WEBVTT - Metaverse Privacy, Shadow Docket, Musk vs. Twitter 0:00:02.720 --> 0:00:06.800 This is Bloomberg Law. A divided Supreme Court rejects a 0:00:06.920 --> 0:00:09.800 religious challenge. Tell us a little about the facts of 0:00:09.800 --> 0:00:13.600 the case. Interviews with prominent attorneys in Bloomberg Legal experts. 0:00:13.680 --> 0:00:16.919 I guess his former federal prosecutor Jimmy Garula Joining me 0:00:16.960 --> 0:00:20.760 is Bloomberg Law reporter Jordan Ruben. And analysis of important 0:00:20.800 --> 0:00:24.160 legal issues, cases and headlines. The Supreme Court takes on 0:00:24.239 --> 0:00:28.560 state secrets. Multiple lawsuits were filed against the emergency rule? 0:00:28.800 --> 0:00:32.599 Is this lawsuit for real? Bloomberg Law with June Grasso 0:00:32.960 --> 0:00:39.320 from Bloomberg Radio. Welcome to Bloomberg Laws Show. I'm Lydia 0:00:39.360 --> 0:00:42.720 Wheeler and I'm Kimberly Robinson. We're in for June Grosso. 0:00:43.280 --> 0:00:45.040 Coming up on the show, we'll discuss the U. S. 0:00:45.040 --> 0:00:48.479 Supreme Court's latest COVID action and the increasing use of 0:00:48.560 --> 0:00:52.600 the courts so called shadow doctor. The first Bloomberg Law reporter, 0:00:52.680 --> 0:00:55.720 Andrea Vittorio joins us to talk about the new extended 0:00:55.800 --> 0:00:59.720 reality experiences that technology companies are promising in the metaverse 0:01:00.120 --> 0:01:02.600 and the privacy pitfollows that could come with collecting more 0:01:02.680 --> 0:01:06.440 data from users. Andrea, thanks for being here. Can you 0:01:06.480 --> 0:01:10.039 start off by explaining what an extended reality is and 0:01:10.160 --> 0:01:15.800 what types of technology it typically includes. Sure, so I 0:01:15.840 --> 0:01:18.760 asked this question myself in writing this story, because there 0:01:18.800 --> 0:01:22.240 are many different kinds of reality and UM, there's sort 0:01:22.280 --> 0:01:26.240 of regular reality on one side and then virtual reality 0:01:26.240 --> 0:01:29.160 on the other, and that's where UM, there's a whole 0:01:29.240 --> 0:01:32.120 virtual world. You have a virtual version of yourself and 0:01:32.200 --> 0:01:38.200 you can participate in virtual activities like games or events 0:01:38.240 --> 0:01:42.440 like concerts or shopping. So UM, that's sort of what 0:01:42.480 --> 0:01:44.360 we think of when we talk about the metaverse. There 0:01:44.400 --> 0:01:48.640 are also versions in between where you can have holograms 0:01:48.680 --> 0:01:53.800 imposed on real life or UM you can see digital 0:01:54.400 --> 0:01:59.360 characters like Pokemon go um in your everyday activities. So 0:02:00.600 --> 0:02:05.320 the virtual realities that we are talking about can mean 0:02:05.360 --> 0:02:08.120 a lot different things. And so what are the digital 0:02:08.160 --> 0:02:12.600 experiences that extended reality companies are promising users. It doesn't 0:02:12.600 --> 0:02:16.560 seem like we're talking about just games here right right. 0:02:16.639 --> 0:02:20.120 There are a lot of potential applications. UM. Gaming is 0:02:20.160 --> 0:02:23.400 definitely one of them. UM that is learning. There are 0:02:23.520 --> 0:02:28.160 schools that are experimenting with virtual reality for students. There's 0:02:28.200 --> 0:02:31.920 also corporate training that can happen in virtual reality. You 0:02:31.960 --> 0:02:38.160 can help firefighters or doctors learn their craft UM just 0:02:38.280 --> 0:02:43.000 by practicing in additual environment UM. And they're just a 0:02:43.040 --> 0:02:46.760 lot of different UM use cases that we kind of 0:02:46.800 --> 0:02:51.280 are seeing explored. But UM could brawn now like theme parks, 0:02:51.320 --> 0:02:55.239 travel shopping. There's a lot going on there in the metaverse. 0:02:55.480 --> 0:02:58.560 So what kinds of data are our companies collecting from 0:02:58.600 --> 0:03:03.000 people who use these sorts of extended reality devices? And 0:03:03.120 --> 0:03:07.280 is any of its sensitive information? The data collected can 0:03:07.320 --> 0:03:10.280 depend on the device or how you're using it UM, 0:03:10.360 --> 0:03:14.400 but there are a lot of potential collection points, like 0:03:14.800 --> 0:03:18.400 when you wear a headset can gather information about like 0:03:18.880 --> 0:03:21.600 how your head is moving, what you're looking at. UM. 0:03:21.639 --> 0:03:25.079 You can sometimes hold devices in your hands that will 0:03:25.120 --> 0:03:27.600 track your hands are moving or what sides they are 0:03:27.639 --> 0:03:33.519 even So UM these are all considered um pretty personal 0:03:34.560 --> 0:03:38.760 pieces of information because they really varied by person UM 0:03:38.960 --> 0:03:43.040 and can even sort of amount to identifying a person 0:03:43.080 --> 0:03:45.040 if you have enough information about them and how they 0:03:45.080 --> 0:03:48.480 move and what they look like. So, UH, try to 0:03:48.520 --> 0:03:54.000 be advocates or concerned just about the um physical characteristics 0:03:54.600 --> 0:03:57.800 or traits that are being gathered about people as they 0:03:58.080 --> 0:04:02.120 use these devices. Right in your story that you recently wrote, 0:04:02.120 --> 0:04:04.600 you refer to you know, tracking these movements as a 0:04:04.680 --> 0:04:06.880 kind of thumb print of your movements, which I thought 0:04:06.920 --> 0:04:09.440 was really interesting. And I'm wondering do companies have to 0:04:09.440 --> 0:04:12.680 get permission from users before they can collect this kind 0:04:12.720 --> 0:04:18.120 of data? And if so, how do they usually do that? Right? So, 0:04:18.760 --> 0:04:22.240 permission is kind of interesting concepts, like when you're in 0:04:22.279 --> 0:04:26.680 a virtual world and you're interacting with different uh people 0:04:26.920 --> 0:04:29.719 or with places, and there's sort of different touch points 0:04:29.720 --> 0:04:32.480 where you would need permission. So there's sort of like 0:04:32.640 --> 0:04:35.640 the base level of permission of using a device and 0:04:35.720 --> 0:04:39.040 creating accounts, but then um, when you play a game 0:04:39.200 --> 0:04:43.640 or some other sort of activity in the in the 0:04:43.720 --> 0:04:49.840 virtual world, um, you're interacting with another business potentially, and 0:04:50.120 --> 0:04:53.640 so they would have to potentially ask for permission to 0:04:53.720 --> 0:04:56.560 gather information about you. Or if you go and buy 0:04:56.600 --> 0:04:59.200 something in the metaverse, then maybe you have to agree 0:04:59.200 --> 0:05:02.400 to private people healthy of the merchant selling you something. 0:05:02.560 --> 0:05:08.320 So UM, permission to gather information or touse information could 0:05:08.360 --> 0:05:13.279 be many layered in this virtual world. Are there any 0:05:13.400 --> 0:05:16.080 laws in place, either at the state or the federal 0:05:16.200 --> 0:05:21.279 level to protect this kind of digital data? So far, 0:05:21.880 --> 0:05:26.240 we have been thinking about privacy laws UM in virtual 0:05:26.279 --> 0:05:29.880 worlds just sort of as applying existing laws to the 0:05:29.960 --> 0:05:34.880 space and UM. So in Europe there's a rule called 0:05:34.880 --> 0:05:40.640 the General Data Protection Regulation that would um probably apply 0:05:40.880 --> 0:05:46.520 these general privacy rights to UM different platforms regardless of 0:05:46.560 --> 0:05:49.839 where you are, So it would apply um in the 0:05:49.880 --> 0:05:52.679 metaverse as well as just sort of auto website UM. 0:05:52.760 --> 0:05:55.159 But then in the US it might kind of depend 0:05:55.240 --> 0:06:01.520 on different state laws since there's no national privacy law here. UM. 0:06:01.560 --> 0:06:04.680 So there's still a lot of questions around, like how 0:06:04.720 --> 0:06:07.880 do these laws apply? And like especially how do how 0:06:07.920 --> 0:06:11.320 do location base laws apply when like I might be 0:06:12.040 --> 0:06:15.440 in one physical place using a device, but I might 0:06:15.520 --> 0:06:19.240 be going somewhere else in the world in my device, 0:06:19.320 --> 0:06:24.840 So does that change like where the laws of that 0:06:24.960 --> 0:06:27.920 place would apply to me or whether the laws where 0:06:27.920 --> 0:06:31.440 I am physically apply to me. So, um, there's still 0:06:31.480 --> 0:06:36.200 a lot of policy questions around, uh, how existing laws 0:06:36.279 --> 0:06:39.040 might fit or um if we need to have new 0:06:39.120 --> 0:06:43.000 laws written specifically for this space. Well, thanks so much. 0:06:43.080 --> 0:06:47.120 That's Bloomberg Law reporter Andrea Vittorio. You're listening to Bloomberg Law. 0:06:47.600 --> 0:06:49.920 Next up will bring in the University of Texas law 0:06:49.960 --> 0:06:52.800 professor Stephen Bladdock to discuss the U S. Supreme Courts 0:06:52.800 --> 0:06:57.240 COVID rulings. I'm Kimberly Robinson and I'm Lidia Wheeler. This 0:06:57.560 --> 0:07:09.720 is Bloomberg Y. This is Bloomberg Law with June Brasso 0:07:10.160 --> 0:07:15.240 from Bloomberg Radio. I'm Lydia Wheeler and I'm Kimberly Robinson. 0:07:15.400 --> 0:07:17.960 We're in for June Grasso. We turn now from the 0:07:17.960 --> 0:07:21.680 metaverse to the COVID pandemic, which has upended life worldwide, 0:07:21.680 --> 0:07:24.800 including at the U. S. Supreme Court, to discuss how 0:07:24.800 --> 0:07:27.400 the justices have dealt with the health crisis. We bring 0:07:27.400 --> 0:07:30.760 in University of Texas law professor Steven Laddock. Thanks so 0:07:30.920 --> 0:07:32.920 much for being here with us. Oh, thanks for having 0:07:33.000 --> 0:07:37.280 me so. On Tuesday, Justice Sonia Sotomayor refused to block 0:07:37.400 --> 0:07:40.680 New York City's requirement that employees here a New York 0:07:40.760 --> 0:07:45.600 City Police detective, be vaccinated against COVID nineteen. There was 0:07:45.720 --> 0:07:48.520 no explanation from the court, but we've seen the justices 0:07:48.640 --> 0:07:52.680 block other vaccine mandates and allow other requirements to stay 0:07:52.720 --> 0:07:56.080 in place. Do you have an understanding about why the 0:07:56.120 --> 0:07:59.920 Court have might have rejected this particular request. Yeah, I mean, 0:08:00.000 --> 0:08:02.800 I think if you look at the overall body of 0:08:02.840 --> 0:08:05.400 work and there's actually a fairly substantial number of cases 0:08:05.480 --> 0:08:10.440 where the Justices have been asked to block various COVID restrictions. UM. 0:08:10.480 --> 0:08:15.440 The cases that have succeeded, basically with I think one exception, 0:08:15.920 --> 0:08:18.760 invariably fall into one of two categories. Either they are 0:08:18.880 --> 0:08:23.720 religious liberty based challenges to COVID restrictions, whether it's a 0:08:23.800 --> 0:08:26.800 vaccine mandate or a limit on how many people can 0:08:26.800 --> 0:08:29.600 gather in the same place. UM. Or it is a 0:08:29.680 --> 0:08:33.080 challenge to a federal policy on grounds that the federal 0:08:33.120 --> 0:08:38.120 policy exceeds the statutory authority that the relevant agency, the 0:08:38.160 --> 0:08:42.000 Centers for Disease Control and Prevention OSHA right that they had. 0:08:42.200 --> 0:08:44.760 And so with one exception, and the exception is the 0:08:44.800 --> 0:08:48.760 New York State eviction moratorium, every single case where the 0:08:48.800 --> 0:08:52.679 Supreme Court has agreed to block a state or federal 0:08:53.000 --> 0:08:57.160 COVID policy the grounds of been religious liberty or you know, 0:08:57.200 --> 0:09:02.479 federal administrative law. You mentioned those in person gatherings in particular, 0:09:02.640 --> 0:09:05.440 and I was, you know, on religious gatherings, I should say, 0:09:05.440 --> 0:09:08.480 and I was curious, how did the justices analyze those 0:09:08.520 --> 0:09:11.400 specific requests? Yeah, you know, I mean, as you guys know, 0:09:11.520 --> 0:09:13.640 part of the trick here is that very very few 0:09:13.640 --> 0:09:17.800 of these rulings should actually come with opinions for the court. UM. 0:09:17.880 --> 0:09:20.360 But so there were a series of cases, you know, 0:09:20.400 --> 0:09:24.880 starting in the summer of and really culminating in the summer, 0:09:26.080 --> 0:09:30.760 where UM, religious groups others challenged, you know, gathering restrictions, 0:09:30.840 --> 0:09:34.400 especially in New York, UM in California. And you know, 0:09:34.480 --> 0:09:37.200 this is I think one place where we saw the 0:09:37.240 --> 0:09:40.040 confirmation of Justice Barrett have a huge shift. UM. So 0:09:40.080 --> 0:09:43.400 in the summer of the court was actually denying these 0:09:43.400 --> 0:09:47.280 requests to block the gathering restrictions. UM. In one or 0:09:47.320 --> 0:09:49.439 two cases, one from California went from the VATA by 0:09:49.440 --> 0:09:52.720 five to four votes, and it was Chief Justice Roberts 0:09:52.880 --> 0:09:56.160 joining the liberals in those cases. UM. And one of 0:09:56.160 --> 0:09:59.720 those cases, the case called South Bay Unitependent Constal Church UM. 0:09:59.760 --> 0:10:02.480 To Justice Roberts wrote separately to say, you know, I'm 0:10:02.480 --> 0:10:06.480 not unsympathetic to the claims that these planets are making, 0:10:07.080 --> 0:10:09.280 but this is you know, not something we should be 0:10:09.280 --> 0:10:12.920 resolving on an emergency application. UM. You know, the sort 0:10:12.920 --> 0:10:16.400 of things are changing on the ground, the policies are shifting, UM, 0:10:16.440 --> 0:10:18.959 and so we should give at least some latitude right 0:10:19.000 --> 0:10:23.640 to the government decision makers. UM. That shifts quickly when 0:10:23.679 --> 0:10:26.319 Justice Barrett's confirmed, so that you know, within a month 0:10:26.320 --> 0:10:31.079 of her confirmation UM in November. Now it's five to 0:10:31.160 --> 0:10:33.520 four the other way in a pair of cases blocking 0:10:33.920 --> 0:10:37.480 you know, New York's restrictions on religious gatherings, UM. And 0:10:37.520 --> 0:10:39.080 in the first of those cases, the case called Roman 0:10:39.080 --> 0:10:43.360 Catholic Diocese of We've got a very short, unsigned opinion 0:10:43.400 --> 0:10:46.520 for the Court that says, the problem with these restrictions 0:10:46.640 --> 0:10:50.240 is that they are treating you know, religious worship more 0:10:50.360 --> 0:10:55.040 harshly than they're treating other forms of essential secular businesses, 0:10:55.160 --> 0:10:59.120 and that that becomes the dominant problem that the Justice 0:10:59.200 --> 0:11:01.679 is find with whole bunch of these um, you know, 0:11:01.720 --> 0:11:04.240 state gathering restrictions during the pandemic, which I think is 0:11:04.280 --> 0:11:06.800 part of why we saw so much action through these cases, 0:11:07.320 --> 0:11:09.840 only when the claims were about religious liberty as opposed 0:11:09.880 --> 0:11:13.280 to other due process or other constitutional rights. So you 0:11:13.320 --> 0:11:15.959 mentioned that a lot of these cases, most of them 0:11:15.960 --> 0:11:19.240 in fact, came up through these emergency requests. I wanted 0:11:19.280 --> 0:11:21.640 to talk a little bit about the so called shadow doctor. 0:11:21.720 --> 0:11:25.439 Can you first explained to people what that even is? Sure, 0:11:26.040 --> 0:11:28.160 So it's it's sort of it's a catchy term um 0:11:28.200 --> 0:11:32.880 that will Bow the Professor Chicago coined in UM to 0:11:33.000 --> 0:11:36.680 describe basically all of the traditionally boring stuff the Supreme 0:11:36.720 --> 0:11:38.679 Court does. You know, we spend most of our time 0:11:38.760 --> 0:11:42.600 thinking about like the fifty five to sixty big merits 0:11:42.640 --> 0:11:45.360 decisions the Court hands down each year dabbs, you know, 0:11:45.400 --> 0:11:47.960 the gun case, etcetera. And as you guys both know, 0:11:48.000 --> 0:11:50.480 I mean, the reality is that, at least by volume, 0:11:50.559 --> 0:11:54.040 the overwhelming majority of what the Supreme Court does is 0:11:54.080 --> 0:11:59.439 actually not those It's these unsigned and usually unexplained orders UM. 0:11:59.480 --> 0:12:01.960 Most of these or anodyne right. No one really gets 0:12:02.000 --> 0:12:06.280 exercised about extensions of time to file briefs UM, even 0:12:06.320 --> 0:12:08.559 when the court is denying sorceerarity, that is to say, 0:12:08.640 --> 0:12:11.120 refuse them to take up an appeal. You know, that 0:12:11.160 --> 0:12:14.360 doesn't often make headlines. But what we've seen in the 0:12:14.440 --> 0:12:16.440 last couple of years, as we've seen more and more 0:12:16.480 --> 0:12:21.600 of these orders, especially when parties are asking for emergency relief, 0:12:21.679 --> 0:12:24.560 especially when a party is saying, I want to appeal 0:12:24.640 --> 0:12:27.760 a decision from a lower court. While I'm appealing it, 0:12:27.880 --> 0:12:31.160 I want you to block this state policy. UM, We're 0:12:31.160 --> 0:12:33.720 seeing the court not only sort of here and and 0:12:33.760 --> 0:12:37.199 take seriously more of those, but grant more of those requests. Um. 0:12:37.240 --> 0:12:40.080 And that's coming you know, without oral argument in almost 0:12:40.120 --> 0:12:44.720 all cases with limited briefing, um, oftentimes through orders that 0:12:44.800 --> 0:12:47.640 have no explanation, and if they have an explanations, through 0:12:47.679 --> 0:12:50.199 a short explanation. UM. As you guys know, well, these 0:12:50.280 --> 0:12:52.320 orders can come at all times a day or even 0:12:52.320 --> 0:12:53.920 in the middle of the dice. And so I think, 0:12:53.960 --> 0:12:57.120 you know, the COVID pandemic was in some respects a 0:12:57.320 --> 0:13:00.920 flashpoint for how much the court is due through these unfined, 0:13:00.960 --> 0:13:04.120 unexplained orders, um. And really for how those orders can 0:13:04.160 --> 0:13:07.040 have massive real world effects even when we have no 0:13:07.120 --> 0:13:09.600 idea why the court is doing what it's doing. And Steve, 0:13:09.840 --> 0:13:12.000 you know, as you mentioned just you know, just now 0:13:12.040 --> 0:13:14.160 that it seems like you're a big critic of the 0:13:14.160 --> 0:13:16.400 shadow docket. And you know, because these cases are coming 0:13:16.400 --> 0:13:18.480 before the court, we're not getting or argument, we're not 0:13:18.520 --> 0:13:22.520 getting you know, opinions. What's can you put into perspective though? 0:13:22.520 --> 0:13:24.640 What's the harm in the fact that we're not having 0:13:24.679 --> 0:13:28.880 like a fully briefed case and arguments before the court? Yeah, 0:13:28.920 --> 0:13:30.360 I mean, I think there are a couple of harms. 0:13:30.360 --> 0:13:32.240 I mean, as to be sure, I don't think the 0:13:32.240 --> 0:13:34.800 shado adopted is first say a bad thing, UM Like, 0:13:35.000 --> 0:13:37.040 there are going to be emergency and the court has 0:13:37.040 --> 0:13:38.679 to have a way of dealing with them. I know 0:13:38.880 --> 0:13:42.720 that the trouble comes when you have the court basically 0:13:42.760 --> 0:13:46.559 issuing an unsigned, unexplained order, let's say, blocking a California 0:13:46.720 --> 0:13:50.520 COVID policy for example, UM, in a case where first 0:13:50.840 --> 0:13:54.680 the lower courts actually had detailed hurings and took significant 0:13:54.679 --> 0:13:57.040 evidence um and actually you know, did a bunch of 0:13:57.080 --> 0:14:00.760 fact findings to support their their conclusions that what California 0:14:00.800 --> 0:14:03.480 was doing with above board. But second where the court 0:14:03.559 --> 0:14:07.040 then turns around and says, hey, lower courts, you are 0:14:07.120 --> 0:14:11.000 bound to follow our unsigned, unexplained order in this case. 0:14:11.440 --> 0:14:13.960 And so I think the problem the shadow doctor creates 0:14:14.000 --> 0:14:17.520 is not just that it's a compressed opportunity for the 0:14:17.640 --> 0:14:21.520 court to do its job, but that it also deprives 0:14:21.560 --> 0:14:24.440 the court in the typical case of the ability to 0:14:24.480 --> 0:14:28.480 provide the kind of lengthy, principled rationale that you know, guys, 0:14:28.520 --> 0:14:31.320 we may not agree with, but at least we understand 0:14:31.480 --> 0:14:34.600 and that you know, the relevant parties, the local and 0:14:34.640 --> 0:14:37.440 state governments, the lower courts can figure out how to 0:14:37.480 --> 0:14:40.680 apply in future cases with you know, marginally different facts. 0:14:41.040 --> 0:14:42.840 We don't have those in most of these orders, and 0:14:42.840 --> 0:14:46.120 I think that's part of why, you know, the proliferation 0:14:46.200 --> 0:14:50.120 of these decisions, especially in context in which the justices 0:14:50.160 --> 0:14:53.880 are treating them as creating precedents. Um is I think 0:14:53.880 --> 0:14:57.360 hard to defend. Coming up next will continue our conversation 0:14:57.480 --> 0:15:00.720 with the University of Texas law professor Stephen Addic. I'm 0:15:00.800 --> 0:15:10.120 Lidia Wheeler and I'm Kimberly Robinson. This is Bloomberg Y. 0:15:12.800 --> 0:15:17.600 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:15:18.120 --> 0:15:21.040 I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for 0:15:21.120 --> 0:15:24.160 June Grasso. We're back with Professor Stephen Bladdock of the 0:15:24.240 --> 0:15:27.560 University of Texas. When we left, we were talking about 0:15:27.600 --> 0:15:30.520 the courts shadow docket and how most of the COVID 0:15:30.600 --> 0:15:34.360 cases came up through uh that procedure. Of course, there 0:15:34.360 --> 0:15:38.160 were two major exceptions that was on the on two 0:15:38.200 --> 0:15:41.960 federal vaccine mandates, one that the Supreme Court upheld and 0:15:42.000 --> 0:15:45.400 another more broader mandate that the Supreme Court struck down. 0:15:45.800 --> 0:15:48.680 Can you tell us Uh. These cases started on the 0:15:48.680 --> 0:15:51.840 shadow docket themselves, though, right, Yeah, and actually I think 0:15:51.880 --> 0:15:54.200 we could even probably debate whether they were even exception 0:15:54.320 --> 0:15:57.240 so the right. There were two sets of really high 0:15:57.280 --> 0:16:01.360 profile challenges to vaccine mandate from the Biden administration. One 0:16:01.440 --> 0:16:05.360 was the Osha um proposed emergency rule that would have 0:16:05.360 --> 0:16:09.800 required every large employer to impose a vaccination or testing 0:16:10.000 --> 0:16:12.880 requirement on their employees UM. And the other was a 0:16:12.960 --> 0:16:16.520 rule promulgated by the Center for Medicare and Medicaid Services 0:16:16.680 --> 0:16:21.120 that basically required all health care facilities that received federal 0:16:21.320 --> 0:16:24.120 Medicare or Medicaid funds to a whole lot of them 0:16:24.440 --> 0:16:28.480 UM to require their healthcare workers to be vaccinated. So 0:16:28.800 --> 0:16:31.720 they both came to the Supreme Court through the shadow docket. 0:16:31.800 --> 0:16:36.640 The the Osha mandate UM was not blocked by the 0:16:36.680 --> 0:16:39.440 Sixth Circuit UM, and then a whole bunch of parties 0:16:39.480 --> 0:16:42.840 fifteen different sets of applicants asked the Supreme Court to 0:16:42.920 --> 0:16:45.840 issue an emergency stay of the ocean Man date Um. 0:16:45.920 --> 0:16:49.520 The CMS mandate was blocked by two different district courts 0:16:49.520 --> 0:16:52.680 on a nationwide basis, and the Biden administration came to 0:16:52.760 --> 0:16:55.920 the Supreme Court um asking for emergency relief in the 0:16:56.000 --> 0:16:59.280 form of stays of those injunctions. And so what the 0:16:59.320 --> 0:17:01.280 court did, I think made it look like it was 0:17:01.360 --> 0:17:04.640 less shadowy is for the first time nearest we can tell, 0:17:04.640 --> 0:17:08.880 since like um, the full Court decided to hear oral 0:17:08.960 --> 0:17:12.119 argument on the vaccine mandates, and they did, you know, 0:17:12.160 --> 0:17:14.520 in early January, UM. And they turned around about a 0:17:14.600 --> 0:17:18.720 week later and handed down these you know, unsigned procureum 0:17:18.840 --> 0:17:22.400 for the court opinions UM, where they blocked the Ocean 0:17:22.480 --> 0:17:26.520 rule and unblocked the CMS rule. And you know, I guess, guys, 0:17:26.560 --> 0:17:31.280 to me, those cases are a remarkable bell weather because first, 0:17:31.480 --> 0:17:33.399 you know, the fact that the justices saw fit the 0:17:33.440 --> 0:17:35.480 whole argument I think was a bit of a concession 0:17:36.080 --> 0:17:39.119 that they realized that, like you know, the normal shadow 0:17:39.119 --> 0:17:43.400 doctor process was insufficient for cases of the of that magnitude. 0:17:43.840 --> 0:17:46.680 But second, you know, there's a line in the majority 0:17:46.680 --> 0:17:49.960 opinion in the Ocean case where the you know whoever 0:17:49.960 --> 0:17:52.960 wrote it, we don't know who did, um talks about 0:17:53.080 --> 0:17:56.360 the equities and how you know, the federal government said 0:17:56.400 --> 0:17:58.720 if you block the Ocean mandate, all these bath rooms 0:17:58.720 --> 0:18:01.920 will happen. The Balingers, including a bunch of Red State said, 0:18:01.960 --> 0:18:04.920 if you don't block the mandate, these bad dems will happen. 0:18:05.440 --> 0:18:07.720 And then the Court says, it's not our job to 0:18:07.880 --> 0:18:11.240 balance those trade offs. Um. And I have to say, 0:18:11.280 --> 0:18:13.560 guys like that, that line, as someone who studies this 0:18:13.720 --> 0:18:17.600 like kind of set me spinning, because it's actually exactly 0:18:17.640 --> 0:18:20.280 the Court's job in the context of these kinds of 0:18:20.320 --> 0:18:22.840 emergency application to balance those trade offs. And so I 0:18:22.880 --> 0:18:25.439 think you know, in that respect, these cases were actually 0:18:25.440 --> 0:18:29.920 this perfect encapsulation of how the shadow doctor has evolved, 0:18:30.040 --> 0:18:34.040 of how more and more high profile disputes are being 0:18:34.080 --> 0:18:39.000 resolved through these expedited processes, and how in that context 0:18:39.000 --> 0:18:42.720 where the Court is supposed to be balancing the harms 0:18:42.720 --> 0:18:46.159 to each side, UM, the Court is really increasingly just 0:18:46.359 --> 0:18:48.879 deciding what it thinks the right answer is on the merits. 0:18:49.080 --> 0:18:51.280 I want to talk with you more about how the 0:18:51.359 --> 0:18:54.679 shadow docket has evolved, UM, because I know you've been 0:18:54.720 --> 0:18:58.080 following a change in how parties and the justices use 0:18:58.160 --> 0:19:00.600 the shadow jacket. So can you talk talk about those 0:19:00.680 --> 0:19:04.560 changes in particularly those changes under the Trump administration. Yeah, 0:19:04.600 --> 0:19:06.800 I mean, so you know it used to be, as 0:19:06.880 --> 0:19:09.440 I said, we've had the shadow docket forever um and 0:19:09.520 --> 0:19:13.840 the historically the body of cases that were the source 0:19:13.920 --> 0:19:16.880 of the most shadowed doctor activity involved the death penalty, 0:19:17.000 --> 0:19:20.840 where you know, you'd oftentimes have last minute applications from 0:19:21.240 --> 0:19:23.800 death row inmates for stage of execution or if a 0:19:23.920 --> 0:19:26.440 lower court had blocks and execution, and lasting application from 0:19:26.440 --> 0:19:29.480 a state to unblock the execution and real these guys 0:19:29.520 --> 0:19:33.640 into the tens. Like that was the majority of what 0:19:33.760 --> 0:19:37.439 was interesting about emergency applications in the Supreme Court. The 0:19:37.480 --> 0:19:40.560 shift in the Trump administration is a shift in just 0:19:40.720 --> 0:19:42.840 the kinds of cases that are ending up on the 0:19:42.840 --> 0:19:46.520 shadow dockets, and cases with not just massive implications for 0:19:46.600 --> 0:19:50.560 one death row prisoner, but for state or federal policies. So, 0:19:50.640 --> 0:19:53.560 just to take one data point, um, during the Bush 0:19:53.560 --> 0:19:57.720 and Obama administrations from two thousand one seventeen, two pretty 0:19:57.760 --> 0:20:01.600 different administrations, the federal government fils a total of eight 0:20:01.760 --> 0:20:05.600 emergency applications in the Supreme Court, so one every other 0:20:05.760 --> 0:20:09.320 year on average. During the Trump administration, so four years, 0:20:09.359 --> 0:20:12.520 the Justice Department files forty one application and I think, 0:20:12.520 --> 0:20:15.160 you know, the there's a longer conversation to to sort 0:20:15.160 --> 0:20:16.840 of be had about, you know, the sort of what 0:20:17.119 --> 0:20:21.080 caused that uptick, whatever caused it. Right, what it means 0:20:21.200 --> 0:20:26.000 is that there was a lot more UM nationwide policy 0:20:26.240 --> 0:20:29.320 challenging going on on the shadow docket, where you know, 0:20:29.359 --> 0:20:31.720 it started as like the travel band, that it turned 0:20:31.720 --> 0:20:34.800 into a case about the transgender band, you know, immigration, 0:20:35.400 --> 0:20:40.600 environmental law. All of a sudden, right, every major contentious 0:20:40.760 --> 0:20:43.720 UM challenge to staateard federal policies is coming to the 0:20:43.720 --> 0:20:47.080 shadow docket. And I think that's the shift that has 0:20:47.160 --> 0:20:48.600 led to why this has had so much more of 0:20:48.600 --> 0:20:50.679 an impact on all of us. Well, thank you so 0:20:50.760 --> 0:20:53.840 much for that. That's University of Texas Law professor Steven Bladdock. 0:20:54.200 --> 0:20:56.919 You're listening to Bloomberg Radio. Up next, we'll talk with 0:20:56.920 --> 0:21:00.400 Bloomberg News reporter Jeff Feey about Elon Musk his fight 0:21:00.440 --> 0:21:02.800 to get out of his forty four billion dollar Twitter deal. 0:21:03.040 --> 0:21:07.160 I'm Kimberly Robinson and I'm Lydia Wheeler. This is Bloomberg. 0:21:15.720 --> 0:21:20.520 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:21:21.200 --> 0:21:24.840 I'm Kimberly Robinson and I'm Lydia Wheeler. We're in for 0:21:24.960 --> 0:21:27.639 June grass Ow. Elon Musk has been engulfed in a 0:21:27.720 --> 0:21:30.600 legal battle over his failed forty four billion dollar deal 0:21:30.680 --> 0:21:33.720 to buy Twitter. He's now claiming a whistle blower's allegations 0:21:33.760 --> 0:21:35.760 against the company should let him walk away from that 0:21:35.800 --> 0:21:38.760 purchase agreement. Joining us now to talk about this litigation, 0:21:38.760 --> 0:21:41.720 as Bloomberg News reporter Jeff Feely, Jeff, thanks for being here, 0:21:41.960 --> 0:21:44.840 no problem. Can you start off by telling us a 0:21:44.880 --> 0:21:50.600 bit of background about this litigation and how it came about? Yes, Uh, 0:21:51.080 --> 0:21:55.240 it came about because Mr Musk, the world's richest man, 0:21:55.920 --> 0:21:59.600 decided he had agend own Twitter, which he is a 0:21:59.720 --> 0:22:03.960 very frequent user of that platform to tweet out the 0:22:04.080 --> 0:22:07.360 various things that come to his mind, and he decided 0:22:07.440 --> 0:22:09.720 that maybe it would be good for him to buy Twitter. 0:22:09.880 --> 0:22:14.199 So he back in April, offered fifty four dollars and 0:22:14.240 --> 0:22:18.600 twenty cents a share of the social media platform, waived 0:22:18.680 --> 0:22:24.800 his due diligence on the deal, and signed well. When 0:22:24.800 --> 0:22:29.040 the market turned a bit and Twitter's stock value fell, 0:22:29.520 --> 0:22:34.800 Mr Musk was not happy and he decided that maybe 0:22:34.840 --> 0:22:37.200 he didn't want Twitter as much as he thought he did, 0:22:37.880 --> 0:22:43.000 so he decided to cancel or walk away from the 0:22:43.720 --> 0:22:47.720 billion dollar deal. Well, the fox at Twitter, understandably weren't 0:22:47.720 --> 0:22:51.960 happy about that, and so they filed suit in Delaware 0:22:52.040 --> 0:22:54.840 chancery court to force him to consummate the deal. The 0:22:54.880 --> 0:22:58.920 reason they came to the first state is because under 0:22:58.960 --> 0:23:03.399 the merger agreement, that was where all legal disputes had 0:23:03.440 --> 0:23:06.760 to be litigated. Delaware has a long tradition of its 0:23:06.800 --> 0:23:12.680 business courts handling merger and acquisition disputes. So that sort 0:23:12.680 --> 0:23:15.480 of gets us to where we are. And so we've 0:23:15.480 --> 0:23:19.840 discussed before on this UH show about the whistle blower 0:23:19.880 --> 0:23:23.240 who recently came forward with allegations against Twitter. Can you 0:23:23.280 --> 0:23:25.120 tell us a little bit more about that and what 0:23:25.160 --> 0:23:28.399 it is that they're alleging is happening at the company. Sure. 0:23:28.520 --> 0:23:34.240 The whistleblower's name is Peter Zako. He's a well known hacker, 0:23:34.840 --> 0:23:40.480 um and pardon me, computer security expert, and he was 0:23:40.520 --> 0:23:45.800 Twitter's ahead of computer security for a while. While at Twitter, 0:23:46.119 --> 0:23:50.560 Mr Zako says that he raised issues about the number 0:23:50.600 --> 0:23:53.880 of spam and robot accounts that are embedded in the 0:23:53.880 --> 0:23:59.280 company's customer base. Uh. These accounts are not basically ones 0:23:59.320 --> 0:24:03.000 with humans hid them, but they are you know, uh, 0:24:03.520 --> 0:24:07.800 put on there to increase people's audience, if you will, 0:24:08.600 --> 0:24:13.840 and um, he claims that the folks of Twitter had 0:24:13.920 --> 0:24:17.000 no idea how many of these accounts were, you know, 0:24:17.359 --> 0:24:20.640 part of their customers, and really didn't seem to care 0:24:20.880 --> 0:24:24.399 to delve too deeply into it, because you know, the 0:24:24.440 --> 0:24:27.840