1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio. 2 00:00:09,480 --> 00:00:11,840 Speaker 1: Over seven hund thousand American lives have been lost to 3 00:00:11,960 --> 00:00:14,760 Speaker 1: to COVID nineteen, including more than fifty six thousand in 4 00:00:14,800 --> 00:00:18,800 Speaker 1: Florida and over sixty eight thousand in Texas, and every 5 00:00:18,880 --> 00:00:21,600 Speaker 1: leader should be focused on supporting efforts to save lives 6 00:00:21,600 --> 00:00:25,279 Speaker 1: and end the pandemic. Despite the statistics signed by White 7 00:00:25,320 --> 00:00:29,160 Speaker 1: House Press Secretary Jen Saki, the governors of Texas and 8 00:00:29,200 --> 00:00:33,200 Speaker 1: Florida are leading a full fledged assault on vaccine mandates. 9 00:00:33,520 --> 00:00:37,200 Speaker 1: On Monday, Texas Governor Greg Abbott issued a broad executive 10 00:00:37,320 --> 00:00:41,159 Speaker 1: order that bars virtually any COVID nineteen vaccine mandate in 11 00:00:41,200 --> 00:00:44,800 Speaker 1: the state, and on Tuesday, Florida Governor Ron de Santis 12 00:00:44,920 --> 00:00:48,239 Speaker 1: made good on his threat to find local governments that 13 00:00:48,280 --> 00:00:51,840 Speaker 1: have vaccine mandates, ordering Leon County to pay a three 14 00:00:51,840 --> 00:00:54,640 Speaker 1: and a half million dollar penalty. We are going to 15 00:00:54,840 --> 00:00:58,360 Speaker 1: stand for the men and women who are serving us. 16 00:00:58,680 --> 00:01:01,560 Speaker 1: We're going to protect Flora the jobs. We are not 17 00:01:01,600 --> 00:01:07,440 Speaker 1: going to let people be fired. Because joining me is 18 00:01:07,480 --> 00:01:10,760 Speaker 1: Harold Crant, a professor at the Chicago Kent College of Law. 19 00:01:11,480 --> 00:01:14,319 Speaker 1: So how is de santisis three and a half million 20 00:01:14,360 --> 00:01:18,440 Speaker 1: dollar fine likely to withstand a court challenge. I think 21 00:01:18,560 --> 00:01:21,399 Speaker 1: it will stand if the state government has the authority 22 00:01:21,480 --> 00:01:24,840 Speaker 1: under Florida law to and act such a band. States 23 00:01:24,959 --> 00:01:29,039 Speaker 1: use their authority under either the general powers to act 24 00:01:29,080 --> 00:01:33,400 Speaker 1: in an emergency and confront a disaster to preclude employers 25 00:01:33,480 --> 00:01:36,920 Speaker 1: in their state from mandating vaccine destruct some of us 26 00:01:37,040 --> 00:01:41,080 Speaker 1: as odd or bizarre, but it does not likely violate 27 00:01:41,120 --> 00:01:44,880 Speaker 1: any federal constitutional right. We have not recognized the federal 28 00:01:44,880 --> 00:01:49,640 Speaker 1: constitutional right to pursue particular types of treatment for diseases, 29 00:01:49,760 --> 00:01:52,320 Speaker 1: and so in the absence of any kind of federal 30 00:01:52,440 --> 00:01:56,560 Speaker 1: legislation mandating vaccines, and then it's within the states rights 31 00:01:56,640 --> 00:01:59,960 Speaker 1: to preclude a band. Let's turn to the vaccine man 32 00:02:00,080 --> 00:02:02,840 Speaker 1: date that OSHA has drafted and sent to the White 33 00:02:02,840 --> 00:02:06,280 Speaker 1: House for review this week. Does the federal government have 34 00:02:06,400 --> 00:02:09,680 Speaker 1: the power demand date a vaccine in that way? So 35 00:02:09,760 --> 00:02:13,760 Speaker 1: Congress is delegated to the president the power to ensure 36 00:02:13,840 --> 00:02:17,600 Speaker 1: workplace safety. And one of the aspects of workplace safety 37 00:02:18,160 --> 00:02:22,480 Speaker 1: is that workers be free from any kind of exposure 38 00:02:22,600 --> 00:02:26,880 Speaker 1: to diseases during their working hours. So OSHA, which is 39 00:02:26,919 --> 00:02:31,040 Speaker 1: the agency in charge of insurance safety, regulates exposure to 40 00:02:31,160 --> 00:02:36,920 Speaker 1: benzene exposure to asbestos. And the argument here, which we 41 00:02:36,960 --> 00:02:40,880 Speaker 1: will see, is that the administration believes that exposure to 42 00:02:41,560 --> 00:02:45,480 Speaker 1: COVID fits in with the same kinds of measures that 43 00:02:45,520 --> 00:02:49,360 Speaker 1: have been taken before to protect workers in both private 44 00:02:49,400 --> 00:02:52,480 Speaker 1: and public workplaces. So is the legal test going to 45 00:02:52,560 --> 00:02:55,840 Speaker 1: be whether or not there's an emergency? OSHA has the 46 00:02:55,919 --> 00:02:59,560 Speaker 1: power to issue an emergency standard. It doesn't take an 47 00:02:59,560 --> 00:03:02,840 Speaker 1: effect goal, it's published right now. The target date is 48 00:03:02,880 --> 00:03:06,480 Speaker 1: December eight, and then, supposedly, understand you, which is kind 49 00:03:06,520 --> 00:03:10,000 Speaker 1: of heroic, it has to create a permanent standard overdraw 50 00:03:10,120 --> 00:03:13,880 Speaker 1: the temporary standard within six months thereafter. But I think 51 00:03:13,880 --> 00:03:16,440 Speaker 1: it might be helpful just to look at the language 52 00:03:16,800 --> 00:03:21,320 Speaker 1: that the Congress used, because the question will be challenged 53 00:03:21,400 --> 00:03:25,120 Speaker 1: in court. If they determine that employees are quote exposed 54 00:03:25,120 --> 00:03:28,600 Speaker 1: to grave danger from exposure to substances or agents determined 55 00:03:28,639 --> 00:03:32,120 Speaker 1: to be toxics or physically harmful, then they can create 56 00:03:32,320 --> 00:03:35,480 Speaker 1: a standard. So is there a grave danger from exposure? 57 00:03:35,680 --> 00:03:37,960 Speaker 1: That's really going to be the question, which one that 58 00:03:38,000 --> 00:03:41,240 Speaker 1: hasn't been litigated much in court. OSHA has rarely issued 59 00:03:41,280 --> 00:03:44,800 Speaker 1: a temporary emergency standard in the past, and so the 60 00:03:44,840 --> 00:03:48,640 Speaker 1: private company's challenging Ocean's authority will say there is no 61 00:03:48,720 --> 00:03:53,400 Speaker 1: longer a grave danger were sufficiently vaccinated, and therefore there 62 00:03:53,520 --> 00:03:57,240 Speaker 1: is no power in the federal government to mandate vaccines 63 00:03:57,400 --> 00:04:01,560 Speaker 1: in the workplace. So, taking a situation in Texas, private 64 00:04:01,600 --> 00:04:06,480 Speaker 1: businesses face this dilemma. Violate the federal vaccine mandate or 65 00:04:06,880 --> 00:04:12,280 Speaker 1: violate the state vaccine ban. Companies are in an undeunviewable situation. 66 00:04:12,400 --> 00:04:15,040 Speaker 1: Right you have to either comply with the Ocean standard 67 00:04:15,280 --> 00:04:17,919 Speaker 1: or with the mandate from the Governor of Texas. And 68 00:04:17,960 --> 00:04:21,960 Speaker 1: what's interesting from a legal perspective is Governor Abbott claims 69 00:04:22,000 --> 00:04:24,600 Speaker 1: that this is an emergency. In an emergency, he has 70 00:04:24,680 --> 00:04:27,880 Speaker 1: these or of inherent powers to regulate private businesses, which 71 00:04:27,880 --> 00:04:30,279 Speaker 1: in some ways is a mirror image of what President 72 00:04:30,320 --> 00:04:34,640 Speaker 1: Biden is arguing through OSHA as well. So obviously, if 73 00:04:34,680 --> 00:04:37,039 Speaker 1: there's a conflict, usually the federal government wins out under 74 00:04:37,080 --> 00:04:41,120 Speaker 1: the supremacy cost at least with respect to federal intuntalities, 75 00:04:41,160 --> 00:04:44,839 Speaker 1: but our contractors, but probably we'll win out with respect 76 00:04:44,880 --> 00:04:46,840 Speaker 1: to private companies as well, But that will be up 77 00:04:46,839 --> 00:04:49,320 Speaker 1: for the courts, and they'll have to determine two things, 78 00:04:49,480 --> 00:04:53,160 Speaker 1: Whether the agency has exceeded this authority in providing for 79 00:04:53,160 --> 00:04:57,479 Speaker 1: this vaccine mandate. And secondly, even if it has, whether 80 00:04:57,800 --> 00:05:00,200 Speaker 1: the state has the power to override it with act 81 00:05:00,240 --> 00:05:04,840 Speaker 1: to state employee situations. So if this question does get 82 00:05:04,920 --> 00:05:08,560 Speaker 1: to the Supreme Court, how are the justices likely to rule? 83 00:05:09,760 --> 00:05:13,560 Speaker 1: Congress does seem to have given the federal government authority 84 00:05:13,640 --> 00:05:18,800 Speaker 1: to regulate harmful substances in the workplace, and exposure to 85 00:05:18,880 --> 00:05:21,760 Speaker 1: COVID is no big reach. So even though the current 86 00:05:21,800 --> 00:05:25,839 Speaker 1: Supreme Court has articulated interest in limiting the power of 87 00:05:25,960 --> 00:05:30,000 Speaker 1: Congress to delegate wide areas of authorities to the agencies, 88 00:05:30,120 --> 00:05:32,800 Speaker 1: I think, at least with respect to regulating the workplace, 89 00:05:33,000 --> 00:05:37,240 Speaker 1: the bid administration is on powerful ground. It's not unassailable. 90 00:05:37,440 --> 00:05:39,680 Speaker 1: We've never done this before on precedent, they have this 91 00:05:39,800 --> 00:05:43,320 Speaker 1: kind of regulation reaching so deeply into the private workforce. 92 00:05:43,640 --> 00:05:46,000 Speaker 1: So some members of the Supreme Court may be skeptical, 93 00:05:46,160 --> 00:05:48,839 Speaker 1: but I think the language of the statute in terms 94 00:05:48,880 --> 00:05:52,480 Speaker 1: of grave danger fits much more readily with what OCE 95 00:05:52,720 --> 00:05:55,760 Speaker 1: is trying to do with this temporary emergency standard. Thanks 96 00:05:55,800 --> 00:05:59,240 Speaker 1: how that's Harold Grant of the Chicago Kent College of Law. 97 00:06:01,800 --> 00:06:04,360 Speaker 1: This is a painting of my aunt. She was taken 98 00:06:04,360 --> 00:06:06,800 Speaker 1: off the walls of a home by the Nazis. Now 99 00:06:06,839 --> 00:06:09,560 Speaker 1: you'd like to be reunited, wouldn't that be lovely? And 100 00:06:09,640 --> 00:06:13,320 Speaker 1: then list justice. The film Woman in Gold is based 101 00:06:13,360 --> 00:06:16,599 Speaker 1: on the true story of Maria Altman, a Jewish woman 102 00:06:16,640 --> 00:06:19,560 Speaker 1: who won a battle with the Austrian government to regain 103 00:06:19,600 --> 00:06:23,200 Speaker 1: ownership of Augustav Klimp painting of her aunt. After a 104 00:06:23,279 --> 00:06:26,200 Speaker 1: ruling by the U. S. Supreme Court involving the Foreign 105 00:06:26,200 --> 00:06:29,920 Speaker 1: Sovereign Immunities Act, the Jostices have decided to take another 106 00:06:30,000 --> 00:06:33,320 Speaker 1: case involving the same law to decide whether the heirs 107 00:06:33,360 --> 00:06:36,520 Speaker 1: of a Holocaust survivor can regain a painting by French 108 00:06:36,560 --> 00:06:40,360 Speaker 1: impressionist Camille Pissaro that was stolen by the Nazis in 109 00:06:41,360 --> 00:06:44,320 Speaker 1: nine My guest is mc sung Guila, chair of the 110 00:06:44,320 --> 00:06:47,800 Speaker 1: appellate practice at buck Alter EMC, tell us about the 111 00:06:47,880 --> 00:06:53,680 Speaker 1: history of this painting, Ruce and Honorey Afternoon Rain effect. 112 00:06:54,279 --> 00:07:00,200 Speaker 1: So the Pizarro painting issue in this case was just 113 00:07:00,520 --> 00:07:04,680 Speaker 1: by the Casper family from a well known art dealer 114 00:07:04,800 --> 00:07:07,800 Speaker 1: who had acquired it from Pizarro himself. And it's a 115 00:07:08,000 --> 00:07:12,440 Speaker 1: very special painting by Pizarro, and in fact was created 116 00:07:12,480 --> 00:07:16,000 Speaker 1: by Pizarro during the Drive's Affair, which involved a violent 117 00:07:16,000 --> 00:07:19,080 Speaker 1: anti Semitic movement in France, but he painted from his 118 00:07:19,160 --> 00:07:22,320 Speaker 1: bedroom window there in France, So in any event, the 119 00:07:22,400 --> 00:07:25,960 Speaker 1: Cospers had this painting. It was passed down from generation 120 00:07:26,000 --> 00:07:28,680 Speaker 1: to generation. It was a family treasurer. It was on 121 00:07:28,800 --> 00:07:32,040 Speaker 1: the living room wall at their home in Munich. And then, 122 00:07:32,200 --> 00:07:37,440 Speaker 1: under the growing shadow of Nazi anti Semitism, Lily Caspier 123 00:07:37,880 --> 00:07:40,800 Speaker 1: packed up her belongings and prepared to flee Germany in 124 00:07:40,920 --> 00:07:45,200 Speaker 1: nine and the Nazis would only allow her in active 125 00:07:45,280 --> 00:07:48,480 Speaker 1: visa if she quote unquote sold them the painting, and 126 00:07:48,560 --> 00:07:51,360 Speaker 1: she sold it to them for three hundred and sixty dollars. 127 00:07:51,400 --> 00:07:54,840 Speaker 1: After that, she never saw the painting again and the 128 00:07:54,920 --> 00:07:57,920 Speaker 1: Costier family had no idea what happened to it, but 129 00:07:57,960 --> 00:08:01,960 Speaker 1: it was eventually sold through an art gallery and now 130 00:08:02,400 --> 00:08:07,320 Speaker 1: is part of a Spanish nonprofit organization and foundation that 131 00:08:07,520 --> 00:08:12,440 Speaker 1: has a museum and has displayed the painting. This went 132 00:08:12,520 --> 00:08:15,560 Speaker 1: to trial, what did it? A trial judge find. So 133 00:08:15,600 --> 00:08:19,480 Speaker 1: actually this case is like many of the Holocaust art 134 00:08:19,480 --> 00:08:22,680 Speaker 1: recovery cases, meant has a very long history of bumping 135 00:08:22,800 --> 00:08:25,640 Speaker 1: up and down within the court system. So the litigation 136 00:08:25,680 --> 00:08:28,600 Speaker 1: has been going on for twenty years, and this is 137 00:08:28,760 --> 00:08:31,840 Speaker 1: I think it's the fourth appeal of various issues in 138 00:08:31,920 --> 00:08:35,640 Speaker 1: the case. And I was involved with the earlier Ninth 139 00:08:35,679 --> 00:08:39,679 Speaker 1: Circuit proceeding in which some Rey judgment had been granted 140 00:08:39,760 --> 00:08:43,280 Speaker 1: for the Foundation against the castiers, and the Ninth Circuit 141 00:08:43,400 --> 00:08:47,360 Speaker 1: overturned that thing. No, we think there is a travel 142 00:08:47,400 --> 00:08:51,360 Speaker 1: issue of fact with regard to what Spanish law requires 143 00:08:51,400 --> 00:08:55,800 Speaker 1: and who has proper right to the painting under Spanish 144 00:08:56,040 --> 00:08:59,640 Speaker 1: property law, which has a different sort of adverse possession 145 00:08:59,720 --> 00:09:03,480 Speaker 1: law then California laws, and the nights were good said, 146 00:09:03,559 --> 00:09:06,080 Speaker 1: so we're gonna send it back to the district court 147 00:09:06,120 --> 00:09:08,280 Speaker 1: and the district court will hold a trial. The District 148 00:09:08,280 --> 00:09:11,679 Speaker 1: Court helped that trial and still concluded that the Foundation 149 00:09:11,880 --> 00:09:15,600 Speaker 1: properly has the painting and the spears laws. And now 150 00:09:15,640 --> 00:09:19,960 Speaker 1: they're challenging that on a fundamental question, which is which 151 00:09:20,360 --> 00:09:24,240 Speaker 1: law do we apply? Under the Sovereign Immunities Act to 152 00:09:24,440 --> 00:09:28,040 Speaker 1: decide the choice of law questions, so is it federal 153 00:09:28,120 --> 00:09:33,360 Speaker 1: common law that decides which law we apply Spanish California, 154 00:09:33,640 --> 00:09:37,280 Speaker 1: or is it California law that decides whether California or 155 00:09:37,320 --> 00:09:41,320 Speaker 1: Spanish law should apply and they argue California law should apply, 156 00:09:41,440 --> 00:09:45,120 Speaker 1: not Spanish law, and so the outcome would have been different. 157 00:09:45,760 --> 00:09:50,120 Speaker 1: The Air's claimed that California law never allows the holder 158 00:09:50,200 --> 00:09:55,040 Speaker 1: of stolen property to obtain good title. That's frequently the 159 00:09:55,200 --> 00:09:58,640 Speaker 1: arguments that's made, which is, you can't get good title 160 00:09:58,679 --> 00:10:00,920 Speaker 1: from a thief. Right, you can only get as good 161 00:10:00,920 --> 00:10:04,200 Speaker 1: a title from someone as they had to give to you. 162 00:10:04,800 --> 00:10:09,360 Speaker 1: And that is commonly the rule in US law and 163 00:10:09,480 --> 00:10:13,880 Speaker 1: various state laws. What's the rule in Spanish law? In Spain, 164 00:10:14,200 --> 00:10:18,040 Speaker 1: it depends on kind of this question of really, like 165 00:10:18,200 --> 00:10:22,080 Speaker 1: how bad were you? You can get possessory right, but 166 00:10:22,160 --> 00:10:27,280 Speaker 1: it depends on your knowledge, your participation in that. In 167 00:10:27,440 --> 00:10:30,120 Speaker 1: other words, you can get good title from a thief 168 00:10:30,200 --> 00:10:33,559 Speaker 1: under certain circumstances if you are to some extent innocence 169 00:10:33,679 --> 00:10:36,960 Speaker 1: of that had no idea that it was stolen, you know, 170 00:10:37,000 --> 00:10:39,560 Speaker 1: all of these various things back to that question, the 171 00:10:39,559 --> 00:10:42,920 Speaker 1: wild will blindness. Last term, the Justice is ruled that 172 00:10:43,000 --> 00:10:46,840 Speaker 1: the Holocaust survivors who were suing couldn't press their claims 173 00:10:46,840 --> 00:10:50,840 Speaker 1: for arts stolen during World War Two against Hungary and 174 00:10:50,960 --> 00:10:54,760 Speaker 1: Germany in U S courts. Just yet does that give 175 00:10:54,800 --> 00:10:58,080 Speaker 1: any indication of how the court might rule here. It's 176 00:10:58,080 --> 00:11:00,560 Speaker 1: hard for me because I always hope, I always hope 177 00:11:00,640 --> 00:11:03,000 Speaker 1: that it's going to be positive for the errors in 178 00:11:03,040 --> 00:11:05,839 Speaker 1: these cases. And I will say that they have been 179 00:11:05,920 --> 00:11:10,160 Speaker 1: most interested in the Holocaust ART cases involving various issues 180 00:11:10,200 --> 00:11:12,760 Speaker 1: involving the Foreign Sovereign Immunities Act that came up last 181 00:11:12,840 --> 00:11:15,960 Speaker 1: term in the Germany case the years ago granted the 182 00:11:16,120 --> 00:11:19,559 Speaker 1: Maria Altman case because that also involved another issue with 183 00:11:19,600 --> 00:11:22,200 Speaker 1: regard to foreign soognmunit these acts. So they seem very 184 00:11:22,240 --> 00:11:25,600 Speaker 1: interested in this particular statute and how and when it applies, 185 00:11:26,160 --> 00:11:29,640 Speaker 1: and you know, the gateway to our court system. So 186 00:11:30,040 --> 00:11:33,240 Speaker 1: we know Altman came out in favor of the claimants 187 00:11:33,280 --> 00:11:35,640 Speaker 1: and the Germany case, you know, was not favorable to 188 00:11:35,679 --> 00:11:37,480 Speaker 1: the claimants. So I would say we're going in with 189 00:11:37,520 --> 00:11:41,120 Speaker 1: a fifty fifty batting average Foreign Sovereign Immunities Act and 190 00:11:41,160 --> 00:11:43,520 Speaker 1: Holocaust ART cases, but I'm hoping this one goes the 191 00:11:43,559 --> 00:11:47,160 Speaker 1: way of Altman. Thanks EMC. That's mc sun Gila of 192 00:11:47,200 --> 00:11:49,319 Speaker 1: buck Alter And that's it for this edition of the 193 00:11:49,320 --> 00:11:52,160 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 194 00:11:52,240 --> 00:11:55,120 Speaker 1: legal news on our Bloomberg Law podcast. You can find 195 00:11:55,120 --> 00:11:59,439 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg, 196 00:11:59,520 --> 00:12:03,560 Speaker 1: dot comm, slash podcast, Slash Law, and remember to join 197 00:12:03,640 --> 00:12:06,280 Speaker 1: us weeknights at ten pm Wall Street Time for the 198 00:12:06,280 --> 00:12:09,840 Speaker 1: Bloomberg Law Show. I'm June Basso, and you're listening to 199 00:12:09,880 --> 00:12:10,439 Speaker 1: Bloomberg