1 00:00:02,720 --> 00:00:06,960 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,160 --> 00:00:11,200 Speaker 2: The Trump administration has been locked in a showdown with 3 00:00:11,280 --> 00:00:15,920 Speaker 2: the federal judiciary, as judge after judge has blocked President 4 00:00:15,960 --> 00:00:20,960 Speaker 2: Trump's agenda, and the country's chief law enforcement officer, Attorney 5 00:00:21,000 --> 00:00:25,120 Speaker 2: General Pam Bondi, has repeatedly attacked federal judges. 6 00:00:25,600 --> 00:00:29,040 Speaker 3: They're deranged, is all I can think of. I cannot believe. 7 00:00:29,240 --> 00:00:31,360 Speaker 3: I think some of these judges think they are beyond 8 00:00:31,720 --> 00:00:35,239 Speaker 3: and above the law, and they are not. We are 9 00:00:35,280 --> 00:00:39,600 Speaker 3: in court every day fighting against these activist judges. We're 10 00:00:39,640 --> 00:00:42,000 Speaker 3: not going to stop. Many of them should be recused 11 00:00:42,040 --> 00:00:44,559 Speaker 3: from these cases. They will be recused from these cases. 12 00:00:44,800 --> 00:00:47,720 Speaker 3: We're appealing them. Look at Chuckin. Look at Judge Chuckin 13 00:00:47,800 --> 00:00:51,160 Speaker 3: with the EPA trying to control our money. Judge Chang 14 00:00:51,240 --> 00:00:54,400 Speaker 3: trying to control the money of the USA. Judge Reyes, 15 00:00:54,440 --> 00:00:58,360 Speaker 3: look what she did to Pete Hegseath. These injunctions have 16 00:00:58,480 --> 00:01:02,480 Speaker 3: a loud District Court judge to be emperors. They vetoed 17 00:01:02,760 --> 00:01:06,720 Speaker 3: all of President Trump's power, and they cannot do that. 18 00:01:07,560 --> 00:01:12,160 Speaker 2: The Justice Department went from rhetoric to legal action, filing 19 00:01:12,200 --> 00:01:17,120 Speaker 2: an unprecedented lawsuit against all fifteen federal district judges in 20 00:01:17,240 --> 00:01:20,839 Speaker 2: Maryland over an order that grant's a two days stay 21 00:01:20,920 --> 00:01:26,399 Speaker 2: of deportation to migrants who file habeas corpus petitions. This week, 22 00:01:26,520 --> 00:01:30,840 Speaker 2: Maryland's federal judges responded by asking a court to dismiss 23 00:01:30,959 --> 00:01:34,320 Speaker 2: the lawsuit, saying it was an assault on the separation 24 00:01:34,440 --> 00:01:38,640 Speaker 2: of powers. My guest has retired federal Judge Andre Davis. 25 00:01:38,880 --> 00:01:41,039 Speaker 2: He set on the US Court of Appeals for the 26 00:01:41,120 --> 00:01:44,320 Speaker 2: Fourth Circuit, and he's one of more than forty judges 27 00:01:44,520 --> 00:01:49,360 Speaker 2: working with the nonpartisan group Keep our Republic's Article three coalition. 28 00:01:49,760 --> 00:01:52,400 Speaker 2: Thanks so much for joining me. Judge Davis, you are 29 00:01:52,400 --> 00:01:55,920 Speaker 2: once a federal judge in Maryland. What's your reaction to 30 00:01:56,000 --> 00:02:00,320 Speaker 2: the Trump administration suing the entire federal bench in the state. 31 00:02:00,840 --> 00:02:05,600 Speaker 4: Well, June, you know, I don't know that the language 32 00:02:05,640 --> 00:02:10,840 Speaker 4: exists honestly to express my reaction. The words that have 33 00:02:10,960 --> 00:02:16,880 Speaker 4: been used, of course, unprecedented, extraordinary, which is true. But honestly, 34 00:02:17,120 --> 00:02:22,400 Speaker 4: I don't have a rhetorical device myself to capture just 35 00:02:22,639 --> 00:02:28,040 Speaker 4: how extraordinary it is for the executive branch to actually 36 00:02:28,080 --> 00:02:33,120 Speaker 4: follow a lawsuit, a purported lawsuit against an entire District 37 00:02:33,160 --> 00:02:38,480 Speaker 4: court bitch naming each of the individual judges in their 38 00:02:38,520 --> 00:02:45,399 Speaker 4: official capacities over the court's use of a fairly routine 39 00:02:45,560 --> 00:02:50,120 Speaker 4: administrative order. It's just off the charts extraordinary. That was 40 00:02:50,160 --> 00:02:53,440 Speaker 4: my initial reaction, and the more I've thought about it 41 00:02:53,560 --> 00:02:57,359 Speaker 4: over the last two weeks, that reaction has really solidified 42 00:02:57,400 --> 00:02:57,960 Speaker 4: inside me. 43 00:02:58,560 --> 00:03:01,440 Speaker 2: This suit is about a standing order by the chief 44 00:03:01,560 --> 00:03:07,120 Speaker 2: judge that stopped the administration from deporting migrants who filed 45 00:03:07,120 --> 00:03:11,079 Speaker 2: a habeas petition for two days. The Maryland judges say 46 00:03:11,120 --> 00:03:14,960 Speaker 2: that these kinds of temporary stays are common and pointed 47 00:03:15,040 --> 00:03:18,000 Speaker 2: to similar stays in the Fourth Circuit. But the Trump 48 00:03:18,080 --> 00:03:20,440 Speaker 2: administration says it's extraordinary. 49 00:03:21,400 --> 00:03:27,160 Speaker 4: What's extraordinary is the administration's decision to challenge the order 50 00:03:27,639 --> 00:03:31,920 Speaker 4: through the means of a purported lawsuit. The order is 51 00:03:32,000 --> 00:03:36,640 Speaker 4: absolutely routine, as you just said, the Fourth Circuit, the 52 00:03:36,760 --> 00:03:41,640 Speaker 4: Ninth Circuit, a number of circuit courts of appeal use 53 00:03:41,800 --> 00:03:46,640 Speaker 4: these kinds of standing orders to manage their docket to 54 00:03:46,760 --> 00:03:50,000 Speaker 4: pace the work, as well as a number of district 55 00:03:50,040 --> 00:03:53,920 Speaker 4: courts around the country. So this is as routine as 56 00:03:53,960 --> 00:03:59,520 Speaker 4: it gets, honestly, and the idea that somehow this is 57 00:03:59,640 --> 00:04:05,400 Speaker 4: different because it requires a two business day hiatus to 58 00:04:05,400 --> 00:04:09,880 Speaker 4: give a judge a full opportunity to consider a request 59 00:04:09,920 --> 00:04:14,080 Speaker 4: for emergency relief. As I say, the rhetoric to capture 60 00:04:14,240 --> 00:04:18,599 Speaker 4: the extraordinary nature of this act by the administration honestly 61 00:04:18,720 --> 00:04:19,599 Speaker 4: just doesn't exist. 62 00:04:20,200 --> 00:04:22,960 Speaker 2: Do you see this as a ratcheting up of the 63 00:04:23,000 --> 00:04:27,200 Speaker 2: Trump administration's assault on the judiciary or is it an 64 00:04:27,279 --> 00:04:32,359 Speaker 2: attempt by Trump to further expand executive powers or both 65 00:04:32,480 --> 00:04:33,039 Speaker 2: or neither. 66 00:04:33,640 --> 00:04:36,360 Speaker 4: I'll have to believe that for others to judge. What 67 00:04:36,400 --> 00:04:41,440 Speaker 4: I can tell you is that one aggressive enforcement of 68 00:04:41,480 --> 00:04:46,560 Speaker 4: the executive branches priorities. That's a decision for an administration 69 00:04:46,680 --> 00:04:49,960 Speaker 4: as to how they wish to pursue their priorities. What's 70 00:04:50,440 --> 00:04:54,000 Speaker 4: not for any administration to do is to call into 71 00:04:54,120 --> 00:04:59,120 Speaker 4: question the rule of law, the legitimacy of courts, and 72 00:04:59,160 --> 00:05:03,640 Speaker 4: the separation of powers, which is exactly what this action does. 73 00:05:04,080 --> 00:05:06,120 Speaker 4: If they want to be aggressive, they can be aggressive, 74 00:05:06,120 --> 00:05:09,440 Speaker 4: and they are aggressive. But the Court is entitled, and 75 00:05:09,480 --> 00:05:14,279 Speaker 4: not just entitled, but the court is duty bound to 76 00:05:14,400 --> 00:05:20,520 Speaker 4: protect its jurisdiction to ensure that it can fairly, really 77 00:05:21,240 --> 00:05:26,120 Speaker 4: unbiased way decide the disputes that come before the court. 78 00:05:26,640 --> 00:05:30,640 Speaker 4: And so an administration that sets up a system in 79 00:05:30,720 --> 00:05:33,760 Speaker 4: which an effort can be made to deprive the court 80 00:05:33,839 --> 00:05:38,839 Speaker 4: of jurisdiction. If that's what's happening by these rushed removals, 81 00:05:39,360 --> 00:05:42,760 Speaker 4: then the courts have a duty to make sure that 82 00:05:42,760 --> 00:05:44,320 Speaker 4: that jurisdiction is protected. 83 00:05:44,560 --> 00:05:46,640 Speaker 2: I want to go over some of the arguments that 84 00:05:46,839 --> 00:05:50,080 Speaker 2: judges make in their dismissal motion. As you're referred to. 85 00:05:50,279 --> 00:05:53,479 Speaker 2: They argue that the lawsuit is a violation of the 86 00:05:53,520 --> 00:05:59,159 Speaker 2: separation of powers. Quote. A lawsuit captioned Congress versus executive 87 00:05:59,320 --> 00:06:02,960 Speaker 2: or vice vers would be dismissed in a heartbeat. A 88 00:06:03,000 --> 00:06:08,480 Speaker 2: suit effectively captioned executive versus judiciary fares no better. 89 00:06:09,160 --> 00:06:13,080 Speaker 4: Well, first of all, how can the United States sue itself? Right? 90 00:06:13,360 --> 00:06:16,039 Speaker 4: I mean, it's like this part of the United States 91 00:06:16,120 --> 00:06:18,960 Speaker 4: suing that part of the United States. It cuts to 92 00:06:19,680 --> 00:06:24,279 Speaker 4: separation of powers. In this way, the coequal branches of 93 00:06:24,400 --> 00:06:31,120 Speaker 4: government are co equal. Each has pharmacy in its lane, 94 00:06:31,839 --> 00:06:36,520 Speaker 4: and the judicial lane is the adjudication of disputes both 95 00:06:36,560 --> 00:06:40,760 Speaker 4: between the government and non governmental actors as well as 96 00:06:40,800 --> 00:06:47,120 Speaker 4: between private parties including corporations, nonprofits, and individuals. That's how 97 00:06:47,160 --> 00:06:51,600 Speaker 4: the system is designed. That's how it has worked for 98 00:06:51,680 --> 00:06:54,960 Speaker 4: nearly two hundred and fifty years, and now we have 99 00:06:55,080 --> 00:06:59,400 Speaker 4: this situation where one part of the government claims to 100 00:06:59,480 --> 00:07:03,279 Speaker 4: be able to coerce another part of the government to 101 00:07:03,440 --> 00:07:06,360 Speaker 4: do what it wants. Think about it, jes take a 102 00:07:06,440 --> 00:07:09,320 Speaker 4: step back from it for a moment. Here we have 103 00:07:10,200 --> 00:07:16,440 Speaker 4: the executive branch asking a single district judge from somewhere 104 00:07:16,440 --> 00:07:23,840 Speaker 4: in the country to beliefs the administrative practices of another 105 00:07:24,000 --> 00:07:27,440 Speaker 4: group of federal district judges. I mean, it's enough to 106 00:07:27,440 --> 00:07:32,120 Speaker 4: give you a headache. That can't possibly that can't possibly 107 00:07:32,480 --> 00:07:37,800 Speaker 4: be consistent with separation of powers. The executive branch is 108 00:07:37,840 --> 00:07:43,600 Speaker 4: purporting to capture one part of the judicial branch to 109 00:07:43,920 --> 00:07:49,239 Speaker 4: use as a pugel against another part of the judicial branch. 110 00:07:49,960 --> 00:07:52,600 Speaker 4: Thomas Jefferson is turning over a grain. 111 00:07:53,200 --> 00:07:57,160 Speaker 2: So another argument that the Maryland judges are making is 112 00:07:57,200 --> 00:08:00,880 Speaker 2: that the court is shielded under sovereign immunity and that 113 00:08:01,000 --> 00:08:05,840 Speaker 2: the judges and court clerks are protected under judicial immunity. 114 00:08:06,440 --> 00:08:11,880 Speaker 4: Absolutely bull stop. In my judgment, there's simply no legitimate 115 00:08:11,960 --> 00:08:16,640 Speaker 4: response to that other than that's correct. It's absolutely correct. 116 00:08:17,200 --> 00:08:17,960 Speaker 4: There's just no. 117 00:08:18,080 --> 00:08:21,800 Speaker 2: Answer to it because all the judges in Maryland are 118 00:08:22,320 --> 00:08:25,840 Speaker 2: being sued here. The Fourth Circuit appointed a judge from 119 00:08:25,920 --> 00:08:29,880 Speaker 2: outside the circuit to hear the case. So the Circuit 120 00:08:30,040 --> 00:08:35,400 Speaker 2: appointed Virginia Federal Judge Thomas Cullin, a Trump appointee, to 121 00:08:35,480 --> 00:08:38,200 Speaker 2: handle the case. He's only been on the bench since 122 00:08:38,240 --> 00:08:42,080 Speaker 2: twenty twenty, and he hasn't handled any high profile cases. 123 00:08:42,400 --> 00:08:43,800 Speaker 2: Any idea why he. 124 00:08:43,840 --> 00:08:47,439 Speaker 4: Was chosen, No, I don't. I can tell you generally 125 00:08:48,000 --> 00:08:51,439 Speaker 4: what the Fort tries to do when they have to 126 00:08:51,520 --> 00:08:55,520 Speaker 4: choose judges who are willing to go out of district 127 00:08:55,640 --> 00:08:59,120 Speaker 4: or out of circuit for a special assignment. They look 128 00:08:59,160 --> 00:09:03,320 Speaker 4: at I think one, frankly, who's workload at the moment 129 00:09:04,120 --> 00:09:08,120 Speaker 4: will allow that judge to take on a little bit 130 00:09:08,160 --> 00:09:11,560 Speaker 4: of extra work. I myself, in fact, on two separate 131 00:09:11,559 --> 00:09:15,319 Speaker 4: occasions when I was on the Fourth Circuit, I volunteered 132 00:09:15,400 --> 00:09:19,040 Speaker 4: and was appointed by the Chief Justice to sit as 133 00:09:19,040 --> 00:09:22,760 Speaker 4: a visiting judge in the Third Circuit in Philadelphia in 134 00:09:22,840 --> 00:09:27,200 Speaker 4: a couple of cases where the entire bench of the 135 00:09:27,240 --> 00:09:31,439 Speaker 4: Third Circuit, all seventeen judges for a couple of reasons, 136 00:09:31,679 --> 00:09:34,920 Speaker 4: were we acused from hearing the case. So the Chief 137 00:09:35,040 --> 00:09:38,600 Speaker 4: Justice appointed myself and two other visiting judges to go 138 00:09:38,640 --> 00:09:41,800 Speaker 4: to Philadelphia to hear argument and decide the case. So 139 00:09:41,880 --> 00:09:44,839 Speaker 4: it does happen from time to time. And as I say, 140 00:09:45,240 --> 00:09:48,760 Speaker 4: one of the first considerations is who among you can 141 00:09:48,800 --> 00:09:53,559 Speaker 4: devote additional time to this extra work? And I suspect 142 00:09:53,600 --> 00:09:56,280 Speaker 4: that that was a principal reason. But you know, any 143 00:09:56,320 --> 00:09:58,560 Speaker 4: district judge willing to do it and able to do 144 00:09:58,640 --> 00:10:01,280 Speaker 4: it would have been fine. Short to the fourth sercit. 145 00:10:02,000 --> 00:10:05,320 Speaker 2: The Maryland judges also say that this wouldn't be the 146 00:10:05,440 --> 00:10:09,520 Speaker 2: last such lawsuit if it's not quickly rejected. Do you 147 00:10:09,559 --> 00:10:12,960 Speaker 2: see this as a broader attack by the Trump administration 148 00:10:13,480 --> 00:10:17,199 Speaker 2: on the federal judiciary as sort of the first step, 149 00:10:17,600 --> 00:10:21,680 Speaker 2: or is it more isolated targeting the Maryland bench, which 150 00:10:21,720 --> 00:10:24,120 Speaker 2: is handed down a lot of decisions curbing the Trump 151 00:10:24,160 --> 00:10:29,479 Speaker 2: administration in high profile cases like that of Kilmar Orbrigo Garcia. 152 00:10:30,400 --> 00:10:34,480 Speaker 4: I frankly think it's impossible to believe, based on what 153 00:10:34,640 --> 00:10:38,120 Speaker 4: has occurred up until now, that this was on one 154 00:10:38,200 --> 00:10:43,160 Speaker 4: off that if this were somehow to succeed, It's hard 155 00:10:43,200 --> 00:10:49,960 Speaker 4: to imagine that this practice wouldn't see itself duplicated around 156 00:10:49,960 --> 00:10:53,960 Speaker 4: the country. Why was Maryland chosen in particular here? I 157 00:10:54,080 --> 00:10:57,520 Speaker 4: don't know. I can't answer that. There have been rulings 158 00:10:58,000 --> 00:11:02,520 Speaker 4: that the executive brand which has objected to all over 159 00:11:02,559 --> 00:11:06,720 Speaker 4: the country on a number of issues, including the issue 160 00:11:06,960 --> 00:11:11,320 Speaker 4: present in this instance of expedit at removal. But I 161 00:11:11,360 --> 00:11:16,160 Speaker 4: don't see a world in which if this case somehow succeeds, 162 00:11:16,240 --> 00:11:19,640 Speaker 4: even succeeds at the motion to dismiss stage, which I 163 00:11:19,720 --> 00:11:22,360 Speaker 4: don't believe it will, It's going to be duplicated around 164 00:11:22,360 --> 00:11:24,199 Speaker 4: the country if it succeeds here. 165 00:11:25,000 --> 00:11:28,200 Speaker 2: So you think that the motion to dismiss will be granted? 166 00:11:28,800 --> 00:11:31,360 Speaker 4: I do believe that. I do believe that. 167 00:11:31,720 --> 00:11:36,760 Speaker 2: The Trump administration basically appeals every decision that goes against them. 168 00:11:36,960 --> 00:11:38,800 Speaker 2: Do you think that this case will end up at 169 00:11:38,840 --> 00:11:39,760 Speaker 2: the Supreme Court. 170 00:11:40,160 --> 00:11:44,120 Speaker 4: That's a good question if they choose to appeal, just 171 00:11:44,200 --> 00:11:47,160 Speaker 4: as I believe the case is going to be dismissed 172 00:11:47,160 --> 00:11:50,040 Speaker 4: at the district court level, I believe that the Fourth 173 00:11:50,080 --> 00:11:56,640 Speaker 4: Circuit will reject any appeal that's taken, and frankly, I 174 00:11:56,760 --> 00:12:01,280 Speaker 4: believe that the Supreme Court will reject any appeal that 175 00:12:01,360 --> 00:12:04,760 Speaker 4: is sought from them. But whether such an appeal or 176 00:12:04,800 --> 00:12:08,800 Speaker 4: a petition for cert eventually gets filed is entirely up 177 00:12:08,840 --> 00:12:13,239 Speaker 4: to the Department of Justice and the administration and Judge. 178 00:12:13,000 --> 00:12:18,359 Speaker 2: Davis, why did you join Keep our Republic's Article three Coalition? 179 00:12:19,600 --> 00:12:22,480 Speaker 4: Oh, it took me all about a half a second 180 00:12:23,120 --> 00:12:27,520 Speaker 4: when I learned of the Article three coalition and the 181 00:12:27,559 --> 00:12:30,640 Speaker 4: extraordinary retired judges who I know, many of them are 182 00:12:30,679 --> 00:12:33,880 Speaker 4: my friends. I've served with them over many years. The 183 00:12:33,920 --> 00:12:40,600 Speaker 4: idea that we retired federal judges have a special voice 184 00:12:40,880 --> 00:12:45,800 Speaker 4: that we can use to educate the public, to speak 185 00:12:45,920 --> 00:12:49,320 Speaker 4: on behalf of the federal judiciary, which we all love 186 00:12:49,480 --> 00:12:53,360 Speaker 4: and respect and honor so much. The idea that we 187 00:12:53,440 --> 00:13:00,160 Speaker 4: can have some space where people can hear us, question us, 188 00:13:00,480 --> 00:13:05,720 Speaker 4: check our answers against historical sources, and assess our experience 189 00:13:06,480 --> 00:13:09,959 Speaker 4: to lift the public's understanding of the importance of the 190 00:13:10,040 --> 00:13:14,120 Speaker 4: rule of law, the separation of powers, the imperative of 191 00:13:14,200 --> 00:13:19,240 Speaker 4: judicial independence, all of that together, June is what immediately 192 00:13:19,280 --> 00:13:21,520 Speaker 4: prompted me to say, yes, I want to be a 193 00:13:21,559 --> 00:13:23,760 Speaker 4: part of this. I want to add my voice to 194 00:13:24,000 --> 00:13:29,960 Speaker 4: those of other retired judges who will raise the understanding 195 00:13:30,040 --> 00:13:34,199 Speaker 4: of the public and that's really our audience, the understanding 196 00:13:34,280 --> 00:13:37,960 Speaker 4: of the public about how courts work, the rule of 197 00:13:38,080 --> 00:13:42,360 Speaker 4: law and the foundations of our democracy because there's a 198 00:13:42,400 --> 00:13:45,840 Speaker 4: real need for additional efforts in those regards. We are 199 00:13:45,880 --> 00:13:48,120 Speaker 4: not the only ones doing this work, and we are 200 00:13:48,160 --> 00:13:50,120 Speaker 4: not doing all the work that needs to be done 201 00:13:50,120 --> 00:13:53,760 Speaker 4: in this area. But I think retired federal judges have 202 00:13:53,840 --> 00:13:58,720 Speaker 4: a legitimacy and aflaim to legitimacy that I think many 203 00:13:58,760 --> 00:14:02,560 Speaker 4: many members of the public will respect, listen to, and 204 00:14:02,679 --> 00:14:05,880 Speaker 4: learn from. And so that's why I'm very happy to 205 00:14:05,960 --> 00:14:08,040 Speaker 4: be a part of this extraordinary coalition. 206 00:14:08,440 --> 00:14:11,400 Speaker 2: Thanks so much for joining me, Judge Davis. It's great 207 00:14:11,440 --> 00:14:15,760 Speaker 2: to get a judge's perspective on these issues. That's retired 208 00:14:15,800 --> 00:14:20,480 Speaker 2: federal Judge Andre Davis. President Donald Trump has been very 209 00:14:20,560 --> 00:14:24,960 Speaker 2: open about his plans to use redistricting to help Republicans 210 00:14:25,000 --> 00:14:28,080 Speaker 2: retain control of the House in the twenty twenty six 211 00:14:28,160 --> 00:14:32,520 Speaker 2: midterm elections. Trump has pushed to get Republican lawmakers in 212 00:14:32,640 --> 00:14:37,280 Speaker 2: Texas to redraw the state's congressional maps in favor of 213 00:14:37,320 --> 00:14:40,560 Speaker 2: the GOP, saying it would add as many as five 214 00:14:40,640 --> 00:14:42,840 Speaker 2: seats for the party five. 215 00:14:42,920 --> 00:14:45,480 Speaker 5: I think we get five, and there could be some 216 00:14:45,600 --> 00:14:46,520 Speaker 5: other states we're. 217 00:14:46,360 --> 00:14:49,240 Speaker 4: Going to get another three or four or five. In addition, 218 00:14:49,640 --> 00:14:52,280 Speaker 4: Texas would be the biggest one, and that'll be five. 219 00:14:52,720 --> 00:14:55,920 Speaker 2: And when Governor Greg Abbott announced his agenda for the 220 00:14:56,040 --> 00:15:01,120 Speaker 2: legislature a special session that started on Monday, redistricting was 221 00:15:01,200 --> 00:15:05,280 Speaker 2: on the list. That's led prominent Democrats to talk about 222 00:15:05,400 --> 00:15:11,680 Speaker 2: countering Texas with retaliatory redistricting in blue states. House Minority 223 00:15:11,760 --> 00:15:17,120 Speaker 2: Leader Hakim Jeffries is reportedly exploring the possibility of redrawing 224 00:15:17,240 --> 00:15:21,920 Speaker 2: house maps in California, New York, New Jersey, and Minnesota. 225 00:15:22,400 --> 00:15:26,920 Speaker 2: And California Governor Gavin Newsom has already laid out two 226 00:15:27,000 --> 00:15:32,000 Speaker 2: options for retaliatory redistricting in that state, saying Democrats have 227 00:15:32,080 --> 00:15:33,040 Speaker 2: to be aggressive. 228 00:15:34,600 --> 00:15:36,360 Speaker 4: They're playing by different sever rules. 229 00:15:37,960 --> 00:15:40,000 Speaker 5: They can't win by the traditional game, so they want 230 00:15:40,000 --> 00:15:40,720 Speaker 5: to change the game. 231 00:15:41,880 --> 00:15:43,160 Speaker 4: We can act taller than now. 232 00:15:44,280 --> 00:15:46,320 Speaker 2: We could sit on the sidelines, talk about the way 233 00:15:46,360 --> 00:15:48,640 Speaker 2: the world should be. 234 00:15:48,720 --> 00:15:52,360 Speaker 4: What we can recognize the existential nature. 235 00:15:53,520 --> 00:15:56,920 Speaker 2: That is this moment joining me is elections law expert 236 00:15:57,000 --> 00:16:01,480 Speaker 2: Richard Brefald, a professor at Columbia Law School. Rich States 237 00:16:01,520 --> 00:16:05,560 Speaker 2: are required to draw new congressional maps once a decade 238 00:16:05,680 --> 00:16:09,440 Speaker 2: after each census. How unusual is it to redraw the 239 00:16:09,520 --> 00:16:10,760 Speaker 2: maps at this time? 240 00:16:11,320 --> 00:16:13,360 Speaker 6: This kind of what might be called mid cycle regitioning 241 00:16:13,400 --> 00:16:16,160 Speaker 6: is very unusual. It's not that it's never happened before. 242 00:16:16,560 --> 00:16:19,880 Speaker 6: It has sometimes happened. Although it's unusual, it happened sometimes. 243 00:16:19,880 --> 00:16:22,960 Speaker 6: It happens when a new party takes over state legislature 244 00:16:23,200 --> 00:16:25,760 Speaker 6: that they hadn't had at the beginning of the decade. 245 00:16:25,880 --> 00:16:28,360 Speaker 6: Here is actually talking to states where the Republicans were 246 00:16:28,360 --> 00:16:31,800 Speaker 6: already in charge of doing the districting in twenty twenty 247 00:16:31,840 --> 00:16:34,120 Speaker 6: one and saying, well, I want you to do it 248 00:16:34,160 --> 00:16:37,520 Speaker 6: even more so now. And it's very rare that it's 249 00:16:37,640 --> 00:16:42,520 Speaker 6: being gone so kind of blatantly nakedly partisan purposes. There 250 00:16:42,560 --> 00:16:45,920 Speaker 6: usually has some justification for it, but this time, I 251 00:16:45,920 --> 00:16:50,000 Speaker 6: mean it's being announced as purely partisan, purely gerrymandering, rather 252 00:16:50,040 --> 00:16:52,240 Speaker 6: than any claim that there was kind of a problem 253 00:16:52,280 --> 00:16:54,640 Speaker 6: of representation with the older districts. 254 00:16:54,840 --> 00:16:59,280 Speaker 2: And the Supreme Court has said partisan gerrymandering is okay, 255 00:17:00,080 --> 00:17:01,640 Speaker 2: racial jerry mandering is not. 256 00:17:02,240 --> 00:17:04,159 Speaker 6: That's correct. I mean, I guess technically what they have 257 00:17:04,240 --> 00:17:08,640 Speaker 6: said is that partisan jerry mandering is not unconstitutional. They 258 00:17:08,680 --> 00:17:11,320 Speaker 6: don't endorse it, but they have said that there's nothing 259 00:17:11,320 --> 00:17:14,400 Speaker 6: the federal courts can do about it. Racial jerry mandering, 260 00:17:14,440 --> 00:17:18,520 Speaker 6: districting designed to help one race over another. That does 261 00:17:18,640 --> 00:17:21,960 Speaker 6: raise a constitutional concern, but race and party are often 262 00:17:22,119 --> 00:17:25,240 Speaker 6: very closely intertwined, and in their most recent cases, the 263 00:17:25,240 --> 00:17:28,280 Speaker 6: Court has basically said, if the state says it's partisan, 264 00:17:28,400 --> 00:17:31,760 Speaker 6: because partisan is constitutional, we're going to defer them. We're 265 00:17:31,760 --> 00:17:33,600 Speaker 6: going to put a very heavy burden of proof on 266 00:17:33,640 --> 00:17:36,600 Speaker 6: the other side, challenging to show that it's not partisan, 267 00:17:36,880 --> 00:17:39,960 Speaker 6: it's racial. And here, at least what's going on in Texas, 268 00:17:40,000 --> 00:17:42,760 Speaker 6: the announcement is so clearly that it's partisan, and it 269 00:17:42,760 --> 00:17:44,520 Speaker 6: seems to be that. But I think it would be 270 00:17:44,640 --> 00:17:47,160 Speaker 6: very hard to show that even if there's a racial 271 00:17:47,200 --> 00:17:49,240 Speaker 6: component to it, it'd be very hard to show that 272 00:17:49,320 --> 00:17:50,760 Speaker 6: it wasn't primarily partisan. 273 00:17:51,359 --> 00:17:55,600 Speaker 2: Techas Republican Governor Greg Abbott said his decision to put 274 00:17:55,760 --> 00:18:00,359 Speaker 2: redistricting on the list for the special session was because 275 00:18:00,359 --> 00:18:03,119 Speaker 2: of a letter he got from the Justice Department that 276 00:18:03,200 --> 00:18:07,159 Speaker 2: alleges that four of the current districts were racial gerrymanders 277 00:18:07,320 --> 00:18:10,720 Speaker 2: that violate the Fourteenth Amendment. I mean, does that letter 278 00:18:10,800 --> 00:18:14,399 Speaker 2: make any sense legally? Is it pretextual? 279 00:18:15,000 --> 00:18:17,800 Speaker 6: It sure seems that way. I mean, these districts were 280 00:18:17,920 --> 00:18:21,840 Speaker 6: adopted two years ago, and they were designed to provide 281 00:18:21,880 --> 00:18:25,800 Speaker 6: representation for minority groups. I think for African Americans and Latinos. 282 00:18:25,840 --> 00:18:29,119 Speaker 6: I think they were primarily Latino districts. The Constitution does 283 00:18:29,160 --> 00:18:31,639 Speaker 6: not forbid that in the Voting Rights Act. Actually, if 284 00:18:31,680 --> 00:18:34,080 Speaker 6: it doesn't require that, at least it promotes that idea 285 00:18:34,119 --> 00:18:37,200 Speaker 6: a fair representation for minorities. So no one has ever 286 00:18:37,320 --> 00:18:41,159 Speaker 6: challenged those districts, and basically the current administration seems to 287 00:18:41,240 --> 00:18:45,159 Speaker 6: be that anything that even thinks about race is unconstitutional. 288 00:18:45,200 --> 00:18:48,200 Speaker 6: That's not been the standard until now. The Supreme Court 289 00:18:48,240 --> 00:18:51,600 Speaker 6: standard is that race can be taken into account in districting, 290 00:18:51,880 --> 00:18:54,959 Speaker 6: it just can't be the overwhelming factor, the predominant factor. 291 00:18:55,480 --> 00:18:58,520 Speaker 6: And I think you would have to show that these districts, 292 00:18:58,520 --> 00:19:02,159 Speaker 6: of course did help minority representation, but you would have 293 00:19:02,240 --> 00:19:05,040 Speaker 6: to show that that was the overwhelming factor as opposed 294 00:19:05,040 --> 00:19:09,040 Speaker 6: to other factors, including respect for political subdivision mindes following 295 00:19:09,080 --> 00:19:11,879 Speaker 6: the course of pre existing districts. It does seem as 296 00:19:11,880 --> 00:19:15,000 Speaker 6: though this was designed purely to give a justification for 297 00:19:15,160 --> 00:19:18,719 Speaker 6: a re redistricting without anyone going to court and suing. 298 00:19:18,920 --> 00:19:20,919 Speaker 6: No one has gone to court to sue to challenge 299 00:19:20,920 --> 00:19:24,199 Speaker 6: those districts. If anything, there was another lawsuit that was 300 00:19:24,240 --> 00:19:27,480 Speaker 6: brought from the other perspectives, saying that some other districts 301 00:19:27,520 --> 00:19:30,600 Speaker 6: in Texas violated the Voting Rights Act in terms of 302 00:19:30,800 --> 00:19:34,120 Speaker 6: limiting minority representation, and the state had been defending them 303 00:19:34,240 --> 00:19:37,879 Speaker 6: saying that the state's districting plan was entirely constitutional. So 304 00:19:37,920 --> 00:19:40,239 Speaker 6: the state has now kind of flipped its position, you know, 305 00:19:40,280 --> 00:19:43,080 Speaker 6: moving away from its position that everything is fine, and 306 00:19:43,200 --> 00:19:44,640 Speaker 6: is now considering redoing the. 307 00:19:44,600 --> 00:19:48,119 Speaker 2: District rich This could also be risky for Republicans, not 308 00:19:48,400 --> 00:19:51,840 Speaker 2: just legally but at the ballot box. Here's what former 309 00:19:51,960 --> 00:19:54,520 Speaker 2: Texas Congressman betow O Rourke said. 310 00:19:55,040 --> 00:19:57,640 Speaker 1: And then it may come back to bite these Republicans 311 00:19:57,680 --> 00:20:01,360 Speaker 1: because in order to create more districts that they can win, 312 00:20:01,720 --> 00:20:04,600 Speaker 1: they're going to have to lose some Republican voters in 313 00:20:04,680 --> 00:20:08,719 Speaker 1: current Republicans strongholds. So there may be an opportunity for Democrats. 314 00:20:08,840 --> 00:20:10,200 Speaker 2: Do you see a real risk here? 315 00:20:10,320 --> 00:20:13,280 Speaker 6: It depends on exactly what the Republicans do. But I 316 00:20:13,440 --> 00:20:17,760 Speaker 6: think if they take some districts where Republicans are strong 317 00:20:18,520 --> 00:20:23,520 Speaker 6: and move some Republican voters into nearby districts currently held 318 00:20:23,520 --> 00:20:26,600 Speaker 6: by a Democrat but have been trending Republican, I think 319 00:20:26,640 --> 00:20:29,240 Speaker 6: what happened is that in the twenty twenty four election, 320 00:20:29,359 --> 00:20:32,560 Speaker 6: a lot of districts that are held by Democrats voted 321 00:20:32,600 --> 00:20:35,840 Speaker 6: for Trump, and so I think what they're thinking is 322 00:20:35,880 --> 00:20:39,240 Speaker 6: that they may be able to move some Republican voters 323 00:20:39,240 --> 00:20:43,359 Speaker 6: from what are clearly Republican districts into districts which have 324 00:20:43,440 --> 00:20:46,880 Speaker 6: been Democratic districts but night tip Republican with a few 325 00:20:46,920 --> 00:20:49,719 Speaker 6: more Republican voters. So that's the idea. In what I've 326 00:20:49,760 --> 00:20:51,520 Speaker 6: seen numbers, they think they can find as many as 327 00:20:51,560 --> 00:20:54,560 Speaker 6: five districts that look like that. What Aururke is getting 328 00:20:54,560 --> 00:20:57,879 Speaker 6: at is they're risking the possibility that not only won't 329 00:20:57,920 --> 00:21:00,879 Speaker 6: these districts tip, but by moving Republicans out of the 330 00:21:01,000 --> 00:21:04,960 Speaker 6: other districts, they risk losing those districts. A lot will 331 00:21:04,960 --> 00:21:08,119 Speaker 6: turn on what the political climate is next fall in 332 00:21:08,160 --> 00:21:12,000 Speaker 6: twenty twenty six. If it's a democratic year, that is 333 00:21:12,040 --> 00:21:15,400 Speaker 6: a real risk. If it's not, then the Republican strategy 334 00:21:15,400 --> 00:21:17,760 Speaker 6: may work. But you know, at some point, there are 335 00:21:17,800 --> 00:21:20,480 Speaker 6: only so many Republican and Democratic voters in a state, 336 00:21:20,920 --> 00:21:23,399 Speaker 6: and the idea is to try and arrange them in 337 00:21:23,440 --> 00:21:26,760 Speaker 6: such a way to maximize your party's vote. But people 338 00:21:26,800 --> 00:21:29,960 Speaker 6: don't always vote exactly the same each time, and it 339 00:21:29,960 --> 00:21:32,919 Speaker 6: could be that some voters switched back and the Republicans 340 00:21:32,960 --> 00:21:36,000 Speaker 6: did very well in what had been Democratic districts last time, 341 00:21:36,040 --> 00:21:37,520 Speaker 6: will they do as well next time? 342 00:21:37,680 --> 00:21:42,359 Speaker 2: There's also a risk of retaliation. Minority Leader Hakim Jeffries 343 00:21:42,400 --> 00:21:47,880 Speaker 2: is reportedly exploring the possibility of redrawing house maps in California, 344 00:21:47,960 --> 00:21:52,800 Speaker 2: New York, New Jersey, Minnesota, and Washington. And California Governor 345 00:21:52,840 --> 00:21:56,399 Speaker 2: Gavin Newsom has been pretty blunt about saying, we're going 346 00:21:56,480 --> 00:21:58,720 Speaker 2: to try to redistrict here in California. 347 00:21:58,800 --> 00:22:00,479 Speaker 6: I think would be very hard to do this in 348 00:22:00,520 --> 00:22:04,120 Speaker 6: California because they have a constitutional amendment that governs how 349 00:22:04,200 --> 00:22:08,720 Speaker 6: redistricting is done. They would basically have to either supersede 350 00:22:08,720 --> 00:22:12,199 Speaker 6: that amendment with a new amendment that either forever for 351 00:22:12,280 --> 00:22:15,480 Speaker 6: one time only it would change the districting process. That's 352 00:22:15,520 --> 00:22:17,560 Speaker 6: really hard. I mean, I think they'd have to get 353 00:22:17,680 --> 00:22:20,320 Speaker 6: something through the legislature and to the voters, and then 354 00:22:20,320 --> 00:22:23,120 Speaker 6: the voters would have to approve that, and then they'd 355 00:22:23,160 --> 00:22:25,359 Speaker 6: have to go and then write a new plan. And 356 00:22:25,640 --> 00:22:28,520 Speaker 6: you know, that's a big list. And whether or not 357 00:22:28,600 --> 00:22:30,879 Speaker 6: they could get a constitutional amendment to the voters in 358 00:22:30,960 --> 00:22:34,280 Speaker 6: time this year and whether the voters would approve it. 359 00:22:34,680 --> 00:22:38,040 Speaker 6: I mean, it's also pretty blatant, and although California runs Democratic, 360 00:22:38,080 --> 00:22:41,119 Speaker 6: it's not clear to me that the voters would approve this. 361 00:22:41,760 --> 00:22:43,840 Speaker 6: I mean the might and then of course they'd have 362 00:22:43,840 --> 00:22:46,159 Speaker 6: to write a plan in a way that doesn't follow 363 00:22:46,200 --> 00:22:48,280 Speaker 6: the constitutional pattern they have there. They have to come 364 00:22:48,320 --> 00:22:50,800 Speaker 6: up with an entirely new system, so I guess they'd 365 00:22:50,800 --> 00:22:52,680 Speaker 6: have to take it away from the Constitutional Commission and 366 00:22:52,720 --> 00:22:56,080 Speaker 6: give it to the legislature, either always or this one time. 367 00:22:56,080 --> 00:22:57,639 Speaker 6: I'm not sure what the proposal is. 368 00:22:58,280 --> 00:23:03,080 Speaker 2: And what about redistricting in other Democratic controlled states. 369 00:23:03,600 --> 00:23:06,760 Speaker 6: Well, again, New York also has adopted a new constitutional 370 00:23:06,840 --> 00:23:11,720 Speaker 6: format redistricting, and that I think currently governs. I don't 371 00:23:11,720 --> 00:23:13,400 Speaker 6: know about the other states. I think in the other 372 00:23:13,440 --> 00:23:16,439 Speaker 6: states it may be possible that the legislature would they 373 00:23:16,480 --> 00:23:20,320 Speaker 6: have a democratic legislature and a democratic governor. You mentioned Minnesota. 374 00:23:20,320 --> 00:23:24,000 Speaker 6: I think the Minnesota legislature is very closely divided, and 375 00:23:24,040 --> 00:23:26,760 Speaker 6: I think a key Democrat is just convicted of a 376 00:23:26,800 --> 00:23:28,600 Speaker 6: crime and they have to resign. On which case, it's 377 00:23:28,600 --> 00:23:31,679 Speaker 6: not hear the Democrats have the Minnesota legislature. You mentioned 378 00:23:31,760 --> 00:23:34,400 Speaker 6: Washington state, that might be possible and you're talking about 379 00:23:34,400 --> 00:23:36,400 Speaker 6: picking up maybe one seat I think on a place 380 00:23:36,480 --> 00:23:36,840 Speaker 6: like that. 381 00:23:37,440 --> 00:23:42,119 Speaker 2: The term jerry mandering was coined back in the eighteen hundreds, 382 00:23:42,160 --> 00:23:45,040 Speaker 2: so it's been around for quite a while, and both 383 00:23:45,119 --> 00:23:49,439 Speaker 2: parties are guilty of jerry mandering. But has it gotten 384 00:23:49,520 --> 00:23:50,520 Speaker 2: worse lately? 385 00:23:51,119 --> 00:23:51,239 Speaker 7: Oh? 386 00:23:51,280 --> 00:23:55,080 Speaker 6: Absolutely, Basically because the computer power has gotten so much better. 387 00:23:55,280 --> 00:23:59,200 Speaker 6: It has become much easier for computers to generate multiple 388 00:23:59,240 --> 00:24:03,320 Speaker 6: maps of thousands of maps that all comply with one person, 389 00:24:03,400 --> 00:24:07,359 Speaker 6: one vote and use pre existing voting or voter registration 390 00:24:07,520 --> 00:24:10,760 Speaker 6: data to maximize the number of Republican or Democratic districts. 391 00:24:10,880 --> 00:24:14,520 Speaker 6: So it's no longer taking out big maps using crayon 392 00:24:14,520 --> 00:24:17,399 Speaker 6: and drawing on the floor. You can generate almost an 393 00:24:17,440 --> 00:24:21,159 Speaker 6: infinite number of maps by programming them to respect certain 394 00:24:21,160 --> 00:24:24,639 Speaker 6: factors and not others, and that makes it incredibly easy. 395 00:24:25,080 --> 00:24:28,400 Speaker 6: Now the level of you know, hyperpartisanship legislatures as such 396 00:24:28,640 --> 00:24:30,960 Speaker 6: that they're also willing to do it. There's been something 397 00:24:30,960 --> 00:24:33,600 Speaker 6: of a pushback, and I mentioned in California and New 398 00:24:33,640 --> 00:24:37,160 Speaker 6: York have cons social amendments that can try to limitary mandering. 399 00:24:37,280 --> 00:24:40,159 Speaker 6: A handful of other states there have been limits placed 400 00:24:40,200 --> 00:24:43,560 Speaker 6: on jerrymandering either by constcial amendment or by state Supreme 401 00:24:43,600 --> 00:24:48,760 Speaker 6: Court decision. But where the legislatures are not limited, they 402 00:24:48,840 --> 00:24:52,439 Speaker 6: have kind of infinite capacity to come up with maps 403 00:24:52,480 --> 00:24:55,919 Speaker 6: that will do as much as possible to maximize the 404 00:24:56,040 --> 00:24:57,720 Speaker 6: power of the party in power. 405 00:24:58,040 --> 00:25:00,719 Speaker 2: And it seems like the Democratic states are there ones 406 00:25:00,760 --> 00:25:06,120 Speaker 2: with those independent commissions, etc. Whereas the Republican states are 407 00:25:06,160 --> 00:25:09,119 Speaker 2: still mostly relying on their legislatures. 408 00:25:09,480 --> 00:25:12,399 Speaker 6: You're right, and Arizona, which I guess is a purple state, 409 00:25:12,480 --> 00:25:14,960 Speaker 6: has a commission. But I think you know, we're talking 410 00:25:14,960 --> 00:25:19,359 Speaker 6: about California, New York, New Jersey, and then court decisions. 411 00:25:19,359 --> 00:25:22,200 Speaker 6: I think Pennsylvania maybe now Wisconsin. 412 00:25:22,680 --> 00:25:25,080 Speaker 2: Well, there's a lot to watch with the maps and 413 00:25:25,359 --> 00:25:29,920 Speaker 2: possible legal challenges before the midterms. Thanks so much, rich 414 00:25:30,280 --> 00:25:34,879 Speaker 2: that's Professor Richard Rfault of Columbia Law School. You can't 415 00:25:34,880 --> 00:25:38,600 Speaker 2: erase a tattoo, but can you erase a jury verdict 416 00:25:38,720 --> 00:25:42,800 Speaker 2: about a tattoo? That's what photographer Jeffrey Sedlick is asking 417 00:25:42,840 --> 00:25:46,200 Speaker 2: the Ninth Circuit Court of Appeals to do. The photographer 418 00:25:46,280 --> 00:25:50,520 Speaker 2: sued celebrity tattoo artist Cat von Dee over a tattoo 419 00:25:50,560 --> 00:25:55,040 Speaker 2: she inked of legendary jazz musician Miles Davis, based on 420 00:25:55,119 --> 00:25:59,640 Speaker 2: Sedlick's copyrighted photograph of Davis. The jury took only three 421 00:25:59,720 --> 00:26:03,199 Speaker 2: hours hours of deliberating before it returned a verdict for 422 00:26:03,280 --> 00:26:07,840 Speaker 2: cat Vonde, finding that the tattoo wasn't substantially similar to 423 00:26:07,880 --> 00:26:11,639 Speaker 2: the photo and didn't violate the copyright laws. But on 424 00:26:11,720 --> 00:26:14,919 Speaker 2: appeal to the Ninth Circuit, the judges seemed to be 425 00:26:15,080 --> 00:26:19,040 Speaker 2: struggling to understand how the jury could reach that verdict 426 00:26:19,240 --> 00:26:22,880 Speaker 2: when the tattoo and photo look alike. Here are judges 427 00:26:22,960 --> 00:26:26,080 Speaker 2: Kim McLane, Ward Law and Anthony D. Johnstone. 428 00:26:26,680 --> 00:26:29,560 Speaker 7: We look at it, we say this is the same photograph. 429 00:26:30,359 --> 00:26:34,320 Speaker 7: Yet through all these machinations it ended up being the 430 00:26:34,400 --> 00:26:39,040 Speaker 7: jury saying, oh, but it's not substantially similar. And I 431 00:26:39,080 --> 00:26:46,160 Speaker 7: think it kind of defies rationality to suggest that it's 432 00:26:46,200 --> 00:26:50,440 Speaker 7: not the same photograph. It is the same photograph, it's 433 00:26:50,480 --> 00:26:52,880 Speaker 7: on a different medium. So how did the jury get 434 00:26:52,920 --> 00:26:53,520 Speaker 7: where it got? 435 00:26:54,920 --> 00:26:57,280 Speaker 8: But I think we've also said that just transferring out 436 00:26:57,280 --> 00:27:02,199 Speaker 8: onto a different medium alone be a difference. Right, We're 437 00:27:02,240 --> 00:27:04,080 Speaker 8: looking at similarities rather than difference. And so if you 438 00:27:04,160 --> 00:27:06,199 Speaker 8: have everything else is the same and we're just going 439 00:27:06,280 --> 00:27:09,600 Speaker 8: to change it from being on photo paper to someone's skin. 440 00:27:10,040 --> 00:27:10,480 Speaker 8: How's that? 441 00:27:10,960 --> 00:27:13,760 Speaker 2: But even if the judges thought the jury was wrong, 442 00:27:14,160 --> 00:27:16,720 Speaker 2: what could they do about it? The Ninth Circuit has 443 00:27:16,760 --> 00:27:21,640 Speaker 2: never reversed a jury verdict on substantial similarity A subjective 444 00:27:21,800 --> 00:27:25,000 Speaker 2: test joining me to answer these questions that the judges 445 00:27:25,080 --> 00:27:29,520 Speaker 2: struggle with is intellectual property litigator Terrence Ross, a partner 446 00:27:29,560 --> 00:27:32,879 Speaker 2: at catin Utchen Rosenmann, Terry, will you explain the test 447 00:27:33,080 --> 00:27:34,960 Speaker 2: us here for copyright infringement? 448 00:27:35,520 --> 00:27:39,159 Speaker 5: So in order to prove up a case of copyright infringement, 449 00:27:39,720 --> 00:27:43,000 Speaker 5: you have to show ownership of a register copyright and 450 00:27:43,320 --> 00:27:47,520 Speaker 5: proof of infringement. The test for infringement in the Ninth 451 00:27:47,520 --> 00:27:51,920 Speaker 5: Circuit where this case takes place is well developed over 452 00:27:51,960 --> 00:27:54,760 Speaker 5: many years, a little bit complicated, but very well developed, 453 00:27:54,920 --> 00:27:59,280 Speaker 5: and it's a two part test with respect to substantial similarity. 454 00:27:59,520 --> 00:28:03,959 Speaker 5: First is what's known as the extrinsic test, which is 455 00:28:04,080 --> 00:28:08,600 Speaker 5: really an objective test, a fancy word for saying objective tests, 456 00:28:08,920 --> 00:28:12,920 Speaker 5: and that's undertaken by the court by the judge who 457 00:28:13,119 --> 00:28:18,119 Speaker 5: determines whether or not there are objective elements that have 458 00:28:18,200 --> 00:28:23,240 Speaker 5: been copied that constitute the literary works expression. In this case, 459 00:28:23,280 --> 00:28:28,120 Speaker 5: the photographic works expression, So is there reason to believe 460 00:28:28,200 --> 00:28:31,600 Speaker 5: that a protected element of the work was copied? Now, 461 00:28:31,720 --> 00:28:34,840 Speaker 5: this is easier to do, in my opinion, in cases 462 00:28:34,840 --> 00:28:39,640 Speaker 5: of photographs then in movies, television shows, plays books where 463 00:28:39,760 --> 00:28:43,200 Speaker 5: small portions are copied and they slightly change the characters 464 00:28:43,280 --> 00:28:46,200 Speaker 5: or the setting or the plot, and their judges are 465 00:28:46,240 --> 00:28:49,680 Speaker 5: really presented with a challenging first step in this infringement 466 00:28:49,680 --> 00:28:53,240 Speaker 5: process that they have to undertake to determine whether or 467 00:28:53,280 --> 00:28:57,280 Speaker 5: not protected elements of copyright we're infringed, and they get 468 00:28:57,280 --> 00:29:01,200 Speaker 5: help from experts on that. The second step, assuming that 469 00:29:01,360 --> 00:29:05,040 Speaker 5: the copyright owner passes the first test, which is sort 470 00:29:05,040 --> 00:29:07,560 Speaker 5: of a gate keeping function that the judge performs, the 471 00:29:07,640 --> 00:29:11,680 Speaker 5: judge that allows the infringement charge through the gate so 472 00:29:11,760 --> 00:29:14,240 Speaker 5: to speak to the jury, and then the jury looks 473 00:29:14,240 --> 00:29:17,200 Speaker 5: at the two works, engages what's done as an intrinsic test, 474 00:29:17,400 --> 00:29:20,840 Speaker 5: which is essentially a subjective review. And the expression you 475 00:29:20,960 --> 00:29:24,200 Speaker 5: often here used in the case law is does the 476 00:29:24,200 --> 00:29:28,800 Speaker 5: look and feel of the copied work constitute an infringement 477 00:29:29,320 --> 00:29:32,080 Speaker 5: i e. An improper copying of the original work. So 478 00:29:32,200 --> 00:29:35,400 Speaker 5: there's this two part test. Part one done by the court, 479 00:29:35,480 --> 00:29:36,680 Speaker 5: part two done by the jury. 480 00:29:37,240 --> 00:29:40,600 Speaker 2: So the judge in this case allowed the infringement charged 481 00:29:40,720 --> 00:29:44,560 Speaker 2: through the gate, and the jury decided on the intrinsic 482 00:29:44,720 --> 00:29:50,680 Speaker 2: subjective test that the tattoo wasn't substantially similar to the photo. 483 00:29:51,200 --> 00:29:55,200 Speaker 2: But during the Ninth Circuit arguments, Judge Wardlaw said they 484 00:29:55,200 --> 00:29:58,840 Speaker 2: were struggling to figure out why the jury didn't find 485 00:29:58,880 --> 00:30:03,400 Speaker 2: that they were substanti similar. She said, it defied rationality, 486 00:30:03,760 --> 00:30:06,040 Speaker 2: and it is the same photo, it's just in a 487 00:30:06,040 --> 00:30:09,000 Speaker 2: different medium. And it seemed like the other judges agreed 488 00:30:09,040 --> 00:30:11,680 Speaker 2: with her. Can they say the jury was wrong and 489 00:30:11,800 --> 00:30:12,840 Speaker 2: reverse the verdict. 490 00:30:13,280 --> 00:30:17,200 Speaker 5: Not really. There are some rare instances where that's happened 491 00:30:17,360 --> 00:30:21,960 Speaker 5: in copyright cases, but not in the context of substantial similarity. 492 00:30:22,080 --> 00:30:23,680 Speaker 5: I know of at least two cases out there in 493 00:30:23,720 --> 00:30:27,040 Speaker 5: the Ninth Circuit that involved the defense of day minimous 494 00:30:27,120 --> 00:30:30,280 Speaker 5: use where he takes such a small portion of copyright 495 00:30:30,280 --> 00:30:32,080 Speaker 5: at worked that the law allows you to do it. 496 00:30:32,400 --> 00:30:34,080 Speaker 5: And I know there have been a couple of cases 497 00:30:34,080 --> 00:30:37,400 Speaker 5: where the appellate court reversed a jury finding on that. 498 00:30:38,080 --> 00:30:41,720 Speaker 5: I've never seen it done in the context of substantial 499 00:30:41,760 --> 00:30:44,840 Speaker 5: similarity case here, and a lot of this battle was 500 00:30:45,080 --> 00:30:48,640 Speaker 5: lost by the plaintiff when the district court judge, the 501 00:30:48,640 --> 00:30:51,880 Speaker 5: trial judge ruled that this was not a case of 502 00:30:51,880 --> 00:30:57,000 Speaker 5: substantial similarity. At summary judgment, the copyright owner the photographer 503 00:30:57,080 --> 00:30:59,560 Speaker 5: had moved for summary judgment saying, look, this is no 504 00:30:59,600 --> 00:31:02,320 Speaker 5: different than putting a book on a xerox machine. It's 505 00:31:02,520 --> 00:31:06,200 Speaker 5: literal copyright infringement and we don't need a trial. And 506 00:31:06,240 --> 00:31:09,840 Speaker 5: the judge discreet said it was not literal copying and 507 00:31:10,560 --> 00:31:13,200 Speaker 5: said that they would have to proceed to trial on 508 00:31:13,280 --> 00:31:17,120 Speaker 5: a theory of substantial similarity, and in many respects that 509 00:31:17,200 --> 00:31:20,320 Speaker 5: cost them the advantage that they had the copyright owner, 510 00:31:20,520 --> 00:31:23,320 Speaker 5: because then you're putting it up for grabs with a jury. 511 00:31:23,360 --> 00:31:25,600 Speaker 5: You just don't know how jury's going to come out, 512 00:31:25,840 --> 00:31:29,280 Speaker 5: particularly where you have a celebrity defendant here kat Van 513 00:31:29,360 --> 00:31:33,560 Speaker 5: d who's apparently famous tattoo artists in California, and potentially 514 00:31:33,640 --> 00:31:37,760 Speaker 5: you know, more interesting trial counts in the courtroom presenting 515 00:31:37,800 --> 00:31:43,480 Speaker 5: the case, and by all accounts, the defendants trial attorney 516 00:31:43,560 --> 00:31:47,920 Speaker 5: did a just fabulous job in the courtroom of getting 517 00:31:48,000 --> 00:31:52,920 Speaker 5: the jury to understand the process that the tattoo artists 518 00:31:52,920 --> 00:31:58,160 Speaker 5: went through and how that constituted original art in a way. 519 00:31:58,520 --> 00:32:01,840 Speaker 5: So to a certa think got out lawyer in the courtroom. 520 00:32:02,640 --> 00:32:07,400 Speaker 2: Some of the judges asked the photographer's lawyer to cite 521 00:32:07,480 --> 00:32:10,320 Speaker 2: grounds that would allow them to overturn the jury verdict, 522 00:32:10,360 --> 00:32:14,120 Speaker 2: and Judge Anthony Johnston saying it appeared to be beyond 523 00:32:14,160 --> 00:32:17,240 Speaker 2: our review. I mean, is there any way if they 524 00:32:17,320 --> 00:32:21,480 Speaker 2: feel that it's obvious that this is not substantially similar 525 00:32:21,880 --> 00:32:26,080 Speaker 2: and that the jury maybe was taken by the celebrity factor. 526 00:32:26,440 --> 00:32:28,800 Speaker 2: I mean, is there any way that they would reverse 527 00:32:29,240 --> 00:32:30,160 Speaker 2: the jury verdict? 528 00:32:30,600 --> 00:32:33,360 Speaker 5: Let me start off by saying this. The council for 529 00:32:33,640 --> 00:32:37,880 Speaker 5: the photographer who argued before the Ninth Circuit is a 530 00:32:37,880 --> 00:32:40,160 Speaker 5: well known, well respected copyright lawyer by the name of 531 00:32:40,200 --> 00:32:43,920 Speaker 5: William Patrie. He has written one of the leading treatises 532 00:32:44,000 --> 00:32:48,400 Speaker 5: on copyright law, was the copyright lawyer for the House 533 00:32:48,440 --> 00:32:51,600 Speaker 5: of Representatives during several periods of time in which really 534 00:32:51,640 --> 00:32:55,560 Speaker 5: significant revisions were made for the Copyright Act, and then 535 00:32:55,680 --> 00:32:59,360 Speaker 5: taught copyright law for a number of years. Very well respected, 536 00:32:59,480 --> 00:33:01,760 Speaker 5: knows copy right law. As you say, this question was 537 00:33:01,880 --> 00:33:05,880 Speaker 5: put to him before he had completed his first sentence 538 00:33:06,280 --> 00:33:09,600 Speaker 5: at oral argument before the Ninth Circuit. Can we do this? 539 00:33:10,000 --> 00:33:12,480 Speaker 5: Can you cite us to authority that allows us to 540 00:33:12,480 --> 00:33:14,720 Speaker 5: do this. And the only case is he was able 541 00:33:14,760 --> 00:33:17,480 Speaker 5: to cite to were not in the context of substantial 542 00:33:17,520 --> 00:33:21,960 Speaker 5: similarity cases. They were in other contexts. And certainly from 543 00:33:22,440 --> 00:33:26,240 Speaker 5: listening to the argument on tape, I came away convinced, 544 00:33:26,240 --> 00:33:29,240 Speaker 5: as apparently you do, that the judges would not have 545 00:33:29,280 --> 00:33:32,240 Speaker 5: reached the same verdict as the jury. But we're going 546 00:33:32,320 --> 00:33:37,200 Speaker 5: to respect the jury's verdict and affirm it. And this 547 00:33:37,240 --> 00:33:42,760 Speaker 5: is the whole problem with losing on the second part 548 00:33:42,800 --> 00:33:47,160 Speaker 5: of the test, the intrinsic subjective test that depends on 549 00:33:47,640 --> 00:33:49,800 Speaker 5: the subjective view the jury is to the look and 550 00:33:49,840 --> 00:33:53,360 Speaker 5: feel of the two works. You cannot substitute as an 551 00:33:53,360 --> 00:33:57,480 Speaker 5: appellate judge your opinion for that of the juries. And 552 00:33:57,520 --> 00:33:59,720 Speaker 5: so I don't see any way that this is going 553 00:33:59,760 --> 00:34:00,520 Speaker 5: to be overturned. 554 00:34:01,480 --> 00:34:05,040 Speaker 2: I love this line from Photographer's Council. We don't know 555 00:34:05,080 --> 00:34:07,280 Speaker 2: what the jury did, and we don't know what the 556 00:34:07,320 --> 00:34:10,360 Speaker 2: mystery of Stonehenge is either, but we do know the 557 00:34:10,440 --> 00:34:14,200 Speaker 2: jury should never have done this. It must be frustrating 558 00:34:14,600 --> 00:34:17,520 Speaker 2: to have, you know, judges see that a jury made 559 00:34:17,520 --> 00:34:20,399 Speaker 2: a mistake and still can't do anything about it. 560 00:34:21,000 --> 00:34:22,920 Speaker 5: As a baseball guy. The only analogy I can give 561 00:34:22,920 --> 00:34:26,279 Speaker 5: you is the umpires call balls and strikes at hum plate. 562 00:34:26,600 --> 00:34:30,040 Speaker 5: I mean, it's absolutely verboten for a manager or player 563 00:34:30,080 --> 00:34:32,960 Speaker 5: to challenge the calls of balls and strikes in some 564 00:34:33,000 --> 00:34:35,880 Speaker 5: sort of objective sense, you know, measured by a robot. 565 00:34:36,120 --> 00:34:38,879 Speaker 5: The ball may have been slightly outside the plate, but 566 00:34:38,920 --> 00:34:42,640 Speaker 5: that does not make it a ball. The call of 567 00:34:42,719 --> 00:34:46,160 Speaker 5: the umpire makes it a strike, and for all purposes 568 00:34:46,280 --> 00:34:48,600 Speaker 5: it is a strike. And to go around saying, oh, 569 00:34:48,960 --> 00:34:51,239 Speaker 5: got that call wrong, No, there's no appeal from that. 570 00:34:51,680 --> 00:34:53,759 Speaker 5: And it's the same with a jury verdict for the 571 00:34:53,760 --> 00:34:57,560 Speaker 5: most part, absent fraud, jury being bribed or something like that, 572 00:34:57,719 --> 00:35:00,279 Speaker 5: the jury verdict stands up because you're not a ab 573 00:35:00,680 --> 00:35:04,360 Speaker 5: to replace your view, your personal view as a judge, 574 00:35:04,560 --> 00:35:06,840 Speaker 5: with that of the twelve men and women of the jury. 575 00:35:06,960 --> 00:35:11,280 Speaker 5: It simply isn't done in Anglo American law. And that's 576 00:35:11,680 --> 00:35:15,399 Speaker 5: the problem you here expressed at the oral argument from 577 00:35:15,440 --> 00:35:18,520 Speaker 5: these judges. They would have decided it differently, but they 578 00:35:18,560 --> 00:35:20,279 Speaker 5: realized that they're handcuffed. 579 00:35:21,120 --> 00:35:25,320 Speaker 2: Terry Judge Johnstone seemed to have some broader concerns. 580 00:35:26,440 --> 00:35:29,160 Speaker 8: I guess my concern is we're kind of washing out 581 00:35:29,440 --> 00:35:34,719 Speaker 8: the value and the principle of copyright by allowing a 582 00:35:34,800 --> 00:35:39,959 Speaker 8: jury to reach unreviewable subjective determinations on an intrinsic test. 583 00:35:40,360 --> 00:35:45,600 Speaker 5: Well, he's complaining about the test that has been established 584 00:35:45,640 --> 00:35:47,760 Speaker 5: in the Ninth Circuit, and not just in the Ninth Circuit, 585 00:35:47,840 --> 00:35:50,799 Speaker 5: multiple other circuit courts. You know, the Sixth Circuit where 586 00:35:50,800 --> 00:35:53,200 Speaker 5: you have Nashville and Detroit, you get a clock copyright cases. 587 00:35:53,440 --> 00:35:55,239 Speaker 5: Second Circuit where you have New York and get a 588 00:35:55,280 --> 00:35:57,399 Speaker 5: lot of copyright case. Seventh Circuit cad get a block 589 00:35:57,440 --> 00:36:00,960 Speaker 5: copyright cases. All these courts have adopted the test, although 590 00:36:00,960 --> 00:36:03,279 Speaker 5: it was pioneered by the Ninth Circuit, and that was 591 00:36:03,600 --> 00:36:07,160 Speaker 5: thirty five forty years ago, and it's lasted the test 592 00:36:07,200 --> 00:36:11,279 Speaker 5: of time. In the majority of cases it works. In 593 00:36:11,400 --> 00:36:14,000 Speaker 5: this one case, you might be able to argue the 594 00:36:14,120 --> 00:36:17,520 Speaker 5: jury got it wrong. I actually unlike you. You see 595 00:36:17,560 --> 00:36:20,960 Speaker 5: some differences in the photograph and the tattoo. Now, whether 596 00:36:21,040 --> 00:36:25,040 Speaker 5: or not they're enough to have me vote non infringement, 597 00:36:25,080 --> 00:36:27,680 Speaker 5: I don't know. I haven't thought about it enough. But 598 00:36:27,920 --> 00:36:31,319 Speaker 5: the complaint that the judge here has is fundamentally a 599 00:36:31,400 --> 00:36:36,240 Speaker 5: complaint about existing law, and in order to change existing law, 600 00:36:36,560 --> 00:36:39,200 Speaker 5: somebody is going to have to petition for an on 601 00:36:39,480 --> 00:36:42,560 Speaker 5: bank review at the Ninth Circuit. So what should happen 602 00:36:42,600 --> 00:36:45,720 Speaker 5: here is the panel of three judges affirms the jury's verdict, 603 00:36:46,160 --> 00:36:49,840 Speaker 5: and then the photographer the planetiff files a petition for 604 00:36:50,000 --> 00:36:53,560 Speaker 5: review on bank, meaning the entire Ninth Circuit. All the 605 00:36:53,600 --> 00:36:56,799 Speaker 5: active judges of the Ninth Circuit sit and reconsider whether 606 00:36:56,840 --> 00:36:59,680 Speaker 5: this is the appropriate test, And that perhaps is what 607 00:37:00,239 --> 00:37:03,160 Speaker 5: is being suggested here, But it is sort of like 608 00:37:03,719 --> 00:37:06,680 Speaker 5: you know, whistling in the wind. There are always going 609 00:37:06,760 --> 00:37:10,960 Speaker 5: to be jury verdicts that people think the jury got wrong, 610 00:37:11,120 --> 00:37:12,880 Speaker 5: and that's for being civil cases, and that's going to 611 00:37:12,920 --> 00:37:16,520 Speaker 5: be in criminal cases. It's fundamental to our jurisprudence that 612 00:37:16,600 --> 00:37:20,000 Speaker 5: we accept that margin of error in order to allow 613 00:37:20,400 --> 00:37:22,520 Speaker 5: the sort of due process we want to have II 614 00:37:22,920 --> 00:37:27,200 Speaker 5: to have regular citizens decide the cases. And I think 615 00:37:27,239 --> 00:37:31,320 Speaker 5: it's very misplaced for a pellet judge on a prominent 616 00:37:31,480 --> 00:37:34,360 Speaker 5: court of appeals like this in effect bad mouth the jury. 617 00:37:34,400 --> 00:37:37,840 Speaker 2: We've talked about copyright and tattoos before. Does this stand 618 00:37:37,880 --> 00:37:43,280 Speaker 2: for any broader principle about you know, tattoos of copyrighted works. 619 00:37:43,880 --> 00:37:46,200 Speaker 5: I don't believe it does. I don't believe it stands 620 00:37:46,200 --> 00:37:50,239 Speaker 5: for any broad principle and copyright law generally, both attorneys, 621 00:37:50,280 --> 00:37:53,800 Speaker 5: the attorney for the photographer attorney for the tattoo artist, 622 00:37:54,160 --> 00:37:57,000 Speaker 5: when asked this question at the Ninth Circuit World Argument, 623 00:37:57,000 --> 00:37:59,800 Speaker 5: said that they did not believe the decision here impacted 624 00:38:00,480 --> 00:38:04,480 Speaker 5: more broadly than the dispute between the two parties. And 625 00:38:04,520 --> 00:38:08,680 Speaker 5: I agree with that this is a relatively run of 626 00:38:08,680 --> 00:38:12,520 Speaker 5: the mill copyright case. It doesn't set any new copyright law. 627 00:38:12,560 --> 00:38:15,200 Speaker 5: It doesn't set any new precedent, and that's why I'm 628 00:38:15,200 --> 00:38:17,680 Speaker 5: not super concerned about the fact that maybe the jury 629 00:38:17,680 --> 00:38:20,520 Speaker 5: got it wrong. Jury verdicts don't set precedent, and so 630 00:38:21,080 --> 00:38:23,200 Speaker 5: the law will continue to be the same man the 631 00:38:23,239 --> 00:38:27,600 Speaker 5: next jury might have a completely different view of a tattoo. 632 00:38:27,960 --> 00:38:30,840 Speaker 5: But in all cases like this that come back to 633 00:38:31,440 --> 00:38:37,400 Speaker 5: this fundamental proposition, the courtroom is not a neutral playing ground. 634 00:38:38,280 --> 00:38:42,880 Speaker 5: It is shaped by the attorneys on either side. And 635 00:38:42,960 --> 00:38:47,279 Speaker 5: there are attorneys who are really good trial lawyers, who 636 00:38:47,320 --> 00:38:51,240 Speaker 5: are really good in a courtroom, and who can shape 637 00:38:51,239 --> 00:38:54,200 Speaker 5: the case and the jury's verdict of the case in 638 00:38:54,280 --> 00:38:57,840 Speaker 5: a manner that benefits their client. And there are lots 639 00:38:58,239 --> 00:39:02,399 Speaker 5: and lots of attorneys who don't fit that bill, and 640 00:39:02,680 --> 00:39:07,760 Speaker 5: that's more often than not the real explanation for why 641 00:39:07,880 --> 00:39:11,279 Speaker 5: a particular case comes out one way or the other. 642 00:39:11,640 --> 00:39:15,799 Speaker 5: For people who simply hire lawyers without considering, well, if 643 00:39:15,800 --> 00:39:18,560 Speaker 5: this case goes to trial, how good is my guy 644 00:39:18,840 --> 00:39:22,400 Speaker 5: my girl going to be in the courtroom doing mono 645 00:39:22,480 --> 00:39:25,960 Speaker 5: amano battle And they simply don't consider things like that, 646 00:39:26,600 --> 00:39:30,560 Speaker 5: And that's a mistake, and you get what you deserve 647 00:39:30,640 --> 00:39:32,759 Speaker 5: when you make that kind of mistake, and you don't 648 00:39:32,840 --> 00:39:35,960 Speaker 5: hire a really good trial lawyer. And you know, I 649 00:39:36,000 --> 00:39:38,560 Speaker 5: wasn't there for the trial, but based on what observers 650 00:39:38,560 --> 00:39:41,759 Speaker 5: did say and everything I've heard about the case, it 651 00:39:41,840 --> 00:39:45,200 Speaker 5: seems to me that the combination of a celebrity defendant 652 00:39:45,560 --> 00:39:49,239 Speaker 5: and the defendant out lawyering the plaintiff may have led 653 00:39:49,320 --> 00:39:53,000 Speaker 5: to what, at least these judges on the Ninth Circuit 654 00:39:53,000 --> 00:39:55,240 Speaker 5: felt was a wrong decision by the jury. 655 00:39:55,760 --> 00:39:58,600 Speaker 2: Thanks so much, Terry for those insights from an experienced 656 00:39:58,640 --> 00:40:03,200 Speaker 2: trial Lawyerawrence Ross of Captain Mutchen Rosenman. And that's it 657 00:40:03,280 --> 00:40:05,840 Speaker 2: for this edition of the Bloomberg Law Show. Remember you 658 00:40:05,840 --> 00:40:08,360 Speaker 2: can always get the latest legal news on our Bloomberg 659 00:40:08,440 --> 00:40:12,040 Speaker 2: Law podcasts. You can find them on Apple Podcasts, Spotify, 660 00:40:12,239 --> 00:40:17,280 Speaker 2: and at www dot bloomberg dot com, slash podcast, slash Law, 661 00:40:17,680 --> 00:40:20,240 Speaker 2: and remember to tune into The Bloomberg Law Show every 662 00:40:20,320 --> 00:40:24,200 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 663 00:40:24,360 --> 00:40:25,960 Speaker 2: and you're listening to Bloomberg