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

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Speaker 2: Warner Brothers Discovery is suing the NBA for breach of

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Speaker 2: contract after the league didn't accept the company's matching offer

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Speaker 2: for one of its packages in its upcoming eleven year

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Speaker 2: media rights deal. Warner is the parent company of TNT Sports,

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Speaker 2: and the NBA said it wasn't accepting Warner's one point

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Speaker 2: eight billion dollar a year offer and instead signed deals

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Speaker 2: with Amazon, Disney and NBC Universal. The new contracts are

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Speaker 2: expected to triple the league's broadcast income. Charles Barkley, who's

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Speaker 2: been an analyst on TNT for twenty four years, was

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Speaker 2: outspoken about the deal.

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Speaker 1: This was a last ditch cash grab by the NBA

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Speaker 1: and the players. That's why I think they signed an

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Speaker 1: eleven year deal. So they're like, hey, let's get as

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Speaker 1: much money as we possibly can right now. This is

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Speaker 1: going to be our last bite of the apple because TNT, ABCSPN,

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Speaker 1: they're not going to pay more money going forwards.

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Speaker 2: The lawsuit is another chapter in the deteriorating relationship between

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Speaker 2: the NBA and Turner Sports, a relationship that's lasted nearly

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Speaker 2: forty years. Joining me is entertainment and media lawyer Ronald Beanstock,

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Speaker 2: a partner at Scarincy Hollandbeck. What happened here? As far

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Speaker 2: as you can make out, this.

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Speaker 3: Is what appears to have happened, because there's a lot

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Speaker 3: of redactions in the complaints, so it's kind of hard

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Speaker 3: to note from the specifics of the agreements prior. But

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Speaker 3: I will tell you what I think happened. So this

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Speaker 3: is really a fight between tech corporate structure looking to

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Speaker 3: find their way into the larger dollars of entertainment properties.

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Speaker 3: And you can't get any biggers really in sports versus

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Speaker 3: the as the kids would say, old school broadcasting. You've

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Speaker 3: got a company P and T here who has had

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Speaker 3: the right as a licensee for forty years within their agreement,

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Speaker 3: which again a lot of redactions. Hard to know the

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Speaker 3: specifics and the definition of the word match right a

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Speaker 3: commonly used I don't want to say trope, but a

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Speaker 3: commonly used part of entertainment agreement where somebody who has

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Speaker 3: rights to something would like to keep those rights to something,

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Speaker 3: but they allow a third party to come in make

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Speaker 3: the offer and it get the match. That's a discussion

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Speaker 3: we have to have. What is the match right, how

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Speaker 3: is it defined? And then you know you've got a

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Speaker 3: usurper if you will tech company, Amazon, obviously Disney that

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Speaker 3: comes in and says, I want to make a really

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Speaker 3: great offer to you. I'd like to bring this asset,

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Speaker 3: which is called an asset by T and T in

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Speaker 3: their complaints. I want to bring this asset to our camp,

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Speaker 3: and we think we can do a great job with

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Speaker 3: this and the billions of dollars every year, we think

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Speaker 3: we can enhance them, do really well with and enhance

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Speaker 3: the NBA income and enhance ours obviously, bring bigger and

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Speaker 3: better advertising dollars to their format and in subscriptions. And

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Speaker 3: we'd like to take an offer on this somewhere. They

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Speaker 3: made that offer right. The timing was correct. They made

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Speaker 3: the offer, and T and T had two quote match.

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Speaker 3: So T and T says we matched, we matched timely.

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Speaker 3: That's not in dispute. Seems to be all done correctly.

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Speaker 3: But Amazon is saying, and apparently NBA is saying, no,

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Speaker 3: you didn't. You didn't match. According to the agreement, we

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Speaker 3: have other services or other things we can offer. You

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Speaker 3: didn't match that you're only matching the initial offer, and

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Speaker 3: that definition of match is one of the crucial discussions

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Speaker 3: with billions of dollars at stake.

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Speaker 2: I mean, what's the general interpretation of what match means

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Speaker 2: in a contract like this?

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Speaker 3: So in interesting businesses like this, the match would be

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Speaker 3: first right, like a first right refusal. And that's what

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Speaker 3: the definition I'm not clear about. No one's clear about,

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Speaker 3: because it's contractual language is underdacted from the complaint. But

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Speaker 3: there's a real difference here, and that is the difference

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Speaker 3: would be between I get to match and the words

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Speaker 3: that are using complaint as an incumbent, which is not

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Speaker 3: a commonly used word in entertainment property agreement incumbenty, and

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Speaker 3: that it says as an incumbent, TBS has the right

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Speaker 3: to match any quote third party offer end quote for

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Speaker 3: future NBA telecast rights, right to match any third party offer,

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Speaker 3: which would indicate to me that it's an initial match right.

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Speaker 3: If someone says two hundred and I say I'll give

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Speaker 3: you two hundred, I'll match that. Now it stays with me.

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Speaker 3: I am, as they call it, the legacy or incumbent here,

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Speaker 3: I'm the legacy licenseee. I would maintain my rights. And

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Speaker 3: the term length of the next portion of this agreement

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Speaker 3: is eleven years. That would be over fifty years of

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Speaker 3: retaining rights in terms of a licensee to a piece

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Speaker 3: of property like this, And that's probably where everybody is

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Speaker 3: fighting this because the tech companies think, if I do

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Speaker 3: a better job, So the word match looks like initial match.

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Speaker 3: Many times when negotiating entertainment property agreements like this. Music

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Speaker 3: business is a good example, music published record deals or

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Speaker 3: things of this nature. Licensing deals, we have last match.

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Speaker 3: That's a preference of mine because if you say two hundred,

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Speaker 3: but that's not the fully ending negotiated deal, I think

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Speaker 3: I can get you to three. I don't want you

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Speaker 3: to match two. I want you to match the deal

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Speaker 3: I'm willing to execute. That would be what the match

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Speaker 3: right should say. I don't know because it's been redacted,

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Speaker 3: so we'll have to find out as Discovery goes.

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Speaker 2: On with the deal with Amazon. The games would be

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Speaker 2: distributed across Amazon Prime Video, NBC's broadcast network and Peacock

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Speaker 2: streaming service, and Disney ABC and ESPN platforms. So it's

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Speaker 2: not just matching the money, is it. It's also matching

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Speaker 2: the scope.

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Speaker 3: Yes, I think that that's part of the process, and

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Speaker 3: I think the match is the scope what can we

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Speaker 3: offer in terms of SBOD subscription video on demand. I

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Speaker 3: think this is all within the concept of the match, right,

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Speaker 3: because I don't think the match was one sentence match.

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Speaker 3: I don't think it says here's the money match it.

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Speaker 3: I think structurally it's the scope clearly territories worldwide, but

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Speaker 3: it's scope in terms of what is we have to

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Speaker 3: offer and what platforms. I think that's a part of this.

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Speaker 3: I think that they're trying to say you're an old

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Speaker 3: school broadcaster, but TNT has other platforms that they get

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Speaker 3: to put it onto. MAC So I think these are

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Speaker 3: parallel universes colliding. I don't know if they're exactly in

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Speaker 3: the same size universe, but I think that they are

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Speaker 3: structurally similar because MAX allows the similar version of platform

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Speaker 3: structure as Amazon would have as well.

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Speaker 2: Suppose the NBA says, you know, we think we'll get

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Speaker 2: more viewers with the deal with Amazon, and it's in

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Speaker 2: our long term best interests. Can they walk away from

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Speaker 2: the deal if somehow TNT says we can give you

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Speaker 2: the same kind of exposure and money.

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Speaker 3: Someone is looking at this in the long term process, right,

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Speaker 3: Someone's saying this is better for us in terms of

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Speaker 3: the NBA brand and our largest in the future. Clearly,

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Speaker 3: that's what's at stake here. Somewhere in that agreement between

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Speaker 3: P and T and the NBA this forty year. That's

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Speaker 3: a lengthy relationship which apparently, according to whatever I've seen

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Speaker 3: in the press and people that I know, has not

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Speaker 3: been the best in the few years that there's been

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Speaker 3: a lot of discussion about this, you know, and again

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Speaker 3: I'm going to reiterate that point about tech giants versus

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Speaker 3: old school broadcasters. There seems to have been a exclusive

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Speaker 3: negotiation period that was the precursor to this match. So

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Speaker 3: it looked like there was some over the last year. Contractually,

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Speaker 3: they were obligated to have not mediation, but a negotiation

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Speaker 3: where they would sit in that room and they would

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Speaker 3: try to knock out their new agreement. And it didn't work.

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Speaker 3: Somewhere in the NBA to keep the people in the

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Speaker 3: NBA or the owners whoever was involved, said no, it's

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Speaker 3: not structurally sufficient. We think we can do better. We

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Speaker 3: think the NBA brand can do better at this different

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Speaker 3: set of platforms. But they had that moment and it

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Speaker 3: didn't work out well.

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Speaker 2: They've asked for a jury try is it difficult to

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Speaker 2: line up two different offers like this when it's not

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Speaker 2: just money and determine whether it's a real match.

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Speaker 3: I don't think it's that's sophisticated. Look this jury trial demand, yes,

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Speaker 3: but think about what we've got here. We've got in

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Speaker 3: the quest for junct of belief specific performance. I mean,

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Speaker 3: everybody's just looking to try to keep it long before

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Speaker 3: you get to a jury. But if we get to

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Speaker 3: a jury, you know, this to me looks like you

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Speaker 3: can put the two offers up on you know, large

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Speaker 3: boards in front of a jury and go, there's their offer,

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Speaker 3: here's our offer. Look at ours? You see me? Match

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Speaker 3: that there it is. I don't think it's hard to

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Speaker 3: get in front of a jury. It's not difficult areas

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Speaker 3: of law. It's going to be how do you define match?

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Speaker 3: And did we do it? And if we did it,

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Speaker 3: I'm going to show the jury here here, these two

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Speaker 3: pluckers right up here, right here's ours. There's there getting

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Speaker 3: to that though, Oh my goodness, we have a long

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Speaker 3: way to go. We have all this other stuff we're

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Speaker 3: going to have to go through.

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Speaker 2: Also, Warner Brothers said that if this isn't settled before

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Speaker 2: or the contract expires. They want injunction. Yeah, you think

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Speaker 2: a judge would give them that, Well, it.

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Speaker 3: Says a lot, But Judge Grant's an injunction that also says, here,

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Speaker 3: if a likelihood you're going to run on the barracks,

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Speaker 3: that kind of steers things in a different direction. A

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Speaker 3: prognosticator is tough.

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Speaker 2: Interesting that Turner, in its complaint said that we strongly

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Speaker 2: believe that this is not just our contractual right, but

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Speaker 2: also in the best interest of fans who want to

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Speaker 2: keep watching our industry leading NBA content.

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Speaker 3: I want to discuss this T and Keith investment into

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Speaker 3: the property they call their asset, which they shouldn't be

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Speaker 3: calling its assets, but they do in that complaint. That's

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Speaker 3: very telling. They've come to think of it as their own.

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Speaker 3: They have a large investment in the NBA broadcasters and

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Speaker 3: experts and color commentators. That's a lot of money they've

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Speaker 3: got invested, and they've they've been very successful with that.

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Speaker 3: I think they've won their own Emmys separately, whatever those

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Speaker 3: shows are, you know, I know shows now start before

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Speaker 3: the game, during the game, after the game, next week's game, and.

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Speaker 2: I knows absolutely they're not ending.

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Speaker 3: It's just a perpetual series of commentary. But I think

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Speaker 3: that's a huge part of this that they say, look,

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Speaker 3: we pay Charles Barkley X and we have the best

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Speaker 3: people to do this. Now who you're going to bring

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Speaker 3: on to do this? Right? Look at what you've invested

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Speaker 3: into this, And I think that's part of this. And

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Speaker 3: I think that what they're trying to say in the complaint,

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Speaker 3: which leads back to the injunction angle here, is that

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Speaker 3: we've got so much invested and look at the terrible

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Speaker 3: losses will suffer. Well, I have a hard time. I mean,

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Speaker 3: that's forty years. Did you do everything in the forty years?

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Speaker 3: I think that's going to come up, right. They're going

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Speaker 3: to say they got complacent. Sure, they had these great

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Speaker 3: team of experts, these really popular posts, and you know,

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Speaker 3: superstar guys and gals. You know, it's interesting to see

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Speaker 3: that in the complaint. I want to say, it's a

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Speaker 3: woe is me kind of thing, saying how terribly we'll

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Speaker 3: be hurt. Sure, that's what complaints say, but that's not

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Speaker 3: the point here. Did you match it? Did you follow

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Speaker 3: what they had said? I also want to know what

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Speaker 3: went for all in that exclusive negotiation period, What happened there,

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Speaker 3: and ultimately, if I can be the prognosticator for a second,

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Speaker 3: you know, if it doesn't work out, there may be

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Speaker 3: a split. The baby here it is State Court is

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Speaker 3: State Supreme in New York, So this won't be the

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Speaker 3: first time anybody does something like this. They may say,

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Speaker 3: you know what, for the first three years, we may

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Speaker 3: give key games to stay with T and T and

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Speaker 3: their team, and then regular season games X, Y, and

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Speaker 3: Z will go over here, and then eventually we're going

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Speaker 3: to morph this all entirely over to the new licensee.

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Speaker 3: That may be how this gets done. Nobody, particularly the

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Speaker 3: NBA and TNT. Nobody's going to want to have this

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Speaker 3: extend past even the preseason, so I think they're going

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Speaker 3: to have to figure out methodologies to compromise at some point.

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Speaker 3: It's not like they're going to postpone the season, So

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Speaker 3: I think that the issue is going to start to

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Speaker 3: come up pretty fast and furious. This is not just

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Speaker 3: rocket docket as in the federal system. This is going

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Speaker 3: to be oh boy, we got to move this along.

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Speaker 3: There's billions and billions to stake here, and this is

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Speaker 3: one of the most valuable properties and entertainment biz in

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Speaker 3: the world, and we need to get this moving along.

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Speaker 2: Are courts reluctant to force someone into a deal they

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Speaker 2: don't want to be in?

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Speaker 3: Yes, simplest answer I can give. Yeah, that's a common discussion.

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Speaker 3: Like I said back in entertainment properties, if an artist

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Speaker 3: wants off a label, the judge's going to say, how

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Speaker 3: do you guys getting along? Oh? Terribly? Okay, Now I

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Speaker 3: want you guys back together, shake hands, Come on, you

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Speaker 3: can put it back. Never happens. It never happens that way.

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Speaker 3: There's always some override, similar to the theory here of

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Speaker 3: certain games being split up. There may be an override

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Speaker 3: on structure of money. There may be a way to

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Speaker 3: know UO two records to this person, Oh you owe

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Speaker 3: five songs to this publisher. Oh you owe twelve episodes

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Speaker 3: the original production company. Yeah, we do that to get

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Speaker 3: through the process. So we don't kill the golden goose here.

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Speaker 3: Enter Human properties take decades, if not lifetimes to develop

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Speaker 3: like this, and so nobody wants to hurt that just

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Speaker 3: when it's probably coming off an Olympic high right now.

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Speaker 3: So I think that they're going to be ways we

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Speaker 3: get this resolved that may not be in the standard methodology.

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Speaker 3: I think there's gonna be a lot of meetings and chambers.

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Speaker 3: I think there's gonna be a lot of meetings with

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Speaker 3: everybody just discussing how to make this work. But it's

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Speaker 3: can be a fascinating couple of months.

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Speaker 2: So you think that there might be a settlement before

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Speaker 2: this gets more serious, before it goes to a jury

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Speaker 2: or a judge makes a decision.

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Speaker 3: I think there's a possibility there's going to be a

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Speaker 3: series of workaround to try to satisfy some immediacy for

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Speaker 3: T and T. But I think eventually there's going to

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Speaker 3: be a transition unless everything has gone wrong. From the

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Speaker 3: Amazon point of view, in terms of where the match

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Speaker 3: was and how you define match, it sounds like the

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Speaker 3: timeliness was there had an exclusive negotiation process that preceded it,

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Speaker 3: and it sounded like something happened in that definitional process.

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Speaker 3: Somebody says, we did it the other side, NBA, No

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Speaker 3: you didn't do that. No it didn't. Is it based

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Speaker 3: upon as you and I just discussed, the variable platforms

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Speaker 3: and the extensive nature of the other digital platform It's

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Speaker 3: hard to know. The redactions make it hard to know

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Speaker 3: because at the end of the complaint June. There is

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Speaker 3: a series of redactions where it's effectively saying the Amazon

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Speaker 3: offer they figured a way around it. And that's the

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Speaker 3: kind of language you see in the complaint. They found

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Speaker 3: a way around it here. They did something here that

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Speaker 3: wasn't in good faith. It's a bad faith effort to

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Speaker 3: deprive TBS of its contractual right. That's pretty hefty redacted

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Speaker 3: in the complaint. We don't know what the language was,

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Speaker 3: but they're saying they caused the match to be rejected.

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Speaker 3: Has to be proof of that. What did they do?

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Speaker 3: Where is that here? You know where? If that's the enter?

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Speaker 3: What did they do?

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Speaker 2: So?

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Speaker 3: What was so crasty about these guys that they were

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Speaker 3: able to convince them that they can get around the match?

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Speaker 2: Right?

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Speaker 3: That's redacted. We're gonna have to go find out once

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Speaker 3: this proceeding really gets rolling to me. In the last overview,

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Speaker 3: it could have been that if Aready got complacent on

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Speaker 3: the TBST and T side could have been I mean,

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Speaker 3: they had this property for forty years. It could have

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Speaker 3: been I don't know, maybe they got complacent, Maybe they

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Speaker 3: could have done more, Maybe they weren't pushing the brandess

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Speaker 3: as well. Long as they could. I mean, these are

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Speaker 3: growth issues that the NBA has access to that are

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Speaker 3: not a part of the record. But I started out

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Speaker 3: by saying, I'm going to stay with it. This is

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Speaker 3: the invasion of the tech companies, and they're coming for

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Speaker 3: the old school broadcasters, and they think that they could

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Speaker 3: grab up these multi billion dollar properties and do something

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Speaker 3: new with them and gives them a lot of cloud.

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Speaker 3: We're not just delivering pactors anymore. Right, We've got entertainment

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Speaker 3: properties and we're going to have a long term, eleven

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Speaker 3: year deal on one of the most important entertainment sports

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Speaker 3: properties in the world.

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Speaker 2: I may use that line, We're not just delivering packages anymore.

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Speaker 2: Thanks so much for being on the show. That's Ronald Beanstock,

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Speaker 2: a partner at Scarincy Holland Beck. Coming up next. Why

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Speaker 2: federal agencies are losing more court battles since the Supreme

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Speaker 2: Court's term. This is Bloomberg. Last term, the Supreme Court

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Speaker 2: changed the landscape for federal agencies when it threw out

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Speaker 2: a forty year old precedent known as Chevron deference, which

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Speaker 2: required that courts deferred to reasonable agency interpretations of ambiguous laws.

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Speaker 2: The effects can already be seen in federal court rulings

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Speaker 2: since that June decision called loeper Bright. According to a

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Speaker 2: Bloomberg Law review of rulings on agency actions, in the

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Speaker 2: month after that decision, federal judges ruled against agency interpretations

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Speaker 2: in thirteen out of twenty decisions, including orders that blocked

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Speaker 2: rules prohibiting discrimination against transgender people in health care and education,

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Speaker 2: and that blocked rules banning worker non compete agreements. And

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Speaker 2: in all those cases save one, the federal judges reviewing

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Speaker 2: the agency actions had not even used a milder form

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Speaker 2: of defferences to the government an eighty year old president

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Speaker 2: called Skidmore deference, which the Supreme Court said could be used.

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Speaker 2: Joining me is an administrative law expert. Carrie Coliniese, a

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Speaker 2: professor at the University of Pennsylvania Law School. Will you

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Speaker 2: explain what Skidmore deference is?

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Speaker 3: Sure?

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Speaker 2: So?

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Speaker 3: I think the best way to really explained Skidmore difference

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Speaker 3: is by reference to what Chevron difference was, because it's

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Speaker 3: helpful to know what Skidmore difference is not, and it's

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Speaker 3: not Chevron difference. The Chevron difference is where courts in

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Speaker 3: cases where the statute is ambiguous and the agency is

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Speaker 3: a reasonable interpretation of the statute, Courts are obligated to

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Speaker 3: accept the agency's reasonable interpretation. There's actually a duty to

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Speaker 3: follow what the agency says. The idea being that Congress

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Speaker 3: has delegated, even implicitly, the authority to the agency to

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Speaker 3: determine what ambiguous that she means, and courts must follow it.

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Speaker 3: Get more difference now goes back to a decision forty

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Speaker 3: years prior to Chevron. Chevron was decided in nineteen eighty four.

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Speaker 3: It's now just been overturned in twenty twenty four, forty

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Speaker 3: years later. But if you go without sort of forty

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Speaker 3: years before kind of symmetry, here, we can see a

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Speaker 3: Supreme Court's decision called Skidmore that articulated a type of

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Speaker 3: deference that's similar when that she's are ambiguous, but it's

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Speaker 3: not mandatory that courts follow what the agencies have decided.

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Speaker 3: Get more difference is known as difference that follows from

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Speaker 3: agency's power to persuade. If the court reviewing an agency's

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Speaker 3: interpretation finds that, on the basis of the agency's expertise

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Speaker 3: and the thoroughness of its investigations, that well, the agency

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Speaker 3: he's probably right, then it can go ahead and defer

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Speaker 3: to the agency, but it's not obligated to do so.

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Speaker 3: And that's the real difference here. What the Court did

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Speaker 3: this year in Low for Bright was to return us

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Speaker 3: back to a world eighty years ago, which was the

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Speaker 3: world dominated by skidmore difference, where courts could follow what

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Speaker 3: the agency said if they had the power to persuade

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Speaker 3: the court that they were right. I don't know. If

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Speaker 3: your audience is highly technical and filled with a lot

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Speaker 3: of lawyers, I could actually give another analogy that I

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Speaker 3: think claims did more difference well for lawyers. Okay, if

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Speaker 3: we go back to a world back in the common law,

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Speaker 3: where courts were deciding all sorts of questions, courts had

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Speaker 3: to follow precedents of prior court decisions, and the Pennsylvania

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Speaker 3: Supreme Court, let's say, needed to follow prior decisions of

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Speaker 3: the Pennsylvania Supreme Court unless or until they overruled themselves.

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Speaker 3: Binding precedent followed when you were in the same state

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Speaker 3: with the same court. However, it was always the case,

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Speaker 3: and it still is always the case. Say a Pennsylvania

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Speaker 3: Supreme Court could look to the decisions of the Ohio

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Speaker 3: Supreme Court or the Florida Supreme Court in deciding very

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Speaker 3: similar cases, and they weren't obligated to follow what the

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Speaker 3: Ohio or the Florida courts decided, but they might be

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Speaker 3: persuaded by what the courts in Ohio and Florida decided.

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Speaker 3: And that's the way to think about Gidmore deference is

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Speaker 3: not mandatory to follow it, but it is an option

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Speaker 3: if a court is persuaded.

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Speaker 2: In the opinion in Low ur Bright, the Chief Justice

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Speaker 2: John Roberts invoked the skid defense a couple of times.

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Speaker 2: What was his position on it? Was he telling courts

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Speaker 2: use this?

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Speaker 3: He says, it's available. It's still available. Why because it's

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Speaker 3: a doctrine that still puts the court in the driver's seat,

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Speaker 3: because it's the court that gets to decide whether they

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Speaker 3: think it's appropriate to refer to the agency, whether they're

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Speaker 3: persuaded that the agency has the best interpretation of the statute.

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Speaker 3: And Chief Justice Roberts, in the majority opinion in moper Bright,

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Speaker 3: says that's fine in agencies, he says, are still deserving

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Speaker 3: of respectful consideration for their views. So a court should

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Speaker 3: certainly hear agencies out, and if they are persuaded, then

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Speaker 3: sure they follow them. You know, some people would say

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Speaker 3: it's not really a difference at all. It's what's always

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Speaker 3: there for any litigant. If you persuade the josh that

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Speaker 3: you have the best interpret the judge will agree with you.

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Speaker 3: And so it may not really give agencies a whole

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Speaker 3: lot of weight behind what they do. But you know,

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Speaker 3: the reality, of course, is that a lot of these

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Speaker 3: cases arise under statutes and with issues that are very technical,

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Speaker 3: and judges did before Chevron side with agencies, you know,

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Speaker 3: more often than not, and one might might expect the

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Speaker 3: same to happen afterwards, except we have, you know, a

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Speaker 3: different composition to the judiciary today. And I think the

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Speaker 3: Supreme Court's decision to overrule the Chevron is sending a

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Speaker 3: signal throughout the lower courts that you should be skeptical,

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Speaker 3: notwithstanding these passing references to skid More and the possibility

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Speaker 3: that it still might apply. It's very clear. I think

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Speaker 3: the message from the Supreme Court is be very skeptical

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Speaker 3: of agency power. And that's not only in the overruling

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Speaker 3: of Chevron, but it's in the Court's recent invocation of

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Speaker 3: the Major Questions doctrine and in some other cases as well.

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Speaker 2: According to a Bloomberg Law review of decisions issued between

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Speaker 2: June twenty eighth and July twenty six, federal courts didn't

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Speaker 2: refer to Skidmore in nineteen of twenty rulings on agency

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Speaker 2: actions that cited Lower Bright, which is the case that

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Speaker 2: did away with the Chevron doctrine, and federal judges ruled

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Speaker 2: against agency interpretations in thirteen out of those decisions. What

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Speaker 2: does that tell you?

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Speaker 3: It's not surprising for one Gidmore difference. It's not obligatory.

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Speaker 3: So there's no reason that courts need to decide on

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Speaker 3: the basis of Skidmore. There's no reasons for courts to

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Speaker 3: cite Skidmore. The court in Lowperbright was saying to lower courts,

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Speaker 3: you all figure it out and come up with your

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Speaker 3: own best reading of the statutes. And that doesn't leave

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Speaker 3: a whole lot of room for of any kind, even

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Speaker 3: an optional kind of deference like Skidmark.

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Speaker 2: I remember during the oral arguments in the Lower Bright case,

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Speaker 2: the Chief Justice saying something like, we haven't relied on

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Speaker 2: Chevron in more than a decade, But the lower courts

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Speaker 2: relied on Chevron.

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Speaker 3: Didn't They sure they cited the Chevron right absolutely That's

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Speaker 3: why Lower Bright's three key words Chevron is over ruled

433
00:24:28,560 --> 00:24:32,200
Speaker 3: were so important, as it signaled to the lower courts,

434
00:24:32,320 --> 00:24:36,320
Speaker 3: don't cite Chevron anymore. You have to figure it out.

435
00:24:37,040 --> 00:24:40,480
Speaker 3: And you know that's a I mean, I've kind of

436
00:24:40,520 --> 00:24:43,080
Speaker 3: thought of it as a legal earthquake. I mean, it's

437
00:24:43,119 --> 00:24:47,720
Speaker 3: really shaken the things up here. After forty years of

438
00:24:47,960 --> 00:24:51,560
Speaker 3: court citing Chevron, citing Chevron, citing Chevron, it was one

439
00:24:51,600 --> 00:24:55,760
Speaker 3: of the most widely cited administrative law decisions, really one

440
00:24:55,760 --> 00:24:59,320
Speaker 3: of the more widely cited of any Supreme Court decisions

441
00:24:59,320 --> 00:25:02,879
Speaker 3: of all time. Now the Court says away from that,

442
00:25:03,000 --> 00:25:07,640
Speaker 3: don't cite it. And so it's also I think has

443
00:25:07,880 --> 00:25:11,720
Speaker 3: around it kind of a penumber that is apparently telling

444
00:25:11,880 --> 00:25:15,920
Speaker 3: lower court judges be skeptical of deference of any kind,

445
00:25:16,200 --> 00:25:20,400
Speaker 3: because again, your job as judges is not to defer

446
00:25:20,520 --> 00:25:24,239
Speaker 3: to anyone, but to make the best reading of the

447
00:25:24,320 --> 00:25:28,960
Speaker 3: statue yourself. And yes, you can listen to the agency,

448
00:25:29,080 --> 00:25:32,840
Speaker 3: give the agency respectful consideration, but you know that doesn't

449
00:25:32,960 --> 00:25:36,880
Speaker 3: leave much room for a notion of deference if it's

450
00:25:36,960 --> 00:25:40,160
Speaker 3: the courts that are supposed to be decided this difference

451
00:25:40,200 --> 00:25:43,840
Speaker 3: of any kind, even a voluntary deference even though the

452
00:25:43,920 --> 00:25:48,400
Speaker 3: lower bright opinion as you can rely on if you're

453
00:25:48,440 --> 00:25:51,400
Speaker 3: persuaded by the agency. But if you're a lower court

454
00:25:51,440 --> 00:25:53,960
Speaker 3: judge and you're going to agree with the agency, then

455
00:25:54,119 --> 00:25:58,760
Speaker 3: just lay out the argument for why the best reading

456
00:25:58,800 --> 00:26:01,920
Speaker 3: of the statute is the same one that the agency

457
00:26:02,040 --> 00:26:05,320
Speaker 3: has made no need to cite. Get more. Just lay it.

458
00:26:05,240 --> 00:26:07,560
Speaker 2: Out, and you sort of referred to this I think

459
00:26:07,640 --> 00:26:11,800
Speaker 2: Bloomberg law. The review found that district court decisions on

460
00:26:12,040 --> 00:26:16,400
Speaker 2: requests to freeze Biden administration regulations show a partisan pattern.

461
00:26:16,720 --> 00:26:19,440
Speaker 2: Seven of the eight rulings that pause the rules were

462
00:26:19,440 --> 00:26:24,119
Speaker 2: Republican appointed judges. Democratic appointee handed down the one rejecting

463
00:26:24,160 --> 00:26:27,520
Speaker 2: an injunction bid. So does it seem as if the

464
00:26:27,960 --> 00:26:32,280
Speaker 2: more conservative judges are the ones that are anti agency

465
00:26:32,320 --> 00:26:35,879
Speaker 2: and are going to rule against agencies if they can,

466
00:26:35,960 --> 00:26:40,280
Speaker 2: whereas the more liberal judges will rule four agencies.

467
00:26:40,720 --> 00:26:44,200
Speaker 3: It's generally been the pattern. It's generally been the pattern

468
00:26:44,480 --> 00:26:48,560
Speaker 3: in a very subtle way over the past several decades,

469
00:26:48,640 --> 00:26:54,120
Speaker 3: but certainly in recent years we've seen a greater degree

470
00:26:54,160 --> 00:26:58,719
Speaker 3: of polarization in the judiciary that kind of mirrors the

471
00:26:58,760 --> 00:27:03,600
Speaker 3: polarization and society at large, and this is a matter

472
00:27:03,760 --> 00:27:09,440
Speaker 3: I think of considerable concern generally about our court system.

473
00:27:09,920 --> 00:27:15,000
Speaker 3: But it also will manifest itself in judges of different

474
00:27:15,240 --> 00:27:23,880
Speaker 3: you know, political, partisan, ideological persuasions come into different readings

475
00:27:23,880 --> 00:27:28,280
Speaker 3: of the statutes. There's you know, empirical evidence that indicates that,

476
00:27:28,520 --> 00:27:31,679
Speaker 3: and we might expect that judges that are skeptical of

477
00:27:31,760 --> 00:27:36,119
Speaker 3: agency power are hearing this signal that the Supreme Court

478
00:27:36,160 --> 00:27:40,320
Speaker 3: is sending in lower Bright much more loudly and strongly

479
00:27:40,960 --> 00:27:44,320
Speaker 3: than our other judges. Perhaps now may be the case,

480
00:27:44,359 --> 00:27:48,399
Speaker 3: of course, that there will be judges that are willing

481
00:27:48,440 --> 00:27:51,200
Speaker 3: to side with the agency too, and they're going to

482
00:27:51,240 --> 00:27:55,359
Speaker 3: say the best reading is the agency's interpretation. In some sense,

483
00:27:55,359 --> 00:27:58,840
Speaker 3: we're going to have some dueling opinions I suspect in

484
00:27:59,200 --> 00:28:04,920
Speaker 3: various different courts around the country, ultimately perhaps having more

485
00:28:05,000 --> 00:28:08,199
Speaker 3: of these conflicts or what we call circuits splits that

486
00:28:08,320 --> 00:28:11,320
Speaker 3: the Supreme Court will have to resolve, and it's going

487
00:28:11,359 --> 00:28:13,359
Speaker 3: to go up to a majority of the Supreme Court

488
00:28:13,400 --> 00:28:17,920
Speaker 3: that I think has demonstrated itself to be extremely skeptical

489
00:28:17,960 --> 00:28:19,320
Speaker 3: of agency authority.

490
00:28:19,880 --> 00:28:22,200
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue

491
00:28:22,240 --> 00:28:26,119
Speaker 2: this conversation with professor Carrie Colinisi of the University of

492
00:28:26,160 --> 00:28:29,840
Speaker 2: Pennsylvania Law School. Will we reach a point where federal

493
00:28:29,880 --> 00:28:33,679
Speaker 2: agencies throw up their hands and say no more rulemaking

494
00:28:33,800 --> 00:28:37,040
Speaker 2: for us? I'm June Grosso and you're listening to Bloomberg.

495
00:28:39,080 --> 00:28:43,240
Speaker 2: The Supreme Court's decision overturning a forty year old president,

496
00:28:43,400 --> 00:28:46,440
Speaker 2: known as the Chevron Doctrine, was one of the most

497
00:28:46,600 --> 00:28:51,120
Speaker 2: watched cases of the last term. The Supreme Court's conservative

498
00:28:51,200 --> 00:28:55,360
Speaker 2: majority set forth a new standard calling on judges to

499
00:28:55,480 --> 00:28:59,880
Speaker 2: use their independent judgment to decide whether an agency acts

500
00:29:00,160 --> 00:29:03,640
Speaker 2: within the authority that Congress granted it, and a little

501
00:29:03,640 --> 00:29:07,440
Speaker 2: over a month after that decision, the effects can already

502
00:29:07,440 --> 00:29:11,240
Speaker 2: be seen in federal court rulings. District court decisions on

503
00:29:11,400 --> 00:29:16,880
Speaker 2: request to freeze Biden administration regulations showed a partisan pattern.

504
00:29:17,280 --> 00:29:21,440
Speaker 2: According to a Bloomberg Law review of rulings on agency actions,

505
00:29:21,880 --> 00:29:25,160
Speaker 2: seven of the eight rulings that paused rules were issued

506
00:29:25,200 --> 00:29:29,440
Speaker 2: by Republican appointed judges, while a Democratic appointee handed down

507
00:29:29,480 --> 00:29:33,320
Speaker 2: the one rule rejecting an injunction bid. I've been talking

508
00:29:33,320 --> 00:29:36,920
Speaker 2: to administrative law expert Carrie Coloniesi, a professor at the

509
00:29:37,000 --> 00:29:41,080
Speaker 2: University of Pennsylvania Law School. This may be a little extreme,

510
00:29:41,240 --> 00:29:43,200
Speaker 2: but do you think we'll get to the point where

511
00:29:43,240 --> 00:29:46,680
Speaker 2: agencies will throw up their hands and say, why go

512
00:29:46,760 --> 00:29:49,440
Speaker 2: through the rule making process when we're just going to

513
00:29:49,480 --> 00:29:51,360
Speaker 2: be overruled by the courts.

514
00:29:51,720 --> 00:29:56,640
Speaker 3: It might be certainly something that happens. We'll have to see.

515
00:29:56,680 --> 00:30:00,840
Speaker 3: I mean, there's actually one recent study done by a

516
00:30:00,960 --> 00:30:05,040
Speaker 3: legal scholar and political scientists at Texas A and M University,

517
00:30:05,360 --> 00:30:11,200
Speaker 3: Dan Walters, who looked at the productivity of actually legislatures

518
00:30:11,400 --> 00:30:14,520
Speaker 3: at the state level because one thought is that, you know,

519
00:30:14,600 --> 00:30:18,000
Speaker 3: if we have a judges that are not willing to

520
00:30:18,040 --> 00:30:21,640
Speaker 3: pass the buck to the agencies and to really back

521
00:30:21,720 --> 00:30:25,520
Speaker 3: up and support what the legislature meant, maybe we'll have

522
00:30:25,720 --> 00:30:29,560
Speaker 3: more legislation. And he actually found that, you know, there's

523
00:30:29,600 --> 00:30:33,360
Speaker 3: actually less legislation in states that didn't have something like

524
00:30:33,400 --> 00:30:38,280
Speaker 3: the Chevron doctrine at the state level. And he surmises that,

525
00:30:38,480 --> 00:30:41,600
Speaker 3: you know, it might be the same thing that you're

526
00:30:41,640 --> 00:30:45,480
Speaker 3: suggesting that my bother with legislation if at the end

527
00:30:45,520 --> 00:30:47,680
Speaker 3: of the day, courts are going to get to decide

528
00:30:47,720 --> 00:30:50,360
Speaker 3: what it is and it's going to be fixed because

529
00:30:50,600 --> 00:30:54,880
Speaker 3: when courts decide what a statute means that's in precedent,

530
00:30:55,440 --> 00:30:58,960
Speaker 3: and there's not a lot of flexibility, so you know,

531
00:30:59,080 --> 00:31:02,960
Speaker 3: even legislations might well kind of say, well, why bother,

532
00:31:03,200 --> 00:31:04,440
Speaker 3: and not only agencies.

533
00:31:04,600 --> 00:31:05,960
Speaker 2: It sounds pretty dismal.

534
00:31:05,920 --> 00:31:09,480
Speaker 3: But I will say there is one possibility here. Keep

535
00:31:09,520 --> 00:31:12,760
Speaker 3: in mind that lower Bright was a case that was

536
00:31:12,840 --> 00:31:18,440
Speaker 3: decided on the basis of a statute, the Administrative Procedure Acts,

537
00:31:18,840 --> 00:31:22,760
Speaker 3: and the court said that the Chevron doctrine was inconsistent

538
00:31:23,080 --> 00:31:29,920
Speaker 3: with this overriding statute that governs any time agencies are

539
00:31:29,960 --> 00:31:34,360
Speaker 3: in court and their actions are being challenged. That statute

540
00:31:34,560 --> 00:31:38,760
Speaker 3: says that all relevant decisions are to be decided by courts,

541
00:31:38,960 --> 00:31:44,280
Speaker 3: All relevant legal determinations are supposed to be decided by courts,

542
00:31:44,840 --> 00:31:50,080
Speaker 3: and Loper Bright really hinged itself in its reasoning on

543
00:31:50,400 --> 00:31:55,480
Speaker 3: an inconsistency it saw between the Chevron doctrine of deference

544
00:31:56,320 --> 00:32:02,080
Speaker 3: and the Administrative Procedure Acts that leaves. So maybe this

545
00:32:02,200 --> 00:32:06,160
Speaker 3: isn't so dismal. If there is a Congress that wants

546
00:32:06,200 --> 00:32:09,880
Speaker 3: to amend the Administrative Procedure Act, it's possible for them

547
00:32:09,960 --> 00:32:12,960
Speaker 3: to reverse what the Court has done here in Loper Bright.

548
00:32:13,560 --> 00:32:15,120
Speaker 3: So we'll have to see I mean, I think what

549
00:32:15,160 --> 00:32:18,000
Speaker 3: the future holds is going to be dependent upon a

550
00:32:18,120 --> 00:32:22,400
Speaker 3: very complex set of interactions between judges at a lower

551
00:32:22,400 --> 00:32:27,200
Speaker 3: court level, different persuasions between what the Supreme Court does

552
00:32:27,240 --> 00:32:32,560
Speaker 3: in future cases, what agencies do, and what Congress ultimately

553
00:32:32,800 --> 00:32:36,240
Speaker 3: do in what might be called, you know, the administrative

554
00:32:36,320 --> 00:32:40,080
Speaker 3: governance game. That's going to be playing out for some

555
00:32:40,200 --> 00:32:41,840
Speaker 3: years to come, and we'll have to see how it

556
00:32:41,880 --> 00:32:42,400
Speaker 3: plays out.

557
00:32:43,480 --> 00:32:46,320
Speaker 2: I wanted to get your take on what the Chief

558
00:32:46,520 --> 00:32:49,640
Speaker 2: Justice meant when he wrote in lower bright in an

559
00:32:49,680 --> 00:32:52,640
Speaker 2: agency case in particular, the court will go about its

560
00:32:52,680 --> 00:32:56,920
Speaker 2: task with the agency's body of experience and informed judgment,

561
00:32:57,520 --> 00:32:59,960
Speaker 2: among other information, at its disposed.

562
00:33:01,160 --> 00:33:06,040
Speaker 3: Sure, well, this is a recognition that first, agencies are

563
00:33:06,120 --> 00:33:10,680
Speaker 3: themselves part of the same government that courts are right,

564
00:33:11,360 --> 00:33:17,040
Speaker 3: and this is a reality why agencies historically have won

565
00:33:17,480 --> 00:33:21,840
Speaker 3: more often than not when their actions are challenged in court.

566
00:33:22,360 --> 00:33:27,960
Speaker 3: It's not easy to prevail against a government litigator because

567
00:33:28,040 --> 00:33:32,520
Speaker 3: they do bring with them a lot of expertise and knowledge,

568
00:33:32,600 --> 00:33:37,520
Speaker 3: and courts have at least historically tended to say, well,

569
00:33:37,600 --> 00:33:40,760
Speaker 3: you know, they're the government. They you know, we're the

570
00:33:40,800 --> 00:33:46,120
Speaker 3: government too, in some sense, maybe on the same side,

571
00:33:46,240 --> 00:33:49,440
Speaker 3: and you know, as long as the government's been pretty

572
00:33:49,480 --> 00:33:54,080
Speaker 3: reasonable and Congress intended the agency to decide we should

573
00:33:54,200 --> 00:33:56,800
Speaker 3: we should follow that. That was the underlying basis of

574
00:33:56,880 --> 00:34:01,320
Speaker 3: Chevron and Justice roberts Is, I think recognized the reality

575
00:34:01,480 --> 00:34:06,320
Speaker 3: that those factors will still be there. The question, though,

576
00:34:06,480 --> 00:34:09,560
Speaker 3: is the judiciary has changed, and it's not so clear

577
00:34:09,600 --> 00:34:13,280
Speaker 3: that there are as many judges that are as inclined

578
00:34:13,320 --> 00:34:16,239
Speaker 3: to say that we're on the same team as the agencies.

579
00:34:16,440 --> 00:34:19,799
Speaker 3: There are judges, I think out on the federal judiciary

580
00:34:19,840 --> 00:34:24,760
Speaker 3: today that the administrative agencies is part of a deep state,

581
00:34:25,080 --> 00:34:28,719
Speaker 3: you know, a conspiracy of working against the public and

582
00:34:29,560 --> 00:34:34,400
Speaker 3: hamstringing business unduly and so forth, being out of control

583
00:34:34,440 --> 00:34:37,120
Speaker 3: and needing to be rained in and being very suspicious

584
00:34:37,239 --> 00:34:40,200
Speaker 3: of them. And when you have judges that take that view,

585
00:34:40,520 --> 00:34:44,040
Speaker 3: litigants know how to find them, and they will find them,

586
00:34:44,239 --> 00:34:47,000
Speaker 3: and we will get rulings that have the agency on

587
00:34:47,040 --> 00:34:48,520
Speaker 3: the losing side in the future.

588
00:34:49,040 --> 00:34:52,080
Speaker 2: Do you think that at some point this is going

589
00:34:52,120 --> 00:34:54,680
Speaker 2: to have to go back to the Supreme Court to

590
00:34:54,760 --> 00:34:58,080
Speaker 2: give more instruction to the lower courts or this is it?

591
00:34:58,600 --> 00:34:58,759
Speaker 1: Oh?

592
00:34:58,840 --> 00:35:02,520
Speaker 3: No, there's a lot of unanswered questions in lower right.

593
00:35:03,280 --> 00:35:06,879
Speaker 3: The Supreme Court is not done with this by any means.

594
00:35:07,320 --> 00:35:10,719
Speaker 3: And there's two types of questions that will be facing

595
00:35:10,840 --> 00:35:14,480
Speaker 3: the court. One I might call kind of meta questions,

596
00:35:14,520 --> 00:35:19,440
Speaker 3: that is, questions about lower Bride and what the overruling

597
00:35:19,520 --> 00:35:24,479
Speaker 3: of Chevron mean. These are questions about, for example, what

598
00:35:24,560 --> 00:35:30,080
Speaker 3: did overruling Chevron mean, for example, for past decisions and

599
00:35:30,160 --> 00:35:36,880
Speaker 3: determinations by courts that had been grounded on Chevron reasoning.

600
00:35:37,480 --> 00:35:41,080
Speaker 3: The Court tried to address this in one paragraph of

601
00:35:41,160 --> 00:35:44,600
Speaker 3: its opinion, but it's ambiguous and leaves a lot of questions.

602
00:35:44,600 --> 00:35:47,880
Speaker 3: So these meta questions about what lower Bright means and

603
00:35:47,920 --> 00:35:50,799
Speaker 3: how it will apply, and there's several of them, those

604
00:35:50,880 --> 00:35:53,719
Speaker 3: will be there. The second set of questions that are

605
00:35:53,719 --> 00:35:56,279
Speaker 3: going to be there is to settle all of these

606
00:35:56,640 --> 00:36:01,719
Speaker 3: more targeted statute specific questions that are going to arise,

607
00:36:02,360 --> 00:36:05,560
Speaker 3: and to some extent, they always did arise when different

608
00:36:05,640 --> 00:36:11,840
Speaker 3: circuits come to different meanings about what the same statute says.

609
00:36:12,120 --> 00:36:15,880
Speaker 3: And the Court may well have to be even busier

610
00:36:15,920 --> 00:36:19,160
Speaker 3: than it is today in resolving what we would call

611
00:36:19,239 --> 00:36:22,880
Speaker 3: circuit splits or where you know, different courts are coming

612
00:36:22,920 --> 00:36:27,600
Speaker 3: to different best readings of the same statute and we'll

613
00:36:27,640 --> 00:36:29,840
Speaker 3: have to see how that plays out too. But yes,

614
00:36:30,120 --> 00:36:35,200
Speaker 3: there's no getting out of the fact that statutory interpretation is,

615
00:36:35,440 --> 00:36:38,720
Speaker 3: you know, a fundamental part of what judges and lawyers

616
00:36:38,760 --> 00:36:42,520
Speaker 3: are tasked with doing. It was so under Chevron, and

617
00:36:43,280 --> 00:36:47,239
Speaker 3: the Supreme Court will continue to have to play a role.

618
00:36:47,280 --> 00:36:49,920
Speaker 3: There's no getting out of this. You know.

619
00:36:50,040 --> 00:36:53,319
Speaker 2: I wonder facetiously, but I wonder if at some point

620
00:36:53,480 --> 00:36:57,760
Speaker 2: the justices who overturn these precedents are going to regret

621
00:36:57,920 --> 00:37:00,439
Speaker 2: overturning so many in such a short pers of time.

622
00:37:00,480 --> 00:37:02,719
Speaker 2: Because if you look at, for example, what's happened with

623
00:37:02,800 --> 00:37:06,399
Speaker 2: the reversal of Roe v. Wade, where Justice Kavanaugh said,

624
00:37:06,440 --> 00:37:08,520
Speaker 2: now we'll leave it to the States, we can wash

625
00:37:08,560 --> 00:37:11,360
Speaker 2: our hands of this. Well, look at what's happened.

626
00:37:11,400 --> 00:37:14,640
Speaker 3: It's a complete mess, right right exactly. And this is

627
00:37:14,640 --> 00:37:17,360
Speaker 3: why I say this is an earthquake. There's going to

628
00:37:17,440 --> 00:37:19,960
Speaker 3: be some rubble in place, and this question of you know,

629
00:37:20,239 --> 00:37:24,719
Speaker 3: which structures will remain standing, as with any earthquake, how

630
00:37:25,560 --> 00:37:30,000
Speaker 3: badly things will have been damaged. It's not a court

631
00:37:30,080 --> 00:37:37,080
Speaker 3: that's exercising what had been traditional conservative humility at all,

632
00:37:37,160 --> 00:37:41,399
Speaker 3: but really been quite an aggressive court here. And you're right,

633
00:37:41,719 --> 00:37:45,120
Speaker 3: it's unleashed, you know, a mess if you will. You know,

634
00:37:45,160 --> 00:37:49,480
Speaker 3: at the minimum, on abortion right, it's certainly not alleviated.

635
00:37:50,000 --> 00:37:53,759
Speaker 3: The Supreme Courts need to decide cases like in the

636
00:37:53,800 --> 00:37:57,600
Speaker 3: misipristone case or you know, heaven forbid, we're going to

637
00:37:57,680 --> 00:38:03,040
Speaker 3: have compstack Act case for example, down the road. So

638
00:38:03,120 --> 00:38:07,680
Speaker 3: abortion has not left the Supreme Court's agenda, and this

639
00:38:07,840 --> 00:38:12,520
Speaker 3: whole idea of overturning Chevron and having a major questions

640
00:38:12,560 --> 00:38:16,279
Speaker 3: doctrine all of it. Ultimately, though, there may be a

641
00:38:16,400 --> 00:38:19,880
Speaker 3: message to the mess. First of all, it's disruptive to government,

642
00:38:19,960 --> 00:38:24,919
Speaker 3: and maybe that's part of their objective here. Another thing

643
00:38:25,440 --> 00:38:29,440
Speaker 3: is empowering of the court. It's putting the court front

644
00:38:29,480 --> 00:38:34,200
Speaker 3: and center in governing on some of the most controversial

645
00:38:34,320 --> 00:38:37,320
Speaker 3: issues of our time in a way that you know,

646
00:38:37,360 --> 00:38:40,880
Speaker 3: I don't think it's been occupying that role for at

647
00:38:41,000 --> 00:38:45,319
Speaker 3: least fifty years, probably even more. When you look across

648
00:38:45,640 --> 00:38:48,640
Speaker 3: the whole sweep and certainly when you look at administrative

649
00:38:48,680 --> 00:38:52,239
Speaker 3: law decisions, the courts have not played the kind of

650
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Speaker 3: central role that now they will be playing. And you know,

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Speaker 3: it raises a host of questions about whether the courts

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Speaker 3: have the capacity to deal with these issues in a

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Speaker 3: smart and effective way. Are we going to have new

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Speaker 3: technologies and new ways of doing business that needs some sound, sensible,

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Speaker 3: good analytic decisions and will the courts be able to

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Speaker 3: deliver that? You know, it's an open question.

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Speaker 2: Unfortunately, it seems like there are a lot more questions

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Speaker 2: than answers. But thanks so much for your answers. Carrie.

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Speaker 2: That's Professor Carrie Coliniesi of the University of Pennsylvania Law School.

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Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

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Speaker 2: Remember you can always get the latest legal news by

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Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

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Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm

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Speaker 2: June Grosso and this is Bloomberg