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

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Speaker 2: In one of the most high profile cases of the term,

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Speaker 2: the Supreme Court divided six to three down ideological lines

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Speaker 2: limited the power of judges to block government policies nationwide.

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Speaker 2: President Trump praised the decision as a monumental victory.

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Speaker 3: Thanks to this decision, we can now promptly file to

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Speaker 3: proceed with numerous policies that have been wrongly enjoined on

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Speaker 3: a nationwide basis. And some of the cases we're talking

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Speaker 3: about would be ending birthright citizenship, which now comes to

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Speaker 3: the fore.

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Speaker 2: But the ruling did not address the constitutionality of Trump's

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Speaker 2: ban on automatic birthright citizenship, and the justices returned the

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Speaker 2: three cases to the lower courts to consider whether to

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Speaker 2: keep the ban on hold for longer, at least in

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Speaker 2: part of the country and perhaps in the entire country.

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Speaker 2: My guest is constitutional law expert David super, a professor

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Speaker 2: at Georgetown Law. David, the administration seems to be giving

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Speaker 2: this decision of very broad reading. Tell us what the

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Speaker 2: justice is actually ruled here.

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Speaker 4: It's really a very narrow technical decision. There are some

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Speaker 4: lower court decisions that enjoin the administration's birthright citizenship policy nationwide,

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Speaker 4: and the Court says that district courts can only issue

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Speaker 4: injunctions on behalf of parties in front of them, So

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Speaker 4: the injunctions to protect particular plaintiffs can stay. And the

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Speaker 4: Court's very clear that if the plaintiffs can certify a

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Speaker 4: class action, that all members of the class can get relief.

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Speaker 4: But they say the district courts cannot issue nationwide injunctions

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Speaker 4: where they are not hearing a case involving people from

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Speaker 4: all over the country.

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Speaker 2: Justice amy Cony Barrett wrote the majority opinion and went

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Speaker 2: back in history to reach our conclusion. Tell us about it.

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Speaker 4: Yeah, what Justice Barrett did was say that district courts

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Speaker 4: don't have statutory authority to issue this sort of injunction.

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Speaker 4: She said that you would have to analyze the Judiciary

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Speaker 4: Act of seventeen eighty nine, when the country was first

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Speaker 4: coming together under the Constitution, and find that at that

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Speaker 4: time district courts could issue this kind of order. Her

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Speaker 4: view is that these orders came about only late in

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Speaker 4: the twentieth century and therefore have no precedent at the

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Speaker 4: time time that the Judiciary Act was being passed.

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Speaker 2: Barrett wrote that the government's application to partially stay the

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Speaker 2: district court's preliminary injunctions are granted, but only to the

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Speaker 2: extent that the injunctions are broader than necessary to provide

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Speaker 2: complete relief with respect to each plaintiff withstanding to sue.

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Speaker 2: What is she saying there?

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Speaker 4: She's saying two things. One is that for the plaintiffs

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Speaker 4: that are already in the case, that they stay protected,

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Speaker 4: they're not losing anything. And then she is effectively inviting

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Speaker 4: plaintiffs to refile this or amend this into being a

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Speaker 4: class action.

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Speaker 2: But the Supreme Court in recent years has cut back

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Speaker 2: on class actions, haven't they They.

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Speaker 4: Have, but not likely in a way that would affect

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Speaker 4: this case. The Supreme Court has gotten very skeptical of

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Speaker 4: class acts actions that involve bringing different plaintiffs together to

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Speaker 4: get damages. The Court has also become more skeptical of

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Speaker 4: class actions where there are lots of different facts that

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Speaker 4: have to be proven relating to different people. For example,

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Speaker 4: a class action over racial discrimination might fail because the

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Speaker 4: court would say, oh, discrimination is different for each employee,

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Speaker 4: so we can't do that as a class. But here

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Speaker 4: there are absolutely no facts that need to be proven.

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Speaker 4: The administration's policy applies to all newborn children and does

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Speaker 4: not require making any determinations about those children, and is

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Speaker 4: being challenged on that legal basis. So nothing that the

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Speaker 4: Supreme Court has said makes class certification less likely. Here.

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Speaker 4: There is a concurrence that says the district courts should

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Speaker 4: not be irresponsible in certifying class actions. Well, who could

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Speaker 4: argue with that? But it doesn't really suggest any concrete

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Speaker 4: basis for objecting to a class action in this case.

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Speaker 2: I mean, did the majority opinion actually say that the

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Speaker 2: lower courts were wrong to issue injunctions here?

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Speaker 4: They did, but only to the extent that the district

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Speaker 4: courts protected people who were not parties in the case.

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Speaker 4: In a sense, the Supreme Court is saying that the

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Speaker 4: district courts were sloppy, although they've got lots of company.

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Speaker 4: There were a lot of sloppy district courts in Texas

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Speaker 4: under this standard during the Biden administration who were in

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Speaker 4: joining as the Court notes just about every major presidential action.

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Speaker 2: So Justice Sonya Sotomayor wrote dissent. She said, with the

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Speaker 2: stroke of a pen, the President has made it a

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Speaker 2: solemn mockery of our constitution. Rather than stand firm, the

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Speaker 2: Court gives way.

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Speaker 4: Yeah, Justice Sotomayor believes that the history cited by the

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Speaker 4: majority is incomplete and inconclusive. Justice so too. Mayor also

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Speaker 4: makes the pretty compelling point that the whole history of

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Speaker 4: injunctions of the body of Law that includes injunctions called

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Speaker 4: equity is constant change and constant adaptation to whatever is

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Speaker 4: needed to serve the ends of justice, and that the

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Speaker 4: mechanism or the reasoning that Justice Bearit is using is

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Speaker 4: in itself somewhat a historical and is not the way

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Speaker 4: that judges at the time of the nation's founding would

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Speaker 4: have analyzed an equitable question. So Justice Sotomayor meets Justice

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Speaker 4: bear It on the technicality. But then Justice Sotomayor's larger point,

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Speaker 4: which prompted the comment that you quote, is that the

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Speaker 4: most serious issue here is that the administration is completely

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Speaker 4: disregarding the fourteenth Amendment of the Constitution, and the Supreme

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Speaker 4: Court is addressing a small tactical matter based on some

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Speaker 4: dubious history, rather than facing the open defiance that the

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Speaker 4: Constitution had on.

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Speaker 2: President Trump held a press conference after this decision came

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Speaker 2: out calling it a monumental victory.

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Speaker 4: It's hardly any victory at all. It may help them

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Speaker 4: in some other cases, it won't help them on this one.

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Speaker 4: Their position on this case is hopeless. The Court has

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Speaker 4: made very clear that a class action can be filed

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Speaker 4: to enjoin the full implementation of this action. The administration

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Speaker 4: will lose almost exactly as quickly under this decision as

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Speaker 4: they would have under the opposite.

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Speaker 2: Does this mean we won't see a nationwide injunction issued

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Speaker 2: from this point.

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Speaker 4: On, No, It means that the plaintiffs will have to

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Speaker 4: amend their complaint to allege a nationwide class. There are

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Speaker 4: a few minor technicalities that they'll have to address when

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Speaker 4: they do that, but my guess is that that will

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Speaker 4: happen in a matter of weeks. And once they do that,

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Speaker 4: the district courts will surely find that there is a

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Speaker 4: definable class of people affected by this policy, will grant

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Speaker 4: an injunction for a nationwide class, and the technical issue

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Speaker 4: here will have been surmounted.

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Speaker 2: What's the next thing that's going to happen here?

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Speaker 4: The district court will most immediately cut back their orders. Certainly,

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Speaker 4: they won't be covering people in states that are not

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Speaker 4: suing and that are not members of some class of litigants.

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Speaker 4: What exactly they'll do about the states that are suing

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Speaker 4: on their own behalf is a little less clear. The

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Speaker 4: Court makes some vague comments about there being problems in

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Speaker 4: that area, but doesn't address it. So I don't know

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Speaker 4: what the courts will do on that, but they will

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Speaker 4: narrow their injunctions initially, but I think plaintiffs will then

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Speaker 4: within a matter of weeks amend their complaint to alleged

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Speaker 4: nationwide classes or possibly classes involving groups of states. But

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Speaker 4: my guess is just nationwide class action, and at that

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Speaker 4: point the case will go back to being litigated on

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Speaker 4: the merits.

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Speaker 2: And did the court give any opinion at all on

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Speaker 2: the legality of Trump's ban on automatic birthright citizenship.

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Speaker 4: Do not really know. They acknowledged that the dissenters regard

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Speaker 4: this order as completely unlawful. They don't comment on that

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Speaker 4: belief as they move forward, so they are staying true

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Speaker 4: to their word and only addressing tactical issues here. Many

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Speaker 4: people thought they wouldn't be able to resist getting into

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Speaker 4: the substance. Obviously they did.

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Speaker 2: Why is this particular opinion down ideological lines? Why are

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Speaker 2: the liberals on one side and the conservatives on the

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Speaker 2: other on this Well, that's.

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Speaker 4: A good question, because nationwide injunctions were a huge problem

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Speaker 4: for President by then a significant problem for President Obama.

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Speaker 4: But I think there really are more internal reasons here.

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Speaker 4: I think that the three liberals are generally believers that

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Speaker 4: the courts have a duty to dispense justice unless the

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Speaker 4: Constitution clearly prevents them from doing so, and this ruling

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Speaker 4: hobbles the lower court's ability to do justice against an

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Speaker 4: administration that is aggressively disregarded statutes and off of the Constitution.

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Speaker 2: Do you think this decision will embold in the Trump

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Speaker 2: administration to issue even broader executive orders.

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Speaker 4: I really haven't seen any evidence that the administration has

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Speaker 4: been holding back on anything, so I think they will

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Speaker 4: keep on issuing the executive orders that they've been wanting

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Speaker 4: to issue for a long time anyway, And those who

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Speaker 4: will have to get litigated on their merits, I hope

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Speaker 4: this will serve as a refresher for people who litigate

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Speaker 4: these cases that they ought to rely on a different

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Speaker 4: form of standing the one that was found in this case.

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Speaker 4: That they will likely be able to find other precedents

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Speaker 4: that serve them better. But this is going to be

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Speaker 4: a very small blip whichever way the Court ultimately comes out,

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Speaker 4: this case is likely to be fairly quickly forgotten.

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Speaker 2: Do you think that this issue will come back to

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Speaker 2: the Supreme Court at some point?

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Speaker 4: Oh? Yes. The administration is determined to pursue its birthright

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Speaker 4: citizenship policy. There's no legal support, so they're going to

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Speaker 4: keep losing in the lower courts on it, and they

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Speaker 4: will ask the Supreme Court to rule. This is an

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Speaker 4: issue obviously of great importance to the administration and to

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Speaker 4: the people involved, so the Supreme Court will surely take it.

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Speaker 2: Yet another case that will bounce back to the Supreme Court.

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Speaker 2: Thanks so much, David. That's Professor David super of Georgetown Law.

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Speaker 2: Coming up next, the Court bolsters the rights of religious parents.

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Speaker 2: I'm June Grosso and you're listening to Bloomberg. Religious rights

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Speaker 2: once again won out at the Supreme Court on Friday.

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Speaker 2: In a six to three decision. The Court ruled that

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Speaker 2: public school parents have a right to opt their children

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Speaker 2: out of classroom lessons that intrude on their religious beliefs.

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Speaker 2: In this case, it was about the reading of LGBTQ

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Speaker 2: themed storybooks. Justice Samuel Alito wrote the majority opinion for

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Speaker 2: the Conservatives and Justice Sonia Sotomayor wrote the descent for

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Speaker 2: the liberals, it was a matchup you might have predicted

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Speaker 2: after the oral arguments where the two justices basically bickered

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Speaker 2: over one of the books entitled Uncle Bobby's Wedding.

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Speaker 5: Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy,

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Speaker 5: and everything is you know, it portrays this. Everyone accepts this,

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Speaker 5: except for the little girl Chloe, who has reservations about it,

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Speaker 5: but her mother corrects her. Shouldn't have any reservations about this.

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Speaker 5: As I said, it has a clear more, It has a.

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Speaker 4: Clear moral message.

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Speaker 6: Just answer my question is looking at the pictures, is

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Speaker 6: there any affidavid from any parent that merely looking at

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Speaker 6: people getting married holding hands? None of them are even

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Speaker 6: kissing at any of these books. The most they're doing

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Speaker 6: is holding hands. That mere exposure to that is coercion.

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Speaker 2: Joining me is an expert in First Amendment law, Professor

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Speaker 2: Caroline Malacorbin of the University of Miami Law School. Caroline,

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Speaker 2: given the Roberts Court's record on religious rights and LGBTQ rights,

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Speaker 2: was any part of this decision a surprise?

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Speaker 7: This opinion was not at all a surprise, but It

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Speaker 7: was nonetheless a great disappointment, both for the outcome and

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Speaker 7: for the court continuing miscar jurization and manipulation of doctrine

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Speaker 7: to get a result that it wants.

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Speaker 2: Tell us about the conflicting claims from the school district

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Speaker 2: and the religious parents and how Justice Aldo came to

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Speaker 2: his conclusions.

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Speaker 7: On the one hand, you had a school district that

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Speaker 7: has a very diverse population, and they were trying to

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Speaker 7: do what a good public school do, which was not

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Speaker 7: only to have books that represented the people in your community,

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Speaker 7: but also what a school is supposed to do, which

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Speaker 7: is exposed children to different kinds of people and to

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Speaker 7: teach them how to all get along. Right. That's part

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Speaker 7: of a public schools goal in our country is to

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Speaker 7: teach our very very population about each other and how

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Speaker 7: to treat each other with respect, which is the sort

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Speaker 7: of precondition for democracy. On the other hand, you have

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Speaker 7: the religious parents who argued that having their children exposed

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Speaker 7: to ideas that did not conform to their religious belief

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Speaker 7: was an attack on their ability to practice the religion,

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Speaker 7: which is a completely novel claim. And although it was

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Speaker 7: a completely novel claim, Justice Toledo said, oh, yes, we

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Speaker 7: have always said that this kind of burden on religious

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Speaker 7: exercise trigger strict scrutiny, and therefore this is a severe

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Speaker 7: burden on these religious parents, and therefore the school is

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Speaker 7: now constitutionally obligated to allow them to pull those children

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Speaker 7: out of any lesson that exposes them to ideas that

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Speaker 7: their religion disapproved. So basically, how did he do it?

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Speaker 7: He just claimed that this had always been a law,

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Speaker 7: and there was nothing novel in this claim, and they

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Speaker 7: are just recognizing religious liberty in this country as they

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Speaker 7: always had. Now, that's not accurate, but that's how we

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Speaker 7: did it.

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Speaker 2: The Supreme Court has recognized that parents have an interest

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Speaker 2: in directing their children's religious and educational upbringing. But did

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Speaker 2: Justice Alito take it a step further?

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Speaker 7: Yes, So parents have always had a right to direct

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Speaker 7: the religious upbringing of their children, and that includes teaching

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Speaker 7: them their religious beliefs and sending them to religious schools. Now,

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Speaker 7: in relation to the public school system, the right to

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Speaker 7: control your child's upbringing, which includes the right to control

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Speaker 7: their religious upbringing, has included the right not to send

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Speaker 7: them to public school. So the parents' right to control

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Speaker 7: their children's religious upbringing means they had the right to

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Speaker 7: pull them out of public school and home school them,

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Speaker 7: or pull them out of public school and them to

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Speaker 7: a private religious schools whose values aligned with their own.

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Speaker 7: That has been the extent of parents' religious rights with

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Speaker 7: regard to public school education. That was it. It did

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Speaker 7: not go beyond that, however, Justice Alito claimed otherwise. He said, actually,

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Speaker 7: we have always said that if public school education imposes

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Speaker 7: this kind of clash with someone's religious values, then the

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Speaker 7: public school has to do something to accommodate them. At least.

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Speaker 7: That is how he described a case that did nothing

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Speaker 7: of the sort tell.

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Speaker 2: Us about that case, the Yoder case, because Alito and

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Speaker 2: Soto Mayor disagreed about the interpretation of that case.

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Speaker 7: So the case he relied on was a case involving

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Speaker 7: the Amish, and the Amish challenged law that required them

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Speaker 7: to send their children to public school until they turned sixteen,

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Speaker 7: and the Amish argued, this is contrary to our religious

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Speaker 7: beliefs for two reasons. First, it exposes their child to

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Speaker 7: worldly education and values which we disapprove. And in addition,

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Speaker 7: it's going to underline the continuing vitality of our Amish

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Speaker 7: culture if we cannot teach them how to be Amish

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Speaker 7: in the community. So they basically wanted to pull them

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Speaker 7: out of public school education and give them sort of

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Speaker 7: Amish vocational education in their community. And the Supreme Court said, fine,

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Speaker 7: we agree. It's a violation of your religious rights if

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Speaker 7: you do not have this chance to pull your child

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Speaker 7: out of public school and teach them at home as

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Speaker 7: you see fit. That is the case. So Alito somehow

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Speaker 7: goes from the case where the Supreme Court says the

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Speaker 7: Amish can pull their children out of public school and

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Speaker 7: train them as they see fit, elsewhere two religious people

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Speaker 7: have a right to insist that the public school itself

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Speaker 7: crafts the curriculum that complies with their religious right. These

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Speaker 7: two things are not the same, and yet Alito keeps

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Speaker 7: insisting that they're exactly the same.

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Speaker 2: One of the things that Justice Sotomayor was concerned about

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Speaker 2: in her dissent was the chilling effect of this decision.

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Speaker 7: Imagine you're a cash strap school and you are trying

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Speaker 7: to create a curriculum with books of all different kinds

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Speaker 7: of people, and a quarter of the parent now object

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Speaker 7: to a book with an LGBT two character. And so

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Speaker 7: not only do you have to plan the original lesson

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Speaker 7: with the book with the LGBT character. You also have

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Speaker 7: to plan something for the kids who are going to

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Speaker 7: leave the classroom. And imagine this happens not just with

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Speaker 7: one particular idea that some conservative people disagree with, but

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Speaker 7: a whole panoply of them. It's going to get logistically

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Speaker 7: impossible to be able to accommodate the diversity of objections

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Speaker 7: that parents are going to raise now. And so what's

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Speaker 7: going to happen in reality, unfortunately, is that the school

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Speaker 7: is just going to say, well, you know what, We're

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Speaker 7: just not going to include the books with the LGBT characters.

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Speaker 7: One of her themes was the incredible chilling effect that

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Speaker 7: this decision is going to have because now the school,

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Speaker 7: you know, it, still has to run, it still has

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Speaker 7: teachers who have to teach everyone. They're already overworked and underresourced.

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Speaker 7: The simplest path is just going to be, you know what,

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Speaker 7: We're just not going to teach any of these books

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Speaker 7: that the religious conservatives don't like.

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Speaker 2: I mean, this ruling is just one in a long

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Speaker 2: line of Supreme Court decisions in the past decade that

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Speaker 2: have bolstered religious rights even when they collide with LGBTQ rights.

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Speaker 2: Or reproductive rights. Religion always seems to win out with

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Speaker 2: this Court.

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Speaker 7: In the past, I had always felt fairly uncomfortable with

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Speaker 7: proticting the outcome of Supreme Court decisions. But I really

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Speaker 7: feel like for most cases involving these kinds of cultural questions,

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Speaker 7: if you ask what would conservative Christians want, that is

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Speaker 7: the holding that the Supreme Court is going to deliver.

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Speaker 7: They're going to figure out a way to get the

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Speaker 7: answer that comforts with what conservative Christianity would approve. You know,

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Speaker 7: if if a statue doesn't matter what the text says,

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Speaker 7: if it's constitutional law, doesn't matter what Preston says, it

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Speaker 7: doesn't matter what values are, like, that's the answer you're

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Speaker 7: going to get.

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Speaker 2: Do you think this opinion will open the door to

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Speaker 2: more complaints like this?

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Speaker 6: Absolutely?

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Speaker 7: This is not going to be limited to LGBT storybooks

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Speaker 7: about the Prince and the Night. Actually, when I was

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Speaker 7: reading it and I thought it sounded adorable because the

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Speaker 7: Court did not include a limiting principle. The only plausible

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Speaker 7: principle they might have made is that this is fact dependent.

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Speaker 7: And one of the things to consider is the age

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Speaker 7: of the child, because when they're very young, they're going

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Speaker 7: to assume anything their teacher says is normative. The teacher

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Speaker 7: says people of the same sex get married and their

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Speaker 7: families are happy, They're going to think that, oh, it's

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Speaker 7: perfectly fine for people of the same sex to get

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Speaker 7: married and have their families be happy. So perhaps the

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Speaker 7: same ruling may not come out if the students are older. Frankly,

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Speaker 7: I think they insist on a fact dependent evaluation so

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Speaker 7: that it's progressive. Brings a parallel claim. They can say, well,

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Speaker 7: we said it was fact dependent, and the facts here

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Speaker 7: don't support a religious liberty exception. But other than that,

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Speaker 7: there really isn't a clear limiting principle. Meaning, if a

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Speaker 7: parent doesn't want their child to hear about evolution because

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Speaker 7: it's contrary to the religious beliefs about how the earth

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Speaker 7: was created, they can argue that their child should not

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Speaker 7: have to go to the section in biology about evolution,

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Speaker 7: And if you have enough parents complaining about that, then

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Speaker 7: the school might simply decide not to teach that unit anymore.

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Speaker 7: There's so many things that people object to now. The

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Speaker 7: one example that Justice Sotomayor are also highlighted. What about

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Speaker 7: all the religions that believe that men and women have

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Speaker 7: very different roles in society and in particular oppose women

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Speaker 7: assuming positions of power. Are they going to object to

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Speaker 7: learning about women in law and business and politics? Are

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Speaker 7: they going to insist it undermines my religious view that

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Speaker 7: my daughter's proper role is to marry and have children,

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Speaker 7: to be exposed to all these female figures who divide

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Speaker 7: God's law about her proper role. We're just not going

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Speaker 7: to talk about successful women in schools, or at least

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Speaker 7: are the schools going to have to notify parents every

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Speaker 7: time they teach about women. Again, there is absolutely no

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Speaker 7: limits to what a parent might object to on religious grounds,

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Speaker 7: and under this ruling, they are now constitutionally guaranteed the

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Speaker 7: right to pull their child out of that class.

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Speaker 2: We'll have to see how the ramifications of this decision

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Speaker 2: play out. Thanks for joining me today, Caroline. That's Professor

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Speaker 2: Caroline Malacorbin of the University of Miami Law School. Coming

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Speaker 2: up next. It's a groundbreaking decision in the world of

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Speaker 2: animal law. A New York judge rules that dogs are

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Speaker 2: part of the family. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg. Dogs have found their ways every corner of

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Speaker 2: our lives. Hey, his Louis, there are companions.

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Speaker 1: Your dog are saviors, I think take it to Greg

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Speaker 1: are pop culture.

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Speaker 4: Icons, Peter, Peter, you hear that, and yet we're.

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Speaker 1: Only beginning to understand how their brains actually work.

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Speaker 2: The documentary Inside the Mind of a Dog was a

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Speaker 2: hit on Netflix. No surprise, since about sixty five million

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Speaker 2: Americans have dogs as pets, well known for their loyalty

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Speaker 2: and affection for the humans they bond with, and now

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Speaker 2: a groundbreaking decision recognizes that emotional bond. A Brooklyn judge

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Speaker 2: has ruled that dogs are no longer just property in

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Speaker 2: the eyes of the law. They're members of the immediate family,

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Speaker 2: something dog owners knew all along. Joining me is Christopher Berry,

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Speaker 2: executive director of the Non Human Rights Project, tell us

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Speaker 2: about the case.

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Speaker 1: The plaintiffs in the case was walking the family dog

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Speaker 1: named Duke through a crosswalk in New York when a

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Speaker 1: driver ran a stop sign, killing Duke, who died in

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Speaker 1: front of her. While the plant is barely escaped injury herself.

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Speaker 1: She was walking him on a leash as well, which

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Speaker 1: was relevant to the judge's decision, and that was caught

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Speaker 1: on security camera footage and historically.

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Speaker 2: What's New York's law regarding recovering emotional distress damages for

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Speaker 2: the loss of a dog.

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Speaker 1: So the traditional rule is that you cannot recover emotional

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Speaker 1: damages for loss of property. You're limited to economic damages,

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Speaker 1: which is usually just the market value, and that applies

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Speaker 1: for all forms of property and has applied to companion

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Speaker 1: animals as well historically.

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Speaker 2: So dogs are treated as property.

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Speaker 1: Then, yes, companion animals are generally treated as property under

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Speaker 1: the law in most ways. But binary categories don't necessarily

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Speaker 1: describe things perfectly accurately, and that is especially true in

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Speaker 1: the context of animal law, and in particular with companion animals.

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Speaker 1: People feel and treat companion animals as though they are

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Speaker 1: members of the family and not just a piece of

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Speaker 1: property that serves some utilitarian function. In addition to that, actually,

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Speaker 1: we can look at animal cruelty laws as another example

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Speaker 1: of ways that animals are distinguished from typical personal property.

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Speaker 1: And so it's exactly those types of tensions that are

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Speaker 1: adding up into context of recovery for emotional distress in

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Speaker 1: cases of involving companion.

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Speaker 2: Animals and treating duca's property would mean that plaintiffs could

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Speaker 2: only recover about two thousand dollars, despite the fact that

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Speaker 2: he'd been run down.

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Speaker 1: So one case that really crystallizes the problem of being

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Speaker 1: limited only to economic damages for a companion animal was

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Speaker 1: one from the Texas Supreme Court and around twenty I

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Speaker 1: think thirteen or so. It was Dricklin v.

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Speaker 4: Medlin.

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Speaker 1: And what had happened there is a family dog been

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Speaker 1: euthanized by a shelter improperly. It actually had gone to

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Speaker 1: recover the dog from the shelter and were told they

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Speaker 1: had to come back later. When they came back, the

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Speaker 1: dog had been euthanized, so they food for In Texas,

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Speaker 1: it wasn't emotional damages, it was sentimental damages, and sentimental

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Speaker 1: damages are available for special property like family heirlooms in Texas,

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Speaker 1: and the court unfortunately adhered to the traditional rule, citing

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Speaker 1: an eighteen hundreds case that in the case of dogs,

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Speaker 1: you are limited to the economic damages to the market

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Speaker 1: value and sentimental damages aren't available. But what was really

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Speaker 1: interesting and I thought inequitable about that decision is the

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Speaker 1: Texas Supreme Court acknowledged an argument from the amicus in

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Speaker 1: that case on behalf of the animals that in the

440
00:29:49,880 --> 00:29:53,280
Speaker 1: case involving the destruction of a taxidermied dog who happened

441
00:29:53,320 --> 00:29:56,320
Speaker 1: to be a family heirloom, that sentimental damages would be available.

442
00:29:56,720 --> 00:29:59,720
Speaker 1: And so I thought that, in the most concrete way

443
00:29:59,720 --> 00:30:02,960
Speaker 1: that it seen in my fifteen years or so of practice,

444
00:30:03,320 --> 00:30:07,000
Speaker 1: just really quite clearly illustrated the problem and attention in

445
00:30:07,040 --> 00:30:07,400
Speaker 1: the law.

446
00:30:08,200 --> 00:30:12,880
Speaker 2: That's quite a contrast in Duke's case. The pointif sued

447
00:30:13,000 --> 00:30:17,160
Speaker 2: for negligent infliction of emotional distress, tell us how the

448
00:30:17,200 --> 00:30:20,400
Speaker 2: concept of zone of danger fits.

449
00:30:20,080 --> 00:30:24,320
Speaker 1: In Negligent infliction of emotional distress is a torque cause

450
00:30:24,320 --> 00:30:27,720
Speaker 1: of action, and zone of danger is an important and

451
00:30:27,760 --> 00:30:32,160
Speaker 1: traditional qualification to a negligent infliction of emotional distress, which

452
00:30:32,200 --> 00:30:34,360
Speaker 1: is that you have to have been within the zone

453
00:30:34,400 --> 00:30:37,520
Speaker 1: of danger yourself, meaning that you almost suffered the injury

454
00:30:37,880 --> 00:30:41,200
Speaker 1: that caused the emotional distress, and that a family member

455
00:30:41,680 --> 00:30:44,800
Speaker 1: was the one who ultimately was injured and caused the

456
00:30:44,920 --> 00:30:46,160
Speaker 1: emotional distress.

457
00:30:46,440 --> 00:30:48,440
Speaker 2: And what did the driver argue?

458
00:30:48,840 --> 00:30:51,120
Speaker 1: The attorneys for the driver said that this was just

459
00:30:51,160 --> 00:30:54,800
Speaker 1: a simple application of the traditional rule that you cannot

460
00:30:54,800 --> 00:31:00,280
Speaker 1: recover emotional distress or destruction of personal property, and you know,

461
00:31:00,400 --> 00:31:03,160
Speaker 1: didn't see it as being really any more complicated than that.

462
00:31:03,680 --> 00:31:06,760
Speaker 1: The issue, of course, is that because this involved a

463
00:31:06,840 --> 00:31:09,280
Speaker 1: dog duke who was considered to be entreated like a

464
00:31:09,320 --> 00:31:11,960
Speaker 1: member of the family, that binary sort of distinction of

465
00:31:12,240 --> 00:31:14,920
Speaker 1: you know, animals must always be treated as personal property

466
00:31:15,160 --> 00:31:19,280
Speaker 1: under all circumstances. Simply, I think doesn't feel right, It

467
00:31:19,320 --> 00:31:22,840
Speaker 1: doesn't fit well, It doesn't feel fair to consider him

468
00:31:22,840 --> 00:31:23,200
Speaker 1: that way.

469
00:31:23,640 --> 00:31:27,920
Speaker 2: Why did the judge ask for outside groups to file papers?

470
00:31:28,720 --> 00:31:31,840
Speaker 1: The judge asked for amicist brief in this case at

471
00:31:31,840 --> 00:31:35,360
Speaker 1: the trial level, which is actually itself very unusual, and

472
00:31:35,800 --> 00:31:38,280
Speaker 1: it seemed that the judge was really struggling with the

473
00:31:38,440 --> 00:31:41,360
Speaker 1: rigid application of the traditional rule to the facts of

474
00:31:41,400 --> 00:31:43,720
Speaker 1: this case where you had a dog who was treated

475
00:31:43,720 --> 00:31:46,640
Speaker 1: as a family member. The judge had the video footage

476
00:31:46,640 --> 00:31:49,720
Speaker 1: of the accident. The dog duke had been in a

477
00:31:49,800 --> 00:31:53,280
Speaker 1: ring bearer for the family during a wedding. So under

478
00:31:53,320 --> 00:31:56,480
Speaker 1: those circumstances, it seems quite at odds with justice, right,

479
00:31:56,520 --> 00:31:59,320
Speaker 1: with fairness, with equity, with all the principles that we

480
00:31:59,440 --> 00:32:03,960
Speaker 1: lawed in the lead profession. To rigidly apply the traditional

481
00:32:04,320 --> 00:32:08,200
Speaker 1: rule that you're limited to economic damages in the loss

482
00:32:08,240 --> 00:32:09,760
Speaker 1: of a companion animal.

483
00:32:09,800 --> 00:32:12,400
Speaker 2: It seems surprising to me, but maybe not to you,

484
00:32:12,560 --> 00:32:15,800
Speaker 2: that a lot of big animal groups like the New

485
00:32:15,880 --> 00:32:20,560
Speaker 2: York State Veterinary Medical Society the American Kennel Club wrote

486
00:32:20,640 --> 00:32:24,280
Speaker 2: briefs siding with the driver rather than the family here.

487
00:32:24,680 --> 00:32:28,760
Speaker 1: Yeah, it's surprising. The veterinary community, you know, often considered

488
00:32:28,800 --> 00:32:32,080
Speaker 1: to be animal welfare groups. You know, fundamentally, though, these

489
00:32:32,080 --> 00:32:36,560
Speaker 1: are professional trade organizations, and professional trade organizations are duty

490
00:32:36,600 --> 00:32:39,160
Speaker 1: bound really by the nature of their own organization to

491
00:32:39,200 --> 00:32:43,240
Speaker 1: promote the professional interests of the practitioners, the veterinarians in

492
00:32:43,240 --> 00:32:46,160
Speaker 1: this case, and not the animals. And their argument has

493
00:32:46,240 --> 00:32:52,040
Speaker 1: been concerns that emotional damage recovery involving, you know, deaths

494
00:32:52,040 --> 00:32:58,080
Speaker 1: of companion animals through negligence will increase overhead for veterinary practices.

495
00:32:58,160 --> 00:33:00,760
Speaker 1: Fundamentally is it's about the dollars and cents for the profession.

496
00:33:01,040 --> 00:33:03,480
Speaker 2: So the judge here wrote, the court fails to see

497
00:33:03,520 --> 00:33:08,440
Speaker 2: why a beloved companion pet could not be considered immediate family.

498
00:33:08,840 --> 00:33:10,480
Speaker 2: Tell us how he came to that decision.

499
00:33:10,840 --> 00:33:13,440
Speaker 1: The recognized that he was between a rock and a

500
00:33:13,480 --> 00:33:16,280
Speaker 1: hard place in this case because you have the traditional

501
00:33:16,320 --> 00:33:19,680
Speaker 1: role that you're limited to economic damages. But then there's

502
00:33:19,720 --> 00:33:24,720
Speaker 1: also the fundamental principle of tort law that people should

503
00:33:24,760 --> 00:33:27,720
Speaker 1: be compensated and made a whole when they suffer damages.

504
00:33:27,960 --> 00:33:31,320
Speaker 1: There's also instructions that you know, courts are duty bound

505
00:33:31,560 --> 00:33:33,640
Speaker 1: to do justice and to bring the law in accordance

506
00:33:33,680 --> 00:33:36,400
Speaker 1: with present day standards of wisdom and justice in the

507
00:33:36,400 --> 00:33:39,560
Speaker 1: words of the New York Court of Appeals. So recognizing

508
00:33:39,600 --> 00:33:43,040
Speaker 1: that the judge found that Duke could qualify as an

509
00:33:43,040 --> 00:33:46,960
Speaker 1: immediate family member for purposes of the negligent infliction of

510
00:33:46,960 --> 00:33:50,120
Speaker 1: emotional distress zone of danger claim, the headline is that

511
00:33:50,200 --> 00:33:53,720
Speaker 1: Duke is included within an immediate family but the subtext

512
00:33:53,760 --> 00:33:55,520
Speaker 1: there is there were a lot of limitations to this

513
00:33:55,600 --> 00:33:59,600
Speaker 1: holding as well. There are several factors that the judge

514
00:33:59,600 --> 00:34:02,760
Speaker 1: cited that limited the case. For example, that not only

515
00:34:02,800 --> 00:34:04,640
Speaker 1: was she within the zone of danger, but she had

516
00:34:04,760 --> 00:34:08,319
Speaker 1: Duke on a leash right which heightened the physical risk

517
00:34:08,360 --> 00:34:12,880
Speaker 1: to her and importantly did not extend this theory to

518
00:34:13,600 --> 00:34:16,759
Speaker 1: emotional distress claims. Beyond the zone of danger. There was

519
00:34:16,760 --> 00:34:19,319
Speaker 1: a claim from another family member in the house who

520
00:34:19,640 --> 00:34:23,400
Speaker 1: hadn't been present but also suffered emotional distress, and the

521
00:34:23,480 --> 00:34:26,400
Speaker 1: judge did not allow that emotional distress claim to go forward.

522
00:34:26,800 --> 00:34:28,960
Speaker 2: So I mean, is this the first time a judge

523
00:34:28,960 --> 00:34:32,560
Speaker 2: has found that a companion pad could be considered a

524
00:34:32,600 --> 00:34:34,520
Speaker 2: member of the immediate family.

525
00:34:34,640 --> 00:34:36,920
Speaker 1: Yes, it is the first time that a judge considered

526
00:34:37,160 --> 00:34:39,080
Speaker 1: a companion animal to be a member of the immediate

527
00:34:39,160 --> 00:34:42,920
Speaker 1: family in the context of negligent and infliction of emotional distress.

528
00:34:43,000 --> 00:34:46,000
Speaker 1: And I include that qualification because one of the points

529
00:34:46,200 --> 00:34:48,279
Speaker 1: that the Non Human Rights Project made in our amaricust brief,

530
00:34:48,360 --> 00:34:50,880
Speaker 1: and that the court recognized as well, is that companion

531
00:34:50,880 --> 00:34:56,200
Speaker 1: animals do enjoy family status and other circumstances, in particular

532
00:34:56,800 --> 00:35:00,719
Speaker 1: when a divorce happens. There's a New York statute requiring

533
00:35:01,200 --> 00:35:04,600
Speaker 1: courts to consider the best interest of the animal in

534
00:35:04,840 --> 00:35:06,120
Speaker 1: awarding custody.

535
00:35:06,680 --> 00:35:08,640
Speaker 2: Now I was surprised by that. I didn't realize that

536
00:35:08,840 --> 00:35:11,120
Speaker 2: is there any indication the case is going to be appealed.

537
00:35:11,400 --> 00:35:14,520
Speaker 1: So this decision was a trial court decision in New York.

538
00:35:14,600 --> 00:35:18,080
Speaker 1: They can be published and cited, so you know it's

539
00:35:18,120 --> 00:35:21,719
Speaker 1: discoverable on West Law, and it'll have some persuasive authority

540
00:35:21,920 --> 00:35:24,160
Speaker 1: just through the strength of its analysis. I wouldn't be

541
00:35:24,200 --> 00:35:27,319
Speaker 1: surprised to see this case be appealed, not particularly if

542
00:35:27,320 --> 00:35:31,480
Speaker 1: there's no settlements, pisely because it is pushing the envelope

543
00:35:31,560 --> 00:35:32,400
Speaker 1: in some ways.

544
00:35:32,920 --> 00:35:35,719
Speaker 2: It certainly seems to be. I remember the case that

545
00:35:35,960 --> 00:35:40,319
Speaker 2: your organization filed to try to get Happy the elephant

546
00:35:40,800 --> 00:35:43,920
Speaker 2: released from the Bronx Zoo, which didn't have a happy

547
00:35:44,040 --> 00:35:47,239
Speaker 2: ending at the New York Court of Appeals. So if

548
00:35:47,239 --> 00:35:51,239
Speaker 2: this case involving Duke is appealed, will the decision in

549
00:35:51,360 --> 00:35:53,440
Speaker 2: Happy's case be relevant.

550
00:35:53,640 --> 00:35:58,120
Speaker 1: Well, there's some relationships between Happy's case and our claiment

551
00:35:58,200 --> 00:36:01,640
Speaker 1: in that case and this termination of family membership, but

552
00:36:01,680 --> 00:36:05,040
Speaker 1: there are some distinctions as well. So the overlaps that

553
00:36:05,320 --> 00:36:07,959
Speaker 1: I think is key is that courts, especially when they're

554
00:36:08,040 --> 00:36:11,520
Speaker 1: applying the common law powers, need to really look at

555
00:36:11,520 --> 00:36:16,320
Speaker 1: the laws animating purposes and not be beholden to artificial barriers.

556
00:36:16,719 --> 00:36:20,719
Speaker 1: So there's a flexibility and a liveliness that is a

557
00:36:20,760 --> 00:36:24,680
Speaker 1: part of the common law that we saw applied in

558
00:36:24,719 --> 00:36:27,160
Speaker 1: this case regarding a dog being a member of the family,

559
00:36:27,200 --> 00:36:29,520
Speaker 1: and that the Non Human Rights Project was arguing that

560
00:36:29,560 --> 00:36:32,480
Speaker 1: the court should do on behalf of Happy. That's the similarity.

561
00:36:32,640 --> 00:36:34,720
Speaker 1: And I'll note too, in the same way that companion

562
00:36:34,719 --> 00:36:37,520
Speaker 1: animals now are seen as members of the family by

563
00:36:37,560 --> 00:36:42,160
Speaker 1: the vast majority of Americans. We also have modern science

564
00:36:42,400 --> 00:36:46,200
Speaker 1: informing us that animals have actual liberty interests. You know,

565
00:36:46,239 --> 00:36:48,520
Speaker 1: they care about their liberty and they suffer when those

566
00:36:48,520 --> 00:36:50,799
Speaker 1: liberty interests are violated, and we have laws that they

567
00:36:51,000 --> 00:36:54,879
Speaker 1: that we care about liberty. So there's certainly a connection there.

568
00:36:55,160 --> 00:36:57,799
Speaker 1: The distinction, of course, is that you know, it's a

569
00:36:58,040 --> 00:37:01,480
Speaker 1: companion animals family status and one case, and an elephant's

570
00:37:01,560 --> 00:37:05,040
Speaker 1: cognitive abilities and their liberty interests in another case. Right,

571
00:37:05,080 --> 00:37:07,080
Speaker 1: So there's certainly a distinction there.

572
00:37:07,760 --> 00:37:11,640
Speaker 2: Has the law in this area been evolving or does

573
00:37:11,680 --> 00:37:14,239
Speaker 2: the fact that we're talking about this case mean that

574
00:37:14,280 --> 00:37:14,800
Speaker 2: it hasn't.

575
00:37:15,200 --> 00:37:17,759
Speaker 1: Yeah, there's sort of a paradox there, right, because on

576
00:37:17,800 --> 00:37:20,759
Speaker 1: the one hand, you know, this is so limited, right,

577
00:37:20,840 --> 00:37:24,360
Speaker 1: it's emotional to threats, it's a zone of danger, and

578
00:37:24,680 --> 00:37:26,920
Speaker 1: the fact that Duke was on a leash was relevant

579
00:37:27,000 --> 00:37:28,920
Speaker 1: to the decision as well. So there's something that's very

580
00:37:28,960 --> 00:37:31,919
Speaker 1: limited and incremental. But really that's the way the law works.

581
00:37:31,920 --> 00:37:34,279
Speaker 1: And I think it's important to think about this sort

582
00:37:34,280 --> 00:37:37,400
Speaker 1: of legal progress not just as a snapshot in you know,

583
00:37:37,440 --> 00:37:41,880
Speaker 1: one holding in one case, but to broaden our framework

584
00:37:41,920 --> 00:37:44,920
Speaker 1: to be thinking about it as a trend over time,

585
00:37:45,280 --> 00:37:47,960
Speaker 1: and in the case of the legal status of animals,

586
00:37:48,120 --> 00:37:51,040
Speaker 1: the trend over time is unmistakable that there's a positive

587
00:37:51,040 --> 00:37:53,680
Speaker 1: trend arrow there and we see that in this case

588
00:37:53,719 --> 00:37:54,880
Speaker 1: and many others.

589
00:37:55,040 --> 00:37:58,880
Speaker 2: Well, it's encouraging to see that trend line. Thanks so much, Christopher.

590
00:37:59,239 --> 00:38:03,279
Speaker 2: That's Christopher, executive director of the Non Human Rights Project,

591
00:38:03,800 --> 00:38:06,120
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

592
00:38:06,480 --> 00:38:08,799
Speaker 2: Remember you can always get the latest legal news on

593
00:38:08,880 --> 00:38:13,160
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

594
00:38:13,320 --> 00:38:18,359
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

595
00:38:18,760 --> 00:38:21,360
Speaker 2: and remember to tune into The Bloomberg Law Show every

596
00:38:21,400 --> 00:38:25,320
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

597
00:38:25,440 --> 00:38:27,040
Speaker 2: and you're listening to Bloomberg