1
00:00:03,200 --> 00:00:07,960
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:08,960 --> 00:00:12,400
Speaker 1: It's official. The conservatorship of Britney Spears has been terminated.

3
00:00:14,720 --> 00:00:18,000
Speaker 1: In a sea of pink confetti, fans of pop superstar

4
00:00:18,079 --> 00:00:22,560
Speaker 1: Brittany Spears cheered, danced, and sang outside the courthouse in

5
00:00:22,680 --> 00:00:27,200
Speaker 1: Los Angeles after a judge terminated the conservatorship that had

6
00:00:27,240 --> 00:00:31,240
Speaker 1: controlled almost every aspect of the singer's life for nearly

7
00:00:31,320 --> 00:00:35,720
Speaker 1: fourteen years. Brittany talked about finally regaining control of her

8
00:00:35,800 --> 00:00:39,520
Speaker 1: life on Facebook. I'm just grateful, honestly for each day

9
00:00:39,840 --> 00:00:42,520
Speaker 1: and being able to have the piece in my car

10
00:00:42,800 --> 00:00:45,120
Speaker 1: and being able to be independent for like a woman,

11
00:00:45,280 --> 00:00:48,280
Speaker 1: and um owning an ATM card, see in cash for

12
00:00:48,320 --> 00:00:50,720
Speaker 1: the first time, being able to buy candles. It's the

13
00:00:50,760 --> 00:00:54,680
Speaker 1: little things for us women, but it makes a huge difference.

14
00:00:55,160 --> 00:00:58,160
Speaker 1: Now the people who controlled Spears and her sixty million

15
00:00:58,200 --> 00:01:02,400
Speaker 1: dollar fortune are looking at possible legal action against them,

16
00:01:02,600 --> 00:01:07,760
Speaker 1: especially her father, Jamie Spears, who Britney's attorney, Matthew Rosengarten said,

17
00:01:08,080 --> 00:01:12,360
Speaker 1: crossed unfathomable lines and his control and surveillance of his daughter.

18
00:01:12,720 --> 00:01:18,959
Speaker 1: This conservatorship was corrupted by James two Spears joining me

19
00:01:19,080 --> 00:01:22,919
Speaker 1: is Harry Nelson, managing partner of Nelson Hardeman. So Harry

20
00:01:23,120 --> 00:01:27,759
Speaker 1: Brittney Spears didn't even attend this hearing, which took all

21
00:01:27,800 --> 00:01:31,880
Speaker 1: of thirty minutes. All of a sudden, there were no objections,

22
00:01:32,240 --> 00:01:37,080
Speaker 1: when as recently as last spring there were objections. What happened?

23
00:01:37,440 --> 00:01:39,840
Speaker 1: So I think the writing sort of was on the

24
00:01:39,840 --> 00:01:42,520
Speaker 1: wall about how this was going to go. So, you know,

25
00:01:42,600 --> 00:01:47,480
Speaker 1: the resistance not only Jamie Spears as conservator, but everybody

26
00:01:47,520 --> 00:01:51,480
Speaker 1: around Jamie could see that this was not going well

27
00:01:51,600 --> 00:01:54,320
Speaker 1: and that this was going to reflect badly. And and

28
00:01:54,400 --> 00:01:57,440
Speaker 1: so we had this massive pull out of the entire

29
00:01:57,480 --> 00:02:00,400
Speaker 1: support structure, right of all of the lawyers asking to

30
00:02:00,440 --> 00:02:03,240
Speaker 1: be taken off of this case, all of the representatives,

31
00:02:03,280 --> 00:02:06,240
Speaker 1: the Coke conservators. So basically it became clear that Jamie

32
00:02:06,280 --> 00:02:10,440
Speaker 1: Spears was staring down the barrel of significant accusations of

33
00:02:10,560 --> 00:02:15,240
Speaker 1: financial mismanagement and other wrongdoing, invasions of privacy, and so

34
00:02:15,400 --> 00:02:18,880
Speaker 1: at some point he made the decisions to flip and

35
00:02:18,919 --> 00:02:21,680
Speaker 1: take the position that he also wanted the whole matter

36
00:02:21,840 --> 00:02:23,920
Speaker 1: put to rest. I think it was pretty clear that

37
00:02:24,000 --> 00:02:26,239
Speaker 1: his hope was that that would also put to rest

38
00:02:26,280 --> 00:02:28,880
Speaker 1: an investigation of him, which doesn't seem to have happened,

39
00:02:28,880 --> 00:02:31,320
Speaker 1: but that was really the critical ship that got everybody

40
00:02:31,320 --> 00:02:35,680
Speaker 1: into alignment. Normally, are there a series of mental evaluations

41
00:02:35,800 --> 00:02:40,360
Speaker 1: before a conservatorship ends. Yes, So the typical pattern is

42
00:02:40,400 --> 00:02:42,640
Speaker 1: that a judge is called upon to decide that a

43
00:02:42,680 --> 00:02:46,480
Speaker 1: person is capable or not of managing their own personal

44
00:02:46,520 --> 00:02:49,840
Speaker 1: decisions around their health and providing for themselves, and also

45
00:02:50,200 --> 00:02:53,320
Speaker 1: capable of financial management. So normally a judge would be

46
00:02:53,520 --> 00:02:57,519
Speaker 1: asking for a psychiatric evaluation to have some evidence in

47
00:02:57,600 --> 00:03:00,160
Speaker 1: some record on that point. But it's clear that in

48
00:03:00,160 --> 00:03:02,680
Speaker 1: this case that friend of Penny decided that that was

49
00:03:02,760 --> 00:03:05,560
Speaker 1: not necessary, that there was a clear enough record that

50
00:03:05,639 --> 00:03:08,280
Speaker 1: Brittney was managing effectively. I think that a lot of

51
00:03:08,320 --> 00:03:10,840
Speaker 1: the credits for that really belongs to her new lawyers

52
00:03:10,840 --> 00:03:13,079
Speaker 1: who took over the case several months ago, Matthew Rosengard,

53
00:03:13,200 --> 00:03:15,480
Speaker 1: who made it clear just how capable she was and

54
00:03:15,520 --> 00:03:18,240
Speaker 1: got everybody else on the run. Did the judge keep

55
00:03:18,400 --> 00:03:22,640
Speaker 1: anything in place, you know, any caveats? Yes, So this

56
00:03:22,720 --> 00:03:25,120
Speaker 1: is still a live pace at this point that the

57
00:03:25,160 --> 00:03:29,440
Speaker 1: conservatorship is over, so Britney is free, but there's still

58
00:03:29,639 --> 00:03:32,120
Speaker 1: going to be a long standing battle It's going to

59
00:03:32,200 --> 00:03:36,400
Speaker 1: be fought aggressively over how much wrongdoing is attributable to

60
00:03:36,480 --> 00:03:39,680
Speaker 1: Jamie Spears and also to the firms that worked with him,

61
00:03:39,800 --> 00:03:42,920
Speaker 1: in particular Try Star Entertainment, which was a management company

62
00:03:42,920 --> 00:03:45,200
Speaker 1: that he hired. There's a big fight that's been going

63
00:03:45,200 --> 00:03:48,000
Speaker 1: on for the last couple of weeks over subpoenas that

64
00:03:48,080 --> 00:03:51,080
Speaker 1: were issued by Britney's team trying to get at documents

65
00:03:51,080 --> 00:03:54,600
Speaker 1: going back many years, and on the other side pushback saying, no,

66
00:03:54,840 --> 00:03:57,880
Speaker 1: the court approved expenses, we shouldn't have to go back

67
00:03:57,920 --> 00:03:59,640
Speaker 1: and look at all of this stuff. So it's gonna

68
00:03:59,640 --> 00:04:01,320
Speaker 1: be interesting. The judge is still gonna have some work

69
00:04:01,400 --> 00:04:04,360
Speaker 1: to do to decide how far to let this investigation go.

70
00:04:04,800 --> 00:04:08,240
Speaker 1: And it's an investigation not just of financial mismanagement, whether

71
00:04:08,280 --> 00:04:12,120
Speaker 1: Brittany's money was wasted or spent inappropriately, but also about

72
00:04:12,120 --> 00:04:15,720
Speaker 1: how decisions were made to engage Black Box Security, the

73
00:04:15,760 --> 00:04:19,640
Speaker 1: firm that supposedly bugged her bedroom and mirrored every text

74
00:04:19,640 --> 00:04:22,080
Speaker 1: message from her phone, And so that legal battle is

75
00:04:22,120 --> 00:04:24,760
Speaker 1: probably gonna be playing out for many months. Her father

76
00:04:24,960 --> 00:04:28,960
Speaker 1: exercised so much control over her from my new things

77
00:04:29,040 --> 00:04:32,520
Speaker 1: like what she ate, two major things like birth control,

78
00:04:32,800 --> 00:04:35,560
Speaker 1: going way beyond what a guardian should do. Is there

79
00:04:35,560 --> 00:04:39,320
Speaker 1: going to be any investigation into that? I think that's

80
00:04:39,360 --> 00:04:42,240
Speaker 1: going to be very difficult for Matthew rose Garter, for

81
00:04:42,279 --> 00:04:45,400
Speaker 1: any for Brittany's legal team to challenge. You know, a

82
00:04:45,400 --> 00:04:49,760
Speaker 1: lot of the medical decisions are water under the bridge

83
00:04:49,760 --> 00:04:52,520
Speaker 1: and it's hard to prove. You know, it's very subjective

84
00:04:52,560 --> 00:04:55,160
Speaker 1: to decide what was and what was not in her

85
00:04:55,160 --> 00:04:58,560
Speaker 1: best interests. At every point along the way, Jamie Spears

86
00:04:58,600 --> 00:05:02,280
Speaker 1: had engaged doctor to support the decisions. It wasn't as

87
00:05:02,279 --> 00:05:04,440
Speaker 1: if he was like playing doctor himself. So I think

88
00:05:04,440 --> 00:05:06,840
Speaker 1: it's going to be very very difficult to go back

89
00:05:06,839 --> 00:05:09,680
Speaker 1: and challenge those decisions, even though you know, we can

90
00:05:09,720 --> 00:05:12,040
Speaker 1: look in the review mirror and say that they seem

91
00:05:12,120 --> 00:05:16,640
Speaker 1: overbearing and inappropriate and troubling thinking about how somebody living

92
00:05:16,680 --> 00:05:20,320
Speaker 1: under a conservatorship can be oppressed by these kind of decisions.

93
00:05:20,320 --> 00:05:24,880
Speaker 1: The father, Jamie Spears, is fighting back or resisting. But

94
00:05:25,160 --> 00:05:27,719
Speaker 1: is there any doubt that there's going to have to

95
00:05:27,760 --> 00:05:31,640
Speaker 1: be a reckoning about the finances. You know, it's a

96
00:05:31,800 --> 00:05:35,880
Speaker 1: very difficult question because it calls up the issue of

97
00:05:35,960 --> 00:05:40,320
Speaker 1: whether the judge failed to exercise enough scrutiny. So we

98
00:05:40,360 --> 00:05:42,719
Speaker 1: have a case where a judge is being asked to

99
00:05:42,839 --> 00:05:46,760
Speaker 1: decide whether Brittany's legal team is permitted to go back

100
00:05:46,800 --> 00:05:49,040
Speaker 1: and examine things. You gotta remember, this has been going

101
00:05:49,040 --> 00:05:51,919
Speaker 1: on for thirteen years, so how far back are we

102
00:05:51,960 --> 00:05:55,039
Speaker 1: going to let the lawyers go? Right? It seems uncontroversial

103
00:05:55,080 --> 00:05:58,600
Speaker 1: that decisions that were made in ten for example, in

104
00:05:58,920 --> 00:06:02,080
Speaker 1: Jamie Spears fight to keep the conservatorship at that time

105
00:06:02,279 --> 00:06:04,640
Speaker 1: in place, are going to be reviewed. But some of

106
00:06:04,680 --> 00:06:07,880
Speaker 1: these earlier questions about how this whole security apparatus went

107
00:06:07,920 --> 00:06:09,960
Speaker 1: into place and how much money was spent on that

108
00:06:10,000 --> 00:06:13,160
Speaker 1: whole effort, it's a very close question. It puts the

109
00:06:13,240 --> 00:06:16,560
Speaker 1: judge in a difficult position. I suspect that the judge

110
00:06:16,600 --> 00:06:19,920
Speaker 1: is going to be under pressure to allow more discovery

111
00:06:20,360 --> 00:06:23,360
Speaker 1: because she, after all, was the one who rubber stamped

112
00:06:23,520 --> 00:06:25,520
Speaker 1: many of the decisions that were made here. So I

113
00:06:25,520 --> 00:06:29,160
Speaker 1: think she's in a very awkward position. And I suspect

114
00:06:29,240 --> 00:06:32,640
Speaker 1: that Brittany's team is going to get to examine more

115
00:06:32,680 --> 00:06:36,120
Speaker 1: than her father or his legal team and managers would like.

116
00:06:36,400 --> 00:06:40,960
Speaker 1: But that still remains seen the judge for thirteen years

117
00:06:41,080 --> 00:06:45,320
Speaker 1: or twelve. That if thirteen years approved all this, so

118
00:06:45,839 --> 00:06:49,040
Speaker 1: it seems like maybe another judge should be handling this

119
00:06:49,160 --> 00:06:52,359
Speaker 1: at this point. Look, I think it's a fair question.

120
00:06:52,520 --> 00:06:54,560
Speaker 1: I think in fairness to the judge that you know,

121
00:06:54,600 --> 00:06:58,280
Speaker 1: the judges will hear these cases, are required to hear

122
00:06:58,360 --> 00:07:01,120
Speaker 1: many many cases. They have very busy dockets. And the

123
00:07:01,200 --> 00:07:04,560
Speaker 1: judge was sort of hamstrung because the longtime lawyer who

124
00:07:04,640 --> 00:07:07,960
Speaker 1: represented Brittany his his name was Samuel Ingham. To say

125
00:07:08,000 --> 00:07:10,640
Speaker 1: he did a very passive job as her lawyer would

126
00:07:10,640 --> 00:07:13,560
Speaker 1: be an understatement. He did almost nothing. So the judges

127
00:07:13,560 --> 00:07:16,320
Speaker 1: in a very difficult position. In our legal system, we

128
00:07:16,360 --> 00:07:19,640
Speaker 1: look to judges to generally be passive and to rule

129
00:07:19,840 --> 00:07:21,960
Speaker 1: on the arguments that are being presented to him by

130
00:07:21,960 --> 00:07:25,280
Speaker 1: the lawyers. This was a case where, for whatever reason,

131
00:07:25,360 --> 00:07:29,360
Speaker 1: Brittney's court appointed lawyer really seems to have this remained

132
00:07:29,400 --> 00:07:33,080
Speaker 1: silent over years and years of abusive behavior. And so

133
00:07:33,480 --> 00:07:35,840
Speaker 1: the question of how far the judge should have gone

134
00:07:36,280 --> 00:07:38,520
Speaker 1: and how much she should have asked questions that the

135
00:07:38,600 --> 00:07:40,920
Speaker 1: lawyer wasn't asking. I think it's a fair one. It's

136
00:07:40,960 --> 00:07:42,800
Speaker 1: a good one, but I also think it's a tough question.

137
00:07:43,160 --> 00:07:44,720
Speaker 1: If we're going to be fair, I think we need

138
00:07:44,800 --> 00:07:48,600
Speaker 1: to really say that the entire system failed here and

139
00:07:48,640 --> 00:07:50,320
Speaker 1: the judge is part of it, and maybe a new

140
00:07:50,360 --> 00:07:53,400
Speaker 1: judge here wouldn't be a bad idea. I understand that

141
00:07:53,720 --> 00:07:58,239
Speaker 1: her parents are asking for attorneys fees so that everybody

142
00:07:58,640 --> 00:08:01,080
Speaker 1: there are lots of requests coming in to the state

143
00:08:01,160 --> 00:08:04,480
Speaker 1: to cover expenses associated with this case. I believe part

144
00:08:04,480 --> 00:08:06,720
Speaker 1: of it is that there were claims that the Free

145
00:08:06,720 --> 00:08:11,119
Speaker 1: Brittany movement was posing security threats and lots of work

146
00:08:11,200 --> 00:08:14,360
Speaker 1: needed to actually physically protect and to protect the reputation

147
00:08:14,800 --> 00:08:17,840
Speaker 1: of her family members. So the judges is getting I believe,

148
00:08:17,840 --> 00:08:21,440
Speaker 1: requests from both parents for reimbursement, and I think those

149
00:08:21,440 --> 00:08:24,679
Speaker 1: are going to be highly contested. To me, it seems

150
00:08:24,760 --> 00:08:28,080
Speaker 1: difficult to understand why Brittany should be forced to pay

151
00:08:28,200 --> 00:08:31,320
Speaker 1: for problems that were not of her making and that

152
00:08:31,400 --> 00:08:34,360
Speaker 1: could have been avoided. Had this whole farce of illegal

153
00:08:34,440 --> 00:08:37,640
Speaker 1: proceeding not that necessary right it's ever rights has been respected,

154
00:08:37,880 --> 00:08:40,280
Speaker 1: we wouldn't be here. So to force her to pay

155
00:08:40,360 --> 00:08:43,640
Speaker 1: for the collateral effect on her parents, to me, seems aggressive.

156
00:08:44,160 --> 00:08:48,280
Speaker 1: So her lawyer has suggested that beyond what happens with

157
00:08:48,520 --> 00:08:51,520
Speaker 1: this judge, that he might take action in a civil

158
00:08:51,600 --> 00:08:56,240
Speaker 1: court against James Spears right. It's also another interesting question

159
00:08:56,280 --> 00:08:59,719
Speaker 1: of how much is Jamie protected by the fact that

160
00:08:59,760 --> 00:09:02,560
Speaker 1: he is exercising this legal capacity to the extent that

161
00:09:02,600 --> 00:09:06,400
Speaker 1: he acted maliciously or in bad faith, or that he

162
00:09:06,520 --> 00:09:10,920
Speaker 1: exceeded the scope of his power authorization from the court

163
00:09:11,200 --> 00:09:13,800
Speaker 1: in everything that he did, and the security invasions with

164
00:09:13,880 --> 00:09:16,400
Speaker 1: his company, black Box Security seems to be a really

165
00:09:16,400 --> 00:09:19,560
Speaker 1: good example of that. Then there certainly is a risk

166
00:09:19,600 --> 00:09:22,439
Speaker 1: for him that this matter goes beyond the conservatorship. It

167
00:09:22,480 --> 00:09:24,760
Speaker 1: would be an unusual case to see a conservator or

168
00:09:24,880 --> 00:09:28,360
Speaker 1: face things civil liability practically convert of. But this might

169
00:09:28,400 --> 00:09:31,280
Speaker 1: be the exceptional case where the conservator's conduct was so

170
00:09:31,320 --> 00:09:33,920
Speaker 1: bad that it calls for a civil courts actions. If

171
00:09:33,960 --> 00:09:37,480
Speaker 1: Brittany acts in any way they could be construed as

172
00:09:37,600 --> 00:09:41,520
Speaker 1: irresponsible or out of control. Is she in danger of

173
00:09:41,559 --> 00:09:44,440
Speaker 1: being hauled into court again? In other words, can she

174
00:09:44,520 --> 00:09:48,560
Speaker 1: do whatever she wants? I think Brittany is legitimately free

175
00:09:48,559 --> 00:09:50,000
Speaker 1: at this point. I don't think that that is a

176
00:09:50,040 --> 00:09:52,360
Speaker 1: substantial risk. First of all, I think Brittany has enough

177
00:09:52,559 --> 00:09:55,920
Speaker 1: of support structure around her now, and that part of

178
00:09:55,920 --> 00:09:58,160
Speaker 1: what her legal team is doing now is putting trust

179
00:09:58,200 --> 00:10:01,520
Speaker 1: in place, putting trustees, really making sure that she's got

180
00:10:01,600 --> 00:10:04,520
Speaker 1: infrastructure around her to make sure that she can't be

181
00:10:04,600 --> 00:10:07,680
Speaker 1: accused of being totally out of control and needing a

182
00:10:07,720 --> 00:10:10,040
Speaker 1: family member to manage her. It certainly looks like this

183
00:10:10,080 --> 00:10:13,080
Speaker 1: has been a deeply traumatic moment for this entire family,

184
00:10:13,240 --> 00:10:15,040
Speaker 1: and I can't imagine that Brittany is going to be

185
00:10:15,080 --> 00:10:17,240
Speaker 1: facing this risk again. But I do think we are

186
00:10:17,240 --> 00:10:21,040
Speaker 1: going to see a continuing focus on other celebrities, for example,

187
00:10:21,440 --> 00:10:23,520
Speaker 1: who are at risk. I think we're going to see

188
00:10:23,559 --> 00:10:26,839
Speaker 1: more people think of conservatorship as an option for people

189
00:10:26,880 --> 00:10:28,560
Speaker 1: who seem to be completely out of control. But I

190
00:10:28,559 --> 00:10:30,680
Speaker 1: think personally the Brittany is out of the woods on

191
00:10:30,679 --> 00:10:34,000
Speaker 1: this one. Has the Britney Spears example led states to

192
00:10:34,080 --> 00:10:39,360
Speaker 1: make changes in conservatorship laws. There has been some legal

193
00:10:39,400 --> 00:10:43,360
Speaker 1: reform already, a number of initiatives and different states on conservatorship.

194
00:10:43,480 --> 00:10:46,000
Speaker 1: There's also a federal bill pending, which even though this

195
00:10:46,040 --> 00:10:48,280
Speaker 1: issue really is typically handled at the state level. So

196
00:10:48,320 --> 00:10:50,800
Speaker 1: I think we are seeing the beginnings of a lot

197
00:10:50,840 --> 00:10:53,360
Speaker 1: of reform efforts, including here in California, by the way.

198
00:10:53,400 --> 00:10:55,160
Speaker 1: So I think that we're going to see some more

199
00:10:55,240 --> 00:10:59,600
Speaker 1: laws that require more transparency, more attention to financial conflicts

200
00:10:59,600 --> 00:11:04,120
Speaker 1: of inch rest just more transparency and more accountability. Thanks Harry,

201
00:11:04,160 --> 00:11:08,960
Speaker 1: that's Harry Nelson of Nelson Hardeman. People are sick and

202
00:11:09,000 --> 00:11:11,680
Speaker 1: tired of COVID and the impacts on the economy. We

203
00:11:11,760 --> 00:11:14,280
Speaker 1: understand that we're tired of it too. That's why this

204
00:11:14,360 --> 00:11:17,160
Speaker 1: is the number one priority continues to be getting COVID

205
00:11:17,240 --> 00:11:20,240
Speaker 1: under control. People are sick and tired of COVID and

206
00:11:20,280 --> 00:11:23,280
Speaker 1: the impacts on the economy. We understand that we're tired

207
00:11:23,320 --> 00:11:24,960
Speaker 1: of it too. That's why this is the number one

208
00:11:25,000 --> 00:11:28,760
Speaker 1: priority continues to be getting COVID under control, even though

209
00:11:28,760 --> 00:11:31,640
Speaker 1: the country may be tired of COVID, As White House

210
00:11:31,640 --> 00:11:35,360
Speaker 1: Press Secretary Jen Psaki says, the legal fights over the

211
00:11:35,400 --> 00:11:40,280
Speaker 1: Biden administrations vaccine mandate are just beginning, and it's the

212
00:11:40,360 --> 00:11:43,440
Speaker 1: Sixth Circuit Court of Appeals in Ohio that will handle

213
00:11:43,480 --> 00:11:47,720
Speaker 1: the challenges to the vaccine mandate. After winning a circuit

214
00:11:47,800 --> 00:11:52,320
Speaker 1: court lottery, multiple lawsuits were filed against the emergency rule

215
00:11:52,480 --> 00:11:55,720
Speaker 1: in twelve circuit courts, so a lottery was held to

216
00:11:55,760 --> 00:12:00,199
Speaker 1: determine which court would decide the consolidated cases. A and

217
00:12:00,320 --> 00:12:03,240
Speaker 1: Ping Pong balls were placed in a wooden drum and

218
00:12:03,280 --> 00:12:07,000
Speaker 1: the six circuits was drawn, sort of like a powerball drawing.

219
00:12:07,679 --> 00:12:10,160
Speaker 1: Joining me is Robert Field, a professor of law and

220
00:12:10,240 --> 00:12:14,200
Speaker 1: public health at Drexel University. So the emergency Ocean rule

221
00:12:14,280 --> 00:12:19,000
Speaker 1: requires that workers of large employers get vaccinated or tested regularly.

222
00:12:19,360 --> 00:12:22,080
Speaker 1: What's the issue for the court to decide? The main

223
00:12:22,160 --> 00:12:26,280
Speaker 1: question is whether the rule meets the requirements for an

224
00:12:26,320 --> 00:12:30,760
Speaker 1: emergency standard, and that would be partly whether it's too broad,

225
00:12:31,000 --> 00:12:34,240
Speaker 1: and partly whether there is a true emergency, and then

226
00:12:34,360 --> 00:12:37,240
Speaker 1: as well if this is a reasonable means of addressing

227
00:12:37,280 --> 00:12:41,079
Speaker 1: that emergency. The Fifth Circuit sort of trashed the rule

228
00:12:41,360 --> 00:12:44,679
Speaker 1: in its opinion and put it on hold. From their

229
00:12:44,720 --> 00:12:47,559
Speaker 1: point of view, OSHA could do nothing right. The rule

230
00:12:47,840 --> 00:12:53,360
Speaker 1: was overly exclusive because it didn't provide exceptions for non

231
00:12:53,480 --> 00:12:59,400
Speaker 1: exposure prone jobs. It was under inclusive because there were

232
00:13:00,040 --> 00:13:02,760
Speaker 1: bosures at companies with less than a hundred workers that

233
00:13:02,840 --> 00:13:06,440
Speaker 1: weren't covered. They felt that OSHA had the authority to

234
00:13:06,559 --> 00:13:10,280
Speaker 1: issue a safety standard and emergency basis, but not a

235
00:13:10,360 --> 00:13:14,360
Speaker 1: health standard, and they felt that there may be constitutional

236
00:13:14,480 --> 00:13:19,480
Speaker 1: issues with the extent of Ocean's authority. So Republican attorneys general,

237
00:13:19,600 --> 00:13:24,800
Speaker 1: private businesses, industry groups, and unions brought lawsuits against the rule.

238
00:13:24,920 --> 00:13:28,000
Speaker 1: In the twelve circuit courts tell us about the lottery

239
00:13:28,080 --> 00:13:31,040
Speaker 1: to decide which circuit court gets the cases. It's an

240
00:13:31,080 --> 00:13:35,480
Speaker 1: unusual procedure. What would generally happen as different circuit courts

241
00:13:35,559 --> 00:13:39,520
Speaker 1: would issue their own decisions and if they're inconsistent, that's

242
00:13:39,559 --> 00:13:42,240
Speaker 1: considered a split among the circuits, and the Supreme Court

243
00:13:42,240 --> 00:13:45,960
Speaker 1: would then take the case. Here, the fifth circuit got

244
00:13:46,000 --> 00:13:48,640
Speaker 1: to it quickly and in a sense, jumped the gun.

245
00:13:49,280 --> 00:13:52,240
Speaker 1: None of the other circuits where cases have been filed

246
00:13:52,280 --> 00:13:56,439
Speaker 1: have yet considered the issue. The procedure is to hold

247
00:13:56,520 --> 00:14:00,000
Speaker 1: a lottery to randomly select a circuit among all those

248
00:14:00,040 --> 00:14:03,280
Speaker 1: where cases have been filed. And that was done sort

249
00:14:03,280 --> 00:14:06,800
Speaker 1: of like the state lotteries where you pick up ping

250
00:14:06,840 --> 00:14:10,280
Speaker 1: pong ball out of a box, and this one had

251
00:14:10,320 --> 00:14:13,080
Speaker 1: six circuit written on it. So they're the ones who

252
00:14:13,080 --> 00:14:17,000
Speaker 1: will get all of the cases together, issue a decision,

253
00:14:17,320 --> 00:14:20,240
Speaker 1: and then in all likelihood, whichever way it goes, it

254
00:14:20,280 --> 00:14:22,640
Speaker 1: will get appealed to the Spring Court. I have to

255
00:14:22,680 --> 00:14:28,800
Speaker 1: say this lottery system seems inappropriate from major litigation that

256
00:14:28,880 --> 00:14:31,760
Speaker 1: affects so many people. Yeah, it seems to me the

257
00:14:31,800 --> 00:14:34,400
Speaker 1: real problem is that the courts are so partisan. The

258
00:14:34,480 --> 00:14:38,800
Speaker 1: Ninth Circuit is heavily democratic, and the expectations are they

259
00:14:38,800 --> 00:14:42,040
Speaker 1: would support the administration, and the Fifth and six Circuits

260
00:14:42,040 --> 00:14:45,920
Speaker 1: are heavily Republican, and the expectation is that they would

261
00:14:45,960 --> 00:14:49,880
Speaker 1: go against the administration. If there weren't this partisan split,

262
00:14:50,360 --> 00:14:54,440
Speaker 1: and if policy and partisanship weren't so conflated in our

263
00:14:54,480 --> 00:14:58,880
Speaker 1: system right now, the lottery wouldn't present such a challenge.

264
00:14:59,160 --> 00:15:02,400
Speaker 1: It would be more or truly random as to how

265
00:15:02,560 --> 00:15:06,320
Speaker 1: the appeals court addresses the issue. But I think it's

266
00:15:06,360 --> 00:15:11,720
Speaker 1: not just a lottery geographically. It's a lottery ideologically as well,

267
00:15:12,200 --> 00:15:16,160
Speaker 1: and I think that presents the challenge to the fairness

268
00:15:16,200 --> 00:15:19,080
Speaker 1: of doing it this way, fairness of doing it this way.

269
00:15:19,360 --> 00:15:24,080
Speaker 1: The Sixth Circuit, the Federal Appeals Court in Cincinnati. Tell

270
00:15:24,160 --> 00:15:29,120
Speaker 1: us about that circuit, is it considered conservative liberal? The

271
00:15:29,160 --> 00:15:35,560
Speaker 1: Sixth Circuit is considered conservative. Republican appointees outnumbered Democratic appointees

272
00:15:35,640 --> 00:15:38,760
Speaker 1: by about two to one. And then there are retired

273
00:15:38,880 --> 00:15:41,840
Speaker 1: judges who can be called in on occasion to hear

274
00:15:41,880 --> 00:15:45,560
Speaker 1: a case, and they are overwhelmingly Republican as well. So

275
00:15:45,800 --> 00:15:48,880
Speaker 1: it's still going to be random as to which judges

276
00:15:48,960 --> 00:15:52,560
Speaker 1: within the circuit here the case, and it's possible that

277
00:15:52,680 --> 00:15:55,400
Speaker 1: there could be a Democrat on the panel. It's theoretically

278
00:15:55,400 --> 00:15:57,600
Speaker 1: possible it could be all Democrats on the panel, but

279
00:15:57,760 --> 00:16:01,200
Speaker 1: the laws of probability would say likely to be all

280
00:16:01,320 --> 00:16:04,800
Speaker 1: or predominantly Republican appointees. Do they also have a lottery

281
00:16:04,840 --> 00:16:08,440
Speaker 1: system for picking the panels, Yeah, they have. I can't

282
00:16:08,440 --> 00:16:11,200
Speaker 1: tell you the ins and outs of how they do

283
00:16:11,240 --> 00:16:15,760
Speaker 1: their random draw but it's generally a random process as

284
00:16:15,800 --> 00:16:19,960
Speaker 1: to which judges here any specific case, most people seem

285
00:16:20,040 --> 00:16:23,160
Speaker 1: to think that Republican appointed judges are going to be

286
00:16:23,240 --> 00:16:27,840
Speaker 1: more skeptical of the emergency regulation. Why is that? Is

287
00:16:27,880 --> 00:16:30,920
Speaker 1: it because it's a Biden administration or there are other reasons.

288
00:16:31,440 --> 00:16:35,320
Speaker 1: There are two reasons, and one or both could be

289
00:16:35,360 --> 00:16:39,160
Speaker 1: influencing any given judge. One is partisanship, that more and

290
00:16:39,240 --> 00:16:43,960
Speaker 1: more legal issues policy issues are being decided based on

291
00:16:44,040 --> 00:16:49,640
Speaker 1: partisan affiliations, and judges are siding with the interests of

292
00:16:49,760 --> 00:16:53,240
Speaker 1: the party that appointed them. The other consideration, which has

293
00:16:53,280 --> 00:16:56,480
Speaker 1: been true for decades, is that the party's line up

294
00:16:56,520 --> 00:17:02,720
Speaker 1: according to certain ideological preconceptions and that Democrats tend to

295
00:17:02,720 --> 00:17:07,400
Speaker 1: be more favorable to government regulation, particularly federal regulation, and

296
00:17:07,640 --> 00:17:11,640
Speaker 1: Republicans tend to be more suspicious of it. So an

297
00:17:11,640 --> 00:17:17,359
Speaker 1: expansive use of emergency powers would seem more justifiable to

298
00:17:17,440 --> 00:17:20,639
Speaker 1: the average Democrat as well as the average Democratic judge,

299
00:17:21,320 --> 00:17:25,120
Speaker 1: whereas almost any action taken by a federal agency would

300
00:17:25,160 --> 00:17:29,600
Speaker 1: be seen with some skepticism, at least by a Republican

301
00:17:29,920 --> 00:17:33,600
Speaker 1: or a Republican judge. The Supreme Court is likely to

302
00:17:33,640 --> 00:17:37,119
Speaker 1: have the final say on this. Does everyone agree that

303
00:17:37,160 --> 00:17:40,440
Speaker 1: this is going to the Supreme Court no matter what happens. No,

304
00:17:40,760 --> 00:17:45,639
Speaker 1: it's not guaranteed, but given the high political stakes and

305
00:17:45,680 --> 00:17:49,439
Speaker 1: also the high public health stakes, I think it's extremely likely.

306
00:17:49,880 --> 00:17:54,000
Speaker 1: One other aspect of this that could come into play

307
00:17:54,080 --> 00:17:59,639
Speaker 1: is an emergency regulation is by its nature emergency. Time

308
00:17:59,760 --> 00:18:02,840
Speaker 1: is taken for the full process of vetting it through

309
00:18:02,880 --> 00:18:07,520
Speaker 1: the public, of publishing it, inviting comments, considering the comments,

310
00:18:08,160 --> 00:18:11,440
Speaker 1: issuing a proposed rule, getting comments on that. That's a

311
00:18:11,520 --> 00:18:14,679
Speaker 1: process that takes some months. But the agency is a

312
00:18:14,720 --> 00:18:18,600
Speaker 1: more solid legal footing if it's a full final rule,

313
00:18:18,880 --> 00:18:22,360
Speaker 1: then if it's issued in a hurry in an emergency,

314
00:18:22,880 --> 00:18:27,000
Speaker 1: so if the rule is promulgated as a final rule

315
00:18:27,200 --> 00:18:29,639
Speaker 1: before it gets to the Supreme Court, it might be

316
00:18:29,680 --> 00:18:33,280
Speaker 1: looked on differently. All of the arguments that this is

317
00:18:33,320 --> 00:18:37,040
Speaker 1: not a true emergency would then evaporate from the case,

318
00:18:37,440 --> 00:18:39,720
Speaker 1: and then you'd get down to the question of whether

319
00:18:39,800 --> 00:18:42,399
Speaker 1: this was needed to protect work or health. And I

320
00:18:42,440 --> 00:18:45,199
Speaker 1: think it would be awfully difficult to argue that it

321
00:18:45,280 --> 00:18:48,800
Speaker 1: does not promote worker health. So how do you think

322
00:18:48,920 --> 00:18:51,560
Speaker 1: the Supreme Court is likely to rule? Because the Supreme

323
00:18:51,600 --> 00:18:55,960
Speaker 1: Court many many years ago approved vaccines, and in the

324
00:18:56,000 --> 00:18:59,880
Speaker 1: emergency petitions it seems as if they're leaving in place

325
00:19:00,600 --> 00:19:05,920
Speaker 1: mask mandates. Yeah, mass mandates are obviously very different. They're

326
00:19:06,000 --> 00:19:12,240
Speaker 1: less intrusive. This Court has been skeptical of COVID protections

327
00:19:12,400 --> 00:19:16,400
Speaker 1: in terms of applying them to religious gatherings, for instance.

328
00:19:16,600 --> 00:19:20,879
Speaker 1: They have also signaled that they may be open to

329
00:19:21,240 --> 00:19:25,840
Speaker 1: a constitutional requirement to include religious exemptions in vaccine mandates.

330
00:19:25,920 --> 00:19:30,760
Speaker 1: So the administration begins with a disadvantage when it goes

331
00:19:30,840 --> 00:19:34,440
Speaker 1: to the Supreme Court with its history so far. There's

332
00:19:34,520 --> 00:19:38,280
Speaker 1: another issue here which this fists a cout hinted at

333
00:19:38,400 --> 00:19:41,840
Speaker 1: that that might become more prominent. I suspect that one

334
00:19:41,840 --> 00:19:46,120
Speaker 1: of the motivations for the Biden administration is to move

335
00:19:46,200 --> 00:19:49,720
Speaker 1: us along further towards her community, and that what they

336
00:19:49,800 --> 00:19:52,760
Speaker 1: really want to do is get that percentage of Americans

337
00:19:52,760 --> 00:19:56,920
Speaker 1: who are fully immunized up into the seventies, eighties, maybe

338
00:19:57,000 --> 00:20:02,920
Speaker 1: nine range, when the disease might actually start to dissipate. So,

339
00:20:03,200 --> 00:20:06,720
Speaker 1: in a sense, OSHA is regulating on behalf of the

340
00:20:06,760 --> 00:20:11,640
Speaker 1: whole population, and its authority is supposed to be focused

341
00:20:11,680 --> 00:20:15,040
Speaker 1: just on the workplace. So it's conceivable that that would

342
00:20:15,040 --> 00:20:17,879
Speaker 1: be an issue as well with regard to OSHA's general power.

343
00:20:18,840 --> 00:20:21,880
Speaker 1: So the Appeals Court at the Sixth Circuit is going

344
00:20:21,920 --> 00:20:24,920
Speaker 1: to issue the decision that goes to the Supreme Court.

345
00:20:25,160 --> 00:20:28,040
Speaker 1: What matters more what they say or how they frame

346
00:20:28,080 --> 00:20:31,920
Speaker 1: it and the issues they take up. The way they

347
00:20:31,920 --> 00:20:36,760
Speaker 1: frame it could be important because the Supreme Court, if

348
00:20:36,800 --> 00:20:41,439
Speaker 1: they take the case, will be reviewing what the Circuit

349
00:20:41,480 --> 00:20:44,400
Speaker 1: Court has done, and their role is supposed to be

350
00:20:45,160 --> 00:20:48,560
Speaker 1: as a quality check on what the court has done,

351
00:20:48,880 --> 00:20:51,640
Speaker 1: So they would then go through that court's analysis as

352
00:20:51,680 --> 00:20:55,359
Speaker 1: their starting point. They don't have to, but it's likely

353
00:20:55,400 --> 00:20:58,159
Speaker 1: that they would. In terms of the language of the

354
00:20:58,200 --> 00:21:02,960
Speaker 1: court that would undoubtedly be referenced by the Supreme Court,

355
00:21:03,520 --> 00:21:07,320
Speaker 1: but it's not gonna structure their decision. It's not going

356
00:21:07,359 --> 00:21:10,679
Speaker 1: to have the same kind of direct bearing on the

357
00:21:10,720 --> 00:21:15,359
Speaker 1: way they approach the issues. So the framing could be important,

358
00:21:15,680 --> 00:21:19,159
Speaker 1: although not necessarily. The Supreme Court can do whatever it wants.

359
00:21:19,200 --> 00:21:24,360
Speaker 1: It can base its decision on any kind of structure

360
00:21:24,359 --> 00:21:28,240
Speaker 1: of the issues that it feels like. Just explain the

361
00:21:28,359 --> 00:21:33,920
Speaker 1: argument for religious exemptions from vaccine requirements. It's it's a

362
00:21:34,640 --> 00:21:39,680
Speaker 1: murky area. Um. The Supreme Court ruled in nineteen o

363
00:21:39,880 --> 00:21:47,480
Speaker 1: five that government vaccine mandates are are constitutional. Uh, it's

364
00:21:47,480 --> 00:21:52,240
Speaker 1: subsequently ruled that those mandates do not need a religious exemption.

365
00:21:52,440 --> 00:21:57,399
Speaker 1: And the analysis was similar in both cases. That individual

366
00:21:57,440 --> 00:22:01,000
Speaker 1: liberty is an important value, but it doesn't include the

367
00:22:01,040 --> 00:22:04,240
Speaker 1: liberty to harm other people or put other people at risk.

368
00:22:04,960 --> 00:22:08,560
Speaker 1: So whether it's the general liberty as in that first case,

369
00:22:08,560 --> 00:22:11,840
Speaker 1: the Jacobs in case, to go about your business while

370
00:22:11,920 --> 00:22:16,040
Speaker 1: you may be infecting people. In the subsequent case, they said,

371
00:22:16,119 --> 00:22:24,080
Speaker 1: religious liberty is important, but it doesn't supersede the need

372
00:22:24,119 --> 00:22:28,879
Speaker 1: of the government to prevent risks to innocent people. So

373
00:22:29,000 --> 00:22:34,960
Speaker 1: that's been the law now for over a hundred years. UM.

374
00:22:35,000 --> 00:22:39,919
Speaker 1: This court is much more receptive to religious liberty arguments

375
00:22:40,080 --> 00:22:44,400
Speaker 1: than previous Supreme courts, And there's concerning the public health

376
00:22:44,400 --> 00:22:48,360
Speaker 1: community that they would go a step further if they

377
00:22:48,400 --> 00:22:53,760
Speaker 1: have here this case and rule that all vaccine mandates

378
00:22:53,960 --> 00:22:57,920
Speaker 1: have to have a religious exemption. UM. But up till

379
00:22:57,960 --> 00:23:01,880
Speaker 1: now it's been a balancing and now that we want

380
00:23:01,920 --> 00:23:05,520
Speaker 1: as much religious liberty as possible, but we can't let

381
00:23:05,600 --> 00:23:09,880
Speaker 1: that put others at risk, particularly when we're talking about

382
00:23:09,880 --> 00:23:16,080
Speaker 1: serious health effects or even death. UM. In terms of COVID,

383
00:23:16,880 --> 00:23:23,200
Speaker 1: there are no major religions with doctrines opposed to vaccine mandates.

384
00:23:23,240 --> 00:23:28,280
Speaker 1: In fact, several of them have explicitly endorsed them. The

385
00:23:28,359 --> 00:23:34,560
Speaker 1: Catholic Church allows them. UM. Many Orthodox rabbis have endorsed them,

386
00:23:34,600 --> 00:23:38,119
Speaker 1: even in areas such as Williamsburg where there have been

387
00:23:38,200 --> 00:23:43,640
Speaker 1: measles outbreaks. UH. Muslim clergy has endorsed them. Uh. There

388
00:23:43,680 --> 00:23:48,960
Speaker 1: really is no major religion that preaches against them. So

389
00:23:49,080 --> 00:23:53,600
Speaker 1: to exercise your religious objection, you would have to claim

390
00:23:53,680 --> 00:24:02,640
Speaker 1: that you adhere to a small denomination. Uh. Some resistors

391
00:24:02,720 --> 00:24:07,800
Speaker 1: have used the argument that vaccines UH. The COVID vaccine

392
00:24:07,840 --> 00:24:12,159
Speaker 1: and many others are developed with have been developed with

393
00:24:12,280 --> 00:24:17,159
Speaker 1: a line of fetal cells which were first isolated in

394
00:24:17,160 --> 00:24:21,720
Speaker 1: the nineties seventies. Although the Catholic Church does not have

395
00:24:21,760 --> 00:24:25,000
Speaker 1: an objection to use of the vaccines. The problem with

396
00:24:25,080 --> 00:24:29,560
Speaker 1: that argument is that many common medications have been as

397
00:24:29,600 --> 00:24:39,680
Speaker 1: well um thailan al, advil, mailocks, um, many antibiotics, um, antidepressants.

398
00:24:40,280 --> 00:24:44,600
Speaker 1: So would one of these objectives certify that they will

399
00:24:44,640 --> 00:24:47,320
Speaker 1: never take a tailan al if they have a cold

400
00:24:47,400 --> 00:24:51,159
Speaker 1: or headache. That seems unlikely. So in this case, there

401
00:24:51,160 --> 00:24:58,400
Speaker 1: are very few bases for a genuine, sincere religious objection um.

402
00:24:58,680 --> 00:25:03,760
Speaker 1: Depends how far the or goes in interpreting religious exemptions.

403
00:25:04,240 --> 00:25:08,240
Speaker 1: You can always claim that you have a faith based

404
00:25:08,240 --> 00:25:13,679
Speaker 1: on one person, but you in herely sincerely adhere to

405
00:25:13,800 --> 00:25:18,040
Speaker 1: it um. But as a general matter, it would be

406
00:25:18,080 --> 00:25:22,919
Speaker 1: a stretch to claim a sincere religious objection um. Again,

407
00:25:23,200 --> 00:25:27,920
Speaker 1: up until now, uh Supreme Court President has said that

408
00:25:28,240 --> 00:25:33,439
Speaker 1: vaccine mandates do not have to include a religious opt out.

409
00:25:33,440 --> 00:25:37,359
Speaker 1: This Supreme Court may decide differently. Thanks for being on

410
00:25:37,440 --> 00:25:40,119
Speaker 1: the show. That's Robert Field, a professor of law and

411
00:25:40,200 --> 00:25:43,800
Speaker 1: public health at Drexel University. And that's it for this

412
00:25:43,920 --> 00:25:46,679
Speaker 1: edition of the Bloomberg Law Show. Remember you can always

413
00:25:46,680 --> 00:25:49,639
Speaker 1: get the latest legal news on our Bloomberg Law Podcast.

414
00:25:49,920 --> 00:25:52,920
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

415
00:25:53,080 --> 00:25:58,119
Speaker 1: www dot bloomberg dot com slash podcast Slash Law, and

416
00:25:58,160 --> 00:26:01,200
Speaker 1: remember to tune into The Bloomberg Law Show every week night.

417
00:26:01,320 --> 00:26:05,040
Speaker 1: Attend them Wall Street Time. I'm June Grosso and you're

418
00:26:05,119 --> 00:26:10,000
Speaker 1: listening to Bloomberg h