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

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Speaker 1: I want to broadcast network.

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Speaker 2: I don't want to see what other news operations we

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Speaker 2: can sweep up.

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Speaker 1: He's erratic, he's making bad decisions. If he's not careful,

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Speaker 1: he's going to destroy the company.

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Speaker 2: And are you going to do something?

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Speaker 1: I think I'm the best option, all.

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Speaker 3: Right, because you like playing boss.

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Speaker 2: Pick out the old man, in with the new guard,

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Speaker 2: and you want this enough to go to war with

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Speaker 2: your family. It's rebellion, sabotage, the liberal attempt to undermine

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Speaker 2: my own business.

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Speaker 1: That's my company. It's a bitter legal fight among siblings

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Speaker 1: over a media empire that's reminiscent of the TV series Succession,

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Speaker 1: with good reason since that show was inspired in part

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Speaker 1: by the Murdochs. The Murdoch succession battle playing out in

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Speaker 1: Nevada is over an irrevocable fa family trust that will

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Speaker 1: ultimately decide who controls the conservative media empire that includes

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Speaker 1: Fox News and the Wall Street Journal. Rupert Murdoch is

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Speaker 1: trying to change the terms of the irrevocable family trust

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Speaker 1: created in nineteen ninety nine, which splits his voting shares

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Speaker 1: equally among his four oldest children after his death. The

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Speaker 1: ninety three year old wants to alter it so that

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Speaker 1: all his voting shares go to his eldest son, Lachlan,

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Speaker 1: the CEO of Fox and chairman of News Corps, who's

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Speaker 1: politically aligned with him. That prompted the three other children

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Speaker 1: to fight back in probate court. Joining me is Jamar

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Speaker 1: Creech of Romano Law. First of all, why is this

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Speaker 1: in Nevada?

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Speaker 2: This is in Nevada because Nevada offers a number of

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Speaker 2: protections for trust, including privacy, flexibility, management, and asset protection.

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Speaker 2: So the trust laws in Nevada are just very, very

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Speaker 2: favorable for situations like this.

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Speaker 1: It's in probate court. Several news outlets tried unsuccessfully to

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Speaker 1: open up the proceedings. Is probate court ever open to

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Speaker 1: the public? Is it always closed?

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Speaker 2: Well, in this instance, this is not really a probate

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Speaker 2: matter in a traditional sense because Ruper Murdoch is still living.

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Speaker 2: But this is a dispute regarding the structure of an

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Speaker 2: irrevocable trust. So in instances like this, in some jurisdictions,

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Speaker 2: those matters are more publicized. But because of Nevada's laws

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Speaker 2: and structure. This is a more private matter, which would

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Speaker 2: include things like, in addition to the just regular Nevada laws,

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Speaker 2: things like non disclosure agreements and such would all provide

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Speaker 2: kind of those walls of protection for privacy.

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Speaker 1: So explain what the issue is.

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Speaker 2: Certainly so, Ruper Murdoch established many years ago an irrevocable

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Speaker 2: trust which provides in part for the management of his

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Speaker 2: assets upon his death, which would include Box Corporation and

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Speaker 2: News Corporation. And in that trust he lists four of

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Speaker 2: his six children as the individuals who be able to

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Speaker 2: take control over those assets, James, Lachlan, Elizabeth and Prudence.

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Speaker 2: And right now, as many people know, Lock the Murdoch

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Speaker 2: was named CEO of Fox and chairman of News Corporation,

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Speaker 2: and Ruper Murdoch is attempting to change that trust and

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Speaker 2: give Lock the Murdoch controlling interest over all those assets,

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Speaker 2: as opposed to equal authority as it's currently written.

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Speaker 1: So you mentioned that it's an irrevocable trust. If it's irrevocable,

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Speaker 1: how is he allowed to change it?

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Speaker 2: Great question. The law provides in certain instances so long

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Speaker 2: as the changes are in the interests or best interests

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Speaker 2: of the beneficiaries and the changes are made in good faith.

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Speaker 2: Changes can be done to an irrevocable trust, but it's

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Speaker 2: a high standard that in most instances changes are not permitted.

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Speaker 1: This irrevocable trust was set up as part of a

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Speaker 1: divorce settlement with his second wife. So if it's changed,

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Speaker 1: does that invalidate the divorce settlement in any respect because

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Speaker 1: giving all the voting shares to Lachlan was not what

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Speaker 1: was agreed to.

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Speaker 2: Yeah, that's a possibility. I mean without seeing the settlement

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Speaker 2: terms of the divorce as well as the actual trust itself.

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Speaker 2: I imagine this was, as you indicated, some consideration for

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Speaker 2: the divorce, and it's likely that if in fact these

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Speaker 2: material alterations to the trust are permitted, that could be

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Speaker 2: affected as a result.

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Speaker 1: Explain what Rupert Murdoch is arguing why he says it's

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Speaker 1: in the best interests of his children As far as.

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Speaker 2: We know, sure, and I'm glad you asked me that

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Speaker 2: question because there has been limited coverage on this. So

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Speaker 2: as far as I understand, Lachlan Murdoch, who's currently as

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Speaker 2: indicated before or the CEO and chairman of Fox Corporation

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Speaker 2: News Corporation, respectively, his political stance is aligned with his father,

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Speaker 2: and Ruper Murdoch believes that this is part of the

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Speaker 2: reason why he should be able to continue on running

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Speaker 2: Fox in the News Corporation because the success is based

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Speaker 2: principally on or in part on the political ideologies of

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Speaker 2: Fox Corporation, and any change to that could significantly change

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Speaker 2: the value of these assets that are currently in the trust.

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Speaker 1: How does a judge decide, Oh, in years to come,

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Speaker 1: this may change if this happens. I mean that seems

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Speaker 1: like it's so speculative.

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Speaker 2: Yes, it is. Forecasting something like this is just hard

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Speaker 2: to do. I think that that will likely be the

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Speaker 2: avenue that Ruper Murdoch is going to have to take

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Speaker 2: in order to demonstrate that this is in the best interest.

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Speaker 2: But a judge is going to rely on I would

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Speaker 2: imagine past performance, and I mean there are experts out

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Speaker 2: here who can provide these types of projections. So with

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Speaker 2: the long history of Fox and News Corporation and the

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Speaker 2: current performance of these assets these corporations, an expert can

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Speaker 2: give a reasonable future value of what these companies may

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Speaker 2: be able to do moving forward.

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Speaker 1: Is it more about politics than about future benefits to

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Speaker 1: his children that Rupert Murdoch wants to keep Fox and

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Speaker 1: the rest of his media empire conservative.

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Speaker 2: Yeah, that's correct. That's why Lachlan has been attached as

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Speaker 2: the successor. The other children, James, Elizabeth and Prudence, they

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Speaker 2: don't share those as I understand it, they don't share

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Speaker 2: those same political positions. So the future of these entities

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Speaker 2: could be in jeopardy, if you will, from perhaps Ruper

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Speaker 2: Murdock's position, if Lachlan is not given the controlling entry.

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Speaker 1: The three children have united. They have one lawyer. They

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Speaker 1: say reportedly that the move violates the spirit of the

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Speaker 1: initial trust in and it's equal governance provision.

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Speaker 2: Their argument is that the intent, the original intent of

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Speaker 2: the trust was to provide all of them with equal

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Speaker 2: authority to manage these corporations, these assets moving forward, so

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Speaker 2: significantly altering that changes the original intent and also impacts

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Speaker 2: their interest greatly, and that's not what was thought of

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Speaker 2: when this was created, and that should not be permitted

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Speaker 2: here because that would not be in their best interest

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Speaker 2: and quite frankly not in good faith either.

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Speaker 1: Well, I mean, it does seem that no matter what

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Speaker 1: they say about how Fox will perform, that it's not

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Speaker 1: in their best interests to lose control of the companies.

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Speaker 1: I don't think this is about money. Each of the

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Speaker 1: six kids are multi billionaires, correct.

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Speaker 2: I agree with that one hundred percent. I mean there

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Speaker 2: are a couple of things in play here. One, there's

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Speaker 2: the actual future value and performance of Fox, which Ruper

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Speaker 2: Murdoch is likely going to argue as the basis for

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Speaker 2: wanting the changes. On the other hand, the children themselves,

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Speaker 2: while that may be a consideration, their primary interest is

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Speaker 2: keeping their interest if you will, intact under the trust.

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Speaker 2: So the performance is really not, as you indicate, it,

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Speaker 2: not their main concern. It's I have a piece of

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Speaker 2: the rock, if you will, and I want to maintain

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Speaker 2: my piece of the rock.

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Speaker 1: So the probate Commissioner will make a decision, and then

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Speaker 1: that can be appealed to the district court, and then

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Speaker 1: that could be appealed to the Nevada Supreme Court. So

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Speaker 1: this could take years.

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Speaker 2: It could. It just really depends on how this plays out.

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Speaker 2: But yes, I mean in theory it could take years because,

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Speaker 2: to be quite frank, given with a stake, you know,

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Speaker 2: the control of the Wall Street Journal, the control of

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Speaker 2: Fox and HarperCollins and all of these massive entities, yes,

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Speaker 2: that could very well happen.

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Speaker 1: So what happens If Rupert Murdoch dies before this is resolved,

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Speaker 1: then the trust would go into affect at that point, right,

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Speaker 1: So is this attempt to revoke the trust over?

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Speaker 2: Then if he dies, then the trust has to be

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Speaker 2: construed as it is now. There could still be some

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Speaker 2: issues to resolve moving forward, but it now turns into

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Speaker 2: as you indicator before a matter of administering the trust.

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Speaker 2: I mean, it's the probate matter at that point, and

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Speaker 2: the trust would have to proceed as is. There are

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Speaker 2: in most trusts success or trustees, so in the event

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Speaker 2: that Ruper Murdoch dies, the successor trustee would then be

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Speaker 2: charged with administering the trust. But in most instances, the

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Speaker 2: success or trustee does not have the authority to alter

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Speaker 2: the trust because the success or trustee did not create it.

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Speaker 2: Their only function is to carry out the terms of

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Speaker 2: the trust as drastic.

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Speaker 1: Does it happen often? That you know, people want to

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Speaker 1: change the irrevocable trust, not the beneficiary but the person

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Speaker 1: who set it up.

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Speaker 2: Does it happen often? As hard to say what I

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Speaker 2: do feel In some instances, given the nature of the

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Speaker 2: matter before the novadic commissioner is that their assets that

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Speaker 2: are trying to be protected here, and this seems to

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Speaker 2: be more like an instance where ruper Murdocks is looking

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Speaker 2: to manage his assets, perhaps from the grave. So if

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Speaker 2: someone feels like, hey, I'm not going to let my

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Speaker 2: vision of what I've built if you will get changed

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Speaker 2: or significantly altered, then yes, I'm going to crack open

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Speaker 2: this irrevocable trust and make the changes in a way

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Speaker 2: in fashion and the way I see fit.

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Speaker 1: If that's what's really happening, that's not the argument that

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Speaker 1: you need to change the irrevocable trust, because that's not

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Speaker 1: in the best interests of the beneficiaries, not at all.

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Speaker 1: So the next thing is that the commissioner will make

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Speaker 1: a ruling and we may not hear about that for

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Speaker 1: a while because it's not a public record. Thanks for

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Speaker 1: being on the show, Jamar. That's Jamar Creech of Romano Law.

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Speaker 1: Coming up next on The Bloomberg Law Show. Coming up

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Speaker 1: next on The Bloomberg Law Show, new lawsuits are testing

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Speaker 1: the power of a string of federal agencies as companies

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Speaker 1: take their cues from the Supreme Court's decisions. This is Bloomberg,

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Speaker 1: the Federal Trade Commission, the Occupational Safety and Health Administration,

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Speaker 1: the National Labor Relations Board, and the Equal Employment Opportunity Commission.

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Speaker 1: These are just some of the agencies that have been

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Speaker 1: targeted in recent months in a challenge to federal agency power.

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Speaker 1: These challenges will test the limits of recent Supreme Court

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Speaker 1: decisions that roll back the power of federal agencies to

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Speaker 1: regulate business and overturned a forty year old legal precedent

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Speaker 1: that had been a regulatory bedrock. Some conservatives have their

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Speaker 1: eyes on a nineteen thirty five Supreme Court decision Humphrey's

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Speaker 1: Executor versus the United States. It established removal projections for

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Speaker 1: FTC commissioners and help lay the foundation for the modern

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Speaker 1: administrative state. Joining me is an administrative law expert, Carrie Coliniesi,

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Speaker 1: a professor at the University of Pennsylvania Law School. There

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Speaker 1: are so many agencies that are being sued right now.

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Speaker 1: Is it just a general attack on agency power or

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Speaker 1: is it more specific?

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Speaker 3: Well, there's both a general attack and a specific but

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Speaker 3: broad attack on agencies that we would call independent agencies,

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Speaker 3: meaning that they've been set up so that the heads

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Speaker 3: of these agencies can't be fired at will by the president.

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Speaker 3: And there's a big target on a nineteen thirty five

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Speaker 3: President of the Supreme Court that upheld these so called

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Speaker 3: good cause limitations on removal of agency heads. And pretty

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Speaker 3: much any agency with those good cause limitations are you know,

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Speaker 3: in either you call it the spotlight or the firing range.

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Speaker 3: I don't know what's the better metaphor these days, but yes,

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Speaker 3: so we're seeing a lot of it.

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Speaker 1: So let's talk about some of them. There is one

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Speaker 1: against OSHA's Review Commission, so Kenrick Steele sued on September

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Speaker 1: seventeenth to block enforcement of a three hundred and forty

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Speaker 1: eight thousand dollars safety fine against it. But it's not

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Speaker 1: so much about the fine itself. It's arguing about process

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Speaker 1: and attacking the structure of the.

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Speaker 3: Agency right exactly and strikingly, this review Commission and its structure,

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Speaker 3: which you know is mainly an adjudicatory structure that reviews

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Speaker 3: violations that are alleged by the Occupational Safety and Health

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Speaker 3: Administration that had been held by the Supreme Court in

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Speaker 3: the past, but you know, precedent by the Supreme Court today,

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Speaker 3: I don't know that. And maybe three bucks at Starbucks

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Speaker 3: gets you a cup of coffee, so true.

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Speaker 1: So explain what they're attacking specifically here.

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Speaker 3: Sure, so it helps to go back to really square

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Speaker 3: one and just recognize that we have, you know, in

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Speaker 3: the Constitution three branches of government. Article once the legislative

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Speaker 3: branch with Congress. Article two is the executive branch headed

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Speaker 3: by the president. Article three is the judiciary. And we

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Speaker 3: have a system of what's called separation of powers, but

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Speaker 3: also one of checks and balances where different branches of

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Speaker 3: government have different kinds of oversight or involvement of other branches. Now,

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Speaker 3: what we don't see in the Constitution is an Occupational

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Speaker 3: Safety and Health Administration or a Federal Trade Commission or

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Speaker 3: so forth. Right, So those are departments or agencies that

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Speaker 3: the Constitution actually so acknowledges and contemplates that they will exist.

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Speaker 3: There are references to departments in agencies. In fact, there's

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Speaker 3: a provision that speaks to how the heads of these

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Speaker 3: agencies or departments will be appointed. But these are agencies

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Speaker 3: set up by Congress by statutes, you know, And there's

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Speaker 3: a process of course by statutes with the separation of powers,

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Speaker 3: where Congress passes laws, the President signs it. So there's

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Speaker 3: like two branches of government and creating a law. These agencies,

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Speaker 3: as I say, the appointments of the heads of them

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Speaker 3: is governed by a pretty clear procedure in the Constitution itself.

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Speaker 3: But the Constitution is totally silent, totally silent about how

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Speaker 3: they can be removed, the heads of these agencies, and

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Speaker 3: that for the longest time had been kind of settled

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Speaker 3: law that for purely executive agencies, ones that would just

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Speaker 3: be executing laws through ministerial functions, purely executive actions. Maybe

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Speaker 3: law enforcement might be thought of as even one of those.

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Speaker 3: The courts had said, it's a nineteen twenty six decision

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Speaker 3: by the Supreme Court Myers versus the United States, those

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Speaker 3: had to be capable of being removed. The heads of

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Speaker 3: those agencies had to be capable of being removed by

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Speaker 3: the President at will, meaning for any reason, President could

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Speaker 3: remove them, but Congress could. According to a nineteen thirty

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Speaker 3: five decision called Humphrey's Executor case involving the Federal Trade Commission,

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Speaker 3: Congress could impose what are called good cause limitations, which

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Speaker 3: limit the president's ability to remove the heads of those

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Speaker 3: agencies to those instances where there's good cause. Usually that

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Speaker 3: refers to things like negligence, dereliction of duty, criminal offences,

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Speaker 3: gross violations of carrying out their functions, And these good

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Speaker 3: cause limitations have been placed in statutes limiting the president's

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Speaker 3: ability to remove certain agency heads then just for political reasons,

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Speaker 3: just because say the heads of these agencies don't do

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Speaker 3: the President's bidding, that's not a good cause. So that's

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Speaker 3: been the law since nineteen thirty five. Humphrey's Executor, and

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Speaker 3: the Humphrey's Executor decision now is really under some threat

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Speaker 3: of being overturned, much like the Supreme Court has overturned

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Speaker 3: Roversus weighed, much is overturned Chevron versus Natural Resource Defense Council.

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Speaker 3: A forty year president, there's a likelihood that there's a

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Speaker 3: majority on the Court that would be willing to overturn

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Speaker 3: Humphrey's Executor. And we know that because the Court has

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Speaker 3: been since at least twenty ten, so at least for

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Speaker 3: the last fifteen years, slowly shipping away at Congress's ability

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Speaker 3: to put in place these good cause limitations on removal

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Speaker 3: of officers in various cases.

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Speaker 1: So tell us about the line of cases sort of

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Speaker 1: chipping away at agency power.

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Speaker 3: There's not been a sort of a wholesale frontal challenge

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Speaker 3: to all of these good cause limitations. In twenty ten,

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Speaker 3: the Court said, well, Congress can't put good cause limitations

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Speaker 3: on an officer that can be removed only by another officer,

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Speaker 3: a higher officer that has a good cause limitation. So

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Speaker 3: no double layer of good cause limitations. In a case

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Speaker 3: in twenty twenty, Celia Law versus the Consumer Financial Protection

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Speaker 3: Bureau of the Court said you can't have a good

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Speaker 3: cause limitation on agencies that are headed by just a

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Speaker 3: single administrator. But that still leaves agencies like the Federal

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Speaker 3: Trade Commission, like the Federal Communications Commission, like the Occupational

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Speaker 3: Safety and Health Review Commission, like the Consumer Product Safety Commission,

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Speaker 3: like the Federal Reserve Board, where there are multi members

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Speaker 3: that head up these these commissions that have good cause limitations.

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Speaker 3: Those are still in place as long as Humphrey's executor

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Speaker 3: is still in place. But you know, it's any quest

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Speaker 3: He's guess how long Humphrey's executor will stay law and

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Speaker 3: all sorts of litigants are trying to challenge Humphrey's executor

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Speaker 3: frontally by these current lawsuits that you're seeing.

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Speaker 1: Let me ask you a basic question, isn't it better

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Speaker 1: to have an agency head where the president can only

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Speaker 1: remove for good cause, because then the agency had is

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Speaker 1: not so much subject to you know, shifting political wins.

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Speaker 3: I mean, there's good arguments, policy arguments for that, and

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Speaker 3: certainly there's really strong research, for example, that shows that

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Speaker 3: central bank institutions around the world that are somewhat insulated

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Speaker 3: from politics are better for the economy. So you know,

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Speaker 3: there's a lot to be said for that. And even

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Speaker 3: quite frankly, with agencies where the heads can be removed

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Speaker 3: by the president for any reason, there's still a good

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Speaker 3: argument that we would want these agency heads to exercise

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Speaker 3: autonomy from the pure raw electoral politics and do what

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Speaker 3: is best for the country in carrying out their statutory mandates.

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Speaker 3: So I think you do see many presidents recognizing that,

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Speaker 3: and you see even instances where it could be possible

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Speaker 3: for a president to remove an officer who might be

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Speaker 3: creating some kind of embarrassing or perhaps slightly electorally disadvantageous decision.

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Speaker 3: You know, it keeps from removing them because they recognize

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Speaker 3: the value of that autonomy. You think about that very

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Speaker 3: special council that was investigating President Biden for his retention

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Speaker 3: of documents that were deemed classified, for example, that was

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Speaker 3: handled by a separate process that's structured through regulation, but

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Speaker 3: the President didn't intervene and say I want to get

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Speaker 3: rid of that. There's recognition, I think on both sides

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Speaker 3: of the aisle historically, that certain agencies do need to

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Speaker 3: exercise autonomy. Do we want a food in drug administration

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Speaker 3: that's making decisions about the safety and efficacy of our

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Speaker 3: medications or medical devices based upon the whims of a

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Speaker 3: non expert president or what seems politically desirable or expedient

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Speaker 3: for that president. I think most Americans would say no,

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Speaker 3: we want the expertise, We want the independence and the autonomy.

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Speaker 1: Coming up next on the Bloomberg Law Show, will the

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Speaker 1: Supreme Court overturn the unanimous ruling in a case that

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Speaker 1: helped lay the foundation for the modern administrative state. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg. A host of

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Speaker 1: federal agencies have been targeted in recent lawsuits in a

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Speaker 1: challenge to agency power, testing the limits of recent Supreme

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Speaker 1: Court decisions that roll back the power of federal agencies

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Speaker 1: to regulate business. I've been talking to Professor Carrie Coolinisi

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Speaker 1: of the University of Pennsylvania Law School. I can understand

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Speaker 1: why the Supreme Court last term and increasingly is giving

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Speaker 1: more power to judges, But I don't understand why they're

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Speaker 1: giving more power to the president. I mean, even in

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Speaker 1: that controversial case they recognize certain presidential immunity from criminal prosecution.

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Speaker 1: Why is that a conservative viewpoint to give more power

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Speaker 1: to one person.

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Speaker 3: Well, that's a really good question. I suppose you might

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Speaker 3: have to ask, you know, the those are expeusing.

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Speaker 2: To be fair.

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Speaker 3: I mean, we don't yet know if there's a majority

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Speaker 3: that would overturn Humphrey's executor. You'd have to ask. You know,

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Speaker 3: justices who've been on the record is criticizing it, like

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Speaker 3: Justice cour Such or Justice Thomas, and see what they say.

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Speaker 3: But you know, over the last couple of decades, there's

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Speaker 3: emerged a real preference in conservative legal circles for what's

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Speaker 3: called the unitary executive theory that puts the entire federal

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Speaker 3: government under the president's control. They're very control, top heavy,

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Speaker 3: hierarchically control orientation in their approach under this unitary executive theory.

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Speaker 3: And you know, maybe partly it's because you know, Republicans

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Speaker 3: have been more successful at putting their candidates in the

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Speaker 3: White House than they might otherwise be in getting you know,

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Speaker 3: majorities in Congress to pass laws that would implement their agenda.

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Speaker 3: You know, I don't know, but this grows out of this,

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Speaker 3: this real preference as of late for a unitary executive

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Speaker 3: and the limitations on the president's power to remove is

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Speaker 3: seen as really central to that theory because this is true.

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Speaker 3: I suppose in almost any employment situation, how can a boss,

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Speaker 3: you know, run an organization if ultimately the boss can't

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Speaker 3: fire somebody's unwilling to follow directions, if they.

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Speaker 1: Do away with Humphrey's executor, what would that actually mean, Well, what.

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Speaker 3: It would just mean is that the heads of agencies

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Speaker 3: that are currently deemed to be independent are now removable

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Speaker 3: at will by the president. So it might not change

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Speaker 3: a lot. I mean, we look at, for example, what's

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Speaker 3: happened after the Celia law versus this Consumer Financial Protection

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Speaker 3: Bureau case in twenty twenty. Now there's the ability of

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Speaker 3: a president to remove the head of the CFPB at will.

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Speaker 3: But here's the thing. The heads of these agencies are

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Speaker 3: usually aligned with the president. The president appoints them, you know,

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Speaker 3: it goes through Senate, confirmation, and there's you know, often

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Speaker 3: a great deal of alignment. So in many cases, there's

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Speaker 3: not going to be much of a difference. Now, you know,

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Speaker 3: I do think there could be a big difference if

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Speaker 3: we have another Trumpet administration. This was a president who

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Speaker 3: in the past, you know, has been willing to fire

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Speaker 3: at will heads of agencies, like the head of the

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Speaker 3: Federal Bureau of Investigation that other presidents in the past

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Speaker 3: have said, you know, we should leave the FBI alone

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Speaker 3: and let them have that autonomy to conduct investigations and

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Speaker 3: not metal politically in them. You know, let's just be clear.

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Speaker 3: The Food and Drug Administration is an agency that's not

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Speaker 3: independent that the head of it could be removed at

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Speaker 3: will by the president for any reason. But most presidents

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Speaker 3: recognize that. First of all, they put in place a

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Speaker 3: competent FDA administrator and they let them do their job,

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Speaker 3: and unless they do something absolutely wildly irresponsible, you let

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Speaker 3: them do their job. President Trump, however, you know, would

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Speaker 3: be I think more than willing to intervene with some

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Speaker 3: of these agency heads.

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Speaker 1: Humphrey's executor would affect every kind of agency, not.

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Speaker 3: Just it's it's the precedent. Yeah, I mean, you know

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Speaker 3: it's one of these things. Of course, it depends on

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Speaker 3: exactly how the Court would decide to deal with Humphrey's executor.

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Speaker 3: So far, it's been nibbling around the edges, and it says, well,

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Speaker 3: you know, Humphrey's executors said, these good cause limitations could

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Speaker 3: apply across the board to any agency that exercise what

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Speaker 3: it called quasi legislative or quasi judicial functions, which is

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Speaker 3: just about any agency. Well, then we got this little

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Speaker 3: carve out for the double layer of protections in twenty

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Speaker 3: ten for the Public Company Accounting Oversight Board. Then we

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Speaker 3: got this little carve out from Humphrey's executor, clear rule

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Speaker 3: in Celia law that says, well, no, you know that

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Speaker 3: you can't have good cause limitations when there's a single

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Speaker 3: agency administrator. But we haven't yet had the full frontal

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Speaker 3: repudiation of Humphrey's executor. Maybe there's going to be a

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Speaker 3: way for the Supreme Court to say Humphrey's executor is

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Speaker 3: overruled for anything except the Federal Reserve. Perhaps that's a possibility.

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Speaker 3: I wouldn't seem to be a principled carve out, but

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Speaker 3: you know, the Supreme Court gets to set the final word.

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Speaker 3: So if they want to carve out the Constitution in

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Speaker 3: a way that protects monetary policy, that would be better

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Speaker 3: than eliminating Humphrey's executor altogether. But it's just hard for

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Speaker 3: anyone right now to imagine how they could do that

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Speaker 3: on a principal basis.

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Speaker 1: I'm trying to count justices here, because there was a

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Speaker 1: concurring opinion by Justice Kagan that was joined by Justices

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Speaker 1: Sonya Soto Mayo, Brett Kavanaugh, and Amy Coney Barrett that

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Speaker 1: people say signaled that maybe they wouldn't go along with

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Speaker 1: a wholesale doing away with Humphrey's executive I'm trying to

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Speaker 1: count how many Yeah, Jarns, Thomas and Neil Gorzich.

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Speaker 3: And Alito Alito, right, And we don't know really where

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Speaker 3: Roberts will be on this, and it's not likely to

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00:29:16,240 --> 00:29:19,719
Speaker 3: be a six to three decision, but could they end

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00:29:19,800 --> 00:29:24,200
Speaker 3: up with a five to four possibly, We'll see, you know.

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Speaker 3: I will say that as much as we look at

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Speaker 3: the last Supreme Court term as one in which the

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Speaker 3: Court clearly put a target on the administrative state through

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Speaker 3: overruling Chevron deference, through the Jarkisi case that held that

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Speaker 3: the Seventh Amendment precluded the Securities and Exchange Commission from

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00:29:48,720 --> 00:29:52,360
Speaker 3: using its own aljs for civil fraud cases. There was

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00:29:52,440 --> 00:29:57,280
Speaker 3: actually a case that could have been really extreme, that

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Speaker 3: could have upended the Federal reserves sources of funding, and

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Speaker 3: the Supreme Court didn't buy that in a seven to

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Speaker 3: two decision the CFPB versus Community Financial Services Association case,

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Speaker 3: where the lower court had held that the funding of

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00:30:14,680 --> 00:30:19,760
Speaker 3: the CFPB through bank collected fees by the Federal Reserve

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Speaker 3: was in violation of the appropriation's clause. But the Supreme

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Speaker 3: Court didn't bite it that and they said, no, we

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Speaker 3: uphold that. So we might see the same, you know,

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Speaker 3: some kind of limitation on Humphrey's executor's status as well,

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Speaker 3: and something of it will remain. It's anybody's guests, but

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Speaker 3: it's also very clear that that's what all the conservative

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Speaker 3: groups are targeting right now, and until we get a

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Speaker 3: case squarely before the support and we might I know

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Speaker 3: there's a case involving the Consumer Safety Product Commission that

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Speaker 3: would challenge its four cause limitations that schedule forward deciding

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Speaker 3: whether the Court will take it at their conference today.

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Speaker 3: I haven't seen or heard yet whether there's been any

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Speaker 3: decision on whether to take that case or not. But

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Speaker 3: we'll see.

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Speaker 1: There'll be a lot to see as the Supreme Court

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Speaker 1: term begins next Monday. Thanks so much, Carrie. That's Carrie Coliniesi,

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Speaker 1: a professor at the University of Pennsylvania Law School. And

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Speaker 1: that's it for this edition of the Bloomberg Law Podcast.

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Speaker 1: Remember you can always get the latest legal news by

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00:31:26,960 --> 00:31:30,800
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

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Speaker 1: and at Bloomberg dot com, slash podcast, slash Law. I'm

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Speaker 1: June Grosso and this is Bloomberg