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Speaker 1: Miss and analysis of important legal issues, cases and headlines
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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Welcome to a special edition of the Bloomberg Law Show.
Speaker 2: I'm June Grosso. Ahead in this hour, we'll look at
Speaker 2: some of the high profile cases the Supreme Court heard
Speaker 2: in twenty twenty three and one they might hear in
Speaker 2: twenty twenty four. We'll discuss double Jeopardy, trademarks and baseball's
Speaker 2: antitrust exemption. All that's ahead, But first make.
Speaker 3: Sure that every ring, single justice up in that court
Speaker 3: knows we are here, we are watching, and we demand
Speaker 3: that they put our lives over the interests of the
Speaker 3: gun lobby.
Speaker 2: Hundreds of protesters took to the Supreme Court this fall
Speaker 2: to support the federal ban on domestic abusers having guns,
Speaker 2: and inside, the justices seem to agree, suggesting during oral
Speaker 2: arguments that they'll preserve the ban and it didn't even
Speaker 2: seem like a hard issue. Both liberals and conservatives sounded
Speaker 2: persuaded that the ban is in line with the long
Speaker 2: standing practice of disarming dangerous people, and the defendant undoubtedly
Speaker 2: fit in that category. Here's Chief Justice John Roberts questioning
Speaker 2: his attorney.
Speaker 4: You don't have any doubt that your client's a dangerous person,
Speaker 4: do you.
Speaker 2: I would want to know what dangerous person means.
Speaker 4: That's iding someone who's shooting at people. That's a good start.
Speaker 2: My guest, is Second Amendment expert Adam Winkler, a professor
Speaker 2: at UCLA Law School. Let's start with the big question.
Speaker 2: Did it seem like justices across the board were inclined
Speaker 2: to uphold this federal gun ban.
Speaker 5: It did. It felt very one sided in the Supreme Court,
Speaker 5: and it felt like almost all the justices, if not
Speaker 5: all the justices, were inclined to uphold the federal ban
Speaker 5: in this case.
Speaker 2: This is the first test of last year's ruling in
Speaker 2: Bruin that established a constitutional right to carry a handgun
Speaker 2: in public. So in order to understand it, I think
Speaker 2: we have to take a look at the historical analysis
Speaker 2: test established in Bruin that's caused so much confusion in
Speaker 2: the lower courts and led to them striking down gun
Speaker 2: control laws that have been on the books for decades.
Speaker 2: So tell us about that test, Adam.
Speaker 5: In the Bruin case, Justice Thomas's majority opinion said that
Speaker 5: for gun laws to be constitutional and permissible today, they
Speaker 5: must have historical analogs in the seventeen and eighteen hundreds
Speaker 5: when Second Amendment was adopted and the Fourteenth Amendment was adopted,
Speaker 5: incorporating the Second Amendment to apply.
Speaker 6: To the states.
Speaker 5: As a result, courts have really struggled over the last
Speaker 5: year or so trying to find gun laws back in
Speaker 5: those days that are sufficiently analogous to many common sense,
Speaker 5: mainstream gun laws that we have today. Truth be told,
Speaker 5: many of our gun laws are kind of twentieth century inventions,
Speaker 5: bans on felons possessing firearms, bans on the mentally ill
Speaker 5: possessing firearms, and the issue into this case ban on
Speaker 5: domestic abusers possessing firearms. These are laws that don't have
Speaker 5: any obvious analog in the seventeen and eighteen hundreds, and
Speaker 5: so this law was struck down by the Fifth Circuit,
Speaker 5: just like courts around the country have been striking down
Speaker 5: gun laws for lack of a clear historical precedent.
Speaker 2: So then how did the justices get around that lack
Speaker 2: of a clear historical precedent and all end up seemingly
Speaker 2: in favor of this bank.
Speaker 5: First of all, I think it's important to know what
Speaker 5: Elizabeth Proligar, the Flicitor General, began her oral argument with
Speaker 5: by noting the statistics that show that domestic abusers with
Speaker 5: firearms are an incredibly deadly mix, and that forty eight
Speaker 5: states and the federal government have prohibited domestic abusers from
Speaker 5: possessing firearms, showing that what she intended to do was
Speaker 5: not just rely on the history and tradition, but on
Speaker 5: the common sense idea that some people are too dangerous
Speaker 5: to have firearms. But the court seemed to be inclined
Speaker 5: to do is allow the government to frame their gun
Speaker 5: laws at a higher level of generality. You don't have
Speaker 5: to show that there's a history and tradition of domestic
Speaker 5: abusers being prohibited from possessing firearms, and of course there
Speaker 5: isn't a long history and tradition of that, but maybe
Speaker 5: you could show that there's a history and tradition of
Speaker 5: prohibiting dangerous people from possessing firearms, and domestic abusers are
Speaker 5: just a modern day understanding of people who are just
Speaker 5: too dangerous to have come.
Speaker 2: Did the Liberal justice does seem like they wanted to
Speaker 2: use this case to revisit that history based test. Here's
Speaker 2: Justice Katanji Brown Jackson.
Speaker 7: What's the point of going to the founding era? I mean,
Speaker 7: I thought it was doing some work, but if we're
Speaker 7: still applying modern sensibilities, I don't really understand the historical framing.
Speaker 5: It did seem like she was pressing that it's very
Speaker 5: hard to defend this domestic violence abuser ban when people
Speaker 5: are subject to a restraining order in light of the
Speaker 5: history and tradition of which that the Bruin Court offered.
Speaker 5: Although Bruin said that you should look for analogous laws,
Speaker 5: I think that at the end of the day, the
Speaker 5: government is hard pressed to draw a very close analogy. Instead,
Speaker 5: the analogies are very General and didn't exactly apply on point.
Speaker 2: Did a majority of the conservative justices seem to want
Speaker 2: to limit any decision to the facts here? Justice Neil
Speaker 2: Gorsitch said at one point, do we need to get
Speaker 2: into any of that?
Speaker 5: It did seem like several was a this is, including
Speaker 5: Justices Gorsich, Thomas, and Alito. We're looking for ways to
Speaker 5: narrow the consequence of ruling against Rahemi in this case
Speaker 5: and in favor of upholding the law, talking about whether
Speaker 5: there might be different as applied challenges that someone could bring,
Speaker 5: or whether there might be some common law defenses that
Speaker 5: one could bring to a charge that one was possessing
Speaker 5: a firearm illegally in violation of the domestic violence restraining order,
Speaker 5: and several of the justices released. Justice Alito expressed some
Speaker 5: discomfort with the idea that these domestic violence restraining orders
Speaker 5: could be very long lasting and yet don't have very
Speaker 5: serious procedural requirements that correspond with broad notions of due process.
Speaker 2: Perhaps, the Solicitor General said the Court should use the
Speaker 2: present case to give more guidance to the lower courts
Speaker 2: and to correct lower courts quote profound misreading of the
Speaker 2: bruined decision. Do you think we'll get any major statements
Speaker 2: out of this ruling.
Speaker 5: I think that's going to be one of the big questions.
Speaker 5: Is this a really narrow ruling that just cobbles together
Speaker 5: a majority, or is it an opinion that will provide
Speaker 5: more guidance to the lower courts. Justice Kagan specifically asked
Speaker 5: about that and about the necessity, and the Solicitener General
Speaker 5: had a very clear and precise answer that there were
Speaker 5: three errors being committed by the lower courts. They were
Speaker 5: only looking to regulation and not looking to other historical sources.
Speaker 5: They were looking at regulation, but we're really looking for
Speaker 5: twins rather than for historical analogs. And also that the
Speaker 5: absence of regulation should not always be read against the government,
Speaker 5: especially when a problem like domestic violence was not really
Speaker 5: thought of as a problem back then.
Speaker 2: So I admit that I find this historical analysis test
Speaker 2: with Second Amendment cases just bordering on ridiculous. Were there
Speaker 2: any clues as to whether the Conservatives remained behind the
Speaker 2: historical analysis that Thomas put in place.
Speaker 5: Well, I think that the Solicitor General made a very
Speaker 5: strategic choice not to challenge the history and tradition test
Speaker 5: of Bruin but instead seek to, if anything, recapture its fluidity,
Speaker 5: its ability to be useful to uphold laws, not just
Speaker 5: to strike down laws. And so she was not asking
Speaker 5: the court to abandon the history and tradition test. Rather,
Speaker 5: she was saying that the lower courts have been misapplying
Speaker 5: that test, and that to capture the true essence of
Speaker 5: that test means that you should approach the issue the
Speaker 5: way she did, at a slightly higher level of generality,
Speaker 5: focusing on dangerousness rather than looking for historical precedence of
Speaker 5: domestic abusers being prohibited access to firearms.
Speaker 2: If you had to guess, would you guess that it's
Speaker 2: going to be a limited opinion or a broader opinion.
Speaker 5: If you were to guess, I would say this is
Speaker 5: likely to be a nine to nothing, maybe eight to
Speaker 5: one or seven to two opinion. And I think because
Speaker 5: of that, the larger the majority, the less likely it
Speaker 5: is to be very far reaching. That it may be
Speaker 5: one of these cases that gets assigned to Justice Gorsich
Speaker 5: to just do as little damage as possible to the
Speaker 5: bruined test. But I do think that it's no matter
Speaker 5: how big the majority is to uphold the federal law here.
Speaker 5: If indeed, the Court does uphold the federal law here,
Speaker 5: it will be very good news for gun safety reform advocates.
Speaker 5: They've been struggling to defend gun laws in courts, bans
Speaker 5: on guns without serial numbers, bans on assault weapons. So
Speaker 5: if the court does move to this higher level of
Speaker 5: generality it says that government can prohibit people who are
Speaker 5: dangerous from having firearms, it would provide a basis for
Speaker 5: defending a lot of our core gun laws that we
Speaker 5: really rely on in modern twenty first century America.
Speaker 2: And Adam, we also saw that the Supreme Court agreed
Speaker 2: to decide the fate of the federal criminal ban on
Speaker 2: bump stocks, the attachments that let a semi automatic rifle
Speaker 2: fire much like a machine gun. What do you make
Speaker 2: of that? Do you make anything of it?
Speaker 3: No?
Speaker 5: I don't make much of it. I think that is
Speaker 5: really an administrative law case, and it's about wh the
Speaker 5: administrative agency went too far in interpreting its powers under
Speaker 5: the Gun Control Act and other federal statutes that regulate firearms.
Speaker 5: And so I think that although they both deal with
Speaker 5: firearms regulation, both these cases they're very different. One's the
Speaker 5: Second Amendment case that's going to be decided on Second
Speaker 5: Amendment grounds and have huge impact on how other Second
Speaker 5: Amendment cases are handled. Whatever the Court does on the
Speaker 5: bump stocks will be much more important for administrative law
Speaker 5: and the scope of administrative agency authority under the Constitution.
Speaker 2: A lot of administrative law cases this term. Thanks so much,
Speaker 2: Adam Best, Professor Adam Winkler of UCLA Law School. A note.
Speaker 2: Michael Bloomberg, the founder majority owner of Bloomberg LP, the
Speaker 2: parent of Bloomberg Radio, is a donor to groups that
Speaker 2: support gun control, including every Town for Gun Safety. Coming
Speaker 2: up the fight to trademark Trump too Small. I'm June
Speaker 2: Grosso and this is Bloomberg.
Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: You're listening to a special edition of Bloomberg Law as
Speaker 2: we look back at some of the high profile Supreme
Speaker 2: Court cases last year and look ahead to twenty twenty four.
Speaker 2: I'm June Grosso.
Speaker 1: He's always call me Marco.
Speaker 3: And he's hollow me like sixty two, which is why
Speaker 3: I don't understand.
Speaker 1: Well, he's hands five two.
Speaker 8: Have send for hitmans.
Speaker 2: I've never heard of this one.
Speaker 1: Look at those hands? Are they small?
Speaker 9: Hands.
Speaker 2: You may remember in the early days of the twenty
Speaker 2: sixteen presidential election when former President Donald Trump and Florida
Speaker 2: Senator Marco Rubio were engaged in some locker room talk
Speaker 2: over the size of Trump's hands. Now it's part of
Speaker 2: the case before the Supreme Court. Attorney Steve Elster says
Speaker 2: he has a free speech right to trademark the phrase
Speaker 2: trump too small to use on T shirts. The US
Speaker 2: Patent and Trademark Office disagreed, and it appears that the
Speaker 2: Supreme Court also disagrees. At oral arguments. On Wednesday, Justice
Speaker 2: Is Across the ideological divide suggested that denying Elster a
Speaker 2: trademark for the phrase does not violate his free speech
Speaker 2: rights for a host of reasons. Justice Katanji Brown Jackson
Speaker 2: discussed the point of trademark.
Speaker 7: Law, and trademark is not about expression. Trademark is not
Speaker 7: about the First Amendment in your and people's ability to speak.
Speaker 7: Trademark is about source identifying and preventing consumer confusion.
Speaker 2: Justice Sonya Sotomayor said that not getting a trademark does
Speaker 2: not infringe on his.
Speaker 9: Speech because you're not talking about stopping the speech. You're
Speaker 9: talking about not receiving government protection for activity that you
Speaker 9: would like to heighten protection for doesn't stop you from selling.
Speaker 9: It doesn't stop you from selling anywhere as much as
Speaker 9: you want.
Speaker 2: Justice Neil Gorzich pointed to history.
Speaker 8: But at the end of the day, it's pretty hard
Speaker 8: to argue that a tradition that's been around a long
Speaker 8: long time since the founding, you know, common law type stuff,
Speaker 8: is inconsistent with the First Amendment.
Speaker 2: And the Chief Justice said that giving him a trademark
Speaker 2: would have the effect of restricting the speech of other people.
Speaker 4: Because the whole point of the trademark, of course, is
Speaker 4: to prevent other people from doing the same thing. So
Speaker 4: if you win the slogan trump too small or whatever,
Speaker 4: other people can't use it. Right.
Speaker 2: The case revolves around a section of the LANIMAC that
Speaker 2: requires written consent to use the name of a living
Speaker 2: person in a trademark. Joining me to help explain it
Speaker 2: all is intellectual property litigator Terrence Ross, a partner at
Speaker 2: Katon Muchen Rosenman Terry tell us about the procedural background
Speaker 2: of this case.
Speaker 10: Mister Elsert thought trademark registration from the United States Trademark
Speaker 10: Office and the Trademark Examiner handling the application denied it
Speaker 10: as a violation of the landam Act, which is the
Speaker 10: trademark lause. Mister Elster then appealed within the Trademark Office,
Speaker 10: which confirmed the denial, and mister Elster took it to
Speaker 10: the United States Court of Appeals for the Federal Circuit
Speaker 10: here in DC. The Federal Circuit unanimously reversed the decision
Speaker 10: of the Trademark Office on constitutional grounds. It found that,
Speaker 10: at least as applied in this case, section ten point
Speaker 10: fifty two sea of the Landom Act was unconstitutional in
Speaker 10: light of the First Amendment, and the Trademark Office decided
Speaker 10: that this was important enough to appeal to the Supreme
Speaker 10: Court of United States.
Speaker 2: Elster's lawyer told the court that the government's sole interest
Speaker 2: in denying the trademark is protecting the feelings of famous people,
Speaker 2: but that's not a legitimate reason to burden protected speech.
Speaker 2: How did his arguments strike you? It sort of struck
Speaker 2: me as being weak in many ways.
Speaker 10: I thought it was extraordinarily weak. My reaction was that
Speaker 10: mister Elistair's counsel did not do a very good job.
Speaker 10: It was pointed out in the press that this was
Speaker 10: his very first argument to the Supreme Court, but quite
Speaker 10: frankly came across as a first a pallid argument at
Speaker 10: a sword. And indeed his response to this question was
Speaker 10: really a hail mary, because he was unable to answer
Speaker 10: a previous question from Justice Kagan. Justice Kagan had asked
Speaker 10: him for any case that he could think of in
Speaker 10: which the conveying of a government benefit in a position
Speaker 10: neutral viewpoint had been held to be unconstitutional. You know,
Speaker 10: it was crickets in the room.
Speaker 2: He had nothing, nothing except maybe a sinking feeling.
Speaker 10: Yeah, when just so Maior asked this, he went for
Speaker 10: his press conference sound bite, which was, Oh, we can't
Speaker 10: be protecting the feelings of famous people. Oh you know,
Speaker 10: that's actually not what this statute is about. And it
Speaker 10: helps sometimes to read the actual wording of a statute.
Speaker 10: Here fifteen Usc. Ten to fifty to see essentially bars
Speaker 10: registration of a trademark. That quote consists of, or comprises
Speaker 10: a name, portrait, or signature identifying a particular living individual
Speaker 10: except by his written consent. This applies to everybody, applies
Speaker 10: to you, applies to me, applies to the listeners. A
Speaker 10: living person's name and legs can't be used to promote
Speaker 10: another product, and this is fundamental to trademark LOK. Going
Speaker 10: back into the common law is known as passing off,
Speaker 10: you know, its claiming that some famous person had blessed
Speaker 10: this product or was associated with it. And so it
Speaker 10: was very much sort of an absurd response to Justice
Speaker 10: Sodoma Org and really reflected a core problem with their argument,
Speaker 10: which Justice Thomas identified quickly. He asked just straight out
Speaker 10: what's the burden on free speech here, and really didn't
Speaker 10: get an answer because simple fact that, as you said,
Speaker 10: you people are already using the slogan everywhere. The fact
Speaker 10: that you don't get registration does not mean you can't
Speaker 10: use the slogan, and mister Elster himself has already been
Speaker 10: using it. All it means is that he's been denied
Speaker 10: the benefit of registration, which is the ability to exclude,
Speaker 10: in certain circumstances, third parties from using his slogan.
Speaker 2: And the Chief Justice John Roberts pointed out that giving
Speaker 2: him a trademark would have the effect of restricting speech
Speaker 2: by other people who want to use that slogan, and I.
Speaker 10: Think it's a fair point to make that in effect,
Speaker 10: by granting the trademark registration here because of the unique
Speaker 10: category in which it sought. It really does limit other
Speaker 10: people's free speech because this slogan Trump too small is
Speaker 10: apparently commonly used by folks who are opposing former President
Speaker 10: Trump's candidacy.
Speaker 2: So, Terry, we always say you can't tell from their
Speaker 2: oral arguments how the Court is going to rule, But
Speaker 2: it seemed to me that justices across the ideological spectrum
Speaker 2: we're against giving this phrase trademark protection.
Speaker 10: I agree with that. My count was that there was
Speaker 10: a clear majority skeptical of granting registration, and I agree
Speaker 10: with your comment. It's hard to always read or arguments,
Speaker 10: but in this case, particularly, the tonalities of the justice's
Speaker 10: questions really reflect it pretty hardened positions antagonistic to any
Speaker 10: type of register.
Speaker 4: This.
Speaker 10: My count had Justice Thomas, Justice Sodoma or Justice Kagan,
Speaker 10: and Chief Justice roberts As all skeptical, if not outright
Speaker 10: saying they were opposed to registration. Here. In addition, I
Speaker 10: had Justice Gorsich and Alito disagreeing with mister Elster's council
Speaker 10: on different grounds. They historically are opposed to this notion
Speaker 10: that trademark confers a government benefit. But my count, that's
Speaker 10: six justices who seem pretty firmly opposed to registration of
Speaker 10: this trademark. And I really couldn't count maybe the other
Speaker 10: justices as being in favor. They just seem to not
Speaker 10: express an opinion one way or the other. So sick
Speaker 10: zippy is a pretty good starting point for the government here.
Speaker 2: So that leads me to the question, how did a
Speaker 2: unanimous panel of the Federal Circuit allow this trademark?
Speaker 10: June. We could spend a lot of time on decisions
Speaker 10: by the Federal Circuit where I practice a lot, by
Speaker 10: the way, and the level of disrespect according to those
Speaker 10: decisions by the Spring Court in the United States. True, I mean,
Speaker 10: the mere fact that this decision came out of the
Speaker 10: Federal Circuit probably starts off with your points in the
Speaker 10: government's favor here, because the Supreme Court just doesn't respect
Speaker 10: decisions most significant decisions coming out of the Federal Circuit.
Speaker 10: The history of reversal is just phenomenal. And so I mean,
Speaker 10: those of us who pressed the Federal Circuit regular basis say, okay,
Speaker 10: you get granted search the orri out of the Federal Circuit,
Speaker 10: you got a good chance of winning. This is another
Speaker 10: great example.
Speaker 2: Thanks so much, Terry. That's Terence Fross of Catain Euchen Rosenman.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: You're listening to a special edition of Bloomberg Law. I'm
Speaker 2: June Grosso. Now we'll take a look at a case
Speaker 2: the Supreme Court could here in twenty twenty four involving
Speaker 2: America's favorite pastimes, the sounds of baseball, not only the
Speaker 2: national pastime and a more than ten billion dollar industry,
Speaker 2: but also the only sport in the country that's exempt
Speaker 2: from the anti trust laws. And now some minor league
Speaker 2: teams are asking the Supreme Court to eliminate baseball's anti
Speaker 2: trust exemption. Why, as they put it in one brief enough.
Speaker 2: Already joining me is anti trust expert Harry First, a
Speaker 2: professor at NYU Law School. Harry tell us how baseball
Speaker 2: got this anti trust exemption.
Speaker 11: Well, this is one of the most reviled exemptions from
Speaker 11: the point of view of anti trust lawyers unless they
Speaker 11: represent baseball companies or teams or leagues, and even the
Speaker 11: courts don't like it. So it came about originally because
Speaker 11: of a decision in nineteen twenty two by the Supreme
Speaker 11: Court called federal baseball, and this is an opinion written
Speaker 11: by Justice Holmes, Oliver Wendell Holmes, distinguished jurists, and it
Speaker 11: was an effort to actually push out some competing leagues.
Speaker 11: And Holmes said that, well, any trust laws don't cover this.
Speaker 11: Baseball is neither commerce nor interstate commerce. It's just sport
Speaker 11: and it just takes place locally. So even though players
Speaker 11: even then travel from state to state, and there was
Speaker 11: a lot of money involved, perhaps Justice Holmes as the
Speaker 11: Boston Brahmin disdain baseball. It was sort of like us
Speaker 11: now raised with a certain kind of entertainment reviewing video games?
Speaker 11: What is that? And is there so much money involved?
Speaker 11: Are you serious? So maybe that was Polme's reaction. I
Speaker 11: don't know, But in any event, that was a decision
Speaker 11: that any trust laws didn't apply. So that's nineteen twenty two.
Speaker 11: The Supreme Court reaffirmed that decision in case called Toolston
Speaker 11: in nineteen fifty three involving New York Yankees. My memory
Speaker 11: is correct, and the Court said, even though the decision
Speaker 11: was sort of dubious when made, it's now precedent, and
Speaker 11: all aspects of that decision had been undermined even in
Speaker 11: the intervening period, the courts had a rather narrow conception
Speaker 11: of what constituted inter state commerce, perhaps in nineteen twenty two,
Speaker 11: but it had expanded clearly in the New Deal era,
Speaker 11: and any trust cases had gone along. And there's no
Speaker 11: doubt that baseball should have been considered interstate commerce all along,
Speaker 11: and certainly a business. But the court said in business
Speaker 11: of baseball is exempt from any trust laws from the Shermanac.
Speaker 11: And then the third case in this is a case
Speaker 11: called Flood against Kune. This involved Kurt Flood, who didn't
Speaker 11: want to be bound by what was called the reserve clause,
Speaker 11: which prevented players once they were under contract from going
Speaker 11: to some other team even after the contract was over.
Speaker 11: And this was an opinion written by Justice Blackman. This
Speaker 11: goes beyond it put of any trust law. If you
Speaker 11: teach a course in law school about precedent and the
Speaker 11: need to follow precedent, you know you would want to
Speaker 11: teach this opinion because it's a payon to baseball and
Speaker 11: the greats of baseball and how they flourished under this system.
Speaker 11: I mean, it was very clear that Harry Blackman was
Speaker 11: a great baseball fan and loved all these players. And
Speaker 11: now you come along, Kurt Flood. You're going to challenge
Speaker 11: the system. Give me a break. You know, everyone prospered,
Speaker 11: So on the basis of the doctrine of starry decisives,
Speaker 11: let the decision stand. The Supreme Court refused to overrule
Speaker 11: Tulsen and Federal Baseball behind it, saying, no, we've had
Speaker 11: this exemption, this decision too long, no matter what we
Speaker 11: think of it, legally were bound. Now there's no one
Speaker 11: who will stand up for this, as I said, except
Speaker 11: people who represent baseball teams. Now, there is one final
Speaker 11: little bit of a change, which is Congress passed the
Speaker 11: law in nineteen ninety eight called the Kirk Floodeck, which
Speaker 11: took out of the exemption, put back into any trust
Speaker 11: any contracts involving the employment of major league baseball players
Speaker 11: at the major league level. So just for major League
Speaker 11: baseball players like Kurt Flood, that would now be subject
Speaker 11: to sort of the normal rules of anti trust and
Speaker 11: labor law for that matter. But these clauses aren't used
Speaker 11: anymore anyway, so it's sort of in some sense factually irrelevant,
Speaker 11: but maybe a little legal issue. Congress left everything else
Speaker 11: that this law doesn't apply to anything else involving baseball. So,
Speaker 11: in effect, the exemption, which Congress never approved, very different
Speaker 11: from all other exemptions that we have. Virtually all other exemptions,
Speaker 11: Congress never approved this one. The exemption continues.
Speaker 2: Does baseball operate like a monopoly? And is that unlike
Speaker 2: football or basketball or hockey.
Speaker 11: So we could argue whether football and hockey and all
Speaker 11: of those operate like monopolies, separate argument. At least they
Speaker 11: are all subject to the anti trust laws. So all
Speaker 11: sports professional the NCAA, you know, college sports, all sports
Speaker 11: have been subject to the anty trust laws. In the court,
Speaker 11: sport after sport will say, you know, baseball is its
Speaker 11: own thing. You're covered. So they are not free to
Speaker 11: violated any trust laws. Now, whether what they do is
Speaker 11: legal under d any trust laws is another story. And
Speaker 11: your quest is a really good one because in the
Speaker 11: most recent Supreme Court case involving organized sports, which involved
Speaker 11: the NCUBA with NCAA against Allston and the effort of
Speaker 11: the NCAA to suppress the amounts of compensation to quote
Speaker 11: what they like to call student athletes, and basically they
Speaker 11: wanted to argue in the Supreme Court that you should
Speaker 11: really treat us differently, and the Supreme Court wrote, no,
Speaker 11: we're not treating you differently. You don't have any reason to.
Speaker 11: And Justice Gorsuch for the majority sort of dropped a
Speaker 11: little hint about this and mentioned that the Supreme Court
Speaker 11: in the past had balied, this is his words, with
Speaker 11: what looks like an exemption for professional baseball, but we're
Speaker 11: not going to give it to you, folks. So you
Speaker 11: andCA are fully subject to any trust laws, and your
Speaker 11: conduct is subject to any trust laws. So the Court
Speaker 11: seemed to have recognized, as this decided twenty twenty one
Speaker 11: again that baseball is a bit of an aberration.
Speaker 2: In this case, you have minor league teams who are
Speaker 2: eliminated alleging a violation of the Sherman Act caused by
Speaker 2: a horizontal agreement between competitors that has artificially reduced and
Speaker 2: capped output in the market for MLB teams affiliated with
Speaker 2: MLB clubs, and a federal judge dismissed it because of
Speaker 2: the baseball exemption right. Federal Judge Andrew Carter said, plaintiffs
Speaker 2: believe that the Supreme Court is poised to knock out
Speaker 2: the exemption like a boxer waiting to launch a left
Speaker 2: hook after her opponent tosses out a torbid jab it's possible.
Speaker 2: So this would squarely present the baseball exemption to the
Speaker 2: Supreme Court.
Speaker 11: So that's correct, that's what's seeing up the interest at
Speaker 11: the moment. The case went to the Court of Appeals,
Speaker 11: which just sort of summarily agreed with the trial court.
Speaker 11: Great quote that you read there. And now the minor
Speaker 11: league teams who alleged a violation by being excluded from
Speaker 11: an agreement that the majors have made which limits the
Speaker 11: number of minor league teams they can affiliate with, are
Speaker 11: now asking the Supreme Court to take the case. So
Speaker 11: the first question is will they take it? And ssumably
Speaker 11: if the Court takes it, it means that they're interested
Speaker 11: in overruling the three cases that I mentioned. And the
Speaker 11: Supreme Court, you know, doesn't lightly overrule cases.
Speaker 2: Well maybe I should say recently.
Speaker 11: Yeah, And the court has overruled on occasion longstanding any
Speaker 11: trust precedent that parties had followed for many years. The
Speaker 11: case is called Legion, which involved the legality of setting
Speaker 11: resale prices. The Supreme Court overruled an older case which
Speaker 11: had stood for ninety years, even longer than federal baseball.
Speaker 11: So it's possible that the court would would take this case,
Speaker 11: but I would wait to see if the Justice Department
Speaker 11: expresses desire to have the court take the case and
Speaker 11: overrule these other three cases.
Speaker 2: Thanks so much, Harry yusor Harry First of NYU Law School.
Speaker 2: Coming up, Double Jeopardy. I'm June Grosso and this is Bloomberg.
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: You're listening to a special edition of Bloomberg Law as
Speaker 2: we look back at some high profile Supreme Court cases
Speaker 2: from twenty twenty three.
Speaker 1: They're tough for Louisiana Libby.
Speaker 8: You shoot me, they'll give you the guest cheaper.
Speaker 5: No, they won't.
Speaker 2: It's called double jeopardy.
Speaker 5: I learned a few things in prison.
Speaker 2: Nick I could shoot you in the middle of Marty
Speaker 2: gra and they can't touch me.
Speaker 1: As the next law professor, I can assure you she
Speaker 1: is right.
Speaker 2: The Fifth Amendments double jeopardy clause. We all know about
Speaker 2: it from TV and the movies. So why did Georgia
Speaker 2: prosecutors want to try Damien mckelrath a second time after
Speaker 2: a jury had found him not guilty of the malice
Speaker 2: murder of his adoptive mother by reason of insanity. Well,
Speaker 2: there's a twist. The jury also found on Michail Rath
Speaker 2: guilty though mentally ill, of felony murder and aggravated assault,
Speaker 2: and the Georgia Supreme Court ruled that those inconsistent verdicts
Speaker 2: were illogical and threw them out. But a majority of
Speaker 2: Supreme Court justices across the ideological spectrum seem to agree
Speaker 2: that once a person has been acquitted of a charge,
Speaker 2: the matter is closed. Here's Justice Neil Gorsuch, and.
Speaker 8: We do not ever talk about whether they make sense
Speaker 8: to us. They may be products of compromise, they may
Speaker 8: be inconsistent with verdicts on other counts. We don't question them.
Speaker 8: And if this is a first time this issue has
Speaker 8: arisen here, shouldn't that tell us?
Speaker 2: Something joining me? Is former federal prosecutor George Newhouse of
Speaker 2: Richard's Carrington. George tell us about these inconsistent verdicts.
Speaker 6: So the basic facts are a delusional defendant believed that
Speaker 6: his mother was trying to poison him and as a result,
Speaker 6: stamped her to death. Called nine to eleven full of
Speaker 6: the dispatcher what he'd done and why he was right
Speaker 6: to have done it. He went to trial on three counts,
Speaker 6: by the way, and that's where this comes up to
Speaker 6: the three separate charges. The first one under Georgia law
Speaker 6: is called ballae of murder, which is equivalent to a
Speaker 6: first degree murdered, always the most serious charge, the one
Speaker 6: that typically can carry him capital punishment. And then there
Speaker 6: were two other counts, a felony murder rule, which means
Speaker 6: that he killed someone in connection with committing a felony,
Speaker 6: in this case, an aggravated assault, and so the third
Speaker 6: charge was aggravated assault. You might ask why to prosecutors
Speaker 6: bring three separate charges when one act occurred a killing,
Speaker 6: And they do that because sometimes they want to present
Speaker 6: the jury with the option of convicting on a lesser
Speaker 6: offense if they think they might have a problem with
Speaker 6: the principal offense. And that's exactly what happened here. The
Speaker 6: jury deliberated and the defense was he was insane, so
Speaker 6: he lacked the criminal in Kent to commit murder, and
Speaker 6: the jury deliberated and found him not guilty by reason
Speaker 6: of insanity on the first count, saying he was crazy,
Speaker 6: but on counts two and three, the felony murder and
Speaker 6: the aggravated assault. The jury found that he was sane
Speaker 6: and convicted him. The State of Georgia, unhappy with that,
Speaker 6: went to the court and said, well, we need a
Speaker 6: new trial because these verdicts are logically inconsistent. You can't
Speaker 6: be crazy on one count, the worst count, but sayings
Speaker 6: on the other counts, And that went all the way
Speaker 6: to the Georgia Supreme Court, which agreed. The court said
Speaker 6: the verdicts on these two different counts are logically repugnant,
Speaker 6: and as a result it vacated the not guilty verdict
Speaker 6: and told the state that they are free to retry him.
Speaker 6: And that's what went up to the Supreme Court whether
Speaker 6: there should be an exception to the double jeopardy clause,
Speaker 6: and the exception would allow if the verdicts were logically inconsistent,
Speaker 6: which jury verdicts are, by the way, frequently, they'd be
Speaker 6: allowed to retry.
Speaker 2: In this and justice course, it seemed particularly fervent about
Speaker 2: respecting the jury's verdict of acquittal.
Speaker 6: The rule in this country for the last two hundred
Speaker 6: and thirty years of justice courses pointed out, is you
Speaker 6: only get one chance, and if that jury verdict comes back,
Speaker 6: I'm not guilty, there can be no retrial. We don't.
Speaker 6: The court system does not second guests acquittals. So for example,
Speaker 6: if the acquittal is based upon what's called jury nullification,
Speaker 6: they simply ignore the evidence. Where that verdict is illogically
Speaker 6: inconsistent between two different counts, the court system is not
Speaker 6: allowed to second guess that. What usually happens, probably happened
Speaker 6: in this case was the inconsistent verdicts were product of compromise.
Speaker 6: Justice courses to address that. They may be products of compromise,
Speaker 6: they may be inconsistent with other verdicts. We Justice Courses said,
Speaker 6: the court system does not question those verdicts, and that
Speaker 6: has been the law in this country for two hundred
Speaker 6: and thirty years. Inconsistent verdicts happen all the time. I
Speaker 6: tried one as a prosecutor, and the judge said, well,
Speaker 6: we have two verdicts. One is inconsistent with the other,
Speaker 6: and the case is finished, so double jeopardy apply.
Speaker 2: Thanks George, that's George Newhouse of Richard's Carrington. Thanks for
Speaker 2: listening to this special edition of Bloomberg Law on Bloomberg Radio.
Speaker 2: I'm June Grosso. Stay with US today's top stories and
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