1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,000 --> 00:00:12,520 Speaker 2: It's a massive blow to the federal government that's been 3 00:00:12,560 --> 00:00:15,600 Speaker 2: trying to break up Meta for the last five years. 4 00:00:15,920 --> 00:00:19,360 Speaker 2: The tech giant has won a key ruling that its 5 00:00:19,440 --> 00:00:25,280 Speaker 2: acquisitions of Instagram and WhatsApp didn't violate US anti trust law. 6 00:00:25,920 --> 00:00:30,040 Speaker 2: DC Federal Judge James Bosberg said the Federal Trade Commission 7 00:00:30,360 --> 00:00:33,880 Speaker 2: had to show that Meta continues to hold monopoly power 8 00:00:34,080 --> 00:00:37,720 Speaker 2: in social networking now, and that it had failed to 9 00:00:37,760 --> 00:00:41,519 Speaker 2: do so. My guest is anti trust expert Harry First, 10 00:00:41,760 --> 00:00:45,400 Speaker 2: a professor at NYU Law School. Harry, how big a 11 00:00:45,400 --> 00:00:47,360 Speaker 2: blow is this to the FTC. 12 00:00:48,479 --> 00:00:51,440 Speaker 3: Well, it's a blow, all right. So this is the 13 00:00:51,479 --> 00:00:56,440 Speaker 3: first big loss in these high tech platform cases. So 14 00:00:56,520 --> 00:00:58,960 Speaker 3: two of them have now come to a conclusion of 15 00:00:59,000 --> 00:01:02,320 Speaker 3: the trial, you know, both against Google, both successful for 16 00:01:02,400 --> 00:01:06,760 Speaker 3: the Justice Department remedy another story maybe. So this is 17 00:01:06,800 --> 00:01:11,640 Speaker 3: the third. They're five total, and it's the first loss. 18 00:01:11,959 --> 00:01:15,720 Speaker 3: It's sort of not a surprising loss because this judge 19 00:01:15,720 --> 00:01:18,959 Speaker 3: has been skeptical of this case clearly from the very beginning. 20 00:01:19,040 --> 00:01:23,080 Speaker 3: He had dismissed it originally, so he's been very skeptical 21 00:01:23,120 --> 00:01:26,520 Speaker 3: and he said it in his opinions. So this case 22 00:01:26,520 --> 00:01:30,760 Speaker 3: has not been well received by the judiciary, shall we say, 23 00:01:31,120 --> 00:01:35,160 Speaker 3: so it's not surprising. The opinion itself is a little surprising, 24 00:01:35,480 --> 00:01:37,880 Speaker 3: but the result is not so surprising. 25 00:01:38,440 --> 00:01:40,880 Speaker 4: What do you say? The opinion is surprising. 26 00:01:40,720 --> 00:01:43,560 Speaker 3: So in two ways. First of all, he's taken a 27 00:01:43,680 --> 00:01:50,000 Speaker 3: very novel approach to time in the opinion. So he 28 00:01:50,160 --> 00:01:52,960 Speaker 3: says that the proof has to be as of the 29 00:01:53,040 --> 00:01:56,680 Speaker 3: time I make my decision almost I mean, this is 30 00:01:56,720 --> 00:02:01,640 Speaker 3: an impossible standard. He said, maybe maybe they were monopoly, 31 00:02:02,280 --> 00:02:05,400 Speaker 3: Maybe this was a properly defined product market in twenty 32 00:02:05,440 --> 00:02:08,399 Speaker 3: twenty when the suit was filed, you know, but as 33 00:02:08,480 --> 00:02:11,359 Speaker 3: time has gone by, it's not that much time by 34 00:02:11,440 --> 00:02:14,360 Speaker 3: now it's not. And the question is not whether it 35 00:02:14,480 --> 00:02:17,000 Speaker 3: was then, but whether it is now. I mean, if 36 00:02:17,080 --> 00:02:20,799 Speaker 3: you take that literally, that's a completely moving standard. You 37 00:02:20,840 --> 00:02:24,880 Speaker 3: could never try a case because your evidence is always outdated. 38 00:02:25,000 --> 00:02:28,120 Speaker 3: I mean, it's always about the past. You can't try 39 00:02:28,160 --> 00:02:31,799 Speaker 3: a case about the future. So that's a departure. He's 40 00:02:31,840 --> 00:02:34,240 Speaker 3: got some legal reasoning for why he does that, but 41 00:02:34,600 --> 00:02:36,959 Speaker 3: that's a serious problem, and I think it's a serious 42 00:02:37,000 --> 00:02:39,720 Speaker 3: anti trust problem. So there is that part of it. 43 00:02:39,760 --> 00:02:43,400 Speaker 3: The second part is this judge is very confident of 44 00:02:43,400 --> 00:02:47,040 Speaker 3: his opinion. So normally a district court judge, he's got 45 00:02:47,360 --> 00:02:50,280 Speaker 3: seven things to decide in front of him, and they 46 00:02:50,360 --> 00:02:53,840 Speaker 3: proceed logically, well, if if you go for this, you know, 47 00:02:54,080 --> 00:02:56,280 Speaker 3: then you're done. But if you go for this and 48 00:02:56,639 --> 00:02:59,119 Speaker 3: it's okay, you go to this number two, three, four, 49 00:02:59,240 --> 00:03:02,520 Speaker 3: five had a long trial, but he only decides the 50 00:03:02,520 --> 00:03:05,920 Speaker 3: first issue. Now, normally a judge would say, Okay, here's 51 00:03:05,960 --> 00:03:09,200 Speaker 3: what I decide. This isn't a market. Market has to 52 00:03:09,200 --> 00:03:12,480 Speaker 3: include such and such. They don't really have monopoly power. Okay, 53 00:03:12,600 --> 00:03:15,360 Speaker 3: but if I'm wrong, here are the facts that I 54 00:03:15,440 --> 00:03:19,920 Speaker 3: found about the conduct. And the conduct wasn't any competitive. 55 00:03:19,960 --> 00:03:22,360 Speaker 3: So even if you had monopoly power, this was not 56 00:03:22,480 --> 00:03:25,280 Speaker 3: exclusionary conduct, less than any competitive and so you go 57 00:03:25,400 --> 00:03:29,119 Speaker 3: through all the things because if a court of appeals 58 00:03:29,120 --> 00:03:32,960 Speaker 3: disagrees with you, now what you've got to retry the 59 00:03:33,000 --> 00:03:36,720 Speaker 3: whole case. So this is a judge who thinks no 60 00:03:36,720 --> 00:03:40,800 Speaker 3: one's going to disagree with me man, And maybe maybe 61 00:03:41,400 --> 00:03:43,880 Speaker 3: part of it is because the narrative of the case 62 00:03:44,560 --> 00:03:49,080 Speaker 3: is at least potentially stronger than the market definition. So 63 00:03:50,000 --> 00:03:53,520 Speaker 3: that's when you know all the emails about how Mark 64 00:03:53,600 --> 00:03:57,560 Speaker 3: Zuckerberg's theory was to buy them or you know, bury them, 65 00:03:57,920 --> 00:04:01,000 Speaker 3: and you know what he tried to do with with competitors, 66 00:04:01,040 --> 00:04:04,800 Speaker 3: and why he paid so much for Instagram and for WhatsApp. 67 00:04:05,120 --> 00:04:08,880 Speaker 3: WhatsApp drops out of this case like right away. I 68 00:04:08,880 --> 00:04:11,640 Speaker 3: don't know third word or something he says, at some point, 69 00:04:11,800 --> 00:04:13,560 Speaker 3: we're done with them. We don't have to talk about 70 00:04:13,600 --> 00:04:17,520 Speaker 3: them anymore because we don't get to them. That's not 71 00:04:17,560 --> 00:04:21,880 Speaker 3: involved in the market definition. So that's pretty unusual, I think. 72 00:04:21,920 --> 00:04:25,920 Speaker 3: And it's either hubris or confidence, I don't know which, 73 00:04:26,320 --> 00:04:29,720 Speaker 3: but he does not do what I think most district 74 00:04:29,760 --> 00:04:32,720 Speaker 3: court judges would do, which is decide the full case. 75 00:04:33,000 --> 00:04:35,680 Speaker 2: I thought the focus would be on the market when 76 00:04:36,440 --> 00:04:41,080 Speaker 2: Meta bought Instagram and WhatsApp and whether it was anti 77 00:04:41,120 --> 00:04:46,640 Speaker 2: competitive conduct when it's alleged that Meta couldn't compete with 78 00:04:46,720 --> 00:04:50,159 Speaker 2: these two apps, and Zuckerberg said it's better to buy 79 00:04:50,240 --> 00:04:51,000 Speaker 2: than compete. 80 00:04:51,920 --> 00:04:55,000 Speaker 3: Well, what he tried to say was, well, we've got 81 00:04:55,040 --> 00:04:58,040 Speaker 3: to do it as of now, in part because of 82 00:04:58,279 --> 00:05:02,720 Speaker 3: the FTC's remedy powers asking for an injunction, and they 83 00:05:02,720 --> 00:05:07,120 Speaker 3: can only stop conduct that is illegal now. So I've 84 00:05:07,160 --> 00:05:09,839 Speaker 3: got to decide what's illegal now. Now, he could have 85 00:05:10,040 --> 00:05:13,800 Speaker 3: very well said, that's a remedy question. We'll decide that 86 00:05:13,839 --> 00:05:16,960 Speaker 3: when we get to remedy, whether it's a continuing violation 87 00:05:17,279 --> 00:05:19,480 Speaker 3: or not. We should look at whether there was a 88 00:05:19,560 --> 00:05:24,080 Speaker 3: violation then. So, for example, if this were suit for damages, 89 00:05:24,640 --> 00:05:26,920 Speaker 3: you wouldn't say, well, we have to see whether it's 90 00:05:26,920 --> 00:05:30,920 Speaker 3: a violation today. You would say, let's see whether there 91 00:05:30,920 --> 00:05:34,400 Speaker 3: was a violation at the time that the offense was 92 00:05:34,480 --> 00:05:39,160 Speaker 3: committed and what damages were caused. So those two things 93 00:05:39,200 --> 00:05:43,599 Speaker 3: are are separate. So it's really quite odd, and you're right. 94 00:05:43,880 --> 00:05:48,200 Speaker 3: The argument that the Commission makes is that we look 95 00:05:48,240 --> 00:05:50,240 Speaker 3: at what they did and why they did it, that 96 00:05:50,360 --> 00:05:53,479 Speaker 3: this was an effort to maintain their monopoly. These two 97 00:05:53,520 --> 00:05:57,000 Speaker 3: acquisitions for which they wildly overpaid. Why were they paying 98 00:05:57,080 --> 00:06:01,440 Speaker 3: nineteen billion dollars for a company that have any revenue? 99 00:06:01,480 --> 00:06:04,119 Speaker 3: That was what's app And the answer was they didn't 100 00:06:04,120 --> 00:06:08,719 Speaker 3: want them to develop into a competing social network platforms. 101 00:06:08,720 --> 00:06:11,720 Speaker 3: So you know now that that part also had problems 102 00:06:11,720 --> 00:06:15,600 Speaker 3: that had issues. You know, the Federal Trade Commission and 103 00:06:15,720 --> 00:06:19,760 Speaker 3: its earlier guys let those acquisitions go through, so there 104 00:06:19,760 --> 00:06:22,360 Speaker 3: were issues with it. But so in that sense, that's 105 00:06:22,400 --> 00:06:23,800 Speaker 3: a really strange aspect. 106 00:06:24,160 --> 00:06:27,840 Speaker 2: Did the judge come to this decision because of the 107 00:06:27,880 --> 00:06:31,200 Speaker 2: way he defined the market and the fact that he 108 00:06:31,279 --> 00:06:34,360 Speaker 2: put YouTube and TikTok in the market. 109 00:06:34,760 --> 00:06:37,719 Speaker 3: Yeah, so the first question and you have to show 110 00:06:37,800 --> 00:06:41,960 Speaker 3: that that defendant has monopoly power in a relevant market. 111 00:06:42,240 --> 00:06:45,040 Speaker 3: So he says, okay, we have to start with market definition. 112 00:06:45,640 --> 00:06:49,239 Speaker 3: So that's true, that's the way it's normally done. And 113 00:06:49,279 --> 00:06:51,640 Speaker 3: then he says, okay, yes, let's look at the market 114 00:06:51,920 --> 00:06:55,400 Speaker 3: and what we have to do. He basically puts in 115 00:06:56,320 --> 00:07:00,240 Speaker 3: you know, he says, these these platforms have converged, these 116 00:07:00,279 --> 00:07:05,160 Speaker 3: are all sort of similar, and particularly TikTok, you know, 117 00:07:05,520 --> 00:07:09,320 Speaker 3: was posing a competitive threat. Says, people don't want to 118 00:07:09,320 --> 00:07:12,920 Speaker 3: talk to their friends anymore. They just want unconnected videos. 119 00:07:13,360 --> 00:07:17,800 Speaker 3: So you know, here's TikTok comes along and they're posing 120 00:07:17,880 --> 00:07:23,360 Speaker 3: some threat, and Facebook responds with reels and short videos. 121 00:07:23,400 --> 00:07:26,920 Speaker 3: And so that has now changed how we define the 122 00:07:27,000 --> 00:07:30,640 Speaker 3: market because users switch back and forth between the two, 123 00:07:30,680 --> 00:07:32,680 Speaker 3: and we have to include TikTok and we have to 124 00:07:32,720 --> 00:07:37,160 Speaker 3: include YouTube or users switch to those videos later. The 125 00:07:37,240 --> 00:07:39,280 Speaker 3: sort of at the end of the opinion says, well, 126 00:07:39,560 --> 00:07:42,520 Speaker 3: the argument for YouTube actually is a little thinner. But 127 00:07:42,600 --> 00:07:46,000 Speaker 3: even if it's just TikTok, that's enough. We would include 128 00:07:46,080 --> 00:07:50,000 Speaker 3: that in However we define the market, whatever we want 129 00:07:50,040 --> 00:07:52,400 Speaker 3: to call it doesn't really give it a name. And 130 00:07:52,480 --> 00:07:56,840 Speaker 3: at that point, if we include TikTok, then there's no 131 00:07:57,000 --> 00:08:02,400 Speaker 3: monopoly power meta. Facebook does not have monopoly power. That 132 00:08:02,560 --> 00:08:07,880 Speaker 3: TikTok takes away too much time. All those kids are 133 00:08:07,920 --> 00:08:12,440 Speaker 3: frittering where other time on TikTok instead of frittering where 134 00:08:12,440 --> 00:08:16,520 Speaker 3: other time on Facebook. He had various evidence of, you know, 135 00:08:16,560 --> 00:08:21,040 Speaker 3: the willingness to switch, and that people switched between those 136 00:08:21,080 --> 00:08:25,160 Speaker 3: two normally for looking at substitutes. You say, so, if 137 00:08:25,200 --> 00:08:28,240 Speaker 3: the celer rates its price, what would people switch to? Well, 138 00:08:28,280 --> 00:08:30,960 Speaker 3: the thing is Facebook doesn't have a price. 139 00:08:30,880 --> 00:08:31,640 Speaker 5: In that sense. 140 00:08:32,240 --> 00:08:34,160 Speaker 3: What has his ads? I don't know if you've looked 141 00:08:34,160 --> 00:08:35,760 Speaker 3: at your Facebook feed recently. 142 00:08:36,040 --> 00:08:39,800 Speaker 4: I'm not on Facebook. I will confess I got. 143 00:08:39,640 --> 00:08:40,360 Speaker 5: You on that one. 144 00:08:40,520 --> 00:08:42,760 Speaker 3: Yeah, well, there are a lot of ads on Facebook, 145 00:08:43,040 --> 00:08:46,680 Speaker 3: and so you know, that's sort of the price. But 146 00:08:47,640 --> 00:08:50,160 Speaker 3: the judge didn't seem to think that people minded those 147 00:08:50,200 --> 00:08:53,679 Speaker 3: ads so much. They're nice, ads didn't really interfere so much, 148 00:08:54,440 --> 00:09:00,520 Speaker 3: so not so bad, and people were switching particularly, I 149 00:09:00,640 --> 00:09:05,320 Speaker 3: think younger people were switching over to TikTok to you know, 150 00:09:05,400 --> 00:09:08,400 Speaker 3: for whatever you get in TikTok, now, what you don't 151 00:09:08,400 --> 00:09:13,360 Speaker 3: get in TikTok particularly are friends groups of friends, and 152 00:09:13,360 --> 00:09:16,840 Speaker 3: that's what the government sort of honed in on. It's 153 00:09:16,840 --> 00:09:21,080 Speaker 3: a social network. It's put together by who your friends are, 154 00:09:21,880 --> 00:09:27,080 Speaker 3: and what Bosberg observes is that at least some users 155 00:09:27,080 --> 00:09:30,079 Speaker 3: don't really care so much about their friends. They want 156 00:09:30,120 --> 00:09:33,640 Speaker 3: to be put together more by interests. You know, I like, 157 00:09:34,240 --> 00:09:37,880 Speaker 3: I don't know Japanese cooking, so I get lots of 158 00:09:38,040 --> 00:09:40,640 Speaker 3: videos about Japanese cooking. You know, I don't know the 159 00:09:40,720 --> 00:09:43,760 Speaker 3: Japanese cooks, and I are not my friends, but that's 160 00:09:43,760 --> 00:09:46,080 Speaker 3: what I like to look at. Or I like recipes 161 00:09:46,559 --> 00:09:49,080 Speaker 3: you know that are easy to make or crazy to 162 00:09:49,120 --> 00:09:52,680 Speaker 3: look at, whatever TikTok has. So people have switched to 163 00:09:52,760 --> 00:09:57,720 Speaker 3: that and away from Facebook. Now, the odd thing in 164 00:09:57,760 --> 00:10:02,120 Speaker 3: some ways is if so many people are switching, how 165 00:10:02,160 --> 00:10:05,760 Speaker 3: come so many people are still on Facebook. He gives 166 00:10:06,320 --> 00:10:10,280 Speaker 3: two hundred and thirty million US users, I think is 167 00:10:10,320 --> 00:10:14,600 Speaker 3: the number and ad revenues of one hundred and sixty 168 00:10:14,679 --> 00:10:19,760 Speaker 3: one billion dollars. So when you read his description, it 169 00:10:19,840 --> 00:10:22,320 Speaker 3: sounds like this is a company that is just in 170 00:10:22,400 --> 00:10:27,160 Speaker 3: the throes of death from TikTok, and then he says, 171 00:10:27,600 --> 00:10:32,079 Speaker 3: this is an amazingly successful product. Give people a compelling 172 00:10:32,120 --> 00:10:35,319 Speaker 3: product for free, then sell ads that can be seen 173 00:10:35,360 --> 00:10:39,360 Speaker 3: by millions. Yes, he thinks those are good. Two hundred 174 00:10:39,400 --> 00:10:43,400 Speaker 3: and forty million active users in the United States. That's 175 00:10:43,440 --> 00:10:46,640 Speaker 3: a lot of people. So apparently they haven't been dissuaded 176 00:10:46,679 --> 00:10:49,760 Speaker 3: by TikTok, which is also free, and you know they 177 00:10:49,760 --> 00:10:53,520 Speaker 3: don't give all their time there. They're still on Facebook. 178 00:10:53,600 --> 00:10:57,480 Speaker 3: So the argument, presumably from the government, is that by 179 00:10:57,520 --> 00:11:02,240 Speaker 3: incorporating Reels, they've managed to defend their core business, and 180 00:11:02,280 --> 00:11:07,680 Speaker 3: their core business is social network putting people together, and 181 00:11:08,080 --> 00:11:10,680 Speaker 3: they still get a lot of people who like that product, 182 00:11:10,720 --> 00:11:13,800 Speaker 3: even though some people also use different products. 183 00:11:13,880 --> 00:11:17,200 Speaker 2: Coming up next, I'll continue this conversation with Professor Harry 184 00:11:17,240 --> 00:11:21,559 Speaker 2: First of NYU Law School. Will the government appeal the decision? 185 00:11:22,200 --> 00:11:28,000 Speaker 2: I'm Jim Grosso and you're listening to Bloomberg. Meta prevailed 186 00:11:28,040 --> 00:11:31,960 Speaker 2: over an existential challenge to its business that could have 187 00:11:32,080 --> 00:11:36,040 Speaker 2: forced the tech giant to spin off Instagram and WhatsApp 188 00:11:36,400 --> 00:11:39,680 Speaker 2: in a loss for the FTC A judge rule that 189 00:11:39,720 --> 00:11:44,160 Speaker 2: the company doesn't hold a monopoly in social networking. I've 190 00:11:44,160 --> 00:11:47,760 Speaker 2: been talking to NYU Law School professor Harry First. Harry, 191 00:11:47,760 --> 00:11:51,920 Speaker 2: here's what an FTC spokesperson said about the loss to Meta. 192 00:11:52,040 --> 00:11:55,800 Speaker 2: We're deeply disappointed in this decision, but the deck was 193 00:11:55,880 --> 00:12:00,560 Speaker 2: always stacked against us because of the judge has ruled 194 00:12:00,600 --> 00:12:04,120 Speaker 2: against the Trump administration in some high profile cases this year, 195 00:12:04,160 --> 00:12:07,560 Speaker 2: and he's also been frequently criticized by the President and 196 00:12:07,600 --> 00:12:12,160 Speaker 2: the Attorney General. This just continues the Justice departments attacks 197 00:12:12,200 --> 00:12:12,880 Speaker 2: on judges. 198 00:12:14,160 --> 00:12:17,160 Speaker 3: I hadn't read that, and you sort of wish that 199 00:12:17,240 --> 00:12:20,520 Speaker 3: they hadn't done that. Yes, Judge Bosberg did stand up 200 00:12:20,720 --> 00:12:24,880 Speaker 3: to the Trump administration, and Trump singled him out as 201 00:12:25,400 --> 00:12:31,560 Speaker 3: I forget what description crazy something lunatic judge. So now 202 00:12:31,960 --> 00:12:35,080 Speaker 3: I don't know which way it even goes, particularly given 203 00:12:35,120 --> 00:12:38,440 Speaker 3: the fact that there was a report of Mark Zuckerberg 204 00:12:38,880 --> 00:12:42,520 Speaker 3: meeting with Trump in the Oval Office to settle this case, 205 00:12:43,040 --> 00:12:47,720 Speaker 3: and Trump was dissuaded apparently from settlement by the efforts 206 00:12:47,760 --> 00:12:50,160 Speaker 3: not so much of the chair of the Federal Trade Commission, 207 00:12:50,440 --> 00:12:53,760 Speaker 3: but by the head of the Justice Department any Trust Division, 208 00:12:54,080 --> 00:12:57,720 Speaker 3: Gail Slater. So maybe the FTC should have settled it, 209 00:12:57,760 --> 00:13:00,720 Speaker 3: then maybe it would have done better. But it's just, 210 00:13:01,280 --> 00:13:04,280 Speaker 3: first of all, it's in some ways so wrong because 211 00:13:04,600 --> 00:13:08,679 Speaker 3: Boseburg took this position way before the immigration cases came up, 212 00:13:08,760 --> 00:13:12,360 Speaker 3: from the beginning when he dismissed the complaint, the original 213 00:13:12,400 --> 00:13:17,240 Speaker 3: complaint and let them refile it. He's been critical of 214 00:13:17,280 --> 00:13:20,760 Speaker 3: this case. So to see this as a connection of 215 00:13:21,200 --> 00:13:26,520 Speaker 3: you know, some craze judge who what is just against 216 00:13:26,520 --> 00:13:29,680 Speaker 3: the government, I mean, it's just wrong. I wish they'd 217 00:13:29,720 --> 00:13:32,920 Speaker 3: stick to the problem that they've got, which is that 218 00:13:33,000 --> 00:13:36,480 Speaker 3: this is bad law for the FTC and for any 219 00:13:36,520 --> 00:13:40,000 Speaker 3: trust enforcement. And you know, now we're going to see 220 00:13:40,400 --> 00:13:41,960 Speaker 3: what they're going to do about it. Are they going 221 00:13:42,000 --> 00:13:44,040 Speaker 3: to appeal this decision or not? 222 00:13:44,679 --> 00:13:46,200 Speaker 4: Yeah, so that was my next question. 223 00:13:46,280 --> 00:13:49,199 Speaker 2: I mean, it sounds like they should appeal because of 224 00:13:49,400 --> 00:13:53,000 Speaker 2: the timeline that he's defining markets on. But might they not. 225 00:13:53,160 --> 00:13:57,000 Speaker 2: I mean, Zuckerberg has been courting Trump for quite some time. 226 00:13:57,840 --> 00:14:03,480 Speaker 3: It's hard to assess the political wins because conservatives had 227 00:14:03,520 --> 00:14:07,760 Speaker 3: been upset with Facebook, thinking that their algorithm has you know, 228 00:14:08,200 --> 00:14:12,360 Speaker 3: discriminated against them. I sent an email to my niece 229 00:14:12,600 --> 00:14:15,600 Speaker 3: last night, who uses Facebook all the time, and she 230 00:14:15,760 --> 00:14:18,040 Speaker 3: says she thinks they don't post any of her left 231 00:14:18,120 --> 00:14:21,760 Speaker 3: leaning posts. They don't seem to get moved up into 232 00:14:21,800 --> 00:14:22,240 Speaker 3: the feed. 233 00:14:22,360 --> 00:14:25,400 Speaker 5: But you know the calm ones do. I don't know. 234 00:14:25,600 --> 00:14:27,360 Speaker 4: I like what they're doing. Research at night. 235 00:14:27,600 --> 00:14:30,600 Speaker 3: That's research. That's my that's my empirical research. 236 00:14:31,640 --> 00:14:36,040 Speaker 2: Fair enough, although Zuckerberg seems to have tried to turn 237 00:14:36,120 --> 00:14:43,280 Speaker 2: that around by weakening hate speech policies and eliminating fact checking. 238 00:14:44,360 --> 00:14:46,880 Speaker 3: My view of Mark Zuckerberg he hasn't turned at all, 239 00:14:47,400 --> 00:14:50,240 Speaker 3: is that he just turns whichever way the politics are 240 00:14:50,320 --> 00:14:52,880 Speaker 3: so so now it's this way, and that's fine with 241 00:14:53,000 --> 00:14:55,880 Speaker 3: him too, as long as he keeps You know, they're 242 00:14:56,400 --> 00:15:01,880 Speaker 3: apparently the third largest digital advertiser after Google and Amazon, 243 00:15:02,040 --> 00:15:06,880 Speaker 3: so they're doing really, really well. Despite Bozberg's feeling that 244 00:15:06,920 --> 00:15:09,920 Speaker 3: nobody wants to talk to their friends, apparently a lot 245 00:15:09,920 --> 00:15:13,200 Speaker 3: of people still do and they read those ads and 246 00:15:13,240 --> 00:15:14,160 Speaker 3: click on them. 247 00:15:14,760 --> 00:15:19,040 Speaker 2: If this were an administration that just based its decisions 248 00:15:19,080 --> 00:15:22,800 Speaker 2: on the law, would they appeal to try to get 249 00:15:22,800 --> 00:15:25,800 Speaker 2: this ruling that the government has to show monopoly power 250 00:15:26,000 --> 00:15:31,400 Speaker 2: now reversed or because of Zuckerberg's attempts to court Trump, 251 00:15:31,880 --> 00:15:33,360 Speaker 2: do you think they might not appeal. 252 00:15:33,880 --> 00:15:37,600 Speaker 3: Who knows exactly which wins, and the wins may go 253 00:15:37,640 --> 00:15:43,040 Speaker 3: the other way because a populist wing of the party 254 00:15:43,720 --> 00:15:48,160 Speaker 3: feels that these platforms have too much power and need 255 00:15:48,200 --> 00:15:51,040 Speaker 3: to be cut down. So who knows exactly. But if 256 00:15:51,080 --> 00:15:54,760 Speaker 3: you look straight at the legal issues, usually appeals from 257 00:15:55,480 --> 00:16:00,120 Speaker 3: adverse decisions of trial courts are hard to win an 258 00:16:00,160 --> 00:16:04,280 Speaker 3: appeal because they're mostly fact based, So you have to 259 00:16:03,880 --> 00:16:08,040 Speaker 3: look for legal issues. And there's a you know, an 260 00:16:08,080 --> 00:16:11,600 Speaker 3: important legal issue of you know, whether he applied the 261 00:16:11,600 --> 00:16:15,120 Speaker 3: correct standard for defining the market and for assessing when 262 00:16:15,160 --> 00:16:17,640 Speaker 3: a violation occurred. And that one's sort of a very 263 00:16:17,960 --> 00:16:21,680 Speaker 3: pointed legal issue. How it will fare in the court 264 00:16:21,680 --> 00:16:23,560 Speaker 3: of appeals if they do take it, I don't know. 265 00:16:24,240 --> 00:16:28,240 Speaker 2: And does this decision have any implications for the other 266 00:16:28,360 --> 00:16:31,800 Speaker 2: antitrust cases against tech platforms. 267 00:16:32,280 --> 00:16:37,600 Speaker 3: Yeah, that's a good question. Perhaps I'm thinking of Amazon 268 00:16:37,680 --> 00:16:42,720 Speaker 3: for example. So these are platform cases, and platform strategy 269 00:16:42,880 --> 00:16:46,400 Speaker 3: is you have a core product, and what you want 270 00:16:46,440 --> 00:16:48,760 Speaker 3: to do is to keep people on the platform and 271 00:16:48,800 --> 00:16:52,200 Speaker 3: engaged because of the strength of the core product, and 272 00:16:52,240 --> 00:16:56,280 Speaker 3: you defend the core product by acquiring things around the 273 00:16:56,320 --> 00:16:59,520 Speaker 3: periphery that might challenge it or by doing things. You know, 274 00:16:59,560 --> 00:17:03,280 Speaker 3: these companies are always subject to some competitive forces, even 275 00:17:03,320 --> 00:17:09,480 Speaker 3: if they're monopolis. So certainly Facebook was TikTok did pose 276 00:17:09,520 --> 00:17:14,800 Speaker 3: a competitive threat, and Amazon similarly has competitive threats to 277 00:17:14,840 --> 00:17:20,200 Speaker 3: which they respond. But the basic strategy is pretty similar, 278 00:17:20,320 --> 00:17:24,520 Speaker 3: and the market definition in some ways is similar because 279 00:17:24,560 --> 00:17:28,679 Speaker 3: they offer a bunch of different products in the same place, 280 00:17:29,200 --> 00:17:34,640 Speaker 3: much as supermarkets do, like whole foods for example. So 281 00:17:34,840 --> 00:17:37,000 Speaker 3: you have a you know, sort of core product and 282 00:17:37,040 --> 00:17:40,400 Speaker 3: then other things that they offer that other firms may 283 00:17:40,440 --> 00:17:44,159 Speaker 3: compete on. I mean, look at your smartphone, so thirty 284 00:17:44,160 --> 00:17:47,040 Speaker 3: five millimeters cameras compete on cameras, but you know, are 285 00:17:47,040 --> 00:17:50,640 Speaker 3: they in the same market. No, so you could say 286 00:17:50,680 --> 00:17:55,520 Speaker 3: this is this is quite similar. You know, Yes, TikTok competes. 287 00:17:55,920 --> 00:17:59,720 Speaker 3: I'm surprised Twitter's not mentioned. Twitter competes, you know, to 288 00:17:59,800 --> 00:18:04,760 Speaker 3: some extent. But these are all to some extent, and 289 00:18:05,000 --> 00:18:09,600 Speaker 3: it's still a meta defending its core product in which 290 00:18:09,640 --> 00:18:13,440 Speaker 3: it has a lot of power, as all advertisers know. 291 00:18:14,080 --> 00:18:14,920 Speaker 4: Always a pleasure. 292 00:18:15,000 --> 00:18:18,960 Speaker 2: Thanks so much, Harry, that's Professor Harry First of NYU 293 00:18:19,080 --> 00:18:24,480 Speaker 2: Law School. Texas kicked off the nationwide redistricting battle, but now, 294 00:18:24,560 --> 00:18:27,879 Speaker 2: a federal court has blocked the state from using a 295 00:18:27,920 --> 00:18:32,960 Speaker 2: redrawn congressional map that was engineered to give Republicans five 296 00:18:32,960 --> 00:18:36,480 Speaker 2: additional House seats. The ruling is a blow to President 297 00:18:36,520 --> 00:18:40,879 Speaker 2: Trump's efforts to preserve a slim Republican majority ahead of 298 00:18:40,920 --> 00:18:44,880 Speaker 2: the twenty twenty six elections. Joining me is elections law 299 00:18:44,920 --> 00:18:48,560 Speaker 2: expert Richard Befalt, a professor at Columbia Law School. 300 00:18:49,080 --> 00:18:50,000 Speaker 4: Rich So this was a. 301 00:18:49,920 --> 00:18:53,280 Speaker 2: Two to one decision. Will you explain why the judges 302 00:18:53,359 --> 00:18:58,120 Speaker 2: decided that Texas couldn't use its new congressional plan. 303 00:18:58,600 --> 00:19:01,320 Speaker 1: In a nutshell of a court concluded that this was 304 00:19:01,359 --> 00:19:05,679 Speaker 1: a racial gerry mander and not a partisan gerrymander. And 305 00:19:05,760 --> 00:19:07,600 Speaker 1: as you know, the Supreme Court has said parts in 306 00:19:07,680 --> 00:19:11,199 Speaker 1: jerrymanders are not unconstitutional, there's no basis for challenging them 307 00:19:11,240 --> 00:19:14,760 Speaker 1: in federal court. But racial gerry manders can be unconstitutional 308 00:19:15,000 --> 00:19:17,480 Speaker 1: and can be challenged in federal court. So the heart 309 00:19:17,520 --> 00:19:19,439 Speaker 1: of the court's decision was that this was a racial 310 00:19:19,480 --> 00:19:23,159 Speaker 1: gerry mander. And what have they based that on? The 311 00:19:23,200 --> 00:19:26,119 Speaker 1: court said what triggered this? Although we think of this 312 00:19:26,200 --> 00:19:31,080 Speaker 1: as Trump demanding more Republican seats from the Texas congressional delegation. 313 00:19:31,640 --> 00:19:35,720 Speaker 1: In the court's view, the Texas governor was initially reluctant 314 00:19:35,800 --> 00:19:39,280 Speaker 1: to call the special Section to create the map until 315 00:19:39,320 --> 00:19:42,480 Speaker 1: he got a letter from the Department of Justice in 316 00:19:42,720 --> 00:19:47,960 Speaker 1: Washington that said several of the Texas districts were unconstantually 317 00:19:48,160 --> 00:19:51,960 Speaker 1: created on racial grounds. In particular, the Department of Justice 318 00:19:52,000 --> 00:19:57,680 Speaker 1: focused on so called coalition districts, which are districts which 319 00:19:57,720 --> 00:20:02,560 Speaker 1: are majority minority but not one particular minority group. And 320 00:20:02,640 --> 00:20:05,359 Speaker 1: for a period of time in the Fifth Circuit, courts 321 00:20:05,359 --> 00:20:07,679 Speaker 1: there had said that the Voting Rights Act could be 322 00:20:07,760 --> 00:20:11,400 Speaker 1: interpreted to require the so called coalition district district which, 323 00:20:11,720 --> 00:20:15,520 Speaker 1: let's say is is forty percent Black and thirty percent Hispanic. 324 00:20:15,960 --> 00:20:18,040 Speaker 1: Neither one is a majority, but together they add. 325 00:20:17,920 --> 00:20:20,760 Speaker 5: Up to seventy percent. And so the Apartment. 326 00:20:20,400 --> 00:20:23,640 Speaker 1: Of Justice says, well, we see four districts in your 327 00:20:23,960 --> 00:20:26,800 Speaker 1: current in your twenty twenty one map that looked like 328 00:20:26,800 --> 00:20:29,960 Speaker 1: their coalition districts to us, and based on a recent 329 00:20:30,000 --> 00:20:33,560 Speaker 1: decision in the Fifth Circuit, we think that makes them unconstitutional. 330 00:20:33,840 --> 00:20:35,800 Speaker 1: So you got to fix it. You've got to redo 331 00:20:35,840 --> 00:20:38,040 Speaker 1: those districts. So what the three judge panel in this 332 00:20:38,080 --> 00:20:41,680 Speaker 1: case concluded is that that was what was driving the redistricting. 333 00:20:42,040 --> 00:20:45,800 Speaker 1: They looked at the statements of the governor, the governor Abbott, 334 00:20:45,840 --> 00:20:48,840 Speaker 1: and of the leading members of the state legislature, and 335 00:20:48,880 --> 00:20:51,879 Speaker 1: they also looked at the resulting map, and they pointed 336 00:20:51,920 --> 00:20:55,560 Speaker 1: out that most of the changes in the redrawn districts 337 00:20:55,800 --> 00:21:00,280 Speaker 1: went from being so called coalition districts, the districts which 338 00:21:00,560 --> 00:21:04,040 Speaker 1: one race or another had a majority, and often an 339 00:21:04,119 --> 00:21:07,639 Speaker 1: extremely narrow majority. They said there were three districts they 340 00:21:07,680 --> 00:21:10,560 Speaker 1: were either Black or Hispanic, where the majority group had 341 00:21:10,640 --> 00:21:11,640 Speaker 1: like fifteen. 342 00:21:11,240 --> 00:21:12,080 Speaker 5: Point two percent. 343 00:21:12,320 --> 00:21:16,120 Speaker 1: So they said the combination of the Department of Justice letter, 344 00:21:16,640 --> 00:21:21,200 Speaker 1: the governor's statement calling the legislature decision, in statements by 345 00:21:21,800 --> 00:21:24,119 Speaker 1: many of the leading members of legislature, and then the 346 00:21:24,560 --> 00:21:27,800 Speaker 1: districts that were created. In their minds, this meant that 347 00:21:27,960 --> 00:21:32,320 Speaker 1: race predominated the desire to create racial majority districts is 348 00:21:32,400 --> 00:21:35,200 Speaker 1: what was driving this. It's through, the court said, and 349 00:21:35,200 --> 00:21:38,000 Speaker 1: also clearly had partisan consequences in the nave and some 350 00:21:38,080 --> 00:21:41,840 Speaker 1: partisan motivation as well. But they said that the dominant 351 00:21:41,880 --> 00:21:45,520 Speaker 1: motive that they found was race, and thatfore this made 352 00:21:45,520 --> 00:21:47,280 Speaker 1: it a nonconstitutional racial gerry matter. 353 00:21:47,840 --> 00:21:51,440 Speaker 2: Even though we know that the reason that Greg Abbott 354 00:21:51,440 --> 00:21:55,520 Speaker 2: called the special session was because President Donald Trump told 355 00:21:55,560 --> 00:21:58,479 Speaker 2: him that he wanted to get, you know, extra seats 356 00:21:58,520 --> 00:21:59,400 Speaker 2: in Texas. 357 00:21:59,760 --> 00:22:01,719 Speaker 1: I think what you would you could say is that 358 00:22:02,359 --> 00:22:05,320 Speaker 1: to Barbary Shakespeare, their partner of Justice was hoist by 359 00:22:05,359 --> 00:22:08,679 Speaker 1: its own petard. I think when this all began, it's 360 00:22:08,720 --> 00:22:10,679 Speaker 1: now like four months later, it's amazing how much has 361 00:22:10,720 --> 00:22:12,880 Speaker 1: gone in four or five months. When this all began, 362 00:22:13,080 --> 00:22:15,919 Speaker 1: maybe people thought it was too blatant to say this 363 00:22:16,000 --> 00:22:18,080 Speaker 1: was all from partisan reasons. I mean, we've now been 364 00:22:18,119 --> 00:22:21,320 Speaker 1: totally partisan and since June of this year in the redistricting, 365 00:22:21,640 --> 00:22:23,800 Speaker 1: but maybe they thought it was just too blatant to 366 00:22:23,800 --> 00:22:25,520 Speaker 1: say we're doing different partisan purposes. 367 00:22:26,000 --> 00:22:28,840 Speaker 5: So the Department of Justice trumped up this racial argument. 368 00:22:29,560 --> 00:22:33,640 Speaker 1: There was no argument actually that those coalition districts were unconstitutional. 369 00:22:34,160 --> 00:22:37,000 Speaker 1: You could argue that there's no mandate that a state 370 00:22:37,119 --> 00:22:40,159 Speaker 1: create them, and that's certainly true now, but there was 371 00:22:40,160 --> 00:22:43,919 Speaker 1: no evidence that they were unconstitutionally drawn. Nonetheless, part of 372 00:22:44,000 --> 00:22:48,320 Speaker 1: Justice having, I think, provided this kind of pretext for 373 00:22:48,359 --> 00:22:49,480 Speaker 1: the state to go ahead and. 374 00:22:49,440 --> 00:22:51,000 Speaker 5: Do the partisan gerrymander. 375 00:22:51,359 --> 00:22:54,440 Speaker 1: But given that that was the stated reason, the court 376 00:22:54,560 --> 00:22:56,639 Speaker 1: was able to say we think it's a racial gerrymander. 377 00:22:56,920 --> 00:23:00,200 Speaker 1: They also made the point that the Democratic districts which 378 00:23:00,240 --> 00:23:04,840 Speaker 1: were undone mostly fell into this category of coalition districts, 379 00:23:04,840 --> 00:23:07,800 Speaker 1: and they pointed out there was one white majority Democratic 380 00:23:07,840 --> 00:23:11,800 Speaker 1: district which was barely touched. So they do have some 381 00:23:12,000 --> 00:23:15,560 Speaker 1: evidence suggesting that most of the focus of the legislature 382 00:23:16,080 --> 00:23:20,240 Speaker 1: was on coalition districts and making them majority one race 383 00:23:20,359 --> 00:23:23,160 Speaker 1: or the other. But I think what you've got here 384 00:23:23,200 --> 00:23:26,640 Speaker 1: is this irony that at least in June of this year, 385 00:23:27,240 --> 00:23:29,880 Speaker 1: the governor and the Department of Justice thought it's too 386 00:23:29,920 --> 00:23:33,120 Speaker 1: blatant to do it for purely partisan reasons, so we're 387 00:23:33,160 --> 00:23:36,919 Speaker 1: going to give them an anti race discrimination motivation, and that, 388 00:23:37,080 --> 00:23:39,320 Speaker 1: as I think, turned around to sort of bite them 389 00:23:39,320 --> 00:23:40,640 Speaker 1: in the rear, at least for now. 390 00:23:41,400 --> 00:23:44,600 Speaker 2: And now the question is what will happen when this 391 00:23:44,720 --> 00:23:48,520 Speaker 2: gets to the Supreme Court. Rich We've talked before about 392 00:23:48,560 --> 00:23:52,840 Speaker 2: the case currently before the Supreme Court on the Louisiana maps. 393 00:23:53,320 --> 00:23:54,919 Speaker 4: Does that fit in anywhere here? 394 00:23:55,119 --> 00:23:55,359 Speaker 2: Well? 395 00:23:55,400 --> 00:23:58,760 Speaker 1: Here, I think what the court three judge paneled, really 396 00:23:58,760 --> 00:23:59,240 Speaker 1: two judges. 397 00:23:59,280 --> 00:24:01,720 Speaker 5: There's a dissenter. The majority opinion is one hundred and 398 00:24:01,760 --> 00:24:03,680 Speaker 5: sixty pages long. But I think. 399 00:24:03,680 --> 00:24:05,720 Speaker 1: The Court said, here, yes, the issue was sort of 400 00:24:05,720 --> 00:24:10,639 Speaker 1: disentangling race from party again to restate racial gerrymandering is 401 00:24:10,680 --> 00:24:14,000 Speaker 1: on constitutional partisan is not. The Court just kind of 402 00:24:14,040 --> 00:24:17,000 Speaker 1: went through a lot of evidence and said, we have 403 00:24:17,040 --> 00:24:20,000 Speaker 1: all this evidence, and we think it shows that on balance, 404 00:24:20,480 --> 00:24:24,080 Speaker 1: given the governor's statements, given the statement of the chair 405 00:24:24,119 --> 00:24:26,840 Speaker 1: of the relevant committee, given the statements of some other 406 00:24:26,880 --> 00:24:30,600 Speaker 1: prominent legislators, and then given the results, we think this 407 00:24:30,800 --> 00:24:35,560 Speaker 1: is predominantly racial and therefore it violates a pre existing doctrine. 408 00:24:35,640 --> 00:24:39,200 Speaker 1: The Louisiana case turns on whether or not in fact 409 00:24:39,320 --> 00:24:43,120 Speaker 1: it was predominantly racial to create a second black majority district. 410 00:24:43,359 --> 00:24:45,600 Speaker 5: But here this was really about. 411 00:24:45,520 --> 00:24:49,960 Speaker 1: You had a valid plan and existence before, and this 412 00:24:50,040 --> 00:24:53,959 Speaker 1: is whether or not were the changes predominantly race based 413 00:24:54,280 --> 00:24:55,920 Speaker 1: or predominantly partisan. 414 00:24:55,960 --> 00:24:58,480 Speaker 5: And the Court says, argue, with the evidence. 415 00:24:58,160 --> 00:25:01,760 Speaker 1: Is that they're so predominantly race we think preliminary injunction 416 00:25:01,840 --> 00:25:02,520 Speaker 1: should be granted. 417 00:25:02,680 --> 00:25:04,840 Speaker 4: They're appealing right to the Supreme Court. 418 00:25:05,359 --> 00:25:08,760 Speaker 2: First of all, I mean, as far as timing is concerned, 419 00:25:08,840 --> 00:25:14,560 Speaker 2: there's a decemberate state deadline for candidates to file campaign paperwork. 420 00:25:14,920 --> 00:25:17,800 Speaker 2: Is the Supreme Court likely to make a decision here 421 00:25:18,400 --> 00:25:19,600 Speaker 2: within that time frame. 422 00:25:20,240 --> 00:25:22,560 Speaker 1: Well, I think the real question is will the Supreme 423 00:25:22,640 --> 00:25:26,600 Speaker 1: Court say that the lower court has made this decision 424 00:25:26,640 --> 00:25:29,000 Speaker 1: too close to the election. There's this doctrine called the 425 00:25:29,000 --> 00:25:32,320 Speaker 1: Percell principle, based on a Supreme Court decision now about 426 00:25:32,359 --> 00:25:35,080 Speaker 1: twenty five years old, in which the Court says that 427 00:25:35,240 --> 00:25:40,600 Speaker 1: federal courts should not undo state election laws if they're 428 00:25:40,640 --> 00:25:43,640 Speaker 1: too close to an election. The Court has never said 429 00:25:43,720 --> 00:25:46,320 Speaker 1: what is too close to an election, but there have 430 00:25:46,480 --> 00:25:49,639 Speaker 1: been some orders from the Supreme Court in recent years 431 00:25:50,080 --> 00:25:53,520 Speaker 1: that treated decisions that were within six months of an 432 00:25:53,520 --> 00:25:57,840 Speaker 1: election as too close to an election. And the Texas 433 00:25:57,840 --> 00:26:01,680 Speaker 1: primary is in March, so looking at some recent Supreme 434 00:26:01,720 --> 00:26:05,439 Speaker 1: Court decisions, there is a plausible argument that this Court's 435 00:26:05,480 --> 00:26:09,720 Speaker 1: decision is too close to the election and therefore should 436 00:26:09,720 --> 00:26:13,560 Speaker 1: be stayed. Now, the Court addresses that for about twenty pages, 437 00:26:14,040 --> 00:26:16,879 Speaker 1: and they make the point that the Texas plan was 438 00:26:16,880 --> 00:26:20,159 Speaker 1: not signed into law until the end of August, and 439 00:26:20,240 --> 00:26:22,800 Speaker 1: if you took the idea that six months is too late, 440 00:26:23,320 --> 00:26:25,840 Speaker 1: it was almost too late. As of the moment the 441 00:26:25,920 --> 00:26:28,800 Speaker 1: Texas redistricting was signed into law, it would have been 442 00:26:28,880 --> 00:26:33,720 Speaker 1: impossible to have a challenge, have the parties, do the research, 443 00:26:34,119 --> 00:26:36,960 Speaker 1: have a hearing, I have a decision in time to 444 00:26:37,040 --> 00:26:40,480 Speaker 1: take something like six months. So the court makes you 445 00:26:40,760 --> 00:26:43,320 Speaker 1: kind of a strong pitch for saying that the per 446 00:26:43,359 --> 00:26:46,200 Speaker 1: Sel principle has to be handled flexibly. We've got to 447 00:26:46,240 --> 00:26:50,119 Speaker 1: look at how late the Texas legislature did this, and 448 00:26:50,200 --> 00:26:51,720 Speaker 1: we do have to say that it is possible to 449 00:26:51,720 --> 00:26:55,720 Speaker 1: come to compliance. They make two more points. One is 450 00:26:55,760 --> 00:26:58,800 Speaker 1: that the old map is still in existence because Texas 451 00:26:58,840 --> 00:27:01,560 Speaker 1: is about to hold an election on that old map 452 00:27:01,600 --> 00:27:05,520 Speaker 1: in January, because there is a vacancy a member of 453 00:27:05,520 --> 00:27:09,320 Speaker 1: the Texas Commercial Delegation died early this year. There was 454 00:27:09,440 --> 00:27:12,639 Speaker 1: just a primary thing to fill that the general election 455 00:27:13,119 --> 00:27:16,119 Speaker 1: to actually fill that seat won't be until January. That's 456 00:27:16,160 --> 00:27:19,760 Speaker 1: on the old map, the pre Gerrymander map. And so 457 00:27:19,800 --> 00:27:21,800 Speaker 1: the court says, well, the old maps are still the law, 458 00:27:22,200 --> 00:27:25,800 Speaker 1: so under our preliminary injunction, we're just going to continue to. 459 00:27:25,800 --> 00:27:27,680 Speaker 5: Live by the old map. So the old map is 460 00:27:27,720 --> 00:27:28,479 Speaker 5: still on the books. 461 00:27:29,040 --> 00:27:31,080 Speaker 1: And so they're saying that in some sense, the real 462 00:27:31,119 --> 00:27:35,439 Speaker 1: disruption was the state legislature's acting so late, and so 463 00:27:35,480 --> 00:27:37,320 Speaker 1: therefore we should be able to do this. And yes, 464 00:27:37,800 --> 00:27:40,320 Speaker 1: it's still time for everyone to come into compliance to 465 00:27:40,840 --> 00:27:44,000 Speaker 1: file under the old maps. I think the first question 466 00:27:44,160 --> 00:27:48,040 Speaker 1: may be the stronger argument. When Texas appeals this to 467 00:27:48,080 --> 00:27:50,919 Speaker 1: the Supreme Court, I suspect they will lean heavily on 468 00:27:50,960 --> 00:27:54,639 Speaker 1: this purcell idea that it's too late, that we're about 469 00:27:54,680 --> 00:27:57,840 Speaker 1: three weeks away from the filing deadlines for the March 470 00:27:57,920 --> 00:28:02,400 Speaker 1: primary and it's too late. And I think secondarily they'll say, well, yes, 471 00:28:02,440 --> 00:28:04,360 Speaker 1: there is a lot of race evidence, but there's also 472 00:28:04,520 --> 00:28:08,480 Speaker 1: partis in evidence, and we should defer to the legislature 473 00:28:08,520 --> 00:28:10,199 Speaker 1: on that. So I think that's how that's likely to 474 00:28:10,200 --> 00:28:12,000 Speaker 1: go out. On what the Spreme Court will do is unclear, 475 00:28:12,480 --> 00:28:17,920 Speaker 1: but there is a plausible Percel argument that it's too late. 476 00:28:18,040 --> 00:28:22,280 Speaker 1: But as I said, the Court is very strong in saying, well, 477 00:28:22,280 --> 00:28:25,000 Speaker 1: if that's the case, you can never bring a challenge 478 00:28:25,200 --> 00:28:28,399 Speaker 1: to a gerrymander. That indeed, it's an incentive to do 479 00:28:28,480 --> 00:28:31,439 Speaker 1: the jerrymanders closer and closer to the election to make 480 00:28:31,480 --> 00:28:33,119 Speaker 1: it impossible to bring challenges. 481 00:28:33,640 --> 00:28:37,120 Speaker 2: If the Supreme Court says, forget the percel principle here, 482 00:28:37,760 --> 00:28:40,800 Speaker 2: how do you think they would rule on Texas's appeal. 483 00:28:41,320 --> 00:28:42,840 Speaker 2: You know that this was a part is in not 484 00:28:42,920 --> 00:28:45,360 Speaker 2: a racial Jerrymander. Do you have any idea on that. 485 00:28:46,240 --> 00:28:47,200 Speaker 5: It's really hard to say. 486 00:28:47,240 --> 00:28:48,640 Speaker 1: I mean, I think they're you know, I think the 487 00:28:49,320 --> 00:28:52,560 Speaker 1: court acknowledges that there's evidence on the other side. But 488 00:28:52,680 --> 00:28:56,480 Speaker 1: they have, and particularly the testimony of the map drawer, 489 00:28:56,960 --> 00:28:59,400 Speaker 1: the Republican specialist who hire to draw the map. You said, 490 00:28:59,680 --> 00:29:01,000 Speaker 1: you know, no, I never looked. 491 00:29:00,800 --> 00:29:01,360 Speaker 5: At race data. 492 00:29:01,520 --> 00:29:05,040 Speaker 1: The court said, we essentially don't believe you, partly because 493 00:29:05,360 --> 00:29:08,320 Speaker 1: the discrepancies between your testimony and the testimony of the 494 00:29:08,320 --> 00:29:11,400 Speaker 1: state legislator who hired you, but also because we just 495 00:29:11,400 --> 00:29:14,240 Speaker 1: don't believe that you could produce three districts that are 496 00:29:14,560 --> 00:29:17,000 Speaker 1: fifty point two, fifty point three to fifty point four 497 00:29:17,000 --> 00:29:20,560 Speaker 1: percent majority. I think two were Hispanic, one was black. 498 00:29:20,640 --> 00:29:23,400 Speaker 1: I'm not sure about that. And that's so precise, and 499 00:29:23,440 --> 00:29:25,840 Speaker 1: you could do it three times, and that you were 500 00:29:25,880 --> 00:29:28,800 Speaker 1: not paying attention to race. But I mean, there is 501 00:29:28,960 --> 00:29:32,800 Speaker 1: counter evidence in you know, in theory, the Supreme Court's 502 00:29:32,840 --> 00:29:35,040 Speaker 1: not supposed to judge the evidence. That's really for the 503 00:29:35,040 --> 00:29:38,960 Speaker 1: lower court. They're supposed to defer lower courts on evidentiary findings. 504 00:29:38,960 --> 00:29:40,960 Speaker 1: But the current Supreme Court has. 505 00:29:40,840 --> 00:29:43,560 Speaker 5: Not always followed that rule. So it's hard to tell 506 00:29:43,880 --> 00:29:44,520 Speaker 5: what they're. 507 00:29:44,320 --> 00:29:47,120 Speaker 1: Going to do, and we haven't seen the dissenting opinion, 508 00:29:47,480 --> 00:29:52,600 Speaker 1: which may provide, you know, good arguments for Texas when 509 00:29:52,600 --> 00:29:54,320 Speaker 1: it takes to the Supreme Court. 510 00:29:54,640 --> 00:29:59,760 Speaker 2: As you know, this whole redistricting national redistricting battle was 511 00:30:00,080 --> 00:30:05,840 Speaker 2: yuarded by President Trump, and California has approved a redistricting 512 00:30:05,960 --> 00:30:10,560 Speaker 2: plan that would offset the Texas map, which is now 513 00:30:10,600 --> 00:30:15,400 Speaker 2: in serious jeopardy. Tell us about the legal challenge to 514 00:30:15,520 --> 00:30:21,960 Speaker 2: California's redistricting from California Republicans and also now the Trump administration. 515 00:30:22,520 --> 00:30:25,440 Speaker 1: I mean, they're basically making the same argument that prevailed 516 00:30:25,480 --> 00:30:28,280 Speaker 1: here that this is a racial gerrymander. I mean, they 517 00:30:28,320 --> 00:30:31,400 Speaker 1: can't bring a parties in jerrymander argument because, as I said, 518 00:30:31,440 --> 00:30:33,720 Speaker 1: the Supreme Court in La Rouco case in I think 519 00:30:33,720 --> 00:30:36,640 Speaker 1: twenty nineteen said those are simply not just diiciable, it 520 00:30:36,720 --> 00:30:39,000 Speaker 1: can't challenge. So I think they're bringing a claim that 521 00:30:39,080 --> 00:30:42,760 Speaker 1: the state's the legislature's motivation was race. Assumely they've targeted 522 00:30:42,760 --> 00:30:45,880 Speaker 1: specific districts for that, but I don't know what they've 523 00:30:45,960 --> 00:30:48,200 Speaker 1: argued in that. But I think the essence of it 524 00:30:48,240 --> 00:30:51,479 Speaker 1: is that it's a racial gerrymander very similar to the argument. 525 00:30:51,760 --> 00:30:54,000 Speaker 1: I don't know the details, but the basic idea is 526 00:30:54,040 --> 00:30:56,520 Speaker 1: similar to the argument that the three judge court in 527 00:30:56,640 --> 00:31:01,520 Speaker 1: Texas recognized in striking down the Texas a jerrymander, and is. 528 00:31:01,560 --> 00:31:03,560 Speaker 4: Sort of opposite of what happened in Texas. 529 00:31:03,880 --> 00:31:08,200 Speaker 2: The Justice Department argued that California's map illegally bolsters the 530 00:31:08,320 --> 00:31:10,800 Speaker 2: voting power of Hispanics in the state. 531 00:31:11,840 --> 00:31:14,800 Speaker 1: Which is interesting because, of course, in Texas, one of 532 00:31:14,840 --> 00:31:17,000 Speaker 1: the arguments Governor Abbott made is that this is going 533 00:31:17,040 --> 00:31:20,200 Speaker 1: to actually strengthen the voting power of his Panics, although 534 00:31:20,480 --> 00:31:23,400 Speaker 1: he combined that he was basically, Hispanics are becoming more Republican, 535 00:31:23,680 --> 00:31:25,560 Speaker 1: and this is going to allow them to be able 536 00:31:25,560 --> 00:31:29,080 Speaker 1: to articulate that in districts to both their preference and districts. 537 00:31:29,080 --> 00:31:31,160 Speaker 5: He had a kind of a sentence which kind of 538 00:31:31,200 --> 00:31:32,600 Speaker 5: combined the two in one sentence. 539 00:31:33,000 --> 00:31:36,080 Speaker 1: But yes, so, I mean much would turn on whatever 540 00:31:36,120 --> 00:31:39,720 Speaker 1: evidence they have for that. There's also an argument that 541 00:31:39,760 --> 00:31:41,760 Speaker 1: there's been a lot of debate about this amongst the 542 00:31:41,840 --> 00:31:44,520 Speaker 1: law professors in the last twenty four hours as to 543 00:31:44,640 --> 00:31:49,160 Speaker 1: what's the significance of the fact that the California redistricting 544 00:31:49,240 --> 00:31:52,479 Speaker 1: was approved by the voters, but the challengers have to 545 00:31:52,520 --> 00:31:56,280 Speaker 1: prove that the voters were racially motivated as opposed to 546 00:31:56,320 --> 00:31:59,640 Speaker 1: the legislature, and I think for grabs, because the public 547 00:31:59,640 --> 00:32:03,160 Speaker 1: campaign was largely on party grounds. So whether or not 548 00:32:03,320 --> 00:32:07,520 Speaker 1: even if there was a racial motivation within the legislature, 549 00:32:07,960 --> 00:32:10,480 Speaker 1: whether that was some kind of washed away by the voters, 550 00:32:11,080 --> 00:32:13,520 Speaker 1: or whether if it really is racially tainted, whether the 551 00:32:13,600 --> 00:32:18,360 Speaker 1: legislature's motivation was racial prospanic, whether it doesn't matter that 552 00:32:18,480 --> 00:32:20,080 Speaker 1: the voters voted for it because they thought that I'm 553 00:32:20,120 --> 00:32:21,240 Speaker 1: voting on partisan grounds. 554 00:32:21,280 --> 00:32:21,920 Speaker 4: That's interesting. 555 00:32:22,760 --> 00:32:24,400 Speaker 5: That will be an interesting fight. 556 00:32:24,600 --> 00:32:27,160 Speaker 2: You law professors have some interesting conversations. 557 00:32:27,600 --> 00:32:29,680 Speaker 1: Yeah, obviously it's been all on live, but it's been 558 00:32:29,680 --> 00:32:32,720 Speaker 1: an interesting back and forth on that course. 559 00:32:32,760 --> 00:32:34,520 Speaker 5: The government on the plaintiffs first have. 560 00:32:34,520 --> 00:32:38,000 Speaker 1: To show that the plan was racially motivated and not 561 00:32:38,280 --> 00:32:42,800 Speaker 1: partisanly motivated even within the legislature. And then they conclude 562 00:32:42,800 --> 00:32:45,160 Speaker 1: that it was partisan even in the legislature, than the 563 00:32:45,200 --> 00:32:47,320 Speaker 1: effect of the voters as becomes irrelevant. 564 00:32:47,920 --> 00:32:52,760 Speaker 2: And there are other states, both democratic and Republican, that 565 00:32:52,840 --> 00:32:56,480 Speaker 2: are in play. We'll see what settles out. Thanks so much, Rich, 566 00:32:57,080 --> 00:33:01,280 Speaker 2: that's professor Richard Rfault of Columbia Law School. And that's 567 00:33:01,320 --> 00:33:03,920 Speaker 2: it for this edition of The Bloomberg Law Show. Remember 568 00:33:03,960 --> 00:33:06,080 Speaker 2: you can always get the latest legal news on our 569 00:33:06,080 --> 00:33:10,240 Speaker 2: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 570 00:33:10,440 --> 00:33:15,480 Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law, 571 00:33:15,880 --> 00:33:18,440 Speaker 2: And remember to tune into The Bloomberg Law Show every 572 00:33:18,520 --> 00:33:22,400 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 573 00:33:22,520 --> 00:33:24,160 Speaker 2: and you're listening to Bloomberg