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

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Speaker 1: A buyer trying to walk away from a deal found

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Speaker 1: that it would have to take the cake, and more specifically,

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Speaker 1: the company that makes the cake decorations. Kolberg and Company

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Speaker 1: had attempted to back out of buying Deco Pack, a

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Speaker 1: cake decorating technology company, because of issues related to COVID nineteen,

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Speaker 1: but after a trial in Delaware Chancery Court, the judge

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Speaker 1: ordered Colburg to complete the deal and purchase the company.

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Speaker 1: Joining me is Andrew Rossman, a partner at Quinn Emmanuel

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Speaker 1: who represented the winning seller in the case. So tell

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Speaker 1: us about the deal, so my clients no fits. The

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Speaker 1: private equity firm agreed to sell Deco Pack, a leading

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Speaker 1: manufacturer of cake decorating solutions in the country in Minnesota,

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Speaker 1: to another private equate firm called Coburger Company, and they

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Speaker 1: started agreement first week of March, and you know, as

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Speaker 1: the pandemic worsened, Coburg tried to get out of the

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Speaker 1: deal and we student Delaware to enforce it. Was there

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Speaker 1: one legal question or primary doctrine involved in the case.

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Speaker 1: Coburg raised several defenses, one of which is well known,

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Speaker 1: which is a material adverse effect, and that was one

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Speaker 1: of the things we argued about. Colberg asserted that the

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Speaker 1: effects of the pandemic caused such a material change to

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Speaker 1: the company that they should be able to get out

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Speaker 1: of their obligation to buy it. That was one issue.

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Speaker 1: And you know, another issue was the Coburg allowed the

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Speaker 1: financing for the deal to expire um actually precipitated in

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Speaker 1: our view, uh cause of dispute with the lenders to

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Speaker 1: make the financing go away UM. And they claimed then

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Speaker 1: that without finding I think they can't close the deal.

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Speaker 1: And so, you know, one of the things that you know,

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Speaker 1: maybe the opinion is the most significant for you know,

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Speaker 1: a legal precedent is the prevention doctrine, which is the

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Speaker 1: idea that you can't cause the condition to fail and

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Speaker 1: then point to the failure of that condition as the

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Speaker 1: reason to get out of your agreement. So did the

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Speaker 1: judge find that the buyer didn't just see the deal collapsing,

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Speaker 1: but they tried to make the deal collapse exactly. Instead

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Speaker 1: of trying to find solutions and use their best efforts

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Speaker 1: to get the deal closed, they did the opposite, which

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Speaker 1: is they found problems and created problems with the lenders

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Speaker 1: and then use those as excuses to get out of

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Speaker 1: the So what is your understanding now after this decision,

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Speaker 1: of what the prevention doctrine stands for? So what the

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Speaker 1: prevention doctrine stands for is the idea that you can't

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Speaker 1: create a problem. You can't manufacture a problem in your

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Speaker 1: deal and then point to that problem as your exit

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Speaker 1: from the deal. So in this case, they can't cause

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Speaker 1: the financing to go away by creating a dispute with

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Speaker 1: their lenders and then cross their arms and say we

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Speaker 1: no longer have financings, therefore we don't have to close.

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Speaker 1: It's an issue that's come up before. Where in the

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Speaker 1: famous case involving a merger of Huntsman and Hexion, where

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Speaker 1: you know, one of the parties tried to get out

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Speaker 1: of that deal by claiming that there would be an

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Speaker 1: insolvency and therefore chased the lenders away. So was the

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Speaker 1: dispute mostly on the facts of the case, where you

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Speaker 1: arguing the facts of the case more or the law

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Speaker 1: of the case. I think the facts of the case

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Speaker 1: were predominant here. The judge took an exhaustive review of

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Speaker 1: the trial record, and you know was persuaded that my

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Speaker 1: client at every step was doing the right thing, uh,

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Speaker 1: and that Colberg at every step was trying to get

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Speaker 1: out of its obligations. Now Colberg has to go through

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Speaker 1: with the deal as originally agreed to. The judge ordered

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Speaker 1: Colberg to close the deal on its original exactly. So

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Speaker 1: now here you were on the seller's side. But we

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Speaker 1: talked before when you were on the buyer side in

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Speaker 1: another deal where the judge allowed your client to walk

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Speaker 1: away from the deal. So tell us first refresh our

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Speaker 1: memory about that deal. Sure, I've been involved in several

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Speaker 1: of these litigations, but two of them actually went to

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Speaker 1: trial in the pandemic. One was a deal involving the

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Speaker 1: sale of fifteen luxury hotel by a Korean company called

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Speaker 1: the A to Chinese and Sure called Ambang. In that case,

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Speaker 1: we represented the buyer right and persuaded the court that

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Speaker 1: it was not obligated to close the deal in the

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Speaker 1: trial decision that came out towards the end of the year.

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Speaker 1: So what made the difference besides you being on the

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Speaker 1: winning side in these cases, what made the difference in

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Speaker 1: the opposite conclusions? Well, thanks thanks for that, June. But

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Speaker 1: the facts of every case and by themselves right. I

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Speaker 1: think in both cases, two clients really were doing the

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Speaker 1: right thing all along. I think they acted in good faith,

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Speaker 1: they met their obligations, and it was not the case

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Speaker 1: for the other shot. So if you're the seller, we

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Speaker 1: learned in the Maray case and that in the on

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Speaker 1: Band case that you can't hide problems, got to disclose problems,

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Speaker 1: and you've got to try to work through those. And

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Speaker 1: you know, the same thing we learned in the Deco

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Speaker 1: pat case, which is you can't manufacture problems. So you know,

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Speaker 1: I think the lesson to take away from both of

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Speaker 1: those is that parties are expected to be forthright and

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Speaker 1: expected to act in good faith, respect their obligations, and

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Speaker 1: that you know, to me it was easy because both

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Speaker 1: clients were doing the right thing. And the judge in

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Speaker 1: the latest case said it was a victory for deal certainty.

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Speaker 1: Do you think that's true even in light of the

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Speaker 1: decision in the Marae case which allowed your client to

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Speaker 1: walk away from the deal. I think the judge was

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Speaker 1: very careful to apply the law, and I think the

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Speaker 1: law was applied consistently, but the facts were quite different,

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Speaker 1: and you know, I take it as as you said,

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Speaker 1: as a victory for deal certainty, I take it just

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Speaker 1: as much as a victory for good faith, which is

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Speaker 1: that you know, parties are expected to meet their obligations

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Speaker 1: earnestly and to have exchanges with their counterparties that are candid.

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Speaker 1: So that's how I how I look at it, and

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Speaker 1: I think the two decisions stand together well and um,

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Speaker 1: you know, help provide good guidance, um for parties who

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Speaker 1: are engaged in these transactions. Due to the pandemic, I

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Speaker 1: imagine we're going to be seeing a lot of other

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Speaker 1: cases on a large scale like this or on a

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Speaker 1: smaller scale where people are trying to back out of

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Speaker 1: a deal. What will make the difference? Well, every as

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Speaker 1: I've seen in all these and I think we've done

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Speaker 1: you know, I've personally done six or eight of these

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Speaker 1: cases at least. Um. Not all of them go to trial,

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Speaker 1: but every case requires not just an examination of the facts,

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Speaker 1: but a close, uh you know, close scrutiny of the

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Speaker 1: contract itself. There are real differences in the contracts that

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Speaker 1: make a difference. So you know, in the case of uh,

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Speaker 1: you know, Murray, we're talking about hotels um and the

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Speaker 1: way that they were operated is quite dramatically different than

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Speaker 1: we were talking about the cake decorating business UM. And

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Speaker 1: how you know that manufacturing distribution business was operated is

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Speaker 1: you know, obviously quite different in the pandemic. And then

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Speaker 1: you've got to scrutinize their contract. So every case is

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Speaker 1: bespoke in that regard. And I say, the other thing

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Speaker 1: we learned too is that UM, often it's not what

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Speaker 1: you think, UH that is going to be the issue

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Speaker 1: that's in dispute. So you know, parties, look, immediately, everyone

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Speaker 1: thinks about m A UM as the you know, the

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Speaker 1: main contract feature that determines whether or not you can

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Speaker 1: exit a deal. UM. But both of these cases, what

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Speaker 1: we spend time talking about m a E. They there

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Speaker 1: were other issues that were just as prominent and more prominent.

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Speaker 1: And that's what I've seen throughout, which is that parties

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Speaker 1: often focused on other deal requirements, other conditions UM. And

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Speaker 1: it's it's those things that they're pulling apart to test

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Speaker 1: whether whether a deal is closed or not. Do you

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Speaker 1: think that contracts for deals going forward will contain, will

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Speaker 1: be will be UM formulated differently because of what lawyers

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Speaker 1: learned during the pandemic, are they're going to be different

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Speaker 1: clauses in there without questions. Um. So you know, we

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Speaker 1: every time there is a financial crisis or there is

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Speaker 1: a natural disaster. You know, you can you can look

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Speaker 1: at what m A provisions are as, you know, sort

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Speaker 1: of a history of the calamities of you know, the

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Speaker 1: last century or so, because they keep adding new ones.

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Speaker 1: So you know, now contracts, uh, you know, we'll make

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Speaker 1: direct reference to COVID nineteen, um. You know or asked

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Speaker 1: you know previous Lee obviously you know before two thousand nineteen,

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Speaker 1: you know, know when to do that. Um And and

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Speaker 1: they'll be thinking more about, you know, all of these

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Speaker 1: provisions as they get battle tests. So the judge in

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Speaker 1: this case wrote that perhaps there's a greater need to

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Speaker 1: celebrate the milestones of life amidst the tragedy of a pandemic,

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Speaker 1: or perhaps humans simply have an insatiable desire for decorated cakes.

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Speaker 1: How did the pandemic how did it hang over this trial?

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Speaker 1: I mean, besides in the details that you're litigating, how

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Speaker 1: else did the pandemic have an effect? Well, it had

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Speaker 1: an effective number of ways. Obviously in real time we're

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Speaker 1: seeing the impact on the company and our thesis throughout.

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Speaker 1: The company's thesis throughout, which was very much sustained, is

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Speaker 1: that after a short term you know dip, people are

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Speaker 1: going to get back to buying cakes. They may not

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Speaker 1: get together in the same numbers they previously did, but

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Speaker 1: you know, on on you know, Jimmy's fifth birthday, Jimmy

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Speaker 1: is going to get a case. And you know that

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Speaker 1: very much proved to be true. As we all experienced

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Speaker 1: in the pandemic, we just found different ways to celebrate um.

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Speaker 1: And it also affected the way we tried the case. Uh.

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Speaker 1: You know we uh initially we asked the judge to

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Speaker 1: set us down for trial in two weeks so that

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Speaker 1: we could be heard before the financing expired. And I think,

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Speaker 1: you know, in a in a very I didn't like

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Speaker 1: it at the time, but in a very sensible, humane decision,

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Speaker 1: and the judge you know, felt like that was not

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Speaker 1: a practical thing to do in the pandemic. UM. And

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Speaker 1: then you know, we went ahead and had an expedited trial,

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Speaker 1: but on a more understandable schedule, uh. And we did

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Speaker 1: everything remotely. You know, no one was in the room together.

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Speaker 1: We did the trial remotely on zoom. We did all

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Speaker 1: the depositions, on Zoom. It was quite a different experience

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Speaker 1: it than we've had before for the lawyers, you know,

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Speaker 1: as well as the participants in so trial. Lawyers like

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Speaker 1: to be in court. But are you gonna miss when

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Speaker 1: the pandemic is hopefully behind us? Are you going to

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Speaker 1: miss the convenience of zoom? Well, there there's something special

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Speaker 1: about you know, being able to uh, you know, just

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Speaker 1: walk down uh stairs in his house, you know, into

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Speaker 1: the courtroom, so to speak. And you know, it saves

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Speaker 1: a lot of wear and care on the travel. But

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Speaker 1: I missed being in courtrooms. I missed being with my

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Speaker 1: trial teams, at my clients. I missed, you know, having

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Speaker 1: judges you know, frown at me in person or you know,

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Speaker 1: hopefully smile. I missed the human elements of of litigation

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Speaker 1: very much. Thanks so much for being in the Bloomberg

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Speaker 1: Laws show. Andy. That's Andrew Rossman, a partner at Quinn Emmanuel.

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Speaker 1: As the Supreme Court waited into the War on drugs

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Speaker 1: this week, there was an unusually lopsided set of litigants,

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Speaker 1: so lopsided that the Court had to appoint an outside

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Speaker 1: lawyer to argue to uphold the lawn issue. After the

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Speaker 1: Biden administration switch sides and back the defendant. The question

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Speaker 1: was whether the lowest level drug offenders are eligible for

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Speaker 1: retroactive relief under the First Step Act and can seek resentencing.

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Speaker 1: Lawmakers from both parties, both conservative and liberal groups, and

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Speaker 1: the Biden administration say Congress intended for the law to

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Speaker 1: encompass low level offenders, but many of the justices sounded

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Speaker 1: skeptical that the statutory language would allow that interpretation. Kiara

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Speaker 1: Justice as Stephen Bryer and Brett Kavanaugh, I mean, I

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Speaker 1: think they were much too high. I understand that, but

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Speaker 1: I can't get away from this statute. Why didn't Congress

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Speaker 1: just say everyone who's been sentenced for crack offenses under

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Speaker 1: eighty one is eligible for resentencing? Something simple like that.

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Speaker 1: Joining me is Mark Ostler, a professor at the University

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Speaker 1: of St. Thomas School of Law who specializes in sentencing policy. So, Mark,

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Speaker 1: tell us a little bit about the First Step Act. Sure,

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Speaker 1: the First Step Act that was passed in it had

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Speaker 1: a number of provisions. UM. It was it was created

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Speaker 1: new metrics of data within the Bureau of Prisons UM

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Speaker 1: and hand some reentry provisions. But one of the primary

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Speaker 1: things that did was make retroactive prior law, the Fair

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Speaker 1: Sentencing Act in and what that did was changed the

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Speaker 1: hundred to one ratio between powder and crack cocaine. In

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Speaker 1: other words, in both the sentencing guidelines and the statutes

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Speaker 1: that created manatory minimums, you were sentenced the same for

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Speaker 1: five grams of crack because you were for five hundred

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Speaker 1: grams of powder cocaine. This had really disparate impacts in

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Speaker 1: terms of race. And I was a thorough prosecutor in

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Speaker 1: the and Detroit. There were a lot of crack cases

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Speaker 1: coming through that office, and of course it was all

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Speaker 1: or almost all black defendants in those cases. And in

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Speaker 1: time that became noticed and in they changed the law,

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Speaker 1: but they didn't make it retroactive. And that was a

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Speaker 1: continuing problem because you had people who were sentenced under

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Speaker 1: the old law who didn't have the advantage of the

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Speaker 1: change and attitude and the adjustment that had been made,

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Speaker 1: and that festered for a long time. Um you know,

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Speaker 1: the Obama administration wasn't able to fix it. And eventually

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Speaker 1: there was a bipartisan movement in uh Congress that pushed

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Speaker 1: for that change, among others, and it came through in

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Speaker 1: the first step Act of that was signed by Donald

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Speaker 1: Trump um notably the name indicated. It was supposed to

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Speaker 1: be one of a series of bills, but it was

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Speaker 1: the only one to get through. What is the issue

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Speaker 1: in this case before the Supreme Court. Yeah, it's a

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Speaker 1: little bit complicated. But the original law, the mandatory minimum

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Speaker 1: that regards crack and the number of other drugs, it's

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Speaker 1: sets three different tiers. And you know, the top tier

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Speaker 1: previously was over fifty grams of cracks for the top

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Speaker 1: tier and over five grams of crack for the middle tier,

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Speaker 1: and then the bottom tier was under five grams of cracks.

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Speaker 1: And then those thresholds all went up under the Fair

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Speaker 1: Sentence in Act. And that's what the First Step Act

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Speaker 1: made retroactive. And so in other words, people could go

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Speaker 1: back and say, I want to be resentenced under the

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Speaker 1: current law. And that meant that, let's say, if you

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Speaker 1: had been sentenced under the top tier for you know,

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Speaker 1: sixty grams of crack, now you're not mean that threshold,

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Speaker 1: and so they could be resent Now. The problem was

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Speaker 1: that the First Step Act said explicitly that it applied

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Speaker 1: to sentences in mentor minums that have been modified by

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Speaker 1: the Fair Sentencing Act and The argument from the government

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Speaker 1: under the Trump administration was that that meant that the

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Speaker 1: top two tiers, which had been changed explicitly because the

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Speaker 1: upper the threshold had been raised, that people who have

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Speaker 1: been sentenced under those got relieved, but people for whom

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Speaker 1: they weren't charged with a threshold of over five grams

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Speaker 1: of cracks, that they didn't have the benefit of this change.

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Speaker 1: That's an argument that doesn't make much sense in terms

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Speaker 1: of policy. Why you would give relief to people that

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Speaker 1: were more culpable but not people who are less culpable.

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Speaker 1: But that's what is the heart of this is the

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Speaker 1: Eleventh Circuit upheld the decision below that Mr Terry, the petitioner,

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Speaker 1: did not have the ability to have his sentence reviewed

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Speaker 1: under the First Step Act because he wasn't in those

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Speaker 1: top two tiers, but rather was charged with no amount listed.

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Speaker 1: On the date when the government's main brief in the

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Speaker 1: case was due, the Biden administration informed the court that

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Speaker 1: it was changing positions from the Trump administration and now

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Speaker 1: siding with the defendant in the case. So the court

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Speaker 1: appointed an outside lawyer to argue the case against the

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Speaker 1: defendant and the reduced sentence. Why did the Biden administration

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Speaker 1: change positions at the last minute. I think that they had, Yeah,

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Speaker 1: I think that they had pressure from reformers certainly that

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Speaker 1: they should do so. That there are a number of people,

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Speaker 1: including myself, who had taken up these first step back

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Speaker 1: cases pro bono and it had noticed the problems with

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Speaker 1: them and frankly was inconsistent with the very bi person

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Speaker 1: spirit that was behind the First Step Back in the

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Speaker 1: first place. And you know, even before they had everybody

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Speaker 1: on board at the o J with the incoming nominees,

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Speaker 1: they did switch sides and the Supreme Court appointed someone

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Speaker 1: to represent the other side, now that the d o

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Speaker 1: J had abandoned that position. So now at the Supreme

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Speaker 1: Court arguments, was there a lot of discussion of the

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Speaker 1: intent of the act or was it based more on

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Speaker 1: the language the statutory language? Well, both things, and you know,

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Speaker 1: the political set up for the for all of this

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Speaker 1: was underneath the arguments, of course. You know, one thing

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Speaker 1: that fascinates me about this, especially in our current political climate,

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Speaker 1: is that there was amaicust grief that was submitted in

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Speaker 1: support of the first Step back, applying to Mr Terry,

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Speaker 1: that was submitted by four Senators Durban Booker Grassley in

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Speaker 1: Senator Mike Lee, Now, that's a pretty incredible lineup if

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Speaker 1: you think about it. I mean, from one end of

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Speaker 1: the theological spectrum to the other. And it really reflects

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Speaker 1: the Biparsan consensus that was behind the first step back

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Speaker 1: in the first place. And you know, of course in

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Speaker 1: that argument that justices were interested both in what the

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Speaker 1: intent was, but also you know what injustices does this

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Speaker 1: create and underneath it all is you look at what

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Speaker 1: Mr Terry was sentenced to fifteen and a half years

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Speaker 1: in prison for four grams of cracks. It's shocking and

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Speaker 1: is something you know, I'll tell you. I'm talking to

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Speaker 1: you right now from downtown Minneapolis. I'm looking down over

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Speaker 1: Nicolette Mall. I'm about a mile away from where Derek Chauvin,

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Speaker 1: the police officer who killed George Floyd, is going to

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Speaker 1: be sentenced shortly. And most people are saying that what

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Speaker 1: he'll get for that cold blooded killing that America saw

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Speaker 1: is going to be about fifteen years, and that that's

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Speaker 1: the same as Mr Terry got for having the four

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Speaker 1: grams of cracks. Some of the justices seemed sympathetic to

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Speaker 1: Terry's plight to his sentence being excessive. But for example,

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Speaker 1: Justice Brier said, I can't get away from the statute.

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Speaker 1: And even Justice Sonia Soto Mayor, who is considered one

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Speaker 1: of the justices who is more sympathetic to criminal defendants,

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Speaker 1: even she seemed to indicate that you just can't get

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Speaker 1: around the words of the statute. Yeah, and I'm hoping

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Speaker 1: that you know, the argument will prevail in me that

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Speaker 1: you know, what's in the statute is is modified and

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Speaker 1: what you know, the parties and this is something that

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Speaker 1: the Senator said was their intent was that that means

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Speaker 1: something different than amended, because obviously Tier two and Tier three,

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Speaker 1: the upper two tiers were specifically amended. But that also

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Speaker 1: modifies that bottom tier by raising the level from five

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Speaker 1: grams to rams. I think it was and that is

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Speaker 1: that's the pably the best argument going to the statutory language.

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Speaker 1: I mean, one thing about about Justice Brier is that

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Speaker 1: his history and sentencing is complicated. That it's it's one

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Speaker 1: where he's been. He was on the Sentencing Commission that

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Speaker 1: drafted the original sentencing guidelines that were mandatory that in

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Speaker 1: the Booker decision. He argued that that there should they

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Speaker 1: should not be converted to being advisory. So he's somebody

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Speaker 1: who has a complicated history with these issues, and the

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Speaker 1: fact that you know he was sticking to the language

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Speaker 1: of the statute is really in keeping with some of

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Speaker 1: his prior churisprudence in this area. During the oral arguments,

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Speaker 1: did any of the justices seem inclined to adopt that argument?

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Speaker 1: It seemed that most of the justices thought the statutory

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Speaker 1: language was a problem for Terry and wouldn't support a

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Speaker 1: retroactive interpretation. Yeah, and you know that of course reflects

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Speaker 1: the circuit split that they were presented with. That four

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Speaker 1: of the circuits had been on the side of the

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Speaker 1: eleven circuit was that this new law did not apply

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Speaker 1: to Mr Terry, and there were I believe two circuits

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Speaker 1: had held that he would have, so, you know, the

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Speaker 1: lay of the land was in favor of that that

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Speaker 1: reading the statute. Were there any questions from the textualists

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Speaker 1: on the court which which indicated which way they might go?

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Speaker 1: You know, I don't recall specifically if there were, but

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Speaker 1: you know, even if you are a textualist that that

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Speaker 1: question of is modified different than amend is something to

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Speaker 1: take seriously. So will you explain the modify versus amend argument. Yeah, well,

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Speaker 1: there's no question that if the statute had said amended,

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Speaker 1: those portions that were amended, they would only apply to

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Speaker 1: the top two tiers, because it's it changed explicitly the

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Speaker 1: thresholds that had to be meant for them to apply

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Speaker 1: to enhancer cracks. And however, it did also modify even

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Speaker 1: though it didn't expressly amend the bottom tire, it did

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Speaker 1: modify or change that bottom tire because it was it

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Speaker 1: was expanded basically from five to eight cramps. So that's

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Speaker 1: you know, that's that's going to be the distinction that

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Speaker 1: they'll be talking about in conference. I'm curious. I don't

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Speaker 1: know if you know the answer to this. Terry is

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Speaker 1: about to to be finished serving his sentence. So is

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Speaker 1: it just that this case took that long to get

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Speaker 1: through the system. Well, there's a couple of things. He's

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Speaker 1: on home confinement right now and he'll be done in September,

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Speaker 1: I believe, uh, and it you know, it could be

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Speaker 1: just this is the case that got up to the

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Speaker 1: Supreme Court to resolve the issue. Um, you know, it's

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Speaker 1: it's not moved h and you know the fact that

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Speaker 1: he's on home confinement is a function of of the

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Speaker 1: COVID pandemic, where under the Trump administration and a bit administration,

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Speaker 1: many people who were towards the end of their sentence

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Speaker 1: are being switched over to home confinements. But well, you know,

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Speaker 1: one thing is people will say, you know, that's we're

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Speaker 1: talking about about three or four months, that that matters.

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Speaker 1: You know, if you think back in your own life

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Speaker 1: of the past three or four months, if they were

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Speaker 1: just gone, you know, if you had been in prison

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Speaker 1: for that period of time, that would matter. And too

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Speaker 1: often we discount the value of time when it's a

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Speaker 1: smaller bottom time on top of the larger sentence. I

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Speaker 1: have to say, this seems like such a technical argument.

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Speaker 1: You know, you've got the sentencing guideline book that's inches thick,

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Speaker 1: that is like a tax code at this point, and

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Speaker 1: that's part of the problems. Part of the problem is

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Speaker 1: is that complexity that tears and those things they become normative.

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Speaker 1: You know, when we say that the that the right

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Speaker 1: sentence for five grams of crack is five years, that

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Speaker 1: becomes normative. It sounds scientific, but that masks crazy realities.

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Speaker 1: You know that someone for programs of crack got fifteen

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Speaker 1: and a half years. That that's irrational. No one was

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Speaker 1: being denied cracked by the fact that this one person

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Speaker 1: who is selling is out of commission um, and yet

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Speaker 1: we're taking on the societal costs of that imprisonment um. Yeah.

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Speaker 1: So that complexity, that technicality of it um. Yeah, that

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Speaker 1: does bar people from digging into it. But once we do,

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Speaker 1: we find that really ugly reality. When judges had more discretion,

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Speaker 1: there was a problem with judges having discretion to people

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Speaker 1: were upset that some judges were giving sentences that were

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Speaker 1: out of the ballpark. So where's the happy medium? Yeah,

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Speaker 1: that's what's we're trying to find, is that happy medium

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Speaker 1: between judges having so much discretion that bias comes into

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Speaker 1: play and and you have incredibly disparate sentences, and where

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Speaker 1: we don't have these mandatory laws that buying judges and

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Speaker 1: create these frankly pretty ridiculous sentences as we suffer for

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Speaker 1: Mr Terry in this case. You know, there's been a

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Speaker 1: back and forth over decades between uniformity and discretion for judges.

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Speaker 1: It's like watching a ball roll back and forth in

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Speaker 1: a cup, and at some point it's going to have

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Speaker 1: to come between equilibrium in this case is a part

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Speaker 1: of that. If the court decides against Mr Terry, does

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Speaker 1: that just leave everything in place as it was before.

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Speaker 1: It will leave everything else in place, so the other

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Speaker 1: two tiers will be unaffected. Um, and you know, those

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Speaker 1: people who are doing longer terms under this are going

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Speaker 1: to have to pursue other avenues, for example clemency. One

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Speaker 1: would hope that if the Biden administration loses this case

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Speaker 1: that there we action will be to identify those people

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Speaker 1: like Mr Terry can let them out under the power

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Speaker 1: of clemency. Thanks for being on the Bloomberg Law Show.

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Speaker 1: That's Professor Mark Osler of the University of St. Thomas

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Speaker 1: School of Law. I'm June Grosso and you're listening to

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Speaker 1: Bloomberg