Speaker 1: Good morning, peeps, and welcome to WOKP Daily with me
Speaker 1: your girl Daniel Moody from the Home Bunker. Folks, I
Speaker 1: am very excited to bring you a conversation with one
Speaker 1: of our friends of the show and friends of mine,
Speaker 1: Jentaub now Jen, as you know when we brought her
Speaker 1: on the show in the past. We get into the
Speaker 1: legal weeds. We talk about white collar crime, we talk
Speaker 1: about Donald Trump, we talk about the Supreme Court, we
Speaker 1: talk about grifting. But on this episode, I actually wanted
Speaker 1: to talk about the humanity in the law and not
Speaker 1: being able, or I should say this, being able to
Speaker 1: view the law not as this neutral power structure, because
Speaker 1: we know that people are not neutral. We know that
Speaker 1: the judges and the lawyers that preside over our legal
Speaker 1: system are coming from a varied perspectives, upbringings, understanding and
Speaker 1: reasons why they are there in the first place. So
Speaker 1: in this conversation with Jen today, we talk about her
Speaker 1: law students. We talk about the things that are providing
Speaker 1: us hope in these really dark times. We talk about
Speaker 1: systems holding and systems folding, and what the future looks
Speaker 1: like for us as we move into the twenty twenty
Speaker 1: four election cycle year. Given all that has transpired and
Speaker 1: continues to transpire while I'm doing this recording, there is
Speaker 1: so much happening everywhere, and everywhere looks bad. But if
Speaker 1: you are not actively intentionally looking for the light, you
Speaker 1: will find yourself consumed in darkness. And so I hope
Speaker 1: that this episode with our friend Gentaalb provides a little
Speaker 1: bit of a spark. Folks. I am always grateful whenever
Speaker 1: I get to bring on friends, people who I genuinely
Speaker 1: care about to this show, to ook at daily, and
Speaker 1: I'm always happy to welcome back gent Tobb, our friend,
Speaker 1: law professor and author of Big Dirty Money and Other
Speaker 1: People's Houses and host of the podcast Booked Up with
Speaker 1: gen Tobb. Jen there is I mean, it isn't even
Speaker 1: an elephant in the room. It's like we're just inside
Speaker 1: of the elephant at this point. And you know, before
Speaker 1: we even started recording, it was what should we talk about?
Speaker 1: Because it is like we're just in a place of
Speaker 1: overwhelm where everything everywhere that you look is devastating. It
Speaker 1: is invoking grief, It is invoking despair, hopelessness, all of
Speaker 1: these things that I know that my listeners are feeling
Speaker 1: because they are sharing, and what I've been trying to
Speaker 1: do over the past week on this show, Jen, is
Speaker 1: to really talk about how we take care of each other,
Speaker 1: how we take care of ourselves and each other during
Speaker 1: this time, how we collectively stand up for and discuss humanity,
Speaker 1: something that is just you know, as old as you know,
Speaker 1: as all as time, but that we seem to have
Speaker 1: lost sight of. And so I just want to start
Speaker 1: off with, you know, for you who teaches, you know,
Speaker 1: stands up in front of young people who are aspiring
Speaker 1: right to do something good to you know, to be
Speaker 1: of service. How are you finding this moment and how
Speaker 1: are you taking care of yourself as you you know,
Speaker 1: I think that part of being a professor in a
Speaker 1: lot of ways is performing. It's what teachers have to do,
Speaker 1: you know, to to bring people in. How are you
Speaker 1: able to manage at this time?
Speaker 2: Well, thank you so much for asking. I've been able
Speaker 2: to fortunately this week because this is when you and
Speaker 2: I are talking. My schedule is like a Monday, Wednesday,
Speaker 2: Thursday this fall, and Monday was Indigenous People's Day so
Speaker 2: I didn't have to go in, and then on Wednesday
Speaker 2: we had a appellate court visit, so one of my
Speaker 2: classes got to watch lawyers make arguments right in that class.
Speaker 2: Then we had the follow up on Thursday, and and
Speaker 2: I sort of set aside the regular lesson, which was
Speaker 2: some sort of technical lesson on federal court procedure, to
Speaker 2: hear what they thought of the oral argument. And that
Speaker 2: was a way and they were so talkative, and I
Speaker 2: think it was a sideways into talking about feelings and
Speaker 2: talking about fears and talking about humanity and I'll explain
Speaker 2: in a second why, and talking about imposture syndrome. Because
Speaker 2: there were several people arguing before these judges these appeals,
Speaker 2: and I only was there for half of it, for
Speaker 2: the civil cases. In the morning, there were some criminal cases,
Speaker 2: and so I wanted this to get We were talking
Speaker 2: about one case in particular, what did I think the
Speaker 2: outcome would be? And that was kind of technical, right,
Speaker 2: But then I want to know what they thought about
Speaker 2: the lawyer's performances. And they all these hands shop shot off.
Speaker 2: People were popping out of their seats to talk, and
Speaker 2: I'm like, okay, let this go. And so it was
Speaker 2: really interesting because first they were like, that was so
Speaker 2: embarrassing that one lawyer representing a criminal defendant. This person
Speaker 2: is charged with these heinous crimes and might be deported,
Speaker 2: and this lawyer did a terrible job, right, and so
Speaker 2: that's like that our system shouldn't work that way. And
Speaker 2: then there was some people who said, yeah, but the
Speaker 2: judges were laughing at that lawyer because they were doing
Speaker 2: such a bad job, and that made us laugh and
Speaker 2: we feel bad about that the judges. So there was
Speaker 2: all this stuff that happened, and I realized it wasn't
Speaker 2: just I know that maybe this seems an odd thing
Speaker 2: for me to say, but I think allowing for those
Speaker 2: kinds of impressions, and not just the analytical side of
Speaker 2: an argument, but letting students share their feelings about something
Speaker 2: that wasn't one of these painful current events, that they
Speaker 2: could all they could debate over what they thought about
Speaker 2: the behavior. And you know, that was the moment where
Speaker 2: I was able to do my thing that I often say,
Speaker 2: which is, you know, law is the language of power.
Speaker 2: And by the way, most of my students are first
Speaker 2: gen students. I am at a sort of regional law school.
Speaker 2: Amazing students who are trying to do all kinds of
Speaker 2: different things with their degrees, lift themselves up economically, someone
Speaker 2: to help the community. People have all kinds of different
Speaker 2: ideas with what they'll do with the degree. And you know,
Speaker 2: they watch role models. They saw lawyers they wanted to
Speaker 2: emulate and ones they didn't. They saw judges they liked
Speaker 2: and ones that they didn't. And I think this speech
Speaker 2: that I was able to talk about about law being
Speaker 2: the language of power and how you know, I always say,
Speaker 2: you know, generations ago, during feudalism, you know, you had
Speaker 2: a big mode and you had an army, and now
Speaker 2: law and law can be boring and challenging, and you
Speaker 2: need to have access in many to go to law school.
Speaker 2: And I said, on top of that, even when you're
Speaker 2: a lawyer, then you're up against judges who've been raised
Speaker 2: in this system, even if they think they're doing the
Speaker 2: right thing, to have a kind of imperious attitude. And
Speaker 2: I said, you know, you don't have to do that
Speaker 2: as a judge. I said, if you're a judge and
Speaker 2: you see someone struggling, if you let them know they're
Speaker 2: fucking up, like it's not going to make them do
Speaker 2: a better job for their client, how do you show
Speaker 2: your humanity? And then another student said, yeah, but that
Speaker 2: person it's you know, I don't have a problem with
Speaker 2: the judge behaving that way because that lawyer shouldn't have
Speaker 2: been there. And I'm thinking, okay, like I just let
Speaker 2: them all express what they wanted to express, and I
Speaker 2: think it was a really cool class. Now I'm a
Speaker 2: day behind and my lesson, but it was I think
Speaker 2: a gift to me to be able to hear them
Speaker 2: talk in that way about how to be a person
Speaker 2: in the world and these challenging circumstances as a lawyer.
Speaker 2: But it has also allowed me not to have to
Speaker 2: perform and act like everything was normal. So that's the
Speaker 2: ant long winded answer to your question.
Speaker 1: No, but I think but I think that that's right,
Speaker 1: even though you just said that you're a day behind
Speaker 1: in lessons, because I think that that was a lesson.
Speaker 1: I think that oftentimes, and a lot of these you
Speaker 1: know what your books and your writing and your work
Speaker 1: is about, these white collar professions have people assume a
Speaker 1: different costume and identity in order to fit in to
Speaker 1: the status quo of what is supposedly acceptable behavior and
Speaker 1: action and dress and talk and tone in these different spaces.
Speaker 1: And so when you are saying that your students are
Speaker 1: first generation, largely first generation. They're entering into the law
Speaker 1: right for a different reason. And so I just want
Speaker 1: to give you the space to talk about, you know,
Speaker 1: what have you heard from some of your students as
Speaker 1: to why they enter into a profession that largely at times,
Speaker 1: you know, is a punch is a punchline, right for comedians,
Speaker 1: is a is a battering ram for for other places,
Speaker 1: that a first generation individual entering into a law school
Speaker 1: has a different perspective and mindset than than what we
Speaker 1: believe to be the traditional quote unquote law student.
Speaker 2: So I'm glad you asked that. I always asked my
Speaker 2: first year students to send me a photo and sort
Speaker 2: of either why they wanted to go to law school
Speaker 2: or what their what their super secret superpower is or
Speaker 2: could be. You know, so I get these interesting things,
Speaker 2: and so I learned about a lot of them. You know,
Speaker 2: I can give you a handful of examples. I have
Speaker 2: a student who spent some time in prison, and that's
Speaker 2: experience of the criminal justice system wasn't great. And I
Speaker 2: think you know he but he also sees lawyers as
Speaker 2: being really interesting people who work within the law, and
Speaker 2: when he watched it was interesting I asked the students,
Speaker 2: because I didn't get to see all the lawyers arguing.
Speaker 2: I said, you know, I could see the race and
Speaker 2: gender composition of the ones I saw, but what was
Speaker 2: the rest of the day. And except for one person,
Speaker 2: everybody was white? And this student said to me, you know,
Speaker 2: one of them, the student I'm thinking of, you know,
Speaker 2: he raises his hand, he said, well, one person looked
Speaker 2: like he was brown, and that was the guy arguing
Speaker 2: for the Commonwealth, and one of the you know, for
Speaker 2: the government, and one of the Krim and one of
Speaker 2: the Krim arguments or the appeals. I guess that was
Speaker 2: a case, or maybe it was I think that might
Speaker 2: have been a suppression of due to an unlawful search.
Speaker 2: I can't remember what it was. Whatever the situation was,
Speaker 2: he really liked that person, and so it's interesting. This
Speaker 2: is some one one example of someone who was a
Speaker 2: defendant in the criminalistic system but also wants to be
Speaker 2: a prosecutor. And I think that could be a good thing.
Speaker 2: You know, this is a compassionate person. And when I
Speaker 2: heard about the students said that one of the prosecutors
Speaker 2: something had been misstated on the record and he wanted
Speaker 2: to make sure the judges knew the right information, it
Speaker 2: didn't actually hurt help his case. He clarified something that
Speaker 2: would have helped the defendant and they all respected that.
Speaker 2: So like this is something other students, you know, they
Speaker 2: want to go into family law, maybe because of their
Speaker 2: own background. Others, you know, they need some A lot
Speaker 2: of the ones who end up around me want to
Speaker 2: go into business law because they've really been interested in
Speaker 2: numbers or they you know, they had a family that
Speaker 2: had maybe a business and they want to try to
Speaker 2: be independent in that way. But it's interesting, there's often
Speaker 2: my students often you know, that imposter complex can be
Speaker 2: a thing. And so in addition to what I was
Speaker 2: saying to them, I said, you know, now you know,
Speaker 2: I said, these judges were actually pretty nice. I said, wait,
Speaker 2: do you see a Supreme Court argument? And I said
Speaker 2: one thing you can do if you're feeling, you know,
Speaker 2: what lawyers do, the ones that you saw up there,
Speaker 2: I said that we're doing a great job. They've practiced
Speaker 2: a lot. And I said, there are these things that
Speaker 2: people say. It's called like murder board is the expression
Speaker 2: where before you're going to go in to an argument
Speaker 2: in a pellet argument, before judges as opposed to dealing
Speaker 2: with a jury. When you're going to do one of
Speaker 2: these tough arguments with the judges are going to cut
Speaker 2: you off and zero you in and ask all kinds
Speaker 2: of questions you may not know the answer to. People
Speaker 2: prepare in advance and they have their friends act like
Speaker 2: mean people, and then you can build up your confidence.
Speaker 2: But you know, it was it's but yeah, they go
Speaker 2: into law for all kinds of reasons, and a lot
Speaker 2: of them, a lot of them, don't. You know. A
Speaker 2: lot of people can pass as somebody who had a
Speaker 2: normal childhood or had a middle class upbringing, and and
Speaker 2: I say pass you know, I think you know, in
Speaker 2: particular the complexity of a lot of my first gen
Speaker 2: white students who didn't. And they're trying to act they
Speaker 2: don't necessarily have a community around feeling like it was
Speaker 2: okay to have come from, you know, a poor white family. Right,
Speaker 2: So they're trying to dress in a certain way or
Speaker 2: look of certain way and look like the profession, all
Speaker 2: the while knowing, you know, what their family life was like,
Speaker 2: maybe a family member also in prison, right, And so
Speaker 2: it's it's you know, people don't always share that. But
Speaker 2: if you get to know the students, you understand what
Speaker 2: that background is, and then others are just ordinary middle
Speaker 2: class kids, you know, just a mix.
Speaker 1: It's really interesting when you know, we're watching so many
Speaker 1: different cases and so many different judges right these days
Speaker 1: that are becoming spotlighted figures because of the cases that
Speaker 1: they're covering. Right, whether we're looking at Aileen Cannon down
Speaker 1: in Florida, whether we're looking at h you know, tany
Speaker 1: chunkin in New York, if you're looking at you know,
Speaker 1: the DA's right, whose names we can you know, kind
Speaker 1: of rattle off. These are attorneys, right, These are people people, right,
Speaker 1: and went into this profession for varied reasons and their backgrounds.
Speaker 1: While we love to use the concept of the law
Speaker 1: being quote unquote blind, which is a totally also ablest
Speaker 1: thing to say, it probably needs to be changed. But
Speaker 1: when we use those kind of refrains, it's like this
Speaker 1: false idea that we can be neutral. And I want
Speaker 1: to be able to dig into that with you, because
Speaker 1: the law as it has been set up has never
Speaker 1: been neutral. Right. The law, whether you're looking at family law,
Speaker 1: if you're looking at employment law, you're looking at you know,
Speaker 1: has always had the traditional quote unquote norm which falls
Speaker 1: on white, middle class male, you know, dominant perspective, and
Speaker 1: it's just like who were I feel like, more so
Speaker 1: now than ever, I feel like folks are asking themselves
Speaker 1: and also outwardly, who was this created for? And So
Speaker 1: when you think about the law in terms of how
Speaker 1: you even knew it when you entered into law school
Speaker 1: till now as a professor, how has your understanding of
Speaker 1: the law and its power right and the power dynamics
Speaker 1: that plane play shifted.
Speaker 2: I think that I always looked, you know, I always
Speaker 2: sort of try to see things as they are, and
Speaker 2: so I was not I wasn't delusional when I went
Speaker 2: to law school, like I understood how you know, law worked,
Speaker 2: the difference between and what was on the books and
Speaker 2: what happened in real life. But I think what I
Speaker 2: have learned over the years is that people in power,
Speaker 2: whether it's judges or prosecutors or members of Congress, actually
Speaker 2: have a lot more space and discretion that's perfectly legal
Speaker 2: to use in ways that take into consideration the very
Speaker 2: real human beings in front of them, and that there
Speaker 2: are ways that judges can get, you know, I can say,
Speaker 2: get away with doing good or get away with doing bad.
Speaker 2: And I know that seems very simplistic, but the examine
Speaker 2: example would be someone like Judge Cannon in Florida slowing
Speaker 2: things down in the document's trial, doing these little things
Speaker 2: that will delay, being hostile toward the prosecutors acting in
Speaker 2: a way with our discretion. That doesn't like really line
Speaker 2: up like these other defendants who deserve actually to have
Speaker 2: independent counsel not or at least have a discussion with
Speaker 2: independent counsel so they can make a choice whether they
Speaker 2: want to still be with the lawyer that's going to
Speaker 2: that works for Trump and therefore or you know, I
Speaker 2: would say works for Trump is on the side of
Speaker 2: the you know, the sort of the other defendants who
Speaker 2: are allied with Trump, in other words, can they have an
Speaker 2: independent council representing them or at least the option. And
Speaker 2: you know, the fact that she's kind of delaying and
Speaker 2: standing in the way of that is really a problem.
Speaker 2: And yet there's no actual way, there's no mechanism to
Speaker 2: stop her, similar to the fact that if a different
Speaker 2: judge were in that position, they could actively say in
Speaker 2: my courtroom, I want the truth to come out, and
Speaker 2: I want every defendant if there's a conflict of interest
Speaker 2: to have real representation, which seems to be fully in
Speaker 2: line with the Constitution, and they could do the opposite.
Speaker 2: So I guess what I would say is people who
Speaker 2: hide behind this idea that the judge is just sort
Speaker 2: of like you know, turning on the lights, turning on
Speaker 2: the justice, you know, the you know, the balls and strikes,
Speaker 2: turning on the you know, the electric picture, and they're
Speaker 2: just going to like stand there as an umpire and
Speaker 2: watch things go by. It's not actually how law works.
Speaker 2: Because I think of a you know, a good judge
Speaker 2: I really admire and Nancy Gertner, who was a judge
Speaker 2: in Massachusetts. I had lunch with her last year and
Speaker 2: she spoke to our students, and it was incredible about
Speaker 2: how she talked about how much discretion she could have
Speaker 2: when she was dealing with young defendants, defendants, you know who,
Speaker 2: especially in criminal defendants. The things that she would do
Speaker 2: within her discretion to create time, to create space, to
Speaker 2: create opportunities for fairness and justice. It almost like brought
Speaker 2: tears to my eyes. So, you know, I think I
Speaker 2: think it's really I think, you know, the overwhelm that
Speaker 2: you talk about the overwhelm around us can obscure for
Speaker 2: us that sometimes it's just one person in front of
Speaker 2: us that we're dealing with, and that you know, even
Speaker 2: if it's your job where you see tens of thousands
Speaker 2: of people, that's the person across from you where it's
Speaker 2: their only time, their first time in something terrified out
Speaker 2: of their minds, or maybe it's happened again and again
Speaker 2: and they've got some trauma. It doesn't even matter if
Speaker 2: it's a criminal defendant or even a civil defendant. This
Speaker 2: summer's business, someone's whatever it is everyone in front of you.
Speaker 2: You can choose your humanity or you can choose to
Speaker 2: hide behind systems and not look at your own role.
Speaker 2: And you know, there's a lot of space for that.
Speaker 2: The law is the law. Sometimes you know there's interpreting
Speaker 2: the law, but very often there's legal precedent that guides
Speaker 2: what you need to do. But there's also a lot
Speaker 2: of space in how you conduct yourself. And I you know, anyway,
Speaker 2: I hope that answered your question.
Speaker 1: It does, but jen with a couple of minutes that
Speaker 1: we have left, I do want to ask you this,
Speaker 1: which is you know the law and the integrity of
Speaker 1: the law and our faith in the legal system is
Speaker 1: wavering greatly at this time. Our faith that the constitution
Speaker 1: will hold, that those that take in both right and
Speaker 1: sign up for their duties will do so from a
Speaker 1: place centered around humanity, that seems to be wavering and faltering.
Speaker 1: And I'm just curious as to you know, this next year,
Speaker 1: twenty twenty four is like the year of law, it's
Speaker 1: the year of democracy, it's the year of humanity. What
Speaker 1: do you I guess, what is allowing you if you
Speaker 1: can hold on to hopefulness and faith that the systems
Speaker 1: will hold.
Speaker 2: Interesting premise, Okay, the systems, Yeah, don't. I don't. It's
Speaker 2: so interesting that you ask that, because I don't have
Speaker 2: that faith that the systems will hold. I think some
Speaker 2: systems have broken already and they could be possibly repaired.
Speaker 2: I think the fact, I think, I'll tell you the
Speaker 2: fact that we have of the leading candidate for the
Speaker 2: major political party being someone who's under four indictments major
Speaker 2: civil cases, has been adjudicated a equivalent of a rapist.
Speaker 2: Need I go on and oh oh, and even perhaps
Speaker 2: more importantly, over refused to refuse to acknowledge the legitimate,
Speaker 2: lawful results of an election and orchestrated a failed coup.
Speaker 2: So so where is the part about how the how
Speaker 2: things held? Where are you seeing that? I rather think
Speaker 2: that it's broken and we're trying to put it back
Speaker 2: together right now because this idea of like feeling, oh
Speaker 2: my god, is this thing going to fall apart? Feels
Speaker 2: like a lot of pressure. I'm kind of like, well,
Speaker 2: this is a shit show. Am I allowed to say that?
Speaker 2: You know? This is a disaster. This is a disaster,
Speaker 2: and now we're in rebuilding because I just I don't
Speaker 2: I don't want to do this. Will it hold? It
Speaker 2: hasn't helped, It has not held.
Speaker 1: And see and I and I you're putting me in
Speaker 1: a role that I'm not often in, Uh, you know
Speaker 1: which I'm trying to be in, which is optimism, which
Speaker 1: is that you know, did it hold? I think that
Speaker 1: because we're not under the Trump regime and administration right now,
Speaker 1: it did hold? Right Like, if if he had been successful,
Speaker 1: if all of these people now that have now been
Speaker 1: indicted were successful, we would be three years into the
Speaker 1: whenever Trump, you know, decided that he was going to
Speaker 1: be done and pass on his kingdom to his kids.
Speaker 1: Do you know what I'm saying so like that in
Speaker 1: that respect, you're actually cheering me up.
Speaker 2: Yes, I told you when I told you yesterday that
Speaker 2: I was cracked open and broken. Now do you see
Speaker 2: what I'm saying. If you're cheering me up?
Speaker 1: Thank you, Danielle, You're welcome because it's because I mean,
Speaker 1: I just want because I know that so many things
Speaker 1: are bad. But the truth is is that if they like,
Speaker 1: we're able to call it a failed coup because we
Speaker 1: are not living in the second term of the Trump
Speaker 1: administration right like, that's the reality. Donald Trump has been indicted.
Speaker 1: He has ninety one charges against him. Now we will
Speaker 1: see if the criminal justice system works in the way
Speaker 1: that it should, which currently you know, the fact that
Speaker 1: he has charges against him, Okay, But in my humble opinion,
Speaker 1: should he also be in jail right now with having
Speaker 1: broken multiple gag orders and threatened multiple people from judges
Speaker 1: to law clerks in what have you. Absolutely, but I
Speaker 1: think that we also have to hold on to the
Speaker 1: fact that it didn't crack all the way open.
Speaker 2: Sure, and you know I should also say so, I'll
Speaker 2: play the devil's advocate, Okay. The thing that gives me
Speaker 2: help are the cases in Colorado, Minnesota, and Michigan to
Speaker 2: try to keep him off the ballot because those hearings
Speaker 2: will matter and we'll see because those aren't those aren't
Speaker 2: about politics. Those are about really deeply about law, and
Speaker 2: we have the first one of those hearing is October
Speaker 2: twenty third. I'm gonna keepganize on that.
Speaker 1: Mm hmm, okay, well we will follow up with you.
Speaker 1: There is no more important thing to do now than
Speaker 1: to take care of yourself, to take care of your family,
Speaker 1: to find whatever light that you can every day, because
Speaker 1: the darkness is everywhere. And I think that what gives
Speaker 1: me hope is that you are the one that is
Speaker 1: educating like the next generation of lawyers that I hope
Speaker 1: will sit on somebody's bench centered in their humanity and
Speaker 1: grounded in their perspective and not wanting to be neutral
Speaker 1: in the face of injustice. So like that gives me hope.
Speaker 1: So thank you, thank you. That is it for me today.
Speaker 1: Dear friends on wokf as always, Power to the people
Speaker 1: and to all the people. Power, get woke and stay
Speaker 1: woke as fuck. M