Ron DeSantis Is A Walking Law School Exam Of What Not To Do

Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleague Chris Williams, and we're going to be going through some of the big stories of the legal week that was, as usual. But first, we always begin, you know, by not jumping into anything too quickly, we by having a little bit of our small talk with all the necessary fanfare. How you doing over there? Doing pretty good. Pretty good. Enjoying the weather. Oh, yeah. How warm is it there? Honestly, it's like, I feel like it's like 80 or so, 80, 90. Okay. Yeah. It's warmer than it is here. Yeah, with the sun down. Oh, yeah. Well, that's what it's like to be closer to the tropics. Or in the tropics, even, are you? I'm not good with my geography off top of my head. Yeah, I'd default law rather than geography as well. Fair, fair, fair. So yeah, so there is not much happening, you know, small talk-wise from my perspective, I guess I will flag this. This is not one of the stories we're talking about this week, but it's worth just flagging to let people know that we did see it, that Alan and Overy, who has tried and failed to merge with an American firm before, not failed. That's not, I don't want to get sound like a failure, but like they tried and it's not worked out in the past. Sherman and Sterling, who has been trying and failing to merge with a international firm for a while, well, it works out. They're going to get together. You know, these crazy kids are going to make a go of it. So A&O Sherman, we wish them all the best in their future endeavors. I don't know where they're registered, but send them a little wedding gift. But that's about all that I have on the breaking news front. This just kind of happened as we were getting set to record. We don't really have any deep thoughts about it, but wanted to make sure, since you're going to hear this a little later, that it doesn't sound like we completely missed a major murder or anything like that. Well with that said, unless there's anything else we want to talk about that is small, we can start big talk. Yeah, I feel like medium to larger talk will be appropriate. All right, so we're going to transition to media. Okay, so. So World War III, no, no. Yeah, yeah, yeah. Well, I mean, so far, well, who knows, by the time they listened to this. But for now, let's, we're going to talk a little bit of, this is a story that I wrote last week that generated a lot of conversation that made me think it might be worth the deeper dive. So Kamala Harris is once again, now there is some of these comments, aren't even comments she recently made, but they are being floated around on the social medias and the mainstream medias, which usually is a sign that someone in a politician's office is floating a test balloon about various kinds of rhetoric to see how it might play with the public. And there was a, there was a little burst of folks who were passing it around virally about how Harris is started saying some stuff about public defenders and the criminal justice system. And it was getting a lot of good play. If she talked tough on crime like this, we would have voted for her in the primaries last time a lot of that sort of rhetoric going around. And it's, it struck me from a working at a legal blog as really problematic that she is once again kind of leaning into and circulating this sort of rhetoric and allowing this conversation to be how she is defined. The way in which this went down was she kind of, she put out this discussion that as a prosecutor she would go after all of these people in predominantly black neighborhoods and the, she said public defenders, she specifically decides to bash public defenders would put black people on the jury because they thought those jurors would be sympathetic. But I knew better because I knew that black jurors don't want crime in their neighborhood and the public defender would always be shocked that they would end up losing, which I assume, I mean, well, I guess first of all, let's, let's take that apart. So Chris, we talked about this a little bit. So what's your take here at least? There's a lot to break down. Well, before we even get to this, I was always suspicious of Kamala's prosecutorial decisions. Once it got out there, like she was smoking weed herself and still putting people behind bars for it. I've just been just in general suspicious of her choices. Then again, you know, that's what you get when you have a top cop as device president. There's a lot here. I would say let's, the one that I feel the most troubled by is I think that I feel as though, and of course prosecutors often, you know, you get deeply involved in that job, you take on that mentality, but I feel like she knows better. And I feel like she's being deliberately obtuse here. She knows that that's not why public defenders prefer having black jurors in cases with black defendants because it's not as though a criminal trial involves the defense attorney turning to the jury and saying, I mean, my client, yeah, yeah, come on. I mean, my client did it, but you, you don't care about that, right? Like that that's absurd. No one does that, that's not at all what a criminal trial is about. And she knows that. What is a criminal trial about criminal trial is about that public defender is going to say, yeah, this is a very serious crime. And my guy didn't do it. My guy was picked up by cops who didn't care enough to investigate and find out who really did it. He's been railroaded through the system. He's been prosecuted by an overzealous prosecutor who doesn't have any interest in getting to the bottom to this just with closing her stats as quickly as possible. That's what a defense is. And the argument is that more so than white suburban jurors, it's marginally more possible that a black juror will understand that that could happen. Well, yeah. But nothing with Kamala and for me, when it's really stuck out back when there was the presidential debates going on, he's really good with optics. I remember there was a point where somebody acts basically what would happen if Donald Trump doesn't respect the results of the election. And I think her response was like a deadpan, well, we'll see what happens rather than being like, that's treason or something like the rule of law will kick in. I think that I think that she understands that there are social consequences that can be leveraged. And I think this is one of those things where, at least in the public, imaginary, I feel like there's an assumption that black people are always biased. They can't see race neutrally in a way that is assumed that white folks can choose to not see race. And I don't know maybe this made more sense with whatever audience she was trying to appeal to as far as her get up and do it in this or ability to win hard cases. It felt like I don't even have to lean on the black jurors to get the job done. Yeah. Yeah. I actually, let's focus on that because that was one thing. I got a lot of pushback on social media about this. And some folks were saying, it is a long-held racial stereotype that black people don't care about crime, which is theoretically what Harris is trying to say she doesn't agree with. But my take was, I think she's almost saying the opposite. It's that very subtle like, everybody's crazy except you people, where she's trying to make the statement by implying that she's talking to the exception, not the rule. And given that we actually have statistical data showing that black and African-American jurors tend to acquit slightly more, but statistically significantly more than white jurors, largely because they ask questions about the, you know, about the defense and how it's being structured and do see the possibility that somebody might be railroaded by a system. And that that actually happens when she says, oh, I know that's not how things work. It's a rhetorical device that actually reinforces that trope by claiming the opposite of it is her own experience. Was my, yeah. Yeah. Yeah. It's one of those things where it's like sometimes you look at a thing in this, in your gut reaction is, you know the person saying this ought to be smart enough to where they know that this is an anger and truth, what are the benefits of them saying this thing as the thing that's being deployed? And I'm like, eh, well, I don't know if she's trying to reach out to voters that wouldn't necessarily, I think she's trying to, I think she's trying to reach into the tough phone crime crowd and, you know, trying to, trying to middle-world it. I don't even think this is anything about what's happening in front of us. What gets me about that is the tough on crime crowd, like there are ways to sell yourself as a prosecutor right now, like you could sell yourself by, you know, I busted child molesters, I busted big companies who were poisoning people. I took guns off the street. These are ways in which a prosecutor could really juice their role vis-a-vis the electorate. And she seems historically to have been uninterested in those angles of the job of prosecutor and more interested in the ones that don't necessarily resonate with the voters that she has any chance of getting. Hey, man, I'm not saying it's a good move. I'm just saying it looks like a move to me. Oh, no, I agree. I agree. But anyway, this was an interesting legal question for, I thought, because when you're talk, the ways in which we talk about the criminal justice system kind of matter, especially when it's being framed at the highest levels and putting aside whether or not her story's true or not, the way in which we have a major government official talking about public defenders as though they're stupid, as though they have these implicit racist assumptions about folks that you shouldn't trust as a juror, what the defense attorney is trying to say. Those struck me as real tangible ways in which the justice system is getting a little eroded just by the way in which and the rhetoric that we choose. And that, I thought more so than anything else about it, bugged me as a legal matter. Because at a time when the rule of law is a little precarious all over the place, it's not really helpful to be saying, you know, public defenders are crazy people out there who don't know any better and you should ignore them, you know. What do you know? You're not vice president. Yeah, I mean, maybe when you get it to that point. 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 which it is. I'm Jared Korea and each episode I run the risk of making a 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. 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 Hour page at legaltalknetwork.com. We'll see you there. So the next thing we wanted to talk about. This is actually a couple of stories. Maybe we need to have a sound effect for this. I don't even know what it would be. But this is kind of our Ron DeSantis watch because a couple of things came up. Now we've talked about him in the context of his Disney travails before. A new one cropped up. It turns out that he, so this is basic, basic Civ Pro for anybody out there who's trying to think, scratching their head back to first year of law school. This was a basic civil procedure question. They hold the deal with the Disney board where DeSantis passed the rule to change all the board members, the old board, signed valid agreements, turning about all that power back over to Disney. They're now trying to reverse that. The new board filed a lawsuit in state court trying to reverse that. Meanwhile, the DeSantis administration and the Republican super majority legislature decided to pass a law, mooding those contracts, which meant that in the state court where they want to be because they do not want to be removed to the federal court case that they have, Disney's lawyers just walked in and said, but given that that law exists, you don't have any standing anymore. Like this case is moot. It's already gone. There's no contract for you to claim as being injured. It just, it's just wild. Like, all they had to do, all they had to do, Chris, was just do nothing. They could have done nothing and the board could have sued and they could have been in state court like they wanted. You see, this is why people need to watch Avatar the Last Arab Ender. Okay. Interesting direction. It has where world consequences. Have you seen the show? I am aware of it. I have not seen it. Oh, you're missing out. You're missing out. So explain to me because I'm interested in this. Now, how does that help you on Sipra? I am happy. So for anybody who's watched the show and is more cultured than Joe, listen, I'm going to make my case. There's a scene where King Boomi is locked up in a steel cage and he knows that come nightfall, his enemies are going to be very strong and the day after they become normal strength. So his allies are like, what do we do? What do we do? He's like, just wait. Just wait until the siege is done and then after that, well, let me clarify. There's a day where there's a night where they're very strong and then the day they lose their power. So just wait until the siege is done and the day time, go in. You literally just have to do nothing. Just wait. It's called negative jing. It's a good strategy. You figure out sometimes the best movement is no movement. We're like, what is it? More games? Sometimes a guest game is to not play like that sort of thing. Wow. Okay. No, there's an old reference. Total. I know my audience. All right. Nice, nice, nice. So some old school 80s movie references. All right. So, but yes, no, that is exactly what I was thinking when I read this was that all they needed to do is not pass a law and the board could have challenged this. Now put aside whether or not the board had any hope of winning it. They could have been there and the mere fact that they passed the bill means that the state courts are now largely closed off to them, which is a problem. If you like DeSantis, his lawyers have already argued, believe that the federal court is biased against you. So if your concern is the federal courts a problem, you're the problem. It's you to make some Taylor references. Ooh. Yeah. I mean, look, we're pulling all the, we're pulling out all the stops on pop culture. Okay. I respect it. I don't like it. I respect it. Fair enough. So what else has Ron been up to this week? He's been having other fights with the Constitution. Yeah, specifically the 14th Amendment. So there's a good one. It's one of my favorites. It's a little messy, but apparently it's not good enough for DeSantis. So there was a bill that came to his desk and there was a law basically allows children to be seized from trans parents. Again, that's not invisible people, just parents that are trans, you know, right, right? Right. Right. No, I got it. It's clear, you know, but yeah. So like it says, like if the children are subject to or are threatened with being. Well, hold on. Hold on. Hold on. You said just to be clear. So we're, you're fine. You are not opaque in any way. That was a triple down. Yeah. No, yeah. All right, go. Yeah. Okay. Yeah. Anyway, back to abduction. So there's a law saying if the children are subjected to or threatened with being subjected to, whatever the hell that means, gender affirming care. Like say, puberty blockers or hormone replacement therapy, they can be seized. But like, how do you know if a person is threatened with being subjected to that? Like, do you, do you put a, is there a, do you listen to the, do you look at their tic-tac formulas and determine like what they're being? Anyway, it's, it's, it's one of those things where the biggest thing is not the vagueness, but the fact that it's just violating the, you know, no, the due process. Well, no, I do process. Well, both probably. I mean, well, it will also be a problem, the due process, but also equal protection, definitely. You can take, there we go. There we go. Sometimes my mind blanks. There was a similar case. And the court decided that no person should be denied access to medical care just because of their transgender status. And this law spits in the face of that. Well, so, so obviously you have an equal protection issue because you're teaching, treating folks differently based on stuff now, what, whatever form of scrutiny these courts decide. To give it probably not strict, but whatever. So you've got that, but I mean, I think you raised the due process point and I think that one's also there because basically anytime you deal with child protective services, style seizures, it strikes me as though that it's real precarious where it sits on the due process bounds, right? Like we have a presumption that people get to parent their kids. So it requires a lot. Yeah. So you're thinking of precarity. It's Florida. It's a fucking standard ground state. Do you think somebody is not going to get shot trying to take somebody's kid? Oh my God. Yeah. Yeah. And, and don't worry. The, the standard ground is kind of arbitrarily applied. It really, really doesn't going to apply when the government's trying to take somebody. But yeah. Sure, sure. Yeah. Yeah. No, but it's true. Like, because it doesn't matter whether or not it really applies, right? It matters if people think it does. If they think it does. Yeah. Because if I, if I think I have the right to shoot somebody, it doesn't matter if somebody is coming into the CZA. Yeah. Yeah. It doesn't matter if I'm going to lose on the back end. I'm going to feel emboldened to take the action on the front end. Yeah. And I'll tell you what, I, I have an experience this first time, but I get to fill in that trans bullets feel the same as cis ones. I think, yeah. Yeah. I, I, yeah. There's, I was trying to see if there was another way to make a opaque, transparent joke there, but not. Were you having a, were you having gender trouble? No, it was, no, it was more trying to quadruple down on that, on that distinction. No, that was, that was a, that was a Judith Butler references. Oh, yeah. Oh, oh, yes. Yes. Yeah. It's well done. Yeah. Yeah. My brain is definitely not switched on to the recognizing Judith Butler, Butler references while I'm doing this show. So you got me. All right. Yeah. So it's, it's another trip to federal court inevitably for this administration. Don't worry. The, the, the taxpayers of the state will be picking up the tab again. Are you looking for a podcast that was created for new solos? Then join me, Adriana Lanares, each month on the new solo podcast. We talked to lawyers who have built their own successful practices and shared their insights to help you grow yours. You can find new solo on the legal talk network or anywhere you get your podcasts. As a lawyer, keeping up with developments in information security, cyber threats and e-discovery is a never ending process. Fortunately, the digital detectives podcast us the hard work for you. I'm Sharon Nelson and together with John Simick, we bring on industry experts to discuss the latest tech developments that help keep your data secure only on the digital detectives podcast. Okay. So the Supreme Court is a place. Never heard of it. Yeah. And it's, it's a place where we usually talk about how collegial thing or historically we talk about how collegial it is. Uh, lately we have not been talking about how collegial it is. But at least we've been talking about the collegiality divide being along somewhat political lines. That's not the case this week. Yeah. No, we had a completely nonpartisan question about intellectual property and it was a 72 decision and Kagan wrote for the dissent and got a little salty towards Justice Sotomayor. It was well seasoned. Yeah. I mean, I'll just, I'll just read a bit of this footnote. No, it's fair to say that Justice Sotomayor did pointedly refer to things in the dissent as part of the majority opinion and would say, you know, the dissent makes this argument, but doesn't really explain why this would be true, which is why we in the majority decide XYZ. So there's a bit of a call out happening, but it's a call out happening to address issues in the dissent. It's not really personal. It doesn't, at least it didn't seem to me. That brings us to Justice Kagan, who opens her opinion with a footnote because you know, you know things are off the rails when it's in a footnote, right? Like that's the footnote is is a powerful way to earmark that you're gonna, you're gonna write a diss track. So it begins one preliminary note before beginning in earnest as readers are by now aware the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting. After all, a dissent with no theory and no reason is not usually thought to merit pages of commentary and fistfuls of comeback footnotes. In any event, I'll not attempt to rebut point-per-point the majority's varied accusations. Instead, I'll mainly rest on my original submission. I'll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority's, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to Ipsy Dixit. With those two recommendations, I'll take my chances on the reader's good judgment. And for those not as fluent in Latin Ipsy Dixit is like an unproven statement. Gotcha, gotcha. Yeah, yeah, but which is completely different from Dixie cups. It sort of. But yes, I mean, I'm wondering, is it? I mean, I don't know, so the really cups. Anyway, point is, right now I shouldn't do that. They could be a sponsor someday. Anyway, but yeah, no. This is mean and snippy for people who have to work together tomorrow. I think it's an all branch to I don't know, like one else two or three years or not have to read through cases. The first. Hey, look at this. Look, look, look. Okay, so you're taking the stance that they're just trying to keep it interesting. It's like a wrestling script. You got to have a little bit of drama in here. Yeah, you know, I mean, they're legitimacy is on the rocks anyway. I mean, they got to do something to keep people interested. Yeah, well, let's talk real quick about the substance of this case because I thought the substance of the case was interesting too. So I really like that there was there was one point where I think like the tension was like just because they were like, you're not getting the artistic narrative Andy Warhol. And they're like, just because it's a famous person doesn't mean that they get to do that. And I'm reading it. And I'm like, I don't know. I kind of I kind of get it because when I did you see the picture? Yeah. Yeah. Because when I saw the picture, it wasn't just this is a picture of French. This is a picture of this is a picture of Prince. My thought was this is an Andy Warhol of Prince. Yeah. And I do think that there is some there is some wiggle room where like a person's stature or like popularity or the uniqueness of the art that they do in the field changes the nature of the thing. Yeah. So there are there are Baskyots. There would there would be a there would be a Baskyot. There could be a Baskyot and Warhol, you know, like their name is more than just the person that did it. It refers to their stature and art and things that can show you the aesthetic understanding of it. Yeah. So take a step back. There was a photograph taken by a photographer of Prince years ago. It was licensed to a magazine for a one time use. And the magazine said we're going to bring in an artist to take your photo and make it into kind of an illustration. And they brought in Andy Warhol and Andy Warhol made it purple, which makes sense as one should. And they used it and that was fine. Years later, Princess died and the and another publications want looking to put this picture back up and reaches out to the Andy Warhol Foundation and Andy Warhol foundations like, you know, he actually did a bunch of these. He like ended up making them all different colors and they ended up using the orange one and the original photographers like what what the hell man like I I took this picture. I licensed it to be turned into an art piece once. You don't get to profit off my picture anymore. And you know, the the fair use argument is, Hey, this is transformative. This is now a Warhol, which Warhol's whole thing is this kind of pop art. Where is that makes sense? And like you said, you look at it and you can say, Oh, well, Warhol must have done this, right? Yeah. Yeah. But the problem is at a certain point, how much does that become? He's one of the most famous people in the world. So he throws a prototype of an Instagram filter on somebody else's photo and sells it as his. That is that really fair and transformative. And I don't necessarily think the majority opinion is the best way of describing where the line is in fair use, but I kind of sympathize with Sotomayor that the dissent basically has no line. There's the dissents version of things more or less boils down to, look, if somebody who says they're an artist ever touches it, then it becomes their work. And that seems like that would be a real slippery slope real fast, you know? It's an interesting case. Yeah, I do think that, you know, there are there are a couple of people that consider themselves artists that should be working for Dixie Cup. I don't know if they should be the ones that get the right to be able to copy and reproduce however their hearteses fit, but there's a thing that happens in art, man. Like there's this one of my favorite paintings. It's a, I feel like it's a transformative work. I think it's my friend's is bacon. It's like study asked of Velazquez. I think it's a, I think it's a rendition of this portrait of Pope Innocent and the way he did it, it was like, had like this ghastly ephemeral like, you ever see a, you ever see like in Harry Potter movies and like a dementor sucking the soul out of somebody? Yeah. Have that kind of like that shadowy wispiness to it. And it's, and it's just a beautiful thing. And so, and you look at it, it's like, I know what this is from, but this is different. Or like there are some, there are some musical samples where I'm like, I know that this is from, I am heaven. Okay. Tom Tom Club. You know what it is? Yeah. Like, let's not have you sing. Well, I'm not the artist doing the transformation, but she did it. There are some musical samples. There are some musical samples where you hear me like, how did you do this? Like, when Jay Dilla flipped Erica by dudes didn't, you know, like meet that. That was phenomenal. Like there are just some works of artistry and it's hard to deny them, but it's like, yeah, it is. Yeah. I see what you did with the source materials, but this is something different. Right. You know, but even, especially in music, when you do that, when you take somebody's work and transform it, you know, you end up getting a credit usually on that piece. Yeah. And that's the thing that's not happening here, which is truly problematic. But it's true. And I know that because I was going to make some sampling jokes in my article on this and I then realized, oh, that might not be the best because it might be a slightly different situation. But although probably a different situation because there's a much more robust right for infrastructure, yeah, which then there is in art, which is, you know, mostly a money laundering scheme for people. But that's neither here nor there. All right. Also, Tom Tom Club, Genius of Love, that's the song. I did a bad job of singing. Hey, you know, if it made anyone else wonder what's happening. How is that? You know, it is. Perfect. All right. Hey, I think that's everything. So we are going to chat with you later. You should be listening to this show, which you are, but you should be listening to it all the time, a thing that would be easier if you subscribe to it and gave it reviews. Stars, right? Something. It all helps. You should listen to that. I'm the guest on the Legal Tech Week journalist, round table talking about some legal tech. You should listen to the other shows on the Legal Talk Network. You should be reading above the law. As always, you read these and other stories before we chat about them. You should be following us on social media. I'm at Joseph Patrice. He's at rights for rent and rights is the W, like he's physically writing rights for rent. You should follow above the law, which is at ATL blog. I actually have moved a got a blue sky account, but I haven't really done much with it yet. But that's Joe Patrice, whatever that's worth. You should be what else? What else do I usually do here? Is that everything? Is that everybody I think? You make your plugs. You tell them to come back next week and we send them off. Come on back next week. All right. We'll talk to you all later. Peace. 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 Hour page at legaltalknetwork.com. We'll see you there.