Fifth Circuit Gets Way More Originalist Than You Thought Possible

Welcome back. Hi. Hello. Yeah. Excellent. This is you. This is a thing like a lawyer on Joe Patrice that's Captain Rubino and Chris Williams. We're all with above the law and we're here to have a chat about what happened at, you know, in the world of legal in the last week that we thought was entertaining. We're not really covering all the legal news in the world, but just, yeah, just the, just the entertaining bits. Well, some of them. Okay. Well, I mean, also maybe some boring stuff. Why, why are you like sabotaging the show out of the gate? I'm having good time. I'm having good time. I'm trying to manage expectations. I mean, okay. Fine. You know, at that sound means it's time for us to have a little bit of small talk to show that we're people. So how did everybody has everybody doing? Chris, you, I saw some pictures. You've been on a trip. Oh, yeah. I totally forgot that that happened. Yeah. So I went to, it's your life. It's your life. You should, you should try to remember or see someone like about that because if you're forgetting the weekend, it's the problematic. Yeah. Look, look, I'm having a time of it. And you know, you're off the federal circuit for that. Oh. Yeah. Anyway, so went to St. Louis, oh, no, sorry, God, yeah, I haven't had time. Remember. It is not St. Louis. It is a different city. Yeah. Also bad. Went to DC. Okay. Not for the express purpose of calling Clarence Thomas the bum, but if I saw him, you were, I would have called him a B word. My mom was there. Oh, they've probably been bummed, but you know, his jurisprudence is worth being cursed at for it. Anyway. Uncle Clarence, I did go to the, I did go to the steps of the Supreme Court to, you know, the word. Okay. So I'm probably the one. Some surveillance cameras. Do you feel better on the inside? Always. Always. Right. Right in the left ventricle. That's where I feel better. That's where it fits. Yeah. I also got to see my mom wanted to go get my hairy twisted, but that fell through, but it's ghosts. I got to give a, give to a friend that I bought for them while I was in Thailand. They went to law with the express purpose of wanting to work on like, uh, anwar, like a, uh, Alaska, uh, anyway, environmental stuff. So I found that hat that had, there was a white hat that had a little polar bear on it. So I felt like it was, it was a purple, but yeah, it was, it was a good weekend. Great. How about you, Joe? Why was your weekend? Pretty good, fairly uneventful organ game for me to be rooting for. Nice. Nice. You know, I know. Not like the Colorado game. Yeah. That was, that was a nail-biter. I mean, we'll, we'll see how those two teams match up this week. We've talked about Formula One on this podcast before I was unable to watch this race. Oh, that's a shame. Because it was a real good one. Yeah. There's a real good one. You know why? You know why? Why? Red Bull did it with... Yeah. That was, that, I did see that. I was... It is the first race of the year that Red Bull has not won. Yeah. They didn't even get on the pole. And you know why? Because they were cheaters. They were cheaters. No, because they cracked down on their wings. That's what I'm saying. No. Oh, because they got wings, because it's Red Bull. Yeah. Because it's Red Bull. Yeah. So, yeah. I was working on a joke. Oh, yeah, I know. Thanks for stepping on it. No, you're a full credit. You're a full credit for it. Great. Yeah. I appreciate that. But yeah, their Flexiwings were modified and... Not very good. Yeah. They didn't get on the podium. There's three different constructors on the podium. Felt bad. George Russell crashed on the second-to-last lap. It was kind of a shame. Or the last lap I guess. Poor lad. Poor lad. Poor lad. But that did mean that my favorite driver, Louis Hamilton, got on the podium. Well, there you go. So a good weekend was had by all. Yeah. Ferrari won, which, you know, it's good to give Ferrari fans a little bit of joy because being Ferrari fans snatches it back. Yeah. That's great. Yeah. It's a good competitive weekend. My fantasy football is doing well. We're going into Monday. I mean, we have a couple of games tonight, I believe. And I don't know why. I guess one of them might have been canceled for the hurricane. I don't know. I think there was a hurricane delay. Anyway, the point is we got a couple of games tonight for me to snatch my fantasy football victory. I mean, two leagues. One feels like I have it in hand. The other one, I'm currently ahead, but likely to lose after the results of this game. And less like New Orleans defense does exceptionally terrible than then I have a chance, but otherwise, I'm probably, you know, splitting the difference on my fantasy leagues this weekend. All right. Fair enough. We have some things to talk about. We do. So we'll close off this segment and we'll move on. So let's talk. You wrote a story this last week about the fifth circuit. There's a definitional battle. And you know, sometimes in statutory interpretation, it's difficult. You fight over the definitions of certain words. You have to employ what they call the canons of construction. These like rules that say, you know, if words have multiple meanings, how do you define them? And there's, there's canons that are things like, you know, you prefer specific term. If there's a specific term, you know, give it that specific community over a general meaning. You have the word is defined elsewhere in the same section. You give it that same meaning. Things like that. There's, there are classes you can take about this sort of construction. I took one in fact. You know what you don't typically study in these statutory construction classes? What, what, what canons of construction were on display at the fifth circuit? It was the Bible. Ah. Was the Bible. Ah. Yeah, it was not. Espresso Biblicus. Yes, the Bible was not only cited, but bickered over between the majority and the descent about the proper meaning of a particular clause in the book of Matthew. And this was not, as you might think, a religious freedom case. It had nothing to do with the first amendment. It was a, the decision was about class certification. Oh. Class certification. I mean, hey. Uh, the phrase or the word in question was seek. And the, the reference that James Ho wrote in the majority is. I'm just imagining like a youth pastor, like, you know, who else was a class? The apostles. Strom's guitar. Yeah. He talks about Matthew 777. Ask and it shall be, ask and it shall be given you seek. You shall find not going to be opened onto you. So because the definition was the question of seek whether or not the class was seeking redress and Andy Ultim responded. Uh, the Bible says seeking you shall find precisely because God gives us hope and faith. The two things the plaintiffs do not have and seeking you to recover from a defunct shell company. Uh, his argument was that seeking from a dead company has no chance of success. Therefore they were not seeking so clashed and, you know, here and there. But it is the most fifth circuit that defy debating over what the meaning of Matthew is is relevant. Yeah. It's not relevant. Right. Yeah. But it's part of, it's part of their Dicta at the very least. Yeah. Well, and put aside the just going for this anyway. So their, their argument was they wanted to define the use of the English word seek in a contemporary piece of legislation based on a, you know, 16 or no, right? No, 17th century translation of ancient Greek. The living word is the living word says iOS updates basically. Yeah. I mean, you know, we can make fun as we should about this. But I think there is a bigger point to be made. And that is this is Judge Ho once again trying to signal to virtue signal. I am happy with our coming theocracy. Yeah. I welcome our Lord. Yeah. You know, you use the term virtue signaling. And I think that's a, that's a good one here because obviously we can tell based on his career. You know, he's done this a few times, but it's also something that's ramped up for him recently. And for good reason, he's determined that he has a shot at being to use another religious term. And then probably among conservatives. And so he thinks he's first in line to get promoted in case the Republicans win this, win the presidency again. So he's leaning as much as possible and holding on to that because he has challengers. There are other people who are, you know, on the courts who are trying to jockey for that. Most of, I think the other people who are looking for promotions tend to be in the district court looking to get elevated to the appellate level. But he, as an appellate judge, only has one job above where he is. Well, see, you know, interesting. We talked, we talked a few weeks ago about that insane letter that a bunch of former promised clerks wrote of note. Katzus and Rao do not sign that letter. Sure. That seems to suggest to me. And those are appellate judges who are very much thinking that they might end up on the Supreme Court someday. They seem to me as though you had a couple of lanes. You had, you know, Ho thinks he's got this on lock because he's talking about defining class actions based on the Bible. And then you've got those two saying, what if we distance ourselves from the crazy? Maybe, you know, maybe Donald Trump doesn't get the nomination. Yeah, maybe we end up in that lane in the case that somebody. Yeah, it's interesting. I think that's definitely true. And I think what's particularly noteworthy of Ho's lane, as you've defined it, is that there's no downside for him. Right? That's the nature of a lifetime appointment. He can say whatever crazy he wants to try to get the attention of whoever he thinks is most likely to be in power to give him a promotion with no repercussions. Right? There's no reprimand coming. There's no demotion. Yeah. The while thing that is the literal exact opposite purpose of lifetime appointments. Right? You appoint people so they don't have to play politics. Yeah. Well, and that's an excellent point, like the argument. And this is actually interesting. Now it's flashing back to me my one-year I remember in Sid Pro, one of the early conversations that Sid Pro, the professor asked, was like, why lifetime appointments? People are like, well, you know, you could avoid political pressure, whatever. And she was like, okay, or how does that really play out in reality here? And you know, she wasn't really a political firebrand or anything, but she was really pushing us on the idea of what is the real justification for any of this at this point. Well, it's also that people lived a hell of a lot shorter, so it wasn't as egregious. Lifetime was like 10 years or something. If you really wanted to avoid people having any political influence, what you do is you give them defined terms and bar them from ever sitting there again. Yeah. That's the way in which they're insulated completely. What we currently have are folks living as pro-publica has pointed out over and over this year, the definition of high on the hog while they're sitting there because they can. Although, I mean, just to play, just to point out if your suggestion was correct and it was a finite term, can't do it again, whatever. There would be, I think, a certain amount of jockeying in their jurisprudence because they'd be trying to secure themselves the best big law job on the back end. You know, look at my, you know, this is my CV is all these decisions I've had and you definitely want me representing your massive slate of clients. And I mean, it would, I guess it would skew a little bit the appellate courts because people are increasingly believing they can get that job right now. You know, very few people have realistic shots of being elevated that way. If, you know, there was a lot of turnover, perhaps. Although, I mean, a lot of times we're talking about 18 year terms. It's not like that's a ton of turnover. It's actually much more in line with what the founders assumed someone taking a lifetime appointment do. The first chief justice in the United States never heard a case, right? Right. That's a test because he retired before anything got there. That's a testament to how little people used to care about this job. So yeah, that's, that is the world we're living in. Really trying to think of more like youth pastor explaining things jokes like strum guitar and. Do you have exposure to youth pastors? No, but I listen to podcasters who are like former, you know, very deep in it. And they have some very funny stories. You know who has a good story? Jesus has parables. Yeah. There you go. Well, let's take a break. We'll talk about someone else who has a parables when they said really crazy things in a deposition that took a parables to do that. Oh, a parables. That's okay. That's okay. That's what I was trying to say. That was good to see where the toilet. Yeah, that was where it was going. Thanks. If you're a lawyer running a solo or small firm and you're looking for other lawyers to talk through issues you're currently facing in your practice, join the unbillable hours community roundtable, a free virtual event on the third Thursday of every month. Lawyers from all over the country come together and meet with me, lawyer and law firm management consultant, Christopher T Anderson, to discuss best practices on topics such as marketing, client acquisition, hiring and firing and time management. The conversation is free to join, but requires a simple reservation. The link to RSVP can be found on the unbillable our page at legaltalknetwork.com. We'll see you there. They say the best things in life are free, which either means the legal toolkit podcast is pretty awesome or we're totally committed to the wrong business model. You'll just have to tune in to find out what it is. I'm Jared Korea and each episode I run the risk of making total ass of myself so that you can have a laugh, learn something new, and why not. Maybe even improve your law practice. Stop believing podcasts can't be both fun and helpful. Subscribe now to the legal toolkit. Go ahead. I'll wait. All right. So we're back. You don't really go up from here. We're literally in the toilet. What do you mean we're in the toilet? You're pot of humor. You know what that was? That was the worst stretch, honestly. Yeah. We're taking that away. You don't have access to the soundboard anymore. It is decided. I don't need like, honestly, I don't actually hit anything. It just like that an algorithm decides based on the flow of our conversation. Liar. And it correctly determines. Joe is a liar. All right. So we want the parable to parable as pipeline. Yes. So if you were ever deposed, one thing you should do is keep your cool. Keep your cool because yeah, like look, you're probably, especially if you're like the central witness, you're probably going to end up in live testimony anyway in front of the jury. So you aren't, you know, your video depositions not necessarily going to be what they see. But it will be assuming you, you know, say anything on the stand that contradicts what happened in the, in the video testimony. So, you know, mind your manners. Someone who did not do that is my pillow, dude, Mike Lindell. That is not surprising. I think anybody who is at all aware of anything that happened after the 2020 election, and the fact that a pillow and presaro has come into our national conversation, this is not surprising. Hello, I'm for sorry. I, all right. We got to, we got to work on ways to make turn that into a better, to a portmanteau that can be fun. All right. So pillow prints, prints of pillows. I mean, I mean, that sounds like pillow princess, which is very different. Liz and Liz and Liz died for, was coverage for us. She refers to him as pillow fluffer. Okay. Anyway, Mike Lindell, who believes in, you know, all sorts of election conspiracy theories, he was deposed in this, this ongoing suit being brought by an executive of Dominion, who was, who was singled out by Lindell on some one of the right wing media networks. I can't remember OAN Newsmax, one of them, as this is the person responsible for stealing the election, which resulted in, you know, a lot of strife for this person. So they're suing. Lindell has been showing up to depositions and, you know, refusing to cooperate, leaving, answering his phone in the middle of them, stuff like that. But a lot of America got an opportunity, and if you haven't gotten an opportunity yet, there's an above-the-law story you can check out, or you can see the video, got the opportunity to see him absolutely lose it in a deposition. He loses it, and there's crazy things throughout the deposition. So I encourage people to deal with all of it, but I thought we would do a little dramatic reading and some of the stuff. It's fantastic. I would love to see your acting skills. All right. Well, let's see. Okay. What's my motivation here? You've lost the plot. That's your motivation. You want to express... I'm an insane wing nut. Good, good, good. Thanks. All right. Questioner. Okay. And I'm not asking about the lumpy pillow calls. And this is in reference to people who call in to customer service or whatever at my pillow. I'm not asking about the lumpy pillow calls. Answer. No. No. They're not lumpy pillows. That's not what they call about, okay? When you say lumpy pillows, now you're an asshole. You got that. You're an asshole. That's what you are. His attorney. Mike. Witness. No. He's an asshole. He's an ambulance chasing asshole. That's what you are. lumpy pillows. Kiss my ass. Put that in your book. No. They answer anything. Any problem customers have. And they want to reach Michael and Dell. Those are the ones. I want to talk to Michael and Dell. I want to talk to Michael and Dell. They send them to here and they go and they call about maybe they didn't get their pillow on time because of FedEx or whatever. But we'll cover it. Even though it was probably somebody else's fault. Nobody calls it because of lumpy pillows. A good one. Good one, though. Yeah. So the question then is, Do I call my pillows lumpy? The question then is, are you done? Answer. Yeah, I'm done. Friends, he was not done. He was not done. Yeah, no. He continued. He referred, he went off on how whether, whether asking whether or not the guy had a my pillow. Talked about how he's pissed. If at any point the depositioner comes away with the impression that you are more crazy than when they started, that's probably not a good deposition for you. Yeah. It was not great. And what was interesting about it from my perspective was, put aside he's losing his damn mind over lumpy pillows, which is a thing. But you can, if you really play around with this transcript for a while, you can see, I don't want to get like all philosophical about it. But you can see a level of brokenness in his brain that, well, about, and I mean, this is not like a mental health issue, but like a brokenness about how he perceives what's going on here. Because at one point he has an exchange where he's yelling about how the people saying that he defamed this person resulted in right wing networks not letting him be on TV anymore. And his response is that the person he defamed should feel bad, because he cost, he cost my employees their livelihoods, because we can't get free advertising on these networks anymore, basically. And it's just like the victimhood is, he says his employees are the ones being hurt, because he's not allowed to go around defaming people without consequence. It was really interesting, because he's saying this with no hint of self-awareness that this might be bad, that lying to about people allegedly, putting them in the crosshairs of real crazy people, who honestly believe that folks should be killed for this. He thinks that is just part of how he should be able to advertise, and when you take that away, and hold someone accountable for having to tell the truth in public, you're hurting not him, but his employees. It's a wild ride, really. Yeah, it's terminal crazy CEO brain. It was kind of sad. Obviously, I went to the video and transcript for the Lumpi Pillow's exchange, but the more and more I read, the more kind of sad the situation was, like how weird you have to be. I know they need your sympathy. I'm not saying sad in giving him something. It's sad that we're in a society where I don't think that he's alone among these sorts of people. I think there are people who legitimately believe, I believe the person currently running X might be one of them, who legitimately believe that if you do anything to prevent them from... Do whatever they want. Portfeezing. Then you are hurting, well, they sublimated by saying they're employees, but hurting them. No matter how many they lay off, it's that we're hurting the employees. It was an interesting transcript to roll through. I'm really hoping that he on the stand says the opposite of anything in this exchange, because I feel the jury will be very excited to see the Lumpi Pillow's discussion. What I thought was interesting was that the way that Lumpi appears to be a trigger word for him. Yeah, right. What were these early My Pillow reviews that Lumpi began such a dark place in his mind? I don't know, man. I was a deposition to side. I recently bought a purple pillow, which is pretty good. But after reading that, I might have to buy a pillow for him. I mean, he is very insistent while he was upset. It reminds me. You've ever heard the notorious thugs. You know, it's a thuggish-ruggish bone. By bone comes in harmony. It starts off. They're quoting from this sermon that's against gangster rap. This guy is like, we're not against rap. We're not against rappers. We are against those thugs. And then bone thugs and harmony quotes it. It makes this beautiful song. That needs to be the next My Pillow commercial. It's just him yelling in the deposition. They're not Lumpi. And then there's like a theme jingle. Today's legal news is rarely as straightforward as the headlines that accompany them. On lawyer to lawyer, we provide the legal perspective you need to better understand the current events that shade our society. Join me, Craig Williams, and a wide variety of industry experts as we break down the top stories. Follow lawyer to lawyer on the Legal Talk Network or wherever you subscribe to podcasts. To help you grow yours. You can find new solo on the Legal Talk Network or anywhere you get your podcasts. Okay, so summer associates, we have a lot to talk about in relatively short period of time. Summer associates, summer's over. Yay. Maybe you probably got an offer. Not that fast. So yeah, so the summer associate lifestyle which used to be an opportunity for law firms to kind of. Wine and dine you. Wine and dine you to come back because they had in their mind hired you barring something actually insane. And their whole program was about bringing you back, even if that include going to nightclubs. Not strip clubs though. We had this a couple episodes ago. It was not actually strip club. It was a nightclub. It was still wildly inappropriate probably, but yeah, we're putting that aside for now. But yeah, you used to be able to get offers. We've talked a bit about changing economic conditions. This is one of the more troubling ones. This links to that strip club. Not real strip club story in that one of the. Post scripts to that story is that Gunderson did not give the person who reported the incident an offer, but also didn't give offers to. Between a third and a half of their summers. Yeah. And this comes up because Law 360 did a summer associate survey. And they found out they asked one of the questions they asked was whether or not you got assurances that you were going to be getting a full-time job offer. And only 45% of respondents said that they received those assurances. Yeah. Which is horrifying. Not just because, I mean, it used to be basically a rubber stamp once you got that summer. So associate offer that you were going to get a full-time job there. You have the stat on what it what people thought the last time they did the survey. Well, no, yeah. Last time they did it, I think was 49%. But in 2020, which is the first time they ever asked this question as part of. Right. Which is not that long ago. Y'all 74%. Yeah. Folks said that. That's more what I'm thinking. Yeah. Well, I mean, I would argue that in the early aughts, it was close to 99. Oh, yeah. In the early aughts, literally you could jump in the Hudson River and get a job offer. Which did happen. Exactly. I'm not this is not this is a true story here. But going from 99% in the early aughts to 74% in 2020. But 74 to 45 over the course of three years. Yeah. That's that's bleak. That's bleak y'all. It's a problem for sure. We also have there's also that issue with exploding offers now being a function. What's going on there? Yeah, they more and more firms are interviewing before early interview week. So they are trying to get as many offers into into their system and kind of have fill out their class before they have to compete with the firms as part of early interview week. And what they're also doing is making some of these offers exploding if we don't hear from you by X time you no longer have an offer. Which is incredibly stressful for some potential summer associates. These are law school students who may not have a ton of exposure to different law firms and even know what's out there before the process of early interview week. So law schools are quite annoyed by them. And I think that a lot of the blame for this goes to now. Well, that's what I was going to ask is do you know you have a sense of the cause of all this? Yeah. I mean, now he's having a very strict set of rules about when you could and could not contact law students for law firms. And then about five or six years ago they started doing away with them and be the unenforceable more advisory is kind of a process of kind of getting hands off. And that's what happens. You stop having rules and regulations about when you're allowed to what you're allowed to do. And you start having things like exploding offers for summer associates. You don't know anything about the firms that they're potentially not just working at but for the summer but working at for the next five years. Well, and they're also choosing not to pursue other opportunities they could possibly have because they think they're going to get a job there. Which is what makes it extra awful. Anyway, cool. So that's our catch up on that. That pretty much gets us to the end here. Thanks everybody for listening. You should subscribe to the show so you get new episodes when they come out. You should be reading review, writing reviews, stars, right things. It all helps people understand that we're here and legal podcast. You should be following us on social medias. I'm at Joseph Patrice. She's at Catherine one and Chris is at rights for rent at the Twitter. I'm at Joe Patrice and Catherine's at Catherine one on Blue Sky. The publication is at ATL blog. I suppose I should mention also you should check out the Jibbo Catherine's other podcast. I'm a guest on the legal tech week journalist roundtable every week. And maybe not this week but most weeks. And they're also a bunch of other shows by the legal talk network worth listening to and checking out. And with all of that said, I think we're done. If you're a lawyer running a solo or small firm and you're looking for other lawyers to talk through issues you're currently facing in your practice, join the unbillable hours community roundtable, a free virtual event on the third Thursday of every month. Lawyers from all over the country come together and meet with me lawyer and law firm management consultant Christopher T Anderson to discuss best practices on topics such as marketing, client acquisition, hiring and firing and time management. The conversation is free to join but requires a simple reservation. The link to RSVP can be found on the unbillable our page at legaltalknetwork.com. We'll see you there.