WEBVTT - 5th Circuit, Ghost Guns, Patent Trolls 0:00:02.040 --> 0:00:03.800 This is Bloomberg Law. 0:00:03.920 --> 0:00:06.760 What does a prosecutor have to prove in order to 0:00:06.760 --> 0:00:09.959 get a rico conviction? Tell us why this Solicitor General 0:00:10.000 --> 0:00:12.319 is sometimes referred to as the tenth Justice. 0:00:12.320 --> 0:00:15.520 Interviews with prominent attorneys in Bloomberg Legal Experts. 0:00:15.560 --> 0:00:18.360 That's Jennifer k for Bloomberg Law. Joining me is former 0:00:18.440 --> 0:00:20.160 federal prosecutor Robert miss. 0:00:20.040 --> 0:00:23.200 And analysis of important legal issues, cases and headlines. 0:00:23.239 --> 0:00:27.040 It's the toughest hurtle for prosecutors proving Trump's intent. Alito 0:00:27.120 --> 0:00:30.479 took on Congress saying Congress has no power to regulate 0:00:30.520 --> 0:00:31.360 the Supreme Court. 0:00:31.520 --> 0:00:34.600 Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:37.960 --> 0:00:40.720 Welcome to a special best of edition of the Bloomberg 0:00:40.800 --> 0:00:43.760 Law Show. Ahead in this hour, the Supreme Court is 0:00:43.800 --> 0:00:47.320 facing a pile of cases from the conservative Fifth Circuit. 0:00:47.640 --> 0:00:52.519 Inside the Supreme Court's second decision allowing Biden's ghost gun regulations, 0:00:53.120 --> 0:00:57.600 and critics call him a patent troll. He prefers modern 0:00:57.640 --> 0:01:03.040 day edison. An outside share of the Supreme Court's biggest 0:01:03.080 --> 0:01:06.360 case is this term will come from the ultra conservative 0:01:06.480 --> 0:01:10.440 Fifth Circuit Court of Appeals, who's far reaching rulings on 0:01:10.600 --> 0:01:15.760 federal regulatory power, guns and social media are proving impossible 0:01:15.800 --> 0:01:19.320 for the Supreme Court to ignore. Here's former US Solicitor 0:01:19.400 --> 0:01:22.040 General Gregory Gar's take on the Fifth Circuit. 0:01:22.440 --> 0:01:24.280 Some people have said it sort of the Supreme Court 0:01:24.400 --> 0:01:26.720 versus the Fifth Circuit. It's interesting, I mean, the Fifth 0:01:26.720 --> 0:01:30.720 Circuit is now the most conservative circuit among the many. 0:01:31.319 --> 0:01:33.920 And you know, the kind of question that all these 0:01:33.959 --> 0:01:36.720 cases present is whether the Fifth Circuit has got out 0:01:37.120 --> 0:01:40.399 ahead of even the US Supreme Court today in terms 0:01:40.440 --> 0:01:43.319 of how conservative it is and whether or not the 0:01:43.400 --> 0:01:46.240 US Supreme Court feels as though it has to rein 0:01:46.319 --> 0:01:47.400 it in a little bit. 0:01:47.720 --> 0:01:50.840 Joining me is Bloomberg New Supreme Court reporter Greg storre 0:01:51.160 --> 0:01:53.920 Greg just how conservative is the Fifth Circuit. 0:01:54.480 --> 0:01:58.400 It's unquestionably the most conservative federal appeals court in the country, 0:01:58.680 --> 0:02:00.640 and it gets an awful lot of care, so we 0:02:00.760 --> 0:02:03.880 notice it even more than other courts. On this court, 0:02:03.960 --> 0:02:06.960 twelve of its full time judges are Republican appointees and 0:02:07.000 --> 0:02:10.440 only four are Democratic appointees. And six of those Republican 0:02:10.440 --> 0:02:13.560 appointees are appointees of Donald Trump. And you know, they 0:02:13.600 --> 0:02:15.880 include some justices who are really trying to make a 0:02:15.960 --> 0:02:19.000 name for themselves with some really far reaching rulings, and 0:02:19.040 --> 0:02:22.080 so it's kind of consistently the place where conservatives go 0:02:22.160 --> 0:02:24.079 when they are looking to push the law in a 0:02:24.160 --> 0:02:24.760 certain direction. 0:02:25.480 --> 0:02:27.840 There have been a lot of stories about the Texas 0:02:27.919 --> 0:02:31.760 judges who've become the go to judges, for example, for 0:02:32.000 --> 0:02:35.040 Republican states that want to sue. Tell us about the 0:02:35.040 --> 0:02:39.200 Trump appointees on the Fifth Circuit, because what seems unusual 0:02:39.240 --> 0:02:42.280 about them is they're not only conservative, but several of 0:02:42.320 --> 0:02:47.359 them made statements before they became judges that staked out 0:02:47.560 --> 0:02:53.640 very conservative positions on issues like abortion and gay marriage. Yeah. 0:02:53.680 --> 0:02:56.680 So there's also one who while on the beat, has 0:02:56.720 --> 0:02:59.959 made some really remarkable statements. That's James ho He's a 0:03:00.040 --> 0:03:03.680 Trump appointee. He's described abortion while on the bench as 0:03:03.720 --> 0:03:06.480 a moral tragedy and written that if there's too much 0:03:06.520 --> 0:03:10.040 money in politics, because there's too much government. And then 0:03:10.040 --> 0:03:12.200 there's some other judges that really drew a lot of 0:03:12.200 --> 0:03:15.400 controversy when they were nominated, a guy like Corey Wilson, 0:03:15.440 --> 0:03:18.040 who had written that gay marriage is a pander to 0:03:18.120 --> 0:03:23.040 liberal interest groups. Another judge, Stuart Kyle Duncan, who has 0:03:23.080 --> 0:03:26.560 written a lot of things in opposition to LGBTQ rights. 0:03:26.919 --> 0:03:30.079 And he was a judge who drew that protest at 0:03:30.080 --> 0:03:33.400 Stanford Law School where protesters shut him down, wouldn't let 0:03:33.480 --> 0:03:35.400 him speak. So he's very much a lightning rod. 0:03:35.760 --> 0:03:39.520 The Fifth Circuit hasn't been faring that well at the 0:03:39.560 --> 0:03:42.400 Supreme Court. To me, it's taken the position the Ninth 0:03:42.440 --> 0:03:44.520 Circuit used to take, where it was the most reversed 0:03:44.520 --> 0:03:47.480 circuit for so many years. So tell us how it's 0:03:47.560 --> 0:03:49.240 done in the past year. 0:03:49.720 --> 0:03:52.680 Not very well. So in the last Supreme Court term, 0:03:52.960 --> 0:03:55.800 in seven of nine cases the Court decided if at 0:03:55.920 --> 0:04:00.720 least partially or largely reversed the Fifth Circuit. Say it's different, 0:04:00.840 --> 0:04:02.360 just to go back to the Ninth Circuit. The way 0:04:02.360 --> 0:04:04.680 it's different is the Ninth Circuit, I had a well 0:04:04.680 --> 0:04:07.600 deserved reputation back in the day, is being very very liberal, 0:04:07.880 --> 0:04:10.360 and the Supreme Court, even when it wasn't as conservative 0:04:10.400 --> 0:04:13.440 as this Court is, would say, no, we're not going 0:04:13.520 --> 0:04:16.279 to let you do that. Ninth Circuit. Here, it's a 0:04:16.360 --> 0:04:18.600 case where the Fifth Circuit is trying to sort of 0:04:18.880 --> 0:04:21.919 go beyond where the Supreme Court has gone. It is 0:04:21.920 --> 0:04:24.840 a conservative Supreme Court, and we have the Fifth Circuit 0:04:25.000 --> 0:04:27.560 trying to push the envelope even beyond where the Supreme 0:04:27.560 --> 0:04:28.280 Court has gone. 0:04:28.400 --> 0:04:28.479 Do. 0:04:28.560 --> 0:04:31.159 Some of their decisions seem like decisions that the Supreme 0:04:31.200 --> 0:04:34.120 Court almost has to take or it will allow the 0:04:34.200 --> 0:04:37.120 law to be, you know, even further out or even 0:04:37.160 --> 0:04:39.320 more conservative than the Court envisioned. 0:04:39.839 --> 0:04:42.119 Yeah. So a number of the cases that Supreme Court 0:04:42.160 --> 0:04:45.800 has this term are cases where the Biden administration is 0:04:45.839 --> 0:04:49.280 appealing and there are cases where the Fifth Circuit struck 0:04:49.360 --> 0:04:53.840 down something that either an administrative agency or Congress did. 0:04:53.960 --> 0:04:56.880 So one example, there is a law that says the 0:04:56.880 --> 0:04:59.839 people subject to a domestic violence restraining order can have 0:05:00.040 --> 0:05:03.119 your Second Amendment rights gun rights taken away. The Fifth 0:05:03.120 --> 0:05:07.159 Circuit said, Nope, that law is unconstitutional. The Biden administration 0:05:07.240 --> 0:05:09.120 came up to the Supreme Court, and really, in that 0:05:09.160 --> 0:05:12.360 sort of situation, the Court almost has to take the case. 0:05:12.600 --> 0:05:15.680 So we're going to now see what the Supreme Court 0:05:15.680 --> 0:05:18.120 thinks about that interpretation of the Second Amendment. 0:05:18.720 --> 0:05:21.640 Yeah, that's guaranteed to be one of the biggest cases 0:05:21.680 --> 0:05:24.840 of the term. And my favorite line from that really 0:05:25.040 --> 0:05:28.240 was the Fifth Circuit saying that while the defendant there, 0:05:28.400 --> 0:05:32.440 Rahimi was quote hardly a model citizen he was entitled 0:05:32.480 --> 0:05:36.320 to Second Amendment protections. And this is a defendant who 0:05:36.320 --> 0:05:39.400 not only had a restraining order against him by his 0:05:39.800 --> 0:05:43.880 former girlfriend, but also shot his gun in public I 0:05:43.920 --> 0:05:48.800 think five times. So not exactly a model defendant for 0:05:48.839 --> 0:05:49.560 a case like this. 0:05:50.320 --> 0:05:52.640 No, And in fact, if you're a Second Amendment advocate, 0:05:52.640 --> 0:05:54.800 a really bad defended to have in a case like this. 0:05:55.320 --> 0:05:58.640 You have both this law that protects again something that 0:05:58.760 --> 0:06:01.560 is pretty commonly understood to be a very very dangerous 0:06:01.600 --> 0:06:05.640 situation to somebody with domestic violence restraining order having access 0:06:05.680 --> 0:06:09.239 to firearms, and you also have somebody who a judge 0:06:09.279 --> 0:06:13.840 found had engaged in all sorts of criminal violent activity. 0:06:14.320 --> 0:06:17.640 And the confluence of those things make it a case where, 0:06:17.920 --> 0:06:20.480 even with this conservative Supreme Court, it's going to be 0:06:20.560 --> 0:06:23.440 pretty hard for them to explain why mister himI is 0:06:23.440 --> 0:06:26.800 somebody who is entitled to keep his Second Amendment right. 0:06:27.120 --> 0:06:30.159 The Supreme Court has several cases that may allow it 0:06:30.240 --> 0:06:33.799 to expand its attempt to rein in the administrative state, 0:06:33.920 --> 0:06:36.919 and a couple come from the Fifth Circuit oral arguments 0:06:36.920 --> 0:06:41.160 in the Consumer Financial Protection Bureau's funding system. The second 0:06:41.200 --> 0:06:44.480 time I think the CFPB has been before the Court 0:06:44.560 --> 0:06:47.120 So tell us about this Fifth Circuit decision. 0:06:47.520 --> 0:06:49.560 Yeah, it is the second time the CFPB has been 0:06:49.640 --> 0:06:52.120 up before the Supreme Court. This case has to do 0:06:52.240 --> 0:06:55.960 with how the bureau gets its money. It gets its 0:06:56.000 --> 0:06:59.680 money through the Federal Reserve system. It doesn't rely on 0:06:59.720 --> 0:07:03.160 the US year congressional appropriations. And that was a part 0:07:03.200 --> 0:07:06.400 of Congress's design and creating this bureau after the two 0:07:06.440 --> 0:07:08.919 thousand and eight financial crisis. They wanted to give the 0:07:08.920 --> 0:07:13.120 CSPB a certain amount of independence, shielded from the political processes. 0:07:13.440 --> 0:07:16.520 And what the Fifth Circuit said was this system violates 0:07:16.640 --> 0:07:19.960 the constitutional provision that says government spending has to be 0:07:20.000 --> 0:07:23.840 done via a congressional appropriation. Now, in the past, courts 0:07:23.880 --> 0:07:27.280 and concluding the Supreme Court have said that provision is 0:07:27.280 --> 0:07:29.920 something that keeps the executive branch from spending money that 0:07:29.960 --> 0:07:33.280 Congress hasn't authorized to be spent. Courts haven't used it 0:07:33.560 --> 0:07:36.200 to restrict Congress and the way they can set up 0:07:36.200 --> 0:07:39.000 an agency. Well, the this Circuit did in this case. 0:07:39.080 --> 0:07:42.520 So it's a novel constitutional approach. There's not a whole 0:07:42.520 --> 0:07:45.000 lot to go by in terms of precedent, and it's 0:07:45.040 --> 0:07:46.920 going to be very interesting to see how the Supreme 0:07:46.960 --> 0:07:49.640 Court deals with that and then what it decides to 0:07:49.640 --> 0:07:53.120 do if it agrees that the system is unconstitutional. 0:07:53.880 --> 0:07:57.640 There's another case, and it's the SEC and its use 0:07:57.680 --> 0:08:01.360 of in house judges. Another issue that's been before the Court, 0:08:01.720 --> 0:08:05.040 and the Fifth Circuit found three different problems with. 0:08:05.080 --> 0:08:07.960 This, three different. 0:08:09.160 --> 0:08:11.800 Three different problems. Two of them are sort of connected, 0:08:12.000 --> 0:08:14.080 and that may be kind of the biggest part of 0:08:14.120 --> 0:08:17.600 the case. The Fifth Circuit said that under the Constitution, 0:08:18.000 --> 0:08:21.320 folks hit with an SEC complaint in many cases have 0:08:21.400 --> 0:08:24.480 a right to a jury trial, meaning the SEC cannot 0:08:24.560 --> 0:08:28.680 bring those cases before an administrative law judge at the agency. 0:08:29.000 --> 0:08:31.440 They have to go into federal court. And then the 0:08:31.480 --> 0:08:34.680 related aspect of the ruling is the Fifth Circuit said, 0:08:34.840 --> 0:08:37.920 and Congress did not give clear enough guidance to the SEC, 0:08:38.440 --> 0:08:41.160 clear enough principles to decide which cases it's going to 0:08:41.160 --> 0:08:43.920 take before the administrative law judge and which case is 0:08:43.960 --> 0:08:47.160 going to go to the Supreme Court. The final issue 0:08:47.800 --> 0:08:50.960 is that the Fifth Circuit said that the job protections 0:08:51.000 --> 0:08:53.520 that the administrative law judge is that the SEC have 0:08:53.880 --> 0:08:57.040 will leave them too insulated from presidential control. That's an 0:08:57.040 --> 0:08:59.640 issue the Supreme Court is considered in slightly different context 0:08:59.760 --> 0:09:02.880 before or so if the Supreme Court wants to rule 0:09:02.880 --> 0:09:05.320 against the SEC it's got kind of a menu of 0:09:05.360 --> 0:09:06.360 ways it can do that. 0:09:07.480 --> 0:09:11.400 Two cases involve free speech, the rights of social media companies, 0:09:11.440 --> 0:09:14.640 and a Fifth Circuit decision that clashes with an Eleventh 0:09:14.679 --> 0:09:18.000 Circuit decision. The Eleventh Circuit probably the second most conservative 0:09:18.040 --> 0:09:19.000 circuit in the country. 0:09:19.280 --> 0:09:21.640 These are laws that were put in the place by 0:09:22.120 --> 0:09:28.080 Republican controlled states Texas and Florida, and they basically dictate 0:09:28.080 --> 0:09:32.160 the social media companies how they to go about managing 0:09:32.200 --> 0:09:36.960 content and removing misinformation, and they have rules about what 0:09:37.000 --> 0:09:41.080 they have to say when they take down a post online. 0:09:41.640 --> 0:09:45.840 And the social media industry trade groups sued and said 0:09:45.840 --> 0:09:50.240 that violates our First Amendment rights. The Fifth Circuit upheld 0:09:50.280 --> 0:09:54.160 the Texas law. The Eleventh Circuit struck down much of 0:09:54.360 --> 0:09:57.640 Florida's law. The eleven Circuit devoted much of its focus 0:09:57.720 --> 0:10:01.160 to a provision that requires a detailed explanation every time 0:10:01.400 --> 0:10:04.520 a social media company makes a content management decision. 0:10:04.960 --> 0:10:09.120 These decisions are not just conservative, but their novel. They 0:10:09.200 --> 0:10:13.240 just seem not wedded to precedent. 0:10:13.240 --> 0:10:15.760 You know, some of them are taking on new issues. 0:10:15.960 --> 0:10:20.880 The appropriations clause issue is one that hasn't really been tested, 0:10:20.880 --> 0:10:23.760 at least not recently, and some of them. You look 0:10:23.800 --> 0:10:27.400 at the gun case, for example, the Rehimi case, when 0:10:27.400 --> 0:10:30.120 the Supreme Court ruled on the right to carry a 0:10:30.120 --> 0:10:34.600 gun in twenty twenty two, the court said, the test 0:10:34.760 --> 0:10:37.040 is going to be history and tradition, and you're suppose, judges, 0:10:37.080 --> 0:10:39.840 you're supposed to look and try to find a historical 0:10:39.920 --> 0:10:43.560 analog for some current regulation. And if you can't find 0:10:43.559 --> 0:10:46.679 an historical analog, that's a pretty good sign that this 0:10:46.760 --> 0:10:48.480 provision is unconstitutional. 0:10:48.760 --> 0:10:52.480 That's Bloomberg New Supreme Court reporter Greg Store. Coming up 0:10:52.520 --> 0:10:55.480 next on the Bloomberg Law Show. It's a Supreme Court 0:10:55.520 --> 0:10:59.440 decision about regulations on ghost guns. But the justices seem 0:10:59.520 --> 0:11:02.760 to be said a strong message to the Fifth Circuit 0:11:02.840 --> 0:11:06.240 and a Texas judge. I'm June Grosso and you're listening 0:11:06.320 --> 0:11:07.000 to Bloomberg. 0:11:15.000 --> 0:11:19.720 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:11:20.880 --> 0:11:23.480 You're listening to a special best of edition of the 0:11:23.520 --> 0:11:27.360 Bloomberg Law Show. In September, New York City Mayor Eric 0:11:27.400 --> 0:11:30.760 Adams announced that in a search of a private daycare 0:11:30.840 --> 0:11:35.400 in Harlem police recovered drugs, ghost guns and the three 0:11:35.480 --> 0:11:37.080 D printer used to make them. 0:11:37.400 --> 0:11:41.439 Who would have thought that we must add to our 0:11:41.559 --> 0:11:46.720 list of inspections of do we have three D printers 0:11:46.760 --> 0:11:47.800 that can print guns? 0:11:48.679 --> 0:11:52.680 The Biden administration has issued regulations on these ghost guns, 0:11:53.000 --> 0:11:56.720 which are assembled from kits without the usual serial numbers 0:11:56.760 --> 0:12:00.360 and background checks on purchasers, making them a track active 0:12:00.440 --> 0:12:04.360 to teenagers and those with criminal records. The Supreme Court 0:12:04.400 --> 0:12:10.240 has reinstated those regulations, blocking a second nationwide injunction issued 0:12:10.280 --> 0:12:14.280 by Texas Federal Judge Ried O'Connor and okayed by the 0:12:14.280 --> 0:12:17.440 Fifth Circuit. Does this mean the Supreme Court is telling 0:12:17.480 --> 0:12:20.760 the judge and the Fifth Circuit no? Means no? Or 0:12:20.760 --> 0:12:24.600 does it mean something more substantive about ghost gun regulations? 0:12:25.480 --> 0:12:29.040 Joining me? Is Heidi Lee Feldman, a professor at Georgetown Law. 0:12:29.600 --> 0:12:32.880 So let's go back to the August decision where the 0:12:32.920 --> 0:12:37.839 Supreme Court blocked a nationwide injunction by Judge rit O'Connor 0:12:38.200 --> 0:12:41.640 and allowed the government to keep enforcing the regulations on 0:12:41.800 --> 0:12:44.640 ghost guns. Should that have been the end of this 0:12:44.920 --> 0:12:47.920 until the case was fully litigated. 0:12:47.520 --> 0:12:50.520 One would have thought so, And that's certainly Ultimately the 0:12:50.559 --> 0:12:54.840 position the government took it was very peculiar that they 0:12:54.960 --> 0:12:58.840 sought an injunction pending appeal. That is an alteration in 0:12:58.880 --> 0:13:02.440 the procedural posts rush of the case. They didn't give 0:13:02.559 --> 0:13:07.160 any new reason for seeking an injunction while the case 0:13:07.280 --> 0:13:10.800 was pending, and that was I think the really controversial thing. 0:13:11.160 --> 0:13:14.640 Nothing had changed in the facts or the law that 0:13:14.720 --> 0:13:18.720 would be relevant to granting an injunction. So ordinarily, if 0:13:18.760 --> 0:13:21.959 a party did that, the judge would just deny it 0:13:22.080 --> 0:13:26.160 because they had just had an injunction overturned by the 0:13:26.200 --> 0:13:30.960 Supreme Court. Of course, in this case, Judge O'Connor granted 0:13:30.960 --> 0:13:34.720 the injunction and didn't give any new reasons, and the 0:13:34.720 --> 0:13:38.800 court really just put the kebash on that and said no, no. 0:13:39.520 --> 0:13:42.360 Also, the Fifth Circuit upheld his order. 0:13:42.720 --> 0:13:47.080 Yeah. Look, there's several very contested matters that are driving 0:13:47.080 --> 0:13:51.000 this litigation. Ghost gun manufacturers come in and say, we 0:13:51.080 --> 0:13:56.200 object to this ATF rule making, which seems to require 0:13:56.320 --> 0:13:59.840 us to take all sorts of steps that people who 0:13:59.840 --> 0:14:04.959 may firearms have to take. We're arguing we're not firearms manufacturers, 0:14:04.960 --> 0:14:09.880 we're parts suppliers. So that whole dynamic introduces guns into 0:14:09.920 --> 0:14:13.920 the mix. Then we have a federal agency atf which 0:14:13.960 --> 0:14:18.239 has its own long complicated history. Then we have a judiciary, 0:14:18.760 --> 0:14:23.440 certainly O'Connor and the Fifth Circuit that's very keen to 0:14:23.560 --> 0:14:28.640 invalidate agency rulemaking. So I think the Fifth Circuit as 0:14:28.640 --> 0:14:32.920 a whole was very moved by that agenda, and so 0:14:32.960 --> 0:14:36.640 they do uphold O'Connor's order, and so ultimately, of course, 0:14:36.680 --> 0:14:40.120 the Supreme Court is rejecting the Fifth Circuits position as 0:14:40.160 --> 0:14:43.440 well as O'Connor's position on the injunction. But the fact 0:14:43.480 --> 0:14:46.560 that the Supreme Court took that position isn't an indication 0:14:46.680 --> 0:14:49.240 of how they would ultimately rule on the merits as 0:14:49.320 --> 0:14:51.920 much as I think it was a rejection of the 0:14:52.040 --> 0:14:55.000 challenge to the authority of their earlier ruling. 0:14:55.400 --> 0:14:58.160 So the Court's August order was a five to four 0:14:58.280 --> 0:15:02.320 decision where Chief Justice Roberts and Justice amy Cony Barrett 0:15:02.400 --> 0:15:05.960 joined the Court's three liberals. So there were four descents 0:15:06.000 --> 0:15:11.240 in August, but no justice publicly dissented from this order 0:15:11.280 --> 0:15:14.160 that was handed down. Does that mean the justices are 0:15:14.200 --> 0:15:16.760 telling the judge in the Fifth Circuit no means no? 0:15:17.320 --> 0:15:21.800 Or does it mean something more substantive about ghost gun regulations. 0:15:22.280 --> 0:15:26.440 It's very hard to read tea leaves from these orders 0:15:26.440 --> 0:15:30.720 that are issued without opinions, and these are orders that 0:15:30.880 --> 0:15:34.680 relate to not the final merits on the case. So 0:15:35.080 --> 0:15:37.680 I want to sound a note of caution. I think 0:15:37.760 --> 0:15:41.080 that there are justices on the Court who may be 0:15:41.480 --> 0:15:46.200 very unsympathetic to the ATF rulemaking related to ghost guns, 0:15:46.560 --> 0:15:51.560 who realize that you simply cannot operate our system of 0:15:51.760 --> 0:15:56.600 litigating cases case by case and letting different courts reach 0:15:56.680 --> 0:16:01.200 different conclusions if they disagree and see what emerges up 0:16:01.200 --> 0:16:03.880 through the process, and what rit O'Connor and the Fifth 0:16:03.880 --> 0:16:08.040 Circuit wanted to do absolutely disrupts that process. It also 0:16:08.120 --> 0:16:11.440 wastes the Supreme Court's time. I mean, they do not 0:16:11.720 --> 0:16:17.320 want to have to keep issuing redundant interlocutory orders. That's 0:16:17.440 --> 0:16:21.560 just completely inefficient for them. So I think you could 0:16:21.600 --> 0:16:26.000 have justices who may be less sympathetic to the idea 0:16:26.040 --> 0:16:29.720 of letting the ATF rule making stand or more sympathetic 0:16:29.840 --> 0:16:36.360 to relatively unfettered sales of ghost guns, who nevertheless see 0:16:36.640 --> 0:16:41.680 procedural chaos from what the Fifth Circuit and Judge O'Connor did. 0:16:42.160 --> 0:16:45.760 The Fifth Circuit last term lost I think seven out 0:16:45.760 --> 0:16:48.240 of a cases at the Supreme Court, and they have 0:16:48.960 --> 0:16:51.800 a lot of cases before the court this year, and 0:16:52.040 --> 0:16:56.200 many of them are from judges in Texas like rit 0:16:56.240 --> 0:16:59.880 O'Connor that seem to have novels, shall we say, no 0:17:00.600 --> 0:17:02.360 legal reasoning and their decisions. 0:17:02.720 --> 0:17:04.040 I mean, do you think we have to I think 0:17:04.040 --> 0:17:06.080 we have to be as a stronger word than novel. 0:17:06.320 --> 0:17:11.960 Look in sophisticated litigation in federal courts, advocates and courts 0:17:12.240 --> 0:17:16.800 are advancing the law, so there's often something novel in 0:17:17.000 --> 0:17:21.720 what they argue, in what courts hold. That's neither unexpected 0:17:21.760 --> 0:17:25.560 nor unusual. What is problematic is when you have a 0:17:25.760 --> 0:17:30.080 court and the federal judiciary in Texas, the district court 0:17:30.200 --> 0:17:33.119 level is like this, and the fifth Circuit is like this, 0:17:33.720 --> 0:17:40.120 that is receptive to extreme arguments. They're not just creative 0:17:40.400 --> 0:17:45.399 novel they are highly contentious. Now, if you have a 0:17:45.480 --> 0:17:48.720 court that is receptive to that, maybe some of those 0:17:48.800 --> 0:17:53.960 highly contentious and highly extreme arguments will ultimately be vindicated. 0:17:54.320 --> 0:17:58.120 But the more extreme the substance is of a position 0:17:58.200 --> 0:18:02.359 that's being taken, the more cuts. Generally, courts are in 0:18:02.440 --> 0:18:08.920 composing big procedural consequences until those big arguments and positions 0:18:09.080 --> 0:18:13.600 go through the appellate process of review. So I think 0:18:13.680 --> 0:18:17.320 that the Fifth Circuit and the Texas District courts in 0:18:17.400 --> 0:18:22.560 general generate a lot of extreme positions. What we saw 0:18:22.720 --> 0:18:28.639 here was this intersection of extreme positions and willingness first 0:18:29.240 --> 0:18:32.720 to issue a very sweeping injunction on the basis of 0:18:32.760 --> 0:18:37.240 the extreme position nationwide injunction, and then to sort of 0:18:37.280 --> 0:18:39.800 double down on that after the Supreme Court said it 0:18:39.880 --> 0:18:45.919 wasn't appropriate. The combination of extreme positions and aggressiveness about 0:18:45.920 --> 0:18:51.360 imposing consequences before the appellate process has played out thoroughly 0:18:51.720 --> 0:18:54.320 is a way of really throwing a spanner in the 0:18:54.840 --> 0:18:58.960 gears of adjudication, as the Federal Court understands it, and 0:18:59.280 --> 0:19:00.600 they're just not going to tolerate that. 0:19:01.200 --> 0:19:04.280 So frame for us the message the Supreme Court is 0:19:04.359 --> 0:19:07.760 sending to the Fifth Circuit and Judge O'Connor. 0:19:07.960 --> 0:19:11.920 They're saying, don't play games with us about procedure. If 0:19:11.960 --> 0:19:15.760 you have very good reason to believe that we've taken 0:19:15.920 --> 0:19:19.600 a given position, don't pretend we haven't taken that position 0:19:20.040 --> 0:19:23.640 and act contrary to what we already said. I mean, 0:19:23.680 --> 0:19:27.600 in some ways, what they're saying is you cannot pretend 0:19:27.960 --> 0:19:30.359 that we haven't spoken. I mean, in some sense, it 0:19:30.400 --> 0:19:34.040 sounds so simple. When you have a judicial system that's 0:19:34.080 --> 0:19:38.120 founded on the idea of appellet review, lower courts are 0:19:38.200 --> 0:19:42.200 answerable to higher courts in that system. So in some 0:19:42.280 --> 0:19:45.560 sense it's very bizarre for the High Court to have 0:19:45.600 --> 0:19:48.320 to issue an order that I think is basically saying 0:19:48.600 --> 0:19:52.720 you are totally acting way outside of your job. You 0:19:52.880 --> 0:19:56.720 are flouting your role. That's what I think they were saying. 0:19:56.960 --> 0:19:59.400 And we'll see if the Fifth Circuit and Judge O'Connor 0:19:59.760 --> 0:20:03.520 have that message. Thanks so much. That's Professor Heidi Lee 0:20:03.600 --> 0:20:07.639 Feldman of Georgetown Law. A note. Michael Bloomberg, the founder 0:20:07.680 --> 0:20:10.639 and majority owner of Bloomberg LP, the parent company of 0:20:10.680 --> 0:20:14.800 Bloomberg Radio, is a donor to groups that support gun control, 0:20:15.119 --> 0:20:18.320 including every Town for Guns Safety coming up next on 0:20:18.320 --> 0:20:21.800 the Bloomberg Law Show. Critics call him a patent troll. 0:20:22.280 --> 0:20:25.880 He prefers modern day edison. I'm June Grosso. When you're 0:20:25.960 --> 0:20:35.640 listening to Bloomberg, this. 0:20:35.840 --> 0:20:40.040 Is Bloomberg Law with June Grosso from Bloomberg Radio. 0:20:40.800 --> 0:20:43.399 You're listening to a special best of edition of the 0:20:43.440 --> 0:20:48.000 Bloomberg Law Show. Is Lee Rothschild among the most prolific 0:20:48.080 --> 0:20:51.879 inventors of his generation as he sees himself, or is 0:20:51.920 --> 0:20:55.760 he a patent troll as his critics see him. Rothschild 0:20:55.800 --> 0:20:58.440 is listed as the sole inventor of more than one 0:20:58.520 --> 0:21:02.200 hundred and thirty patents, but his network of companies don't 0:21:02.240 --> 0:21:06.600 make any products. He readily admits his entire business model 0:21:06.720 --> 0:21:12.400 is built around monetizing his intellectual property through litigation and licensing, 0:21:12.800 --> 0:21:17.320 and there appears to be more litigation than licensing. Joining 0:21:17.359 --> 0:21:20.919 me is Laurel Culkins, Bloomberg Law reporter who's interviewed and 0:21:20.960 --> 0:21:25.800 written about Rothschild. Laurel tell us what Lee Rothschild has invented? 0:21:26.320 --> 0:21:28.280 Well, first of all, you have to understand that Lee 0:21:28.440 --> 0:21:33.600 Rothschild is in a handful of unique individuals in the country, 0:21:33.640 --> 0:21:36.480 and that he's both a bona fide inventor and a 0:21:36.520 --> 0:21:40.080 patent troll. And if you don't know what patent troll means, 0:21:40.119 --> 0:21:44.679 it's a derogatory flur that high tech companies slap onto 0:21:44.720 --> 0:21:49.000 litigants who show up in court with sometimes basic patents 0:21:49.040 --> 0:21:52.800 for generic technology, and then they try to extract a 0:21:52.880 --> 0:21:56.240 nuisance settlement that's cheaper than the cost of going to trial. Well, 0:21:56.480 --> 0:21:59.320 Rothschild's in a different camp. He is an actual inventor. 0:21:59.359 --> 0:22:02.720 He has one hundred thirty patents solely in his name. 0:22:03.040 --> 0:22:05.480 He started when he was twenty. He's now seventy one, 0:22:06.080 --> 0:22:08.960 and he's invented some wild things. His very first invention 0:22:09.080 --> 0:22:11.919 when he was in his teens was quadrophonic stereo if 0:22:11.920 --> 0:22:14.960 you remember back that far. And the things he's got 0:22:14.960 --> 0:22:20.240 patents on now are like virtual reality exercise machines QR 0:22:20.320 --> 0:22:23.479 codes connected to the Internet. He had a public company 0:22:23.520 --> 0:22:25.959 for a while in the nineties that was all about barcodes. 0:22:26.040 --> 0:22:29.399 He was a pioneer in barcode technology. So he actually 0:22:29.480 --> 0:22:32.280 had the legit patent portfolio, which puts him in a 0:22:32.280 --> 0:22:34.280 different camp. And that's why he has this kind of 0:22:34.800 --> 0:22:38.640 love hate relationship with the term patent troll. He says, yeah, 0:22:38.760 --> 0:22:41.600 classic patent troll is somebody who takes a crappy patent 0:22:42.000 --> 0:22:44.159 and goes and files a newsman's lawsuit, you know, to 0:22:44.200 --> 0:22:45.120 extract a settlement. 0:22:45.359 --> 0:22:45.720 He goes. 0:22:45.720 --> 0:22:47.800 But if you want to put me in the camp 0:22:47.920 --> 0:22:51.359 of legit inventors like the Wright brothers and Alexander Graham 0:22:51.440 --> 0:22:55.600 Bell and Thomas Edison who had groundbreaking inventions but had 0:22:55.600 --> 0:22:57.879 to go to court to defend them with supporting evidence. 0:22:57.920 --> 0:22:59.119 He goes, Yeah, if you want to put me in 0:22:59.160 --> 0:22:59.960 that camp. 0:23:00.119 --> 0:23:02.760 Patent troll, can you explain in a little more depth 0:23:02.920 --> 0:23:05.160 what makes a patent troll? 0:23:05.200 --> 0:23:07.920 Like I said, it's a derogatory slur that high tech 0:23:07.960 --> 0:23:12.600 companies apply to people who own a patent and go 0:23:12.680 --> 0:23:14.520 to defend it in court and say, you're using my 0:23:14.600 --> 0:23:17.520 technology without taking a license, so you've copied my idea 0:23:17.520 --> 0:23:19.879 and you owe me money for it. Well, the problem 0:23:19.960 --> 0:23:22.600 is most patent trolls actually don't have any operations or 0:23:22.640 --> 0:23:26.640 what's called nonpracticing entities, and all they do is litigation. 0:23:26.720 --> 0:23:28.959 They just go around sue people, and sometimes their patents 0:23:28.960 --> 0:23:32.640 are so generic that they're laughable. And that's what's kind 0:23:32.640 --> 0:23:35.240 of funny is Lee Rothschild has some on each side. 0:23:35.280 --> 0:23:38.879 He has some that are very serious, groundbreaking inventions, and 0:23:38.880 --> 0:23:40.960 then he has a couple that have been named soup 0:23:41.000 --> 0:23:44.280