases just bordering on ridiculous. Were there

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Speaker 2: any clues as to whether the Conservatives remained behind the

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Speaker 2: historical analysis that Thomas put in place.

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Speaker 5: Well, I think that the Solicitor General made a very

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Speaker 5: strategic choice not to challenge the history and tradition test

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Speaker 5: of Bruin but instead seek to, if anything, recapture its fluidity,

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Speaker 5: its ability to be useful to uphold laws, not just

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Speaker 5: to strike down laws. And so she was not asking

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Speaker 5: the court to abandon the history and tradition test. Rather,

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Speaker 5: she was saying that the lower courts have been misapplying

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Speaker 5: that test, and that to capture the true essence of

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Speaker 5: that test means that you should approach the issue the

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Speaker 5: way she did, at a slightly higher level of generality,

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Speaker 5: focusing on dangerousness rather than looking for historical precedence of

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Speaker 5: domestic abusers being prohibited access to firearms.

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Speaker 2: If you had to guess, would you guess that it's

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Speaker 2: going to be a limited opinion or a broader opinion.

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Speaker 5: If you were to guess, I would say this is

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Speaker 5: likely to be a nine to nothing, maybe eight to

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Speaker 5: one or seven to two opinion. And I think because

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Speaker 5: of that, the larger the majority, the less likely it

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Speaker 5: is to be very far reaching. That it may be

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Speaker 5: one of these cases that gets assigned to Justice Gorsich

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Speaker 5: to just do as little damage as possible to the

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Speaker 5: bruined test. But I do think that it's no matter

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Speaker 5: how big the majority is to uphold the federal law here.

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Speaker 5: If indeed, the Court does uphold the federal law here,

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Speaker 5: it will be very good news for gun safety reform advocates.

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Speaker 5: They've been struggling to defend gun laws in courts, bans

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Speaker 5: on guns without serial numbers, bans on assault weapons. So

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Speaker 5: if the court does move to this higher level of

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Speaker 5: generality it says that government can prohibit people who are

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Speaker 5: dangerous from having firearms, it would provide a basis for

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Speaker 5: defending a lot of our core gun laws that we

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Speaker 5: really rely on in modern twenty first century America.

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Speaker 2: And Adam, we also saw that the Supreme Court agreed

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Speaker 2: to decide the fate of the federal criminal ban on

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Speaker 2: bump stocks, the attachments that let a semi automatic rifle

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Speaker 2: fire much like a machine gun. What do you make

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Speaker 2: of that? Do you make anything of it?

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Speaker 3: No?

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Speaker 5: I don't make much of it. I think that is

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Speaker 5: really an administrative law case, and it's about wh the

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Speaker 5: administrative agency went too far in interpreting its powers under

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Speaker 5: the Gun Control Act and other federal statutes that regulate firearms.

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Speaker 5: And so I think that although they both deal with

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Speaker 5: firearms regulation, both these cases they're very different. One's the

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Speaker 5: Second Amendment case that's going to be decided on Second

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Speaker 5: Amendment grounds and have huge impact on how other Second

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Speaker 5: Amendment cases are handled. Whatever the Court does on the

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Speaker 5: bump stocks will be much more important for administrative law

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Speaker 5: and the scope of administrative agency authority under the Constitution.

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Speaker 2: A lot of administrative law cases this term. Thanks so much,

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Speaker 2: Adam Best, Professor Adam Winkler of UCLA Law School. A note.

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Speaker 2: Michael Bloomberg, the founder majority owner of Bloomberg LP, the

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Speaker 2: parent of Bloomberg Radio, is a donor to groups that

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Speaker 2: support gun control, including every Town for Gun Safety. Coming

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Speaker 2: up the fight to trademark Trump too Small. I'm June

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Speaker 2: Grosso and this is Bloomberg.

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Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: You're listening to a special edition of Bloomberg Law as

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Speaker 2: we look back at some of the high profile Supreme

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Speaker 2: Court cases last year and look ahead to twenty twenty four.

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Speaker 2: I'm June Grosso.

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Speaker 1: He's always call me Marco.

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Speaker 3: And he's hollow me like sixty two, which is why

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Speaker 3: I don't understand.

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Speaker 1: Well, he's hands five two.

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Speaker 8: Have send for hitmans.

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Speaker 2: I've never heard of this one.

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Speaker 1: Look at those hands? Are they small?

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Speaker 9: Hands.

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Speaker 2: You may remember in the early days of the twenty

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Speaker 2: sixteen presidential election when former President Donald Trump and Florida

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Speaker 2: Senator Marco Rubio were engaged in some locker room talk

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Speaker 2: over the size of Trump's hands. Now it's part of

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Speaker 2: the case before the Supreme Court. Attorney Steve Elster says

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Speaker 2: he has a free speech right to trademark the phrase

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Speaker 2: trump too small to use on T shirts. The US

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Speaker 2: Patent and Trademark Office disagreed, and it appears that the

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Speaker 2: Supreme Court also disagrees. At oral arguments. On Wednesday, Justice

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Speaker 2: Is Across the ideological divide suggested that denying Elster a

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Speaker 2: trademark for the phrase does not violate his free speech

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Speaker 2: rights for a host of reasons. Justice Katanji Brown Jackson

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Speaker 2: discussed the point of trademark.

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Speaker 7: Law, and trademark is not about expression. Trademark is not

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Speaker 7: about the First Amendment in your and people's ability to speak.

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Speaker 7: Trademark is about source identifying and preventing consumer confusion.

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Speaker 2: Justice Sonya Sotomayor said that not getting a trademark does

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Speaker 2: not infringe on his.

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Speaker 9: Speech because you're not talking about stopping the speech. You're

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Speaker 9: talking about not receiving government protection for activity that you

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Speaker 9: would like to heighten protection for doesn't stop you from selling.

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Speaker 9: It doesn't stop you from selling anywhere as much as

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Speaker 9: you want.

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Speaker 2: Justice Neil Gorzich pointed to history.

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Speaker 8: But at the end of the day, it's pretty hard

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Speaker 8: to argue that a tradition that's been around a long

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Speaker 8: long time since the founding, you know, common law type stuff,

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Speaker 8: is inconsistent with the First Amendment.

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Speaker 2: And the Chief Justice said that giving him a trademark

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Speaker 2: would have the effect of restricting the speech of other people.

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Speaker 4: Because the whole point of the trademark, of course, is

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Speaker 4: to prevent other people from doing the same thing. So

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Speaker 4: if you win the slogan trump too small or whatever,

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Speaker 4: other people can't use it. Right.

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Speaker 2: The case revolves around a section of the LANIMAC that

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Speaker 2: requires written consent to use the name of a living

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Speaker 2: person in a trademark. Joining me to help explain it

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Speaker 2: all is intellectual property litigator Terrence Ross, a partner at

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Speaker 2: Katon Muchen Rosenman Terry tell us about the procedural background

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Speaker 2: of this case.

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Speaker 10: Mister Elsert thought trademark registration from the United States Trademark

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Speaker 10: Office and the Trademark Examiner handling the application denied it

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Speaker 10: as a violation of the landam Act, which is the

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Speaker 10: trademark lause. Mister Elster then appealed within the Trademark Office,

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Speaker 10: which confirmed the denial, and mister Elster took it to

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Speaker 10: the United States Court of Appeals for the Federal Circuit

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Speaker 10: here in DC. The Federal Circuit unanimously reversed the decision

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Speaker 10: of the Trademark Office on constitutional grounds. It found that,

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Speaker 10: at least as applied in this case, section ten point

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Speaker 10: fifty two sea of the Landom Act was unconstitutional in

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Speaker 10: light of the First Amendment, and the Trademark Office decided

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Speaker 10: that this was important enough to appeal to the Supreme

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Speaker 10: Court of United States.

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Speaker 2: Elster's lawyer told the court that the government's sole interest

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Speaker 2: in denying the trademark is protecting the feelings of famous people,

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Speaker 2: but that's not a legitimate reason to burden protected speech.

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Speaker 2: How did his arguments strike you? It sort of struck

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Speaker 2: me as being weak in many ways.

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Speaker 10: I thought it was extraordinarily weak. My reaction was that

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Speaker 10: mister Elistair's counsel did not do a very good job.

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Speaker 10: It was pointed out in the press that this was

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Speaker 10: his very first argument to the Supreme Court, but quite

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Speaker 10: frankly came across as a first a pallid argument at

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Speaker 10: a sword. And indeed his response to this question was

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Speaker 10: really a hail mary, because he was unable to answer

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Speaker 10: a previous question from Justice Kagan. Justice Kagan had asked

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Speaker 10: him for any case that he could think of in

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Speaker 10: which the conveying of a government benefit in a position

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Speaker 10: neutral viewpoint had been held to be unconstitutional. You know,

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Speaker 10: it was crickets in the room.

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Speaker 2: He had nothing, nothing except maybe a sinking feeling.

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Speaker 10: Yeah, when just so Maior asked this, he went for

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Speaker 10: his press conference sound bite, which was, Oh, we can't

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Speaker 10: be protecting the feelings of famous people. Oh you know,

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Speaker 10: that's actually not what this statute is about. And it

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Speaker 10: helps sometimes to read the actual wording of a statute.

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Speaker 10: Here fifteen Usc. Ten to fifty to see essentially bars

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Speaker 10: registration of a trademark. That quote consists of, or comprises

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Speaker 10: a name, portrait, or signature identifying a particular living individual

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Speaker 10: except by his written consent. This applies to everybody, applies

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Speaker 10: to you, applies to me, applies to the listeners. A

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Speaker 10: living person's name and legs can't be used to promote

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Speaker 10: another product, and this is fundamental to trademark LOK. Going

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Speaker 10: back into the common law is known as passing off,

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Speaker 10: you know, its claiming that some famous person had blessed

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Speaker 10: this product or was associated with it. And so it

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Speaker 10: was very much sort of an absurd response to Justice

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Speaker 10: Sodoma Org and really reflected a core problem with their argument,

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Speaker 10: which Justice Thomas identified quickly. He asked just straight out

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Speaker 10: what's the burden on free speech here, and really didn't

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Speaker 10: get an answer because simple fact that, as you said,

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Speaker 10: you people are already using the slogan everywhere. The fact

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Speaker 10: that you don't get registration does not mean you can't

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Speaker 10: use the slogan, and mister Elster himself has already been

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Speaker 10: using it. All it means is that he's been denied

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Speaker 10: the benefit of registration, which is the ability to exclude,

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Speaker 10: in certain circumstances, third parties from using his slogan.

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Speaker 2: And the Chief Justice John Roberts pointed out that giving

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Speaker 2: him a trademark would have the effect of restricting speech

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Speaker 2: by other people who want to use that slogan, and I.

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Speaker 10: Think it's a fair point to make that in effect,

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Speaker 10: by granting the trademark registration here because of the unique

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Speaker 10: category in which it sought. It really does limit other

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Speaker 10: people's free speech because this slogan Trump too small is

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Speaker 10: apparently commonly used by folks who are opposing former President

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Speaker 10: Trump's candidacy.

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Speaker 2: So, Terry, we always say you can't tell from their

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Speaker 2: oral arguments how the Court is going to rule, But

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Speaker 2: it seemed to me that justices across the ideological spectrum

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Speaker 2: we're against giving this phrase trademark protection.

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Speaker 10: I agree with that. My count was that there was

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Speaker 10: a clear majority skeptical of granting registration, and I agree

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Speaker 10: with your comment. It's hard to always read or arguments,

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Speaker 10: but in this case, particularly, the tonalities of the justice's

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Speaker 10: questions really reflect it pretty hardened positions antagonistic to any

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Speaker 10: type of register.

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Speaker 4: This.

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Speaker 10: My count had Justice Thomas, Justice Sodoma or Justice Kagan,

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Speaker 10: and Chief Justice roberts As all skeptical, if not outright

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Speaker 10: saying they were opposed to registration. Here. In addition, I

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Speaker 10: had Justice Gorsich and Alito disagreeing with mister Elster's council

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Speaker 10: on different grounds. They historically are opposed to this notion

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Speaker 10: that trademark confers a government benefit. But my count, that's

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Speaker 10: six justices who seem pretty firmly opposed to registration of

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Speaker 10: this trademark. And I really couldn't count maybe the other

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Speaker 10: justices as being in favor. They just seem to not

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Speaker 10: express an opinion one way or the other. So sick

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Speaker 10: zippy is a pretty good starting point for the government here.

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Speaker 2: So that leads me to the question, how did a

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Speaker 2: unanimous panel of the Federal Circuit allow this trademark?

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Speaker 10: June. We could spend a lot of time on decisions

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Speaker 10: by the Federal Circuit where I practice a lot, by

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Speaker 10: the way, and the level of disrespect according to those

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Speaker 10: decisions by the Spring Court in the United States. True, I mean,

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Speaker 10: the mere fact that this decision came out of the

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Speaker 10: Federal Circuit probably starts off with your points in the

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Speaker 10: government's favor here, because the Supreme Court just doesn't respect

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Speaker 10: decisions most significant decisions coming out of the Federal Circuit.

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Speaker 10: The history of reversal is just phenomenal. And so I mean,

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Speaker 10: those of us who pressed the Federal Circuit regular basis say, okay,

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Speaker 10: you get granted search the orri out of the Federal Circuit,

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Speaker 10: you got a good chance of winning. This is another

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Speaker 10: great example.

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Speaker 2: Thanks so much, Terry. That's Terence Fross of Catain Euchen Rosenman.

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

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Speaker 2: You're listening to a special edition of Bloomberg Law. I'm

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Speaker 2: June Grosso. Now we'll take a look at a case

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Speaker 2: the Supreme Court could here in twenty twenty four involving

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Speaker 2: America's favorite pastimes, the sounds of baseball, not only the

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Speaker 2: national pastime and a more than ten billion dollar industry,

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Speaker 2: but also the only sport in the country that's exempt

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Speaker 2: from the anti trust laws. And now some minor league

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Speaker 2: teams are asking the Supreme Court to eliminate baseball's anti

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Speaker 2: trust exemption. Why, as they put it in one brief enough.

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Speaker 2: Already joining me is anti trust expert Harry First, a

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Speaker 2: professor at NYU Law School. Harry tell us how baseball

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Speaker 2: got this anti trust exemption.

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Speaker 11: Well, this is one of the most reviled exemptions from

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Speaker 11: the point of view of anti trust lawyers unless they

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Speaker 11: represent baseball companies or teams or leagues, and even the

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Speaker 11: courts don't like it. So it came about originally because

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Speaker 11: of a decision in nineteen twenty two by the Supreme

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Speaker 11: Court called federal baseball, and this is an opinion written

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Speaker 11: by Justice Holmes, Oliver Wendell Holmes, distinguished jurists, and it

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Speaker 11: was an effort to actually push out some competing leagues.

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Speaker 11: And Holmes said that, well, any trust laws don't cover this.

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Speaker 11: Baseball is neither commerce nor interstate commerce. It's just sport

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Speaker 11: and it just takes place locally. So even though players

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Speaker 11: even then travel from state to state, and there was

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Speaker 11: a lot of money involved, perhaps Justice Holmes as the

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Speaker 11: Boston Brahmin disdain baseball. It was sort of like us

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Speaker 11: now raised with a certain kind of entertainment reviewing video games?

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Speaker 11: What is that? And is there so much money involved?

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Speaker 11: Are you serious? So maybe that was Polme's reaction. I

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Speaker 11: don't know, But in any event, that was a decision

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Speaker 11: that any trust laws didn't apply. So that's nineteen twenty two.

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Speaker 11: The Supreme Court reaffirmed that decision in case called Toolston

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Speaker 11: in nineteen fifty three involving New York Yankees. My memory

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Speaker 11: is correct, and the Court said, even though the decision

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Speaker 11: was sort of dubious when made, it's now precedent, and

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Speaker 11: all aspects of that decision had been undermined even in

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Speaker 11: the intervening period, the courts had a rather narrow conception

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Speaker 11: of what constituted inter state commerce, perhaps in nineteen twenty two,

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Speaker 11: but it had expanded clearly in the New Deal era,

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Speaker 11: and any trust cases had gone along. And there's no

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Speaker 11: doubt that baseball should have been considered interstate commerce all along,

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Speaker 11: and certainly a business. But the court said in business

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Speaker 11: of baseball is exempt from any trust laws from the Shermanac.

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Speaker 11: And then the third case in this is a case

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Speaker 11: called Flood against Kune. This involved Kurt Flood, who didn't

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Speaker 11: want to be bound by what was called the reserve clause,

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Speaker 11: which prevented players once they were under contract from going

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Speaker 11: to some other team even after the contract was over.

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Speaker 11: And this was an opinion written by Justice Blackman. This

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Speaker 11: goes beyond it put of any trust law. If you

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Speaker 11: teach a course in law school about precedent and the

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Speaker 11: need to follow precedent, you know you would want to

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Speaker 11: teach this opinion because it's a payon to baseball and

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Speaker 11: the greats of baseball and how they flourished under this system.

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Speaker 11: I mean, it was very clear that Harry Blackman was

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Speaker 11: a great baseball fan and loved all these players. And

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Speaker 11: now you come along, Kurt Flood. You're going to challenge

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Speaker 11: the system. Give me a break. You know, everyone prospered,

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Speaker 11: So on the basis of the doctrine of starry decisives,

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Speaker 11: let the decision stand. The Supreme Court refused to overrule

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Speaker 11: Tulsen and Federal Baseball behind it, saying, no, we've had

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Speaker 11: this exemption, this decision too long, no matter what we

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Speaker 11: think of it, legally were bound. Now there's no one

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Speaker 11: who will stand up for this, as I said, except

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Speaker 11: people who represent baseball teams. Now, there is one final

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Speaker 11: little bit of a change, which is Congress passed the

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Speaker 11: law in nineteen ninety eight called the Kirk Floodeck, which

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Speaker 11: took out of the exemption, put back into any trust

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Speaker 11: any contracts involving the employment of major league baseball players

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Speaker 11: at the major league level. So just for major League

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Speaker 11: baseball players like Kurt Flood, that would now be subject

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Speaker 11: to sort of the normal rules of anti trust and

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Speaker 11: labor law for that matter. But these clauses aren't used

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Speaker 11: anymore anyway, so it's sort of in some sense factually irrelevant,

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Speaker 11: but maybe a little legal issue. Congress left everything else

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Speaker 11: that this law doesn't apply to anything else involving baseball. So,

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Speaker 11: in effect, the exemption, which Congress never approved, very different

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Speaker 11: from all other exemptions that we have. Virtually all other exemptions,

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Speaker 11: Congress never approved this one. The exemption continues.

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Speaker 2: Does baseball operate like a monopoly? And is that unlike

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Speaker 2: football or basketball or hockey.

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Speaker 11: So we could argue whether football and hockey and all

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Speaker 11: of those operate like monopolies, separate argument. At least they

440
00:26:04,600 --> 00:26:09,399
Speaker 11: are all subject to the anti trust laws. So all

441
00:26:09,680 --> 00:26:15,560
Speaker 11: sports professional the NCAA, you know, college sports, all sports

442
00:26:15,880 --> 00:26:18,879
Speaker 11: have been subject to the anty trust laws. In the court,

443
00:26:19,640 --> 00:26:26,200
Speaker 11: sport after sport will say, you know, baseball is its

444
00:26:26,240 --> 00:26:31,680
Speaker 11: own thing. You're covered. So they are not free to

445
00:26:31,760 --> 00:26:35,240
Speaker 11: violated any trust laws. Now, whether what they do is

446
00:26:35,400 --> 00:26:38,680
Speaker 11: legal under d any trust laws is another story. And

447
00:26:39,400 --> 00:26:43,160
Speaker 11: your quest is a really good one because in the

448
00:26:43,200 --> 00:26:48,000
Speaker 11: most recent Supreme Court case involving organized sports, which involved

449
00:26:48,080 --> 00:26:53,879
Speaker 11: the NCUBA with NCAA against Allston and the effort of

450
00:26:53,920 --> 00:26:58,240
Speaker 11: the NCAA to suppress the amounts of compensation to quote

451
00:26:58,280 --> 00:27:02,240
Speaker 11: what they like to call student athletes, and basically they

452
00:27:02,240 --> 00:27:04,399
Speaker 11: wanted to argue in the Supreme Court that you should

453
00:27:04,400 --> 00:27:07,200
Speaker 11: really treat us differently, and the Supreme Court wrote, no,

454
00:27:07,320 --> 00:27:09,840
Speaker 11: we're not treating you differently. You don't have any reason to.

455
00:27:10,600 --> 00:27:14,600
Speaker 11: And Justice Gorsuch for the majority sort of dropped a

456
00:27:14,600 --> 00:27:17,880
Speaker 11: little hint about this and mentioned that the Supreme Court

457
00:27:17,880 --> 00:27:21,240
Speaker 11: in the past had balied, this is his words, with

458
00:27:21,280 --> 00:27:25,000
Speaker 11: what looks like an exemption for professional baseball, but we're

459
00:27:25,040 --> 00:27:27,879
Speaker 11: not going to give it to you, folks. So you

460
00:27:28,640 --> 00:27:33,280
Speaker 11: andCA are fully subject to any trust laws, and your

461
00:27:33,359 --> 00:27:37,240
Speaker 11: conduct is subject to any trust laws. So the Court

462
00:27:37,680 --> 00:27:41,159
Speaker 11: seemed to have recognized, as this decided twenty twenty one

463
00:27:41,359 --> 00:27:45,359
Speaker 11: again that baseball is a bit of an aberration.

464
00:27:45,840 --> 00:27:49,119
Speaker 2: In this case, you have minor league teams who are

465
00:27:49,160 --> 00:27:54,320
Speaker 2: eliminated alleging a violation of the Sherman Act caused by

466
00:27:54,320 --> 00:27:58,720
Speaker 2: a horizontal agreement between competitors that has artificially reduced and

467
00:27:58,840 --> 00:28:02,679
Speaker 2: capped output in the market for MLB teams affiliated with

468
00:28:02,840 --> 00:28:06,560
Speaker 2: MLB clubs, and a federal judge dismissed it because of

469
00:28:07,119 --> 00:28:11,720
Speaker 2: the baseball exemption right. Federal Judge Andrew Carter said, plaintiffs

470
00:28:11,720 --> 00:28:14,440
Speaker 2: believe that the Supreme Court is poised to knock out

471
00:28:14,480 --> 00:28:17,720
Speaker 2: the exemption like a boxer waiting to launch a left

472
00:28:17,720 --> 00:28:22,240
Speaker 2: hook after her opponent tosses out a torbid jab it's possible.

473
00:28:22,600 --> 00:28:27,240
Speaker 2: So this would squarely present the baseball exemption to the

474
00:28:27,280 --> 00:28:28,280
Speaker 2: Supreme Court.

475
00:28:28,480 --> 00:28:31,239
Speaker 11: So that's correct, that's what's seeing up the interest at

476
00:28:31,280 --> 00:28:33,720
Speaker 11: the moment. The case went to the Court of Appeals,

477
00:28:33,760 --> 00:28:37,879
Speaker 11: which just sort of summarily agreed with the trial court.

478
00:28:38,240 --> 00:28:41,920
Speaker 11: Great quote that you read there. And now the minor

479
00:28:42,040 --> 00:28:46,720
Speaker 11: league teams who alleged a violation by being excluded from

480
00:28:47,000 --> 00:28:50,440
Speaker 11: an agreement that the majors have made which limits the

481
00:28:50,560 --> 00:28:53,680
Speaker 11: number of minor league teams they can affiliate with, are

482
00:28:53,720 --> 00:28:57,320
Speaker 11: now asking the Supreme Court to take the case. So

483
00:28:57,400 --> 00:29:00,480
Speaker 11: the first question is will they take it? And ssumably

484
00:29:00,520 --> 00:29:03,960
Speaker 11: if the Court takes it, it means that they're interested

485
00:29:04,200 --> 00:29:09,280
Speaker 11: in overruling the three cases that I mentioned. And the

486
00:29:09,320 --> 00:29:14,280
Speaker 11: Supreme Court, you know, doesn't lightly overrule cases.

487
00:29:14,680 --> 00:29:17,320
Speaker 2: Well maybe I should say recently.

488
00:29:18,960 --> 00:29:25,280
Speaker 11: Yeah, And the court has overruled on occasion longstanding any

489
00:29:25,320 --> 00:29:30,000
Speaker 11: trust precedent that parties had followed for many years. The

490
00:29:30,080 --> 00:29:34,000
Speaker 11: case is called Legion, which involved the legality of setting

491
00:29:34,000 --> 00:29:37,560
Speaker 11: resale prices. The Supreme Court overruled an older case which

492
00:29:37,600 --> 00:29:41,880
Speaker 11: had stood for ninety years, even longer than federal baseball.

493
00:29:42,520 --> 00:29:46,480
Speaker 11: So it's possible that the court would would take this case,

494
00:29:46,640 --> 00:29:50,959
Speaker 11: but I would wait to see if the Justice Department

495
00:29:51,160 --> 00:29:55,240
Speaker 11: expresses desire to have the court take the case and

496
00:29:56,000 --> 00:29:58,120
Speaker 11: overrule these other three cases.

497
00:29:58,560 --> 00:30:02,200
Speaker 2: Thanks so much, Harry yusor Harry First of NYU Law School.

498
00:30:02,720 --> 00:30:06,760
Speaker 2: Coming up, Double Jeopardy. I'm June Grosso and this is Bloomberg.

499
00:30:10,240 --> 00:30:15,040
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

500
00:30:15,800 --> 00:30:18,360
Speaker 2: You're listening to a special edition of Bloomberg Law as

501
00:30:18,400 --> 00:30:21,640
Speaker 2: we look back at some high profile Supreme Court cases

502
00:30:21,800 --> 00:30:22,960
Speaker 2: from twenty twenty three.

503
00:30:23,880 --> 00:30:26,640
Speaker 1: They're tough for Louisiana Libby.

504
00:30:27,120 --> 00:30:28,840
Speaker 8: You shoot me, they'll give you the guest cheaper.

505
00:30:29,480 --> 00:30:30,160
Speaker 5: No, they won't.

506
00:30:31,000 --> 00:30:32,200
Speaker 2: It's called double jeopardy.

507
00:30:32,200 --> 00:30:33,480
Speaker 5: I learned a few things in prison.

508
00:30:33,560 --> 00:30:35,680
Speaker 2: Nick I could shoot you in the middle of Marty

509
00:30:35,720 --> 00:30:36,800
Speaker 2: gra and they can't touch me.

510
00:30:37,160 --> 00:30:38,880
Speaker 1: As the next law professor, I can assure you she

511
00:30:39,040 --> 00:30:39,360
Speaker 1: is right.

512
00:30:39,800 --> 00:30:43,320
Speaker 2: The Fifth Amendments double jeopardy clause. We all know about

513
00:30:43,320 --> 00:30:46,280
Speaker 2: it from TV and the movies. So why did Georgia

514
00:30:46,360 --> 00:30:50,880
Speaker 2: prosecutors want to try Damien mckelrath a second time after

515
00:30:50,920 --> 00:30:53,880
Speaker 2: a jury had found him not guilty of the malice

516
00:30:53,960 --> 00:30:57,680
Speaker 2: murder of his adoptive mother by reason of insanity. Well,

517
00:30:57,720 --> 00:31:00,880
Speaker 2: there's a twist. The jury also found on Michail Rath

518
00:31:01,000 --> 00:31:05,240
Speaker 2: guilty though mentally ill, of felony murder and aggravated assault,

519
00:31:05,640 --> 00:31:09,560
Speaker 2: and the Georgia Supreme Court ruled that those inconsistent verdicts

520
00:31:09,680 --> 00:31:12,760
Speaker 2: were illogical and threw them out. But a majority of

521
00:31:12,760 --> 00:31:17,640
Speaker 2: Supreme Court justices across the ideological spectrum seem to agree

522
00:31:17,680 --> 00:31:20,480
Speaker 2: that once a person has been acquitted of a charge,

523
00:31:20,800 --> 00:31:24,560
Speaker 2: the matter is closed. Here's Justice Neil Gorsuch, and.

524
00:31:24,480 --> 00:31:28,080
Speaker 8: We do not ever talk about whether they make sense

525
00:31:28,120 --> 00:31:31,880
Speaker 8: to us. They may be products of compromise, they may

526
00:31:31,880 --> 00:31:36,320
Speaker 8: be inconsistent with verdicts on other counts. We don't question them.

527
00:31:36,560 --> 00:31:39,120
Speaker 8: And if this is a first time this issue has

528
00:31:39,120 --> 00:31:40,560
Speaker 8: arisen here, shouldn't that tell us?

529
00:31:40,560 --> 00:31:44,040
Speaker 2: Something joining me? Is former federal prosecutor George Newhouse of

530
00:31:44,160 --> 00:31:47,960
Speaker 2: Richard's Carrington. George tell us about these inconsistent verdicts.

531
00:31:48,200 --> 00:31:51,800
Speaker 6: So the basic facts are a delusional defendant believed that

532
00:31:51,840 --> 00:31:54,720
Speaker 6: his mother was trying to poison him and as a result,

533
00:31:54,800 --> 00:31:57,000
Speaker 6: stamped her to death. Called nine to eleven full of

534
00:31:57,040 --> 00:31:59,720
Speaker 6: the dispatcher what he'd done and why he was right

535
00:31:59,760 --> 00:32:02,640
Speaker 6: to have done it. He went to trial on three counts,

536
00:32:02,680 --> 00:32:04,240
Speaker 6: by the way, and that's where this comes up to

537
00:32:04,280 --> 00:32:07,560
Speaker 6: the three separate charges. The first one under Georgia law

538
00:32:07,600 --> 00:32:10,120
Speaker 6: is called ballae of murder, which is equivalent to a

539
00:32:10,160 --> 00:32:12,920
Speaker 6: first degree murdered, always the most serious charge, the one

540
00:32:12,960 --> 00:32:15,880
Speaker 6: that typically can carry him capital punishment. And then there

541
00:32:15,920 --> 00:32:19,160
Speaker 6: were two other counts, a felony murder rule, which means

542
00:32:19,160 --> 00:32:22,240
Speaker 6: that he killed someone in connection with committing a felony,

543
00:32:22,280 --> 00:32:24,840
Speaker 6: in this case, an aggravated assault, and so the third

544
00:32:24,960 --> 00:32:28,320
Speaker 6: charge was aggravated assault. You might ask why to prosecutors

545
00:32:28,320 --> 00:32:31,720
Speaker 6: bring three separate charges when one act occurred a killing,

546
00:32:31,840 --> 00:32:34,560
Speaker 6: And they do that because sometimes they want to present

547
00:32:34,600 --> 00:32:37,400
Speaker 6: the jury with the option of convicting on a lesser

548
00:32:37,560 --> 00:32:39,920
Speaker 6: offense if they think they might have a problem with

549
00:32:40,000 --> 00:32:42,480
Speaker 6: the principal offense. And that's exactly what happened here. The

550
00:32:42,560 --> 00:32:46,479
Speaker 6: jury deliberated and the defense was he was insane, so

551
00:32:46,520 --> 00:32:49,080
Speaker 6: he lacked the criminal in Kent to commit murder, and

552
00:32:49,120 --> 00:32:52,040
Speaker 6: the jury deliberated and found him not guilty by reason

553
00:32:52,080 --> 00:32:54,920
Speaker 6: of insanity on the first count, saying he was crazy,

554
00:32:55,120 --> 00:32:57,960
Speaker 6: but on counts two and three, the felony murder and

555
00:32:58,000 --> 00:33:00,720
Speaker 6: the aggravated assault. The jury found that he was sane

556
00:33:00,880 --> 00:33:03,440
Speaker 6: and convicted him. The State of Georgia, unhappy with that,

557
00:33:03,920 --> 00:33:06,120
Speaker 6: went to the court and said, well, we need a

558
00:33:06,160 --> 00:33:10,160
Speaker 6: new trial because these verdicts are logically inconsistent. You can't

559
00:33:10,200 --> 00:33:13,320
Speaker 6: be crazy on one count, the worst count, but sayings

560
00:33:13,400 --> 00:33:15,080
Speaker 6: on the other counts, And that went all the way

561
00:33:15,120 --> 00:33:17,720
Speaker 6: to the Georgia Supreme Court, which agreed. The court said

562
00:33:17,920 --> 00:33:21,200
Speaker 6: the verdicts on these two different counts are logically repugnant,

563
00:33:21,240 --> 00:33:24,600
Speaker 6: and as a result it vacated the not guilty verdict

564
00:33:24,760 --> 00:33:27,280
Speaker 6: and told the state that they are free to retry him.

565
00:33:27,320 --> 00:33:29,320
Speaker 6: And that's what went up to the Supreme Court whether

566
00:33:29,360 --> 00:33:32,480
Speaker 6: there should be an exception to the double jeopardy clause,

567
00:33:32,600 --> 00:33:36,800
Speaker 6: and the exception would allow if the verdicts were logically inconsistent,

568
00:33:37,000 --> 00:33:40,160
Speaker 6: which jury verdicts are, by the way, frequently, they'd be

569
00:33:40,160 --> 00:33:40,880
Speaker 6: allowed to retry.

570
00:33:40,920 --> 00:33:45,440
Speaker 2: In this and justice course, it seemed particularly fervent about

571
00:33:45,920 --> 00:33:48,280
Speaker 2: respecting the jury's verdict of acquittal.

572
00:33:48,640 --> 00:33:50,720
Speaker 6: The rule in this country for the last two hundred

573
00:33:50,720 --> 00:33:53,640
Speaker 6: and thirty years of justice courses pointed out, is you

574
00:33:53,760 --> 00:33:56,560
Speaker 6: only get one chance, and if that jury verdict comes back,

575
00:33:56,720 --> 00:33:59,880
Speaker 6: I'm not guilty, there can be no retrial. We don't.

576
00:34:00,240 --> 00:34:04,640
Speaker 6: The court system does not second guests acquittals. So for example,

577
00:34:04,880 --> 00:34:08,520
Speaker 6: if the acquittal is based upon what's called jury nullification,

578
00:34:08,640 --> 00:34:12,120
Speaker 6: they simply ignore the evidence. Where that verdict is illogically

579
00:34:12,160 --> 00:34:15,319
Speaker 6: inconsistent between two different counts, the court system is not

580
00:34:15,440 --> 00:34:18,600
Speaker 6: allowed to second guess that. What usually happens, probably happened

581
00:34:18,600 --> 00:34:22,120
Speaker 6: in this case was the inconsistent verdicts were product of compromise.

582
00:34:22,640 --> 00:34:25,759
Speaker 6: Justice courses to address that. They may be products of compromise,

583
00:34:25,840 --> 00:34:29,439
Speaker 6: they may be inconsistent with other verdicts. We Justice Courses said,

584
00:34:29,480 --> 00:34:32,400
Speaker 6: the court system does not question those verdicts, and that

585
00:34:32,480 --> 00:34:34,360
Speaker 6: has been the law in this country for two hundred

586
00:34:34,360 --> 00:34:37,120
Speaker 6: and thirty years. Inconsistent verdicts happen all the time. I

587
00:34:37,160 --> 00:34:40,040
Speaker 6: tried one as a prosecutor, and the judge said, well,

588
00:34:40,239 --> 00:34:43,000
Speaker 6: we have two verdicts. One is inconsistent with the other,

589
00:34:43,120 --> 00:34:45,680
Speaker 6: and the case is finished, so double jeopardy apply.

590
00:34:46,160 --> 00:34:50,040
Speaker 2: Thanks George, that's George Newhouse of Richard's Carrington. Thanks for

591
00:34:50,080 --> 00:34:53,560
Speaker 2: listening to this special edition of Bloomberg Law on Bloomberg Radio.

592
00:34:53,880 --> 00:34:57,160
Speaker 2: I'm June Grosso. Stay with US today's top stories and

593
00:34:57,280 --> 00:35:00,160
Speaker 2: global business headlines are coming up right now now,