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

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Speaker 2: A landmark climate ruling that will reverberate across the legal landscape,

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Speaker 2: and it's sixteen young environmental activists who want it. A

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Speaker 2: judge ruled that the young people, who range in age

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Speaker 2: from five to twenty two, have a constitutional right to

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Speaker 2: a safe environment, and that Montana's continued development of fossil

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Speaker 2: fuels infringes on that right. It marks the first time

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Speaker 2: a court in the US has declared that a government

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Speaker 2: has a constitutional duty to protect people from climate change.

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Speaker 2: One of the young environmental activists, Claire Vasis, told CBS

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Speaker 2: News that the decision gives her hope.

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Speaker 3: I hope that as a young person, we might actually

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Speaker 3: have a chance to make a difference. And for my

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Speaker 3: life and for my kid's life. You know, not all

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Speaker 3: hope may be lost, do I mean?

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Speaker 2: The environmental law expert Pat Parento, a professor at the

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Speaker 2: Vermont Law and Graduate School, how significant is this ruling.

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Speaker 4: It's a big deal. It's the first court in the

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Speaker 4: United States to rule that there is a constitutional right,

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Speaker 4: based on the Montana State Constitution, to a safe climate.

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Speaker 4: That's shorthand for the way the Court described it in

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Speaker 4: the Hell versus Montana case. But that's essentially what Judge

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Speaker 4: seely hilp is that the youth plaintiffs in that case

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Speaker 4: have a fundamental constitutional right to a safe or stable climate,

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Speaker 4: and that the state government is violating that constitutional right

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Speaker 4: because it adopted a law that prohibits state agencies from

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Speaker 4: considering just considering the climate change impacts in Montana when

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Speaker 4: they authorize fossil fuel development like full mines, oil and gas,

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Speaker 4: well and so forth. So the first time any court

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Speaker 4: in the United States has ever ruled that way.

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Speaker 2: It's been called a turning point by the plaintiff's attorney.

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Speaker 1: Would you go that far?

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Speaker 4: I think I have to say until we see how

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Speaker 4: the Montana Supreme Court rules in this case on appeal,

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Speaker 4: because the state, of course has said it will appeal,

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Speaker 4: I think it's probably too soon to go that far

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Speaker 4: to say that we're going to see either in Montana

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Speaker 4: or more broadly, a turning point on changing, you know,

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Speaker 4: fossil fuel dependent energy policies. What the court has said

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Speaker 4: is you have to consider both what's happening in Montana

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Speaker 4: and elsewhere from what we've already seen with climate change

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Speaker 4: and the worst consequences that are to come. Plus you

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Speaker 4: have to look at the alternatives that are available to

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Speaker 4: reduce emissions, to shift our energy policies to cleaner grid sources,

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Speaker 4: all of which was laid out in very detailed factual

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Speaker 4: findings over two hundred factual findings by Judge Steely in

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Speaker 4: this case, based on the expert testimony the plane is introduced.

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Speaker 4: It was a remarkable, remarkable job of lawyering in this

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Speaker 4: case to develop this record on appeal. So it's all

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Speaker 4: there for the Montana Supreme Court to consider, and it's

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Speaker 4: all there for, of course the Montana legislature and the

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Speaker 4: Governor of Montana to consider. Whether they will or not

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Speaker 4: is very questionable because it's a very red even hard

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Speaker 4: right read governor and legislature right now that has dismissed

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Speaker 4: this case, ridiculed this case, refused to change policies and

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Speaker 4: so forth. So is it a turning point. It's certainly

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Speaker 4: headed in that direction, but we still have a lot

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Speaker 4: to see develop if it's going to change the way

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Speaker 4: things are happening on the ground.

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Speaker 2: As you said, the state is going to appeal, and

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Speaker 2: a spokesperson for the governor said this legal theory has

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Speaker 2: been thrown out of federal court and courts in more

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Speaker 2: than a dozen states.

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Speaker 1: It should have been here as well, but they.

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Speaker 2: Found an ideological judge who bent over backwards to allow

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Speaker 2: the case to move forward and earn herself a spot

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Speaker 2: in their next documentary.

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Speaker 4: Well, you know, name calling doesn't change facts. I'm impressed

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Speaker 4: by the factual records that this judge developed, and she

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Speaker 4: evaluated each one of those expert witnesses. There were eight

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Speaker 4: or more that were called by the planeffs, and she

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Speaker 4: went through in great detail, you know, what they testified to,

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Speaker 4: what that testimony was based on. So the governor can

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Speaker 4: say what he wants about the judge personally, but the

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Speaker 4: record speaks and the facts speak, and the state put

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Speaker 4: on no case. The only expert witness they offered was

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Speaker 4: declared not credible by the judge, and she cited specifically

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Speaker 4: why the testimony offered by this Terry Anderson was not credible.

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Speaker 4: It was full of mistakes and so forth. So you know,

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Speaker 4: when you don't have the facts on your side, you know,

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Speaker 4: of course, you insult the judge. We've seen that in

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Speaker 4: other instances, right, Or you insult the plaintiffs, the young

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Speaker 4: people bringing these cases as being naive or whatever. But again,

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Speaker 4: the facts in the law are laid out in her opinion.

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Speaker 4: We will see, you know, what happens on appeal. The

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Speaker 4: Montana Supreme Court is more conservative now than it was

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Speaker 4: in earlier days, when it recognized in this nineteen ninety

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Speaker 4: nine case known as Meic versus de Eq recognize the

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Speaker 4: fundamental right to a healthy environment. And now that healthy

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Speaker 4: environment right has been extended to a safe climate. So

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Speaker 4: there is precedent in Montana for what Judge Seeley did,

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Speaker 4: strong precedent. Her factual findings are undisputed by the state,

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Speaker 4: so I think the plaintiffs have a very good chance

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Speaker 4: of prevailing on appeal. We'll just have to wait and see.

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Speaker 2: Some of the young plaintiffs testified about how climate impacts

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Speaker 2: were upending their lives.

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Speaker 5: You know, it's really scary seeing what you care for

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Speaker 5: disappear right in front.

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Speaker 4: Of your eyes.

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Speaker 2: How important was their testimony to sort of put faces

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Speaker 2: on this problem of climate change?

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Speaker 4: Oh? Yes, the children's now some of them are no

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Speaker 4: longer children, of course, but when it started, they're eighteen

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Speaker 4: of them, I believe. And she goes through each one

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Speaker 4: of them individually, and shows how they are particularly affected

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Speaker 4: by climate change. Some of them have asthma problems, Others

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Speaker 4: have seen their ranching operations impacted. Others have seen some

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Speaker 4: of the recreational activities they engage in impacted. Some of them.

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Speaker 4: There was testimony about both physical and mental impacts on

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Speaker 4: these young people from what's happening with climate change and

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Speaker 4: the uncertainty about whether it's going to be dealt with.

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Speaker 4: So she went through in great detail, and it's compelling

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Speaker 4: evidence of what's happening to our young people. And it's real.

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Speaker 4: I mean, these were medical doctors testifying under oath, subject

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Speaker 4: to cross examination and saying these are real, diagnosable conditions

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Speaker 4: that are happening to these young people and they're going

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Speaker 4: to get worse unless we do something about this threat.

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Speaker 4: And do we care about the livelihood and the well

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Speaker 4: being of these children? Are not. That's really what the

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Speaker 4: trial was about. And as I say, the lawyers for

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Speaker 4: Our Children's Trust did a phenomenal job of laying this

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Speaker 4: all out on the court record, and there's nothing the

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Speaker 4: state can say now that can change any of that.

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Speaker 4: It's real.

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Speaker 2: So the declaratory relief, let's say that the Montana Supreme

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Speaker 2: Court affirms the judge's decision.

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Speaker 1: How would this be enforced?

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Speaker 4: The judge, on that point said it will influence the

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Speaker 4: state's conduct in making decisions about either authorizing fossil fuel

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Speaker 4: development or promoting further extraction of fossil fuels. But she

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Speaker 4: stopped short of actually ordering the state to do anything

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Speaker 4: specific to either stop issuing permits obviously, or stop promoting

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Speaker 4: fossil fuel development. She didn't go that far. The plans

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Speaker 4: were asking for something like that, they didn't quite get that.

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Speaker 4: But I think what she's basically saying is it's an

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Speaker 4: optimistic view that once government officials look at what's really happening,

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Speaker 4: and document and disclose to the public what's really happening,

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Speaker 4: and also look at the alternatives that are available for

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Speaker 4: a different pathway forward, she's optimistically hoping that that will

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Speaker 4: change the direction of Montana's energy policy. That's the best

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Speaker 4: way to characterize it is it's a hope that when

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Speaker 4: facts and rational analysis is brought to bear on the problem,

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Speaker 4: better decisions will be made.

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Speaker 2: Pat This has been called a landmark case in light

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Speaker 2: of that. What makes it a landmark case, Well.

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Speaker 4: It's landmark in the sense it's the first time a

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Speaker 4: court has declared a constitutional right to a safe climate,

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Speaker 4: that's for sure, but it's a lower court decision that

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Speaker 4: has to be upheld on appeal before I think you

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Speaker 4: can truly call it landmark. It's a real breakthrough, it's

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Speaker 4: a major victory, it was an extraordinarily well litigated case.

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Speaker 4: All of those things are true. But right now, until

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Speaker 4: you've got the highest court in Montana saying yes, there

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Speaker 4: is not only a constitutional right to a safe climate,

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Speaker 4: but it's being violated right now by the state. Until

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Speaker 4: we have that final word, I'm going to hesitate to

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Speaker 4: say it's a landmark.

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Speaker 2: Right now, Montana is one of only a few states

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Speaker 2: that have the affirmative right to a healthful environment in

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Speaker 2: their constitutions. So will this only be influential in those states?

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Speaker 4: It will certainly be influential in the states with these

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Speaker 4: green amendments, these constitutional right to a healthy environment provisions.

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Speaker 4: That includes Hawaii. The next Our Children's Trust case is

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Speaker 4: now scheduled for trial in Hawaii in twenty twenty four,

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Speaker 4: And of course we all know what horror show is

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Speaker 4: going on in Lahina right now. Other states that have

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Speaker 4: similar green amendments, Pennsylvania, New York. Those are potential locations

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Speaker 4: for where we might see more litigation like this. In fact,

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Speaker 4: I would predict we will see that. So you've got Hawaii,

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Speaker 4: You've got Pennsylvania, you've got New York. Louisiana actually has

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Speaker 4: a very strong constitutional right to a healthy environment provision,

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Speaker 4: believe it or not. Other states, Washington, Alaska, they have

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Speaker 4: those provisions. Our Children's Trust has not been successful in

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Speaker 4: bringing cases in those other states. But I think with

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Speaker 4: the held decision, and particularly again if it's upheld, I

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Speaker 4: do think you're going to see more attempts to get

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Speaker 4: courts ruling in cases being brought not only by youth plaintiffs,

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Speaker 4: but by other kinds of effective interests. And so this

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Speaker 4: is part of an increasing number of cases being litigated

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Speaker 4: all over the world. There are now over two thousand

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Speaker 4: climate cases that have either been brought or are in

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Speaker 4: the process of being litigated. So we're seeing a growing

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Speaker 4: number of judicial decisions across the globe requiring stronger action

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Speaker 4: to deal with climate change, to disclose what is being

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Speaker 4: done and what is not being done to address it.

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Speaker 4: These cases are not going to solve the climate crisis, obviously,

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Speaker 4: but they are certainly building a body of law, including

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Speaker 4: constitutional law, that is going to continue to put lots

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Speaker 4: of pressure on the political branches of government, legislatures and

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Speaker 4: executive branches. And I think that body of law is

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Speaker 4: gradually moving the other branches of government to take meaningful action.

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Speaker 4: That's what I think is happening and certainly what I

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Speaker 4: hope will happen.

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Speaker 2: As you mentioned, there's this broad wave of litigation. States

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Speaker 2: and cities are suing companies like Exxon, Chevron, and Shell.

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Speaker 1: Have any of those reached a point of trial.

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Speaker 4: No. The one that's out in front right now is Honolulu,

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Speaker 4: and the Hawaii Supreme Court is reviewing a decision by

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Speaker 4: a lower Hawaii court denying the oil company's motion to

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Speaker 4: dismiss the case against them on the grounds that it's

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Speaker 4: preempted by federal law. So we're waiting to see how

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Speaker 4: the Hawaii Supreme Court rules on that issue. If the

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Speaker 4: Hawaii Supreme Court upholds the lower court, then I think

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Speaker 4: the next step in the Honolulu case is discovery, which

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Speaker 4: of course the oil companies are terrified about, and that

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Speaker 4: discovery will probably start to happen in twenty twenty four

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Speaker 4: and a trial. Then we can expect to follow maybe

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Speaker 4: starting in twenty twenty four, but more likely twenty twenty five.

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Speaker 4: So the bottom line is we're still probably years away

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Speaker 4: from a verdict on whether the oil companies are actually

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Speaker 4: liable for their campaign of deceit regarding climate change.

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Speaker 2: Turning to another environmental issue, pat President Joe Biden announced

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Speaker 2: close to one million acres of public land around Grand

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Speaker 2: Canyon National Park as a new national manuit through the

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Speaker 2: Antiquities Act.

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Speaker 5: Folks, preserving these lands is good, not only if Arizona,

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Speaker 5: for the planet. It's good for the economy, it's good

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Speaker 5: for the soul of the nation. And I believe, in

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Speaker 5: my core and of course the right thing to do.

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Speaker 2: Biden also restored two sprawling national monuments in Utah that

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Speaker 2: were downsized by former President Trump.

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Speaker 5: We want to restore protection for three national monuments gutted

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Speaker 5: by the last administration, two not so far from here

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Speaker 5: in Utah, the Grand Staircase and Bear's Ears.

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Speaker 2: Is declaring a national monument well within the powers of

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Speaker 2: the presidency.

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Speaker 4: Well, we think it is, and I would certainly argue

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Speaker 4: that it is. I will say this Judge Chief Justice Roberts,

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Speaker 4: in a case that was challenging the designation of a

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Speaker 4: marine National monument off the co of New England. He said,

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Speaker 4: the question of the scope of the president's authority under

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Speaker 4: the Antiquities Act, which is the act that authorizes these monuments,

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Speaker 4: has never been resolved by the Supreme Court. So he

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Speaker 4: sort of flagged in his mind anyway a question about

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Speaker 4: whether the size of some of these monuments that are

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Speaker 4: being designated is within the president's authority. So I think

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Speaker 4: what we have to say on that is, certainly we

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Speaker 4: are going to see litigation over what President Biden is doing,

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Speaker 4: and that litigation is probably going to end up in

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Speaker 4: the Supreme Court. And then it's a matter of cross

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Speaker 4: your fingers.

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Speaker 2: Yeah, because a judge dismissed the lawsuit from Utah that

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Speaker 2: challenged his restoration of Bearsiers and Grand Staircase Escalante national monuments.

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Speaker 4: Yeah, and those will go up on appeal. And now

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Speaker 4: this latest designation in the Grand Canyon will also be challenged.

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Speaker 4: So the litigation over the scope of the Antiquities Act authority,

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Speaker 4: I think we're going to have to wait and see

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Speaker 4: how that finally sugars off. As we say in Vermont, I.

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Speaker 2: Like that saying I may use it myself, Thanks so much.

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Speaker 2: Pat That's professor Pat Parento of the Vermont Law and

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Speaker 2: Graduate School. A federal appeals court has ruled that a

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Speaker 2: law banning gun possession by unlawful users of a controlled

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Speaker 2: substance doesn't apply to someone who's sober at the time

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Speaker 2: of the arrest. The US Court of Appeals for the

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Speaker 2: Fifth Circuit overturned a conviction under the statute because there

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Speaker 2: was no evidence the defendant was intoxicated at the time

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Speaker 2: of his arrest. The panel said the law was unconstitutional

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Speaker 2: as applied because it isn't consistent with the historical tradition

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Speaker 2: of firearm regulation. Joining me his Second Amendment. Law expert

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Speaker 2: Eric Rubin, a professor at the SMU Deadman's School of Law,

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Speaker 2: Eric tell us about the Fifth Circuits decision.

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Speaker 6: This case involved a challenge to a federal law that

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Speaker 6: does the unlawful users of drugs or those who addicted

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Speaker 6: to drugs cannot possess firearms, and in this particular case,

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Speaker 6: the defendant said that he was a regular user of

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Speaker 6: marijuana and because under federal law that's unlawful, he was

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Speaker 6: therefore barred from possessing a firearm, but he had to

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Speaker 6: firearms on him at the time and he challenged that

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Speaker 6: as a violation of the Second Amendment rights.

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Speaker 2: And so the Court applied the Supreme Court's recent history

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Speaker 2: guidelines for analyzing the constitutionality of firearms laws.

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Speaker 1: Tell us what their reasoning was the majority.

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Speaker 6: Here, Yes, the Court was applying the twenty twenty two

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Speaker 6: Supreme Court case Bruant, which says that in order for

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Speaker 6: a modern firearm law addressing modern issues to be upheld

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Speaker 6: as constitutional, the federal government has to point to analogous

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Speaker 6: of regulations from the late seventeen hundreds or perhaps the

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Speaker 6: eighteen hundreds. In the case of drug users, including marijuana users.

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Speaker 6: That's a bit difficult because modern drug use is largely

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Speaker 6: a twentieth century phenomenon with respect to marijuana and some

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Speaker 6: other drugs. And so the Court said that there weren't

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Speaker 6: sufficient analogs from the framing generation or from the eighteen hundreds.

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Speaker 6: They spent a lot of time looking at restrictions on

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Speaker 6: possession of firearms when somebody was under the influence of alcohol,

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Speaker 6: and also of restrictions on gun possession by the mentally ill,

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Speaker 6: and they ultimately found that those simply weren't analogous enough

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Speaker 6: to a permanent bar on gun possession by unlawful users

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Speaker 6: of marijuana today.

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Speaker 2: The majority wrote, it's helpful to compare the traditions surrounding

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Speaker 2: the insane and the traditions surrounding the intoxicated, side by side.

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Speaker 6: Right and again. This is something that the Bruined decision

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Speaker 6: back in twenty twenty two forces courts into this bizarre

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Speaker 6: world where they have to try to draw analogies to

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Speaker 6: regulations that were addressing different issues back in eighteen hundreds

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Speaker 6: or seventeen hundreds in order to shore up the constitutionality

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Speaker 6: of today's laws. And what the court acknowledged was that

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Speaker 6: there are plenty of regulations barring gun possession or gun

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Speaker 6: use when somebody is intoxicated by alcohol. But those laws

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Speaker 6: the Court construed very narrowly, saying that they only applied

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Speaker 6: back in eighteen hundreds or seventeen hundreds when somebody actually

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Speaker 6: was intoxicated, unlike today's law barring gun possession by unlawful

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Speaker 6: users of drugs, which applies even when somebody is not

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Speaker 6: under the influence of the drug.

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Speaker 2: So, in a concurring opinion, Judge Stephen Higginson said, it's

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Speaker 2: possible that inferior officers such as myself are misinterpreting Bruin

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Speaker 2: by focusing on the right to keep.

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Speaker 1: And bear arms.

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Speaker 2: And it may be the Supreme Court will remind us

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Speaker 2: of the Second Amendment's middle where the the framers stated

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Speaker 2: explicitly that they were fashioning aright necessary to.

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Speaker 1: The security of a free state. What is he talking about.

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Speaker 6: Here, Well, what he's talking about here is that in

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Speaker 6: recent years, over the past ten or fifteen years, the

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Speaker 6: Supreme Court and the lower courts have focused almost exclusively

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Speaker 6: on the second half of the Second Amendment, the right

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Speaker 6: to keep in bare arms shall not be infringed, and

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Speaker 6: have ignored the first part of the Amendment, which discusses

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Speaker 6: the militia and also the requirements for the security of

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Speaker 6: a free state. And what the judge is pointing out

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Speaker 6: is that a lot of modern regulations that might not

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Speaker 6: have historical analogs actually could help us secure the state.

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Speaker 6: But that aspect of the Amendment just isn't getting enough attention.

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Speaker 2: Is that because the Supreme Court deliberately ignored that aspect

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Speaker 2: of it and focused on the right to bear arms.

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Speaker 4: Yeah.

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Speaker 6: Under some views, the Supreme Court back in Heller in

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Speaker 6: two thousand and eight, essentially ignored the first half the Amendment,

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Speaker 6: saying that it does not expand or detract from the

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Speaker 6: scope of the right to keeping bear arms, and that

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Speaker 6: ruling that understanding of the Second Amendment from Heller has

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Speaker 6: led to a rapid expansion, especially in recent years, of

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Speaker 6: the scope of gun rights in this country, And what

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Speaker 6: the concurring judge is saying is that perhaps it's time

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Speaker 6: to take another look at that first half the Amendment.

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Speaker 2: So though the Fifth Circuit's decision is limited to Louisiana, Mississippi,

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Speaker 2: and Texas, could it potentially impact the federal case against

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Speaker 2: Hunter Biden because he's charged in Delaware under the same

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Speaker 2: statute that the Fifth Circuit is finding unconstitutional.

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Speaker 6: Yeah, the reasoning in the Fifth Circuit's decision, even though

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Speaker 6: it was a case involving marijuana, would seem to extend

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Speaker 6: to other drugs as well, and it would seem to

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Speaker 6: broadly limit the ability of the government to ban gun

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Speaker 6: possession by unlawful users of drugs. And so that reason,

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Speaker 6: because it's so expansive, it could be persuasive to other

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Speaker 6: courts around the country. And if the Hunter Biden plea

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Speaker 6: deal continues to unravel, I fully expect that there would

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Speaker 6: be a strong second amendment argument that his attorneys would

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Speaker 6: raise that his charge under the same provision that was

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Speaker 6: ruled unconstitutional in the case in the Fifth Circuit would

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Speaker 6: be unconstitutional to Hunter Biden as well.

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Speaker 2: So the Fifth Circuit has now declared two federal gun

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Speaker 2: statutes unconstitutional. Does it seem as if any gun statute

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Speaker 2: now is going to be subject to being litigated under Bruin.

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Speaker 4: Yeah.

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Speaker 6: Well, one of the things that we've seen over the

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Speaker 6: year after Brewin came up with this novel test that

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Speaker 6: requires modern gun laws to be a nowog just to

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Speaker 6: historical one is that courts are applying the same history

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Speaker 6: differently in striking down or upholding the identical policies. So

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Speaker 6: we have splits that are opening up all over the country,

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Speaker 6: including on the issue of AREM possession by unlawful users

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Speaker 6: of drugs. Most of the courts that have considered that

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Speaker 6: law found it perfectly constitutional. And these aren't the only issues.

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Speaker 6: The Fifth Circuit, being one of the most if not

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Speaker 6: the most conservative appellate courts in the country, has been declaring,

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Speaker 6: as you mentioned, a couple laws unconstitutional federal laws. But

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Speaker 6: other courts around the country are reaching the opposite conclusion.

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Speaker 6: So one of the things that a lot of Second

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Speaker 6: Amendment scholars and experts are looking for is for more

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Speaker 6: guidance from the Supreme Court that if this historical analogical

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Speaker 6: test is going to be what applies in Second Amendment cases,

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Speaker 6: there needs to be more guidance in terms of how

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Speaker 6: to view history, how broadly or narrowly should he construed,

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Speaker 6: Because right now we see a fair amount chaos in

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Speaker 6: the lower courts across issues not just on the question

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Speaker 6: of drugs and guns, but also on the questions of

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Speaker 6: the constitutionality of assault weapons and ghost guns and large

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Speaker 6: capacity magazines, and restrictions on domestic abusers and guns. And

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Speaker 6: so this case and the split that had opened up

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Speaker 6: is reflective of broader trends right now in the lower courts.

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Speaker 6: In the wake of that twenty twenty two decisions grew there.

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Speaker 2: Was a gun case before the Supreme Court next term,

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Speaker 2: isn't there?

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Speaker 6: Yes, this is the United States vi. Raheemi also out

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Speaker 6: of the Fifth Circuit. That case involves domestic abusers. In

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Speaker 6: that case, the Fifth Circuit said that it's unconstitutional to

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Speaker 6: disarm temporarily those who were subject to domestic violence for

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Speaker 6: straining orders. The Fifth Circuit in that case found that

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Speaker 6: also to be an outlier regulation, an outlier modern regulation

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Speaker 6: that our ancestors would not have accepted in that case.

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Speaker 6: Is especially indicative of the challenges of applying this historical

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Speaker 6: analogical test to modern gun regulations, because back at the framing,

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Speaker 6: domestic violence wasn't viewed in the same way that we

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Speaker 6: view it today. In fact, husbands had a right to

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Speaker 6: chastisement where they could discipline their wives and were protected

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Speaker 6: to do so, and could discipline their children. So domestic

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Speaker 6: abuse itself is a phenomenon that is a modern one.

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Speaker 6: Our appreciation of the risks of gendered violence in the home,

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Speaker 6: and it's no surprise given that that the court was

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Speaker 6: unable to find close analogs from back in the seventeen hundreds.

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Speaker 2: In all these cases about the Second Amendment using Bruin's

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Speaker 2: so called history test, one that really stands out to

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Speaker 2: me is a case decided last week by the Ninth

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Speaker 2: Circuit that found that Hawaii's ban on butterfly knives was unconstitutional.

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Speaker 4: One of the.

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Speaker 6: Things that this case, and this is the case Peter v.

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Speaker 6: Lopez out of the Ninth Circuit, one of the things

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Speaker 6: that it reflects is just the way that courts are

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Speaker 6: manipulating his history to reach one outcome or another. So

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Speaker 6: in that case, for example, the court took a very

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Speaker 6: broad view of the historical understanding of arms, basically saying

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Speaker 6: that it encompasses all weapons, including these butterfly knives, which

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Speaker 6: in modern days are associated with a lot of criminality.

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Speaker 6: And at the same time that the Court took this

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Speaker 6: broad view of the definition of Second Amendment arms, it

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Speaker 6: then took a very narrow view of the historical regulations

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Speaker 6: that could be analogous to a modern van on butterfly knives.

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Speaker 4: There were lots of laws back.

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Speaker 6: In eighteen hundreds of restricting certain types of knives, but

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Speaker 6: the court viewed that those were disnalogous because, for example,

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Speaker 6: they governed bigger knives than the butterfly knive, which the

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Speaker 6: court repeatedly referred to as a pocket knife, even though

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Speaker 6: you know, these butterfly knives that you can flip open

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Speaker 6: so are not usually what we think of when we

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Speaker 6: think of pocket knives. Pocket knives came up repeatedly, probably

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Speaker 6: a dozen times in this opinion, saying that these butterfly

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Speaker 6: knives are just pocket knives.

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Speaker 2: But if they appeal that to the full Ninth Circuit.

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Speaker 2: Do you think that full Ninth Circuit would overrule the

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Speaker 2: three judge panel.

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Speaker 6: I think this was a panel that was not reflective

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Speaker 6: I think of the broader Ninth Circuit. So it's very

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Speaker 6: possible that if this case gets appealed, that it could

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Speaker 6: actually end up with a different outcome with an en

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Speaker 6: BOONMC panel of the Ninth Circuit. That's been a trend

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Speaker 6: that we've seen in past years, even before Bruin. Sometimes

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Speaker 6: there would be a broad, broad, robust, bansive understanding of

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Speaker 6: what the Second Amendment protects that would get appealed and

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Speaker 6: reversed on bond. So I would not be surprised at

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Speaker 6: all if we see a petition to rehear this case

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Speaker 6: by a broader panel of the Ninth Circuit.

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Speaker 2: I mean, there are so many challenges based on the

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Speaker 2: Second Amendment that courts around the country are grappling with.

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Speaker 4: Yeah.

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Speaker 6: So there have been over two hundred challenges brought in

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Speaker 6: the year after Bruin came down, challenging all range of

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Speaker 6: weapons regulations. There are lots and lots, there are thousands

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Speaker 6: of regulations on weapons into violence. They're all getting challenged.

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Speaker 6: One of the things that the Supreme Court did in

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Speaker 6: that Ruined case is by changing the way that cases

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Speaker 6: get decided. The Supreme Court basically gave plaintiffs a redo

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Speaker 6: to challenge laws that had been viewed as perfectly constitutional.

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Speaker 6: Across the country, advocates are now getting a second bite

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Speaker 6: at the apple. So we're seeing more Second Amendment litigation

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Speaker 6: than we even did after Heller. There are more splits

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Speaker 6: that are opening up courts looking at the same history

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Speaker 6: and coming to opposite conclusions about the constitutionality of identical

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Speaker 6: policies than there were after Heller. So there's just a

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Speaker 6: lot of discord. This is an area of law that

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Speaker 6: is incredibly influx depending on the makeup of courts and

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Speaker 6: where litigation is happening in the country. And I think

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Speaker 6: it's going to take a very long time, if this

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Speaker 6: Bruin test is going to be workable, for everything to

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Speaker 6: shake out and become more coherent, because right now there's

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Speaker 6: just no predictability about the constitutionality of most regulations.

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Speaker 2: Thanks so much, Eric.

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Speaker 1: That's Professor Eric Rubin of the s m U Deadman

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Speaker 1: School of Law.

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Speaker 2: Michael Bloomberg, the founder and majority owner of Bloomberg l P,

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Speaker 2: the parent company of Bloomberg Radio is the donor to

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Speaker 2: groups that support gun control, including every Town for Guns Safety.

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Speaker 2: And that's it for the s edition of the Bloomberg

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Speaker 2: Lawn Show. Remember you can always get the latest legal

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Speaker 2: news by listening to our Bloomberg Lawn podcasts. You can

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Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

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Speaker 2: bloomberg dot com, slash podcast, slash Law. I'm June Grosso

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Speaker 2: and this is Bloomberg