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

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Speaker 2: It's a landmark ruling. Today New Jersey became the first

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Speaker 2: state where prosecutors can't build murder cases on medical diagnoses

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Speaker 2: that the mere shaking of a baby caused a child's

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Speaker 2: death unless there's further evidence of trauma. The New Jersey

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Speaker 2: Supreme Court is the first in the country to block

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Speaker 2: a shaken baby syndrome theory when investigations into child deaths

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Speaker 2: don't show other injuries such as bruising or neck damage.

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Speaker 2: Joining me is Bloomberg Law Senior correspondent Alex Ebert. Alex

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Speaker 2: tell us about today's decision.

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Speaker 1: This decision is the landmark opinion issued by the New

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Speaker 1: Jersey Supreme Court that, for the first time for a

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Speaker 1: high court in the country, it says that you cannot

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Speaker 1: bring a shaken baby determination from a medical perspective to

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Speaker 1: charge someone with child assault, where if there's no external

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Speaker 1: evidence of abuse such as bruising or injuries on a

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Speaker 1: child's neck, you can't bring the charges at all. And

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Speaker 1: the reason why that is is because there's big conflict

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Speaker 1: in medical circles about whether or not these reliable symptoms

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Speaker 1: that we thought for years were evidence of shaking baby syndrome.

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Speaker 1: Child abuse could be caused by other means, and there's

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Speaker 1: been new studies that show that perhaps these triad of

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Speaker 1: symptoms such as brain bleeding or bruising on the eyes

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Speaker 1: isn't actually enough to bring that evidence to court. The

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Speaker 1: reason this is a huge landmark ruling is because we've

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Speaker 1: seen bubbling up across the country different medical groups, biomechanical groups,

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Speaker 1: and defense organizations saying we can no longer ignore the

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Speaker 1: conflict and evidence between what we thought was reliable in

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Speaker 1: terms of child abuse and what is now questionable.

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Speaker 2: And this decision involves the cases of two fathers who

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Speaker 2: were facing allegations of child abuse.

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Speaker 1: Yeah, the court was considering the cases of two fathers

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Speaker 1: who both had premature children and were taking care of them,

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Speaker 1: and they had seizure symptoms. These dads brought their kids

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Speaker 1: to the hospital to get them looked after, and doctors determined,

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Speaker 1: even though there were no external symptoms of abuse such

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Speaker 1: as bruising, that these fathers were responsible for injuring their

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Speaker 1: own children by shaking them or slamming them, and the

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Speaker 1: State Public Defender's office ran to the judge and said Listen,

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Speaker 1: we have these cases all across the country that are

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Speaker 1: questioning whether or not you can bring this sort of

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Speaker 1: determination from an expert in court.

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Speaker 2: In this one hundred and nine page ruling, did the

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Speaker 2: court track the scientific evidence?

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Speaker 1: Yeah, the court went deep. So the majority of and

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Speaker 1: Jersey's Supreme Court went through study after study going back

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Speaker 1: to the nineteen sixties looking at how this diagnosis shaking

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Speaker 1: baby syndrome originated. It went back to whiplash studies and

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Speaker 1: cars using monkeys to determine exactly what happens to human

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Speaker 1: beings when they're shaken, and it progressed through different studies

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Speaker 1: by pediatricians and neurosurgeons up through the nineties, when a

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Speaker 1: large medical association for the United States said, it's a

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Speaker 1: presumption that if you have these symptoms that there's child abuse.

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Speaker 2: And where do the medical association stand now?

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Speaker 1: The medical association stand behind a diagnosis, which is what

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Speaker 1: makes this complex. See, you have the industry saying we

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Speaker 1: need to be able to diagnose these children and make

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Speaker 1: sure that we can take them out of bad situations.

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Speaker 1: But you now have a state supreme court saying just

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Speaker 1: because you have this diagnosis isn't enough to rule out

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Speaker 1: anything else, and that's not enough to come to court

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Speaker 1: and say, based on my medical opinion, this is the

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Speaker 1: only thing that could have happened.

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Speaker 2: There are seven members of the New Jersey Supreme Court,

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Speaker 2: and this was a six to one decision.

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Speaker 1: One of the justices issued a dissent here, siding with

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Speaker 1: the medical organization, saying, listen, we can't be second guessing

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Speaker 1: the medical establishment here. We are not scientists. We are

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Speaker 1: not people that investigate the scientific method. And she focused

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Speaker 1: mostly on the medical associations that all backed up this diagnosis.

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Speaker 1: Were the majority focused on biomechanical experts, who said, we

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Speaker 1: originated a lot of the science behind how you determine

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Speaker 1: whiplash and things like that, and if you don't have

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Speaker 1: our consensus for this, then the consensus of the medical

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Speaker 1: industry doesn't necessarily hold water.

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Speaker 2: Can this decision be appealed?

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Speaker 1: It wouldn't be difficult to appeal this decision. It would

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Speaker 1: have to go to the United States Supreme Court, because

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Speaker 1: that is the only direct appeal from a Supreme court.

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Speaker 1: There has not been a ruling on this to my knowledge,

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Speaker 1: although there is some quotation of a Ginsburg descent inside

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Speaker 1: of the ruling today, this is now going to go

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Speaker 1: back to the trial court and these charges will be

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Speaker 1: dismissed against these parents.

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Speaker 2: Is New Jersey different from other courts in the way

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Speaker 2: it's been handling these cases.

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Speaker 1: Up to this point, there has never been a decision

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Speaker 1: that goes this far. Though, you have courts start to

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Speaker 1: become extremely skeptical of this no external evidence shaken baby

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Speaker 1: syndrome theory. You've had, especially the Michigan Supreme Court issued

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Speaker 1: decision saying, hey, we need to provide counsel that does

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Speaker 1: a good job of contesting the state's evidence here at

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Speaker 1: a deep level. And you've also seen criminal courts in

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Speaker 1: Texas and the Texas legislature really question whether or not

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Speaker 1: a death row inmate there should be in prison.

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Speaker 2: So, up until this point, how would prosecutors can instruct

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Speaker 2: a case against someone based on shaken baby syndrome? They

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Speaker 2: needed some physical evidence.

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Speaker 3: Right do so?

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Speaker 1: Doctors create this differential diagnosis by looking at, you know,

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Speaker 1: different markers on the child when they come in to

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Speaker 1: get treatment. You look at things like bleeding on the

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Speaker 1: brain or bleeding in the eyes and say, Okay, something

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Speaker 1: happened to this child. It's more than just seizures, right

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Speaker 1: or they look back at the child's past and say,

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Speaker 1: did you have any accidental injury? You know, did billy

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Speaker 1: you know, fall down the stairs? And in cases where

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Speaker 1: that's not present, they you know, think, okay, we're ruling

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Speaker 1: out other things. It must be something else. But the

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Speaker 1: problem there is the justices in New Jersey say that's

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Speaker 1: not enough to come to court and say we've ruled

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Speaker 1: out everything else. It can only be this.

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Speaker 2: So you need something else, something that physically shows that's right.

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Speaker 1: You need something else. They call it external evidence, but

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Speaker 1: it's some sort of physical external issues with the body, right,

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Speaker 1: damage to someone's neck or bruising, you know, other signs

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Speaker 1: of abuse. And the descent here calls out that this

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Speaker 1: means that there could be parents or childcare providers or

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Speaker 1: other people that get away with abusing children because there's

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Speaker 1: just no external evidence of it. But on the other side,

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Speaker 1: you have decades of people saying we're putting away parents

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Speaker 1: and usually fathers on perhaps flimsy evidence, just because a

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Speaker 1: doctor couldn't find a reason for it.

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Speaker 2: Are there a lot of shaken baby cases in this country?

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Speaker 1: I'm unaware of reading through the briefs how many there are.

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Speaker 1: But we're looking at hundreds. There were several going on

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Speaker 1: at the time when this decision was coming up in

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Speaker 1: New Jersey alone.

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Speaker 2: So this is, you know, a forward thinking decision. Cutting

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Speaker 2: edge is the New Jersey Supreme Court known for that.

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Speaker 1: New Jersey Supreme Court is known for this sort of thing.

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Speaker 1: It has extremely robust protections when it comes to privacy,

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Speaker 1: and it's usually at the cutting edge of Fourth Amendment jurisprudence.

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Speaker 1: We've talked in the past about how skeptical they are around,

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Speaker 1: you know, looking at things like someone's Google accounts and

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Speaker 1: other subpoena information. But this falls in line with the

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Speaker 1: court's skepticism towards allowing police and prosecutors to introduce evidence

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Speaker 1: without it being questioned. Here you sort of see the

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Speaker 1: justices line up in a way that we haven't in

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Speaker 1: another court to say, in this instant where someone is

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Speaker 1: saying it can only be this, we can't allow that

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Speaker 1: sort of thing when there's not enough certainty in the field.

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Speaker 1: We've seen decisions bubble up that look at client accountability

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Speaker 1: for lawyers in this regard, right, but we haven't seen

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Speaker 1: a court go this far. It'll be really interesting to

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Speaker 1: see if other courts go as far as New Jersey

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Speaker 1: and strip this tool away from prosecutors to tackle child abuse.

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Speaker 1: You know, especially in our current climate where child abuse

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Speaker 1: and the abusive minors is a huge problem and concern.

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Speaker 1: You know, potentially taking away that tool might be more

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Speaker 1: politically sensitive in some parts of the country than others.

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Speaker 2: Tough balancing decisions, no doubt, Thanks so much, Alex. That's

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Speaker 2: Bloomberg Law Senior correspondent Alex Ebert. A handful of Fifth

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Speaker 2: Circuit judges are mellowing out some rulings from one of

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Speaker 2: the most conservative federal appellate courts, and they're the senior

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Speaker 2: judges Bloomberg Laws. Jacqueline Thompson has done some research on

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Speaker 2: this right, so start by telling us about these decisions

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Speaker 2: from the three judge panels that are a little more moderate,

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Speaker 2: less conservative than the full court's decisions usually are.

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Speaker 4: I mean, when we think about the US Court of

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Speaker 4: Appeals for the Fifth Circuit, you know, we immediately think

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Speaker 4: of a conservative appeals court, and you know, a lot

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Speaker 4: of their rulings are very conservative. But there have been

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Speaker 4: a few decisions lately that don't necessarily fit in with

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Speaker 4: that pattern. For example, there was a three judge panel

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Speaker 4: that said a Louisiana law that mandated the display of

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Speaker 4: the Ten Commandments in public schools was unconstitutional. There was

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Speaker 4: another one saying that the Texas A and M president

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Speaker 4: at the time was wrong in canceling a student drag

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Speaker 4: show on campus. And you know, those are rulings that

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Speaker 4: we think of as not going in the conservative pattern

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Speaker 4: that we think of when we think of the Fifth Circuit. So,

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Speaker 4: you know, I started to take a step back and

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Speaker 4: look at who was actually on those panels. And for

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Speaker 4: a lot of the Fifth Circuit argument panels, often it

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Speaker 4: is a Trump appointe or more conservative member, a more

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Speaker 4: moderate member of the court, and then a senior judge.

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Speaker 4: And that's not always the case. Sometimes there will be

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Speaker 4: multiple Trump appointees. Sometimes there are panels with ultraum appointees.

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Speaker 4: Sometimes it's called George W. Bush appointees. But you know,

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Speaker 4: for these instances, that seemed to be the composition either

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Speaker 4: Trump or Reagan appointee dissenting against a majority of the

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Speaker 4: panel that was a moderate judge or a senior judge.

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Speaker 4: And so I said, okay, well, what's the role that

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Speaker 4: the senior judges are playing here? And you know, it

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Speaker 4: just seemed to have more of an outsize impact than

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Speaker 4: I expected.

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Speaker 2: Tell us about the composition of the Fifth Circuit itself.

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Speaker 4: Yeah, so I believe there are seventeen active judges right now,

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Speaker 4: and there are on top of that seven senior judges

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Speaker 4: who are still here in cases. One other senior judge

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Speaker 4: actually went fully inactive earlier this year, so that left

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Speaker 4: just to seven. We have six Trump appointees on that court.

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Speaker 4: We have two Biden appointees, we have I believe two

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Speaker 4: Obama appointees, a couple of Clinton appointees, and then about.

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Speaker 1: Three or four George W.

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Speaker 4: Bush appointees acting as active judges. For the most part,

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Speaker 4: one is the senior judge. We have two Reagan appointees

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Speaker 4: who are active judges, and then we have other Reagan

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Speaker 4: appointees who are senior judges. One senior judge who has

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Speaker 4: been incredibly active is Carolyn dining King. She is a

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Speaker 4: Carter appointee. So you know, it really goes the whole

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Speaker 4: spectrum of presidents who have appointed judges to the Fifth

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Speaker 4: Circuit who are still here in cases and who are

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Speaker 4: still playing a really active role on this court. I

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Speaker 4: mean the Reagan judges are very active. I mean two

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Speaker 4: of them aren't taking senior status, which would give Trump

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Speaker 4: the opportunity to fill two seats on that court and

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Speaker 4: sort of expand his wing. But you know, they're often

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Speaker 4: in line with the Trump appointees on the court. So

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Speaker 4: I can't speak to why they're not taking senior status,

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Speaker 4: but that may be part of it that you know,

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Speaker 4: they're like, hey, look, I'm super relevant right now. I'm

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Speaker 4: able to build up these majorities with other factions at

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Speaker 4: the court right now.

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Speaker 2: So will you explain in general, because there are exceptions,

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Speaker 2: as you note in your article, are the senior judges

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Speaker 2: more moderate than the recent appointees, particularly the Trump appointees.

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Speaker 4: I think that's right. I think there are more moderate.

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Speaker 4: They're more of an old school conservative. You know, if

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Speaker 4: you sort of want to put the Republican appointed judges

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Speaker 4: in two factions, you might have, you know, the active

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Speaker 4: Reagan appointees and the current Trump appointees and one basket,

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Speaker 4: and then senior judges who are also Republican appointees and

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Speaker 4: folks who are like George W. Bush appointees and another basket.

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Speaker 4: Sometimes there's some crossover there, especially on the fringes. There's

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Speaker 4: one Triump appointee who might be more in line with

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Speaker 4: the moderate wing, and then one Bush appointing, you might

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Speaker 4: be more in line with the Trump wing. But you know,

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Speaker 4: for the most part, the senior judges they've been around

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Speaker 4: for a while, They've been appointed by presidents of a

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Speaker 4: different generation, and they've spent decades sitting on this court.

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Speaker 4: And you know, because of that, they may have more

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Speaker 4: experience and make them less willing to question settle precedent

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Speaker 4: or to think, hey, maybe we should look at this

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Speaker 4: a different way than we happen in the past.

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Speaker 2: And the Fifth Circuit has been sort of trying to

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Speaker 2: test the envelope or move the case law to the

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Speaker 2: to the right in many circumstances, and they've been getting

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Speaker 2: reviewed by the Supreme Court a lot more than other circuits.

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Speaker 4: You're right that the Fifth Circuit does have an outsized

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Speaker 4: number of cases that are going to the US Supreme

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Speaker 4: Court and that are regularly being considered by the justices.

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Speaker 4: Some of that might be because these judges are writing

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Speaker 4: dissents or concurring opinions that sort of say, hey, take

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Speaker 4: a look at this case. I mean Dobbs, which over

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Speaker 4: turn Row that was a Fifth Circuit case. Jim Howick

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Speaker 4: Trump appointing wrote the opinion in that that sort of

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Speaker 4: laid the groundwork for the un Supreme Court to take

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Speaker 4: up that case. And you know, we see that in

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Speaker 4: other instances too. Judge Patrick Higginbotham, who was a Reagan appointee,

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Speaker 4: he's a senior judge. He had written an opinion in

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Speaker 4: a case involving porn Hub and Texas law and age

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Speaker 4: verification requirements for you know, explicit adult websites that you know,

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Speaker 4: some people say was sort of a way for the

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Speaker 4: Supreme Court to take up that case because he said, hey,

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Speaker 4: this is you know, what the precedent is on the books,

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Speaker 4: and that allowed the justices to pick it up and

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Speaker 4: then you know, alter or trust that old precedent and

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Speaker 4: say this is how it should be applied moving forward

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Speaker 4: and upholding that Texas law.

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Speaker 2: Are the Democratic appointees on that court, usually in dissent

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Speaker 2: or not.

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Speaker 4: They can be in descent. Sometimes they line up with

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Speaker 4: the moderate judges. We see folks who are George W.

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Speaker 4: Bush appointees like Leslie Southwick or Katerina Haynes. They will

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Speaker 4: sometimes be lined up with the Democratic appointees who are

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Speaker 4: folks like Steve Higginson. Judge Graves comes to mind, Carl Stewart.

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Speaker 4: You know, Diana Douglas and Irma Ramirez are the two

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Speaker 4: new Biden appointees, you know, so they're all in the

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Speaker 4: mix as well. And we do find that folks like Haynes,

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Speaker 4: like Southwick are more willing to reach agreement with their

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Speaker 4: liberal colleagues, and maybe other members of the court are.

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Speaker 2: And you mentioned a Clinton appointee who does a lot

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Speaker 2: of dissents.

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Speaker 4: Yes, James Dennis. He is a senior member of the Court.

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Speaker 4: He only went senior a few years ago, and you know,

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Speaker 4: he's been on the court for decades once again, and

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Speaker 4: right now he's sort of viewed as one of the

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Speaker 4: big dissenters on the court. And you know, one lawyer

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Speaker 4: I spoke to who regularly looks at Fifth Circuit opinion

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Speaker 4: says that seems to be a role that Judge Dennis

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Speaker 4: sort of relishes because you know, it helps develop the law.

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Speaker 4: You know, even if your dissent isn't the controlling opinion,

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Speaker 4: maybe it raises the issue to the Supreme Court, maybe

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Speaker 4: it flags it to another circuit as they're considering a case.

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Speaker 4: You know, it's still a way to be vocal. Even

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Speaker 4: if your point of view isn't the winning one.

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Speaker 2: Now, the case is that you mentioned in the beginning

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Speaker 2: are headed to the on bank panel, so they could

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Speaker 2: be reversed.

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Speaker 4: Yes, So when the Fifth Circuit takes up a case

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Speaker 4: en banc, they actually vacate the lower panel opinion, So

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Speaker 4: all those rulings have actually already been tossed out by

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Speaker 4: virtue of the cases being reheard. So whatever the en

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Speaker 4: banc Court decides will be the holding opinion for all

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Speaker 4: of those cases. And you know, it's interesting. The Fifth

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Speaker 4: Circuit has a rule that if a senior judge was

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Speaker 4: on the panel that heard the case in the first place,

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Speaker 4: then they can sit on the en banc court alongside

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Speaker 4: all the active judges, which are typically the members of

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Speaker 4: that full panel. So it sort of changes the composition

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Speaker 4: a little bit because you might think, oh, I have

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Speaker 4: you know, eight stalwart conservatives and they're going up against

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Speaker 4: you know, six to eight other moderates or liberals, and

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Speaker 4: you know, I'm gonna have to focus on this judge

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Speaker 4: or that judge just sort of win them over. But

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Speaker 4: if you have a senior judge, then maybe that moderate

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Speaker 4: pool expands a little bit more than you thought it would.

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Speaker 4: And that sort of changes the calculus for lawyers who

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Speaker 4: are arguing before the full Fifth Circuit.

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Speaker 2: To what do you attribute the spike in on bank cases.

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Speaker 4: You know that a lot of them are hot button issues.

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Speaker 4: I mean we're talking about is some of the really

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Speaker 4: social you know, quote unquote culture war topics that are

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Speaker 4: coming up right now. You know, the Fifth Circuit during

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Speaker 4: the Biden administration was a hotbed of litigation. They've sort

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Speaker 4: of lost that since so many cases are now going

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Speaker 4: to the First Circuit or the Fourth or the DC Circuit.

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Speaker 4: You know, this is an opportunity for them to weigh

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Speaker 4: in on these really important topics. You know, maybe as

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Speaker 4: fewer of those cases that are going through that circuit.

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Speaker 4: I don't know this for a fact, but maybe there's

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Speaker 4: more of an appetite for taking on those sorts of

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Speaker 4: cases and be able to weigh in on those sorts

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Speaker 4: of topics. And I mean some of these judges are

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Speaker 4: very vocal, so they're not scared to weigh in on

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Speaker 4: these issues either. But you know, especially if there's an

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Speaker 4: old precedent on the court that they want to change,

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Speaker 4: this is the opportunity for folks like the Trump appointees

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Speaker 4: to do that. You know, if that's happening in the

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Speaker 4: First Amendment space, and like in the Ten Commandments case,

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Speaker 4: you know, that's something that they'll be able to you know,

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Speaker 4: shape moving forward. And then you know, if it goes

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Speaker 4: up to the Supreme Court and they adopt that philosophy,

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Speaker 4: well then that's national precedent that they were able to

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Speaker 4: have a role in playing and making sure that plays

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Speaker 4: out that way.

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Speaker 2: You quoted from Senior Judge Edith Brown Clement in twenty

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Speaker 2: nineteen saying that Mississippi simply had the poor luck of

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Speaker 2: drawing a majority minority panel in seeking a stay in

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Speaker 2: a voting rights case. Is it stated or unstated that

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Speaker 2: there is this political element where the Democratic appointees are

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Speaker 2: more liber role and the Republican appointees are more conservative generally, you.

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Speaker 4: Know, I think judges are sort of reluctant to put

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Speaker 4: a label on like that, and I think some practicing

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Speaker 4: lawyers for the Court are at least publicly reluctant to

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Speaker 4: do that sort of thing as well. So, you know,

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Speaker 4: I think folks like Edith Brownkleman have no issue in

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Speaker 4: putting that forward. I can't say that would apply to

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Speaker 4: the rest of her colleagues.

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Speaker 2: Well, it would be nice if you couldn't identify politics

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Speaker 2: in some of these decisions. Thanks so much, Jacqueline. That's

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Speaker 2: Jacqueline Thompson of Bloomberg Law. The Supreme Court has made

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Speaker 2: it tougher on agencies with a decision that created a

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Speaker 2: new legal test to determine when regulators have to bring

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Speaker 2: cases in court rather than before in house judges. So far,

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Speaker 2: agencies are winning the battle, with federal courts siding with

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Speaker 2: them in thirty four out of thirty eight rulings. Joining

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Speaker 2: me is constitutional law expert Harold Krant, a professor at

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Speaker 2: to Chicago Kent College of Law. How start by explaining

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Speaker 2: the Supreme Court limiting agencies and it's ruling in the

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Speaker 2: Jercracy case.

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Speaker 5: So, one of the ways that the Supreme Court has

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Speaker 5: cut back on the power of administrative agencies is by

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Speaker 5: directing or at least allowing companies to say that they

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Speaker 5: belong in court, not before the agencies. And the Court's

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Speaker 5: done this in an unusual way by cutting back on

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Speaker 5: something that used to be called the public rights doctrine,

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Speaker 5: which said that if the government's involved, it need not

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Speaker 5: go to court. It can instead proceed with a fine

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Speaker 5: or a disbarment or a license prevocation before an administrative

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Speaker 5: agency and have the issue decided first there with appeal

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Speaker 5: to the court thereafter. It's cheaper to go before the agency,

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Speaker 5: it's more efficient. And yet the Court has said that

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Speaker 5: that's now intention with its new understanding of the Seventh Amendment.

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Speaker 5: And so the Court directed in the Supreme Court decision

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Speaker 5: called Jarcracy, that no longer can the government rely.

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Speaker 3: Upon these in house agency.

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Speaker 5: In Ministry of Tribunals if and this is where it

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Speaker 5: gets tricky, if the action before the Ministry of Tribunal

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Speaker 5: resembles a common law action that was available at our

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Speaker 5: Nations founding over two hundred years ago. So it's a

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Speaker 5: complicated historical based test. And then the courts have to

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Speaker 5: pick and choose and decide, well, is this a fraud

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Speaker 5: claim that looks like something of common law? Is this

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Speaker 5: a fine for a privacy violation which may not have

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Speaker 5: existed in common law? And so it's going to take

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Speaker 5: a while for the lower courts to sort through this,

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Speaker 5: to decide what kinds of government penalties can be heard

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Speaker 5: before in the Ministry of Tribunal and what kind must

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Speaker 5: go before a court and because the Seventh Amendment attaches,

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Speaker 5: that's slower, it's more ponderous, And so there's a lot

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Speaker 5: of important stakes involved here.

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Speaker 2: So now, a Bloomberg review found that by a wide margin,

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Speaker 2: companies lost most of their initial attempts to stop agency

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Speaker 2: in house judges from hearing a wide range of disputes.

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Speaker 2: Federal courts sided against the challengers against the companies in

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Speaker 2: thirty four of thirty eight rulings. Agencies also prevailed in

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Speaker 2: seven of nine Appeals court rulings. Why are these cases

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Speaker 2: leading to these results? Are judges reluctant to pull the triggers,

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Speaker 2: so to speak?

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Speaker 5: I think there's so many holes in the Supreme Court's

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Speaker 5: decision that the low court judges simply don't have a

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Speaker 5: good playbook by which to decide whether or not the

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Speaker 5: Seventh Amendment would attach. I'm going to give you a

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Speaker 5: couple of examples.

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Speaker 3: Cases involved the.

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Speaker 6: Federal Communications Commission, which has issued huge fines against Verizon

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Speaker 6: and against AT and T for compromising customer location data.

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Speaker 3: And these are millions of dollars of fonts, and.

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Speaker 5: So the court has to decide, well, is this a

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Speaker 5: we Obviously there was no customer location information available at

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Speaker 5: the time of the founding. On the other hand, people

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Speaker 5: not taking care of other people's sort of property was

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Speaker 5: well known the time of the framing, and.

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Speaker 3: So what do you do.

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Speaker 5: And two courts have held that the fines are okay,

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Speaker 5: and one court is held that the fine is not okay,

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Speaker 5: and so this case may end up going to the

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Speaker 5: Supreme Court for clarification. Another case that where there's a

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Speaker 5: split was an interesting case. We had to do with

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Speaker 5: the Department of Labor trying to protect immigrant workers or

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Speaker 5: visas making sure that their place of employment was healthy

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Speaker 5: in terms of where they lived, in terms.

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Speaker 3: Of bathroom breaks, in terms of food breaks, et cetera.

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Speaker 5: And both cases were fines, and one court held that, well,

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Speaker 5: this is just typical sort of finding a company for

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Speaker 5: violation of the conditions of employment. This looks like a

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Speaker 5: common law action. And the other court says, no, this

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Speaker 5: is unique. This is immigration. This is more tied to

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Speaker 5: the public rights. And therefore we're not going to say

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Speaker 5: that there needs to be a Seventh Amendment for the

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Speaker 5: employer here. So it's going to take a while for

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Speaker 5: these cases to sift. The Supreme Court is going to

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Speaker 5: have to get back into the fray because it is

437
00:25:40,960 --> 00:25:46,040
Speaker 5: such a surprising decision. It reversed so many generations of

438
00:25:46,320 --> 00:25:50,280
Speaker 5: cases and without many guidelines, and so the Court's going

439
00:25:50,320 --> 00:25:51,480
Speaker 5: to have to get back into the fray.

440
00:25:52,520 --> 00:25:57,480
Speaker 2: I mean, does this point out how cumbersome and at

441
00:25:57,520 --> 00:26:02,720
Speaker 2: times inexplicable the test is to go back in history

442
00:26:02,800 --> 00:26:05,520
Speaker 2: and see what the law was at the founding.

443
00:26:06,880 --> 00:26:09,120
Speaker 5: I mean, most people don't think the Supreme Court's test

444
00:26:09,200 --> 00:26:10,040
Speaker 5: makes much sense.

445
00:26:10,320 --> 00:26:11,920
Speaker 3: Now, the Seventh Amendment.

446
00:26:11,960 --> 00:26:15,840
Speaker 5: Does have a kernel to it that the Court has followed,

447
00:26:15,880 --> 00:26:19,760
Speaker 5: which says that to determine whether normally a case should

448
00:26:19,800 --> 00:26:23,320
Speaker 5: go before a jury trial does depend upon whether or

449
00:26:23,359 --> 00:26:26,640
Speaker 5: not the cause of action resembles something that existed at

450
00:26:26,640 --> 00:26:30,720
Speaker 5: the time the Seventh Amendment was ratified. So at least

451
00:26:30,720 --> 00:26:32,480
Speaker 5: we have that test, and we've looked at it. But

452
00:26:32,520 --> 00:26:35,600
Speaker 5: the difficulty here is that these common law causes of

453
00:26:35,600 --> 00:26:38,560
Speaker 5: action now are brought by the government in terms of

454
00:26:38,680 --> 00:26:42,960
Speaker 5: fines and other penalties, so they're not like timon law

455
00:26:43,000 --> 00:26:47,760
Speaker 5: causes of action directly, and if there is a the

456
00:26:47,800 --> 00:26:51,920
Speaker 5: government involved, we've long thought that the Seventh Amendment doesn't apply,

457
00:26:52,520 --> 00:26:55,720
Speaker 5: and so the Court, by changing the rules of the game,

458
00:26:56,320 --> 00:26:59,360
Speaker 5: has so confusion and it's going to take more cases

459
00:27:00,080 --> 00:27:03,280
Speaker 5: for lower courts to understand what is the ambit of

460
00:27:03,320 --> 00:27:08,240
Speaker 5: when these companies do deserve a jury trial before their

461
00:27:08,320 --> 00:27:10,520
Speaker 5: claim bines can be adjudicated.

462
00:27:10,880 --> 00:27:14,800
Speaker 2: And some agencies can't bring cases in court.

463
00:27:15,119 --> 00:27:17,520
Speaker 5: Most agencies do have the power. It's just a matter

464
00:27:17,640 --> 00:27:21,640
Speaker 5: of the time and expense. Jury trials take long time,

465
00:27:21,720 --> 00:27:24,359
Speaker 5: they're far more expensive, and plus it would have a

466
00:27:24,359 --> 00:27:26,960
Speaker 5: negative impact on the courts. The courts are not exactly

467
00:27:26,960 --> 00:27:32,360
Speaker 5: the static about having an increase in workload to hear.

468
00:27:32,200 --> 00:27:34,920
Speaker 3: These fines and other kinds of cases.

469
00:27:35,560 --> 00:27:38,600
Speaker 5: So it's going to back up the workload in the

470
00:27:38,600 --> 00:27:40,359
Speaker 5: courts as well.

471
00:27:40,400 --> 00:27:43,520
Speaker 2: And let's turn for a moment to the indictment of

472
00:27:44,080 --> 00:27:48,719
Speaker 2: former FBI director James Comey. In an opinion a magistrate

473
00:27:48,800 --> 00:27:55,960
Speaker 2: judge has already outlined eleven potential mistakes by the prosecution

474
00:27:56,800 --> 00:28:01,600
Speaker 2: in that case, the prosecutor being newly a pointed prosecutor,

475
00:28:01,680 --> 00:28:07,240
Speaker 2: Lindsay Halligan, the interim us Attorney for the Eastern District

476
00:28:07,280 --> 00:28:12,040
Speaker 2: of Virginia, who had no prosecutorial experience at all when

477
00:28:12,080 --> 00:28:15,440
Speaker 2: she went before the grand jury to get Comy indicted,

478
00:28:15,880 --> 00:28:20,600
Speaker 2: and in court yesterday she acknowledged that the full grand

479
00:28:20,680 --> 00:28:26,640
Speaker 2: jury never reviewed the indictment that was actually filed against Comy.

480
00:28:28,520 --> 00:28:33,600
Speaker 5: So there was at the minimum of a clerical error

481
00:28:33,680 --> 00:28:38,360
Speaker 5: that could be turned into such as procedural error that

482
00:28:38,440 --> 00:28:41,480
Speaker 5: the entire case could be compromised because the grand jury

483
00:28:41,520 --> 00:28:43,520
Speaker 5: actually voted on an.

484
00:28:43,400 --> 00:28:45,080
Speaker 3: Indictment that it didn't see.

485
00:28:45,520 --> 00:28:49,840
Speaker 5: Evidently, Lindsay Halligan cleaned up the first indictment because the

486
00:28:50,400 --> 00:28:53,360
Speaker 5: grand jury rejected one of the claims that she had

487
00:28:53,360 --> 00:28:56,560
Speaker 5: brought and so changed the indictment and only showed it

488
00:28:56,600 --> 00:28:59,960
Speaker 5: to the four person as opposed to the members of

489
00:29:00,160 --> 00:29:03,200
Speaker 5: grand jury themselves. So they actually when they voted on

490
00:29:03,240 --> 00:29:07,360
Speaker 5: an indictment, they did not see the actual legally perfect

491
00:29:07,560 --> 00:29:10,720
Speaker 5: indictment that was at stake there. So we have a

492
00:29:10,760 --> 00:29:13,959
Speaker 5: mismatch between what the grand jury voted on and what

493
00:29:14,000 --> 00:29:17,640
Speaker 5: the indictment that is moving forward now. That may seem

494
00:29:17,920 --> 00:29:20,280
Speaker 5: to listeners like a sort of a silly little mistake,

495
00:29:20,360 --> 00:29:23,960
Speaker 5: because the grand jury knew what was in the indictment,

496
00:29:24,560 --> 00:29:27,280
Speaker 5: and it is this pales I think before in terms

497
00:29:27,320 --> 00:29:30,360
Speaker 5: of a mistake in comparison to the other mistakes that

498
00:29:30,400 --> 00:29:33,680
Speaker 5: the magistrate uncovered just earlier in this week.

499
00:29:33,960 --> 00:29:36,080
Speaker 3: But nonetheless it's a legal error.

500
00:29:36,040 --> 00:29:38,360
Speaker 5: And it's an error that may doom the indictment, and

501
00:29:38,440 --> 00:29:41,120
Speaker 5: so she'd have to go back and seek another one,

502
00:29:41,560 --> 00:29:45,800
Speaker 5: because under federal law there is a six month gap

503
00:29:46,040 --> 00:29:48,920
Speaker 5: where you are allowed to seek an indictment if one

504
00:29:49,200 --> 00:29:53,600
Speaker 5: is one unravels, and so that may be what happens.

505
00:29:53,640 --> 00:29:57,200
Speaker 5: But there's other penalties that the judge may impose for

506
00:29:57,280 --> 00:30:00,640
Speaker 5: the other mistakes, such as obviously if it if the

507
00:30:00,760 --> 00:30:04,200
Speaker 5: judge finds that it's a vindictive prosecution, then the entire

508
00:30:04,520 --> 00:30:06,960
Speaker 5: prosecution goes away and the dictment cannot be refined.

509
00:30:07,920 --> 00:30:11,760
Speaker 2: One of the major errors she made was basically to

510
00:30:11,800 --> 00:30:16,000
Speaker 2: say that Comy doesn't have a Fifth Amendment right not

511
00:30:16,120 --> 00:30:19,640
Speaker 2: to testify, and that you know, the jurors could hold

512
00:30:19,680 --> 00:30:23,320
Speaker 2: that against him, that he didn't testify at the grand jury.

513
00:30:23,440 --> 00:30:26,880
Speaker 2: I mean, that's that's a huge mistake, isn't it.

514
00:30:27,680 --> 00:30:28,720
Speaker 3: Oh, it's a huge mistake.

515
00:30:28,760 --> 00:30:31,600
Speaker 5: And then to also say that the grand jury could

516
00:30:31,640 --> 00:30:35,520
Speaker 5: consider that the government will bring additional evidence at trial

517
00:30:35,800 --> 00:30:38,360
Speaker 5: again makes a mockery of the whole grand jury system,

518
00:30:38,720 --> 00:30:41,240
Speaker 5: because the grand jury, as a tech book matter, has

519
00:30:41,240 --> 00:30:45,160
Speaker 5: to decide whether or not there's enough information presented to

520
00:30:45,240 --> 00:30:49,880
Speaker 5: them to establish probable cause, and so you know in

521
00:30:49,880 --> 00:30:53,480
Speaker 5: that sense, mistake after a mistake, and as I think

522
00:30:53,600 --> 00:30:57,040
Speaker 5: that the court may say that as a penalty for

523
00:30:57,080 --> 00:31:02,640
Speaker 5: all these mistakes and for the vindictive prosecution, that no indictment,

524
00:31:02,760 --> 00:31:05,040
Speaker 5: further indictment can even be pursued.

525
00:31:05,320 --> 00:31:07,160
Speaker 3: That's a possibility. It's a strong possibility.

526
00:31:07,160 --> 00:31:09,840
Speaker 5: Not for sure, but I feel pretty comfortable this indictment

527
00:31:10,080 --> 00:31:10,880
Speaker 5: is going to be doomed.

528
00:31:11,640 --> 00:31:15,320
Speaker 2: Hell, everyone says statute of limitations, But you think that

529
00:31:15,400 --> 00:31:20,520
Speaker 2: the law that allows a prosecutor to cure an indictment

530
00:31:20,600 --> 00:31:23,840
Speaker 2: within six months, you think that that would nullify the

531
00:31:24,400 --> 00:31:25,880
Speaker 2: satu of limitations problems.

532
00:31:26,000 --> 00:31:27,280
Speaker 3: Yeah, it would.

533
00:31:27,400 --> 00:31:31,920
Speaker 5: If the court decides that this is a technical violation,

534
00:31:32,200 --> 00:31:34,360
Speaker 5: and if it's a mere technical violation like showing the

535
00:31:34,400 --> 00:31:37,480
Speaker 5: wrong paper to the grand jury, then as a matter

536
00:31:37,480 --> 00:31:39,080
Speaker 5: of course, I think the court would say, you can

537
00:31:39,240 --> 00:31:42,440
Speaker 5: remedy this by having a new indictment within six months

538
00:31:42,440 --> 00:31:45,880
Speaker 5: without violating the statute of limitations. On the other hand,

539
00:31:46,080 --> 00:31:48,560
Speaker 5: if this is because of bad behavior, and it certainly

540
00:31:48,560 --> 00:31:51,440
Speaker 5: seems like was bad behavior, then the penalty may be

541
00:31:51,840 --> 00:31:55,240
Speaker 5: throwing out the indictment entirely, and the statute of limitations

542
00:31:55,280 --> 00:31:55,760
Speaker 5: has run.

543
00:31:56,160 --> 00:31:59,200
Speaker 2: Thanks so much, Hall, that's Professor Harrold Krant of a

544
00:31:59,280 --> 00:32:03,120
Speaker 2: Chicago College of Law. And that's it for this edition

545
00:32:03,160 --> 00:32:05,800
Speaker 2: of The Bloomberg Law Show. Remember you can always get

546
00:32:05,800 --> 00:32:08,960
Speaker 2: the latest legal news on our Bloomberg Law podcasts. You

547
00:32:09,000 --> 00:32:13,080
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

548
00:32:13,240 --> 00:32:17,520
Speaker 2: dot Bloomberg dot com slash podcast Slash Law, And remember

549
00:32:17,520 --> 00:32:20,480
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550
00:32:20,520 --> 00:32:23,960
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551
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Speaker 2: listening to Bloomberg