Latest / Bloomberg Law / Weekend Law: Musk Challenged, Gunmakers Sued & A Clydesdale

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Weekend Law: Musk Challenged, Gunmakers Sued & A Clydesdale · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:09
Speaker 2: Like last week President encouraged me vied through social and
0:13
Speaker 2: also reviaophone called to be more aggressive, and I was like, okay, yep, yes, sir,
0:19
Speaker 2: as President, we'll.
0:21
Speaker 3: Give you that.
0:21
Speaker 4: One thing Elon Musk cannot be accused of is not
0:25
Speaker 4: being aggressive enough. A barrage of lawsuits testified to that,
0:30
Speaker 4: as plaintiffs from state attorneys general to unions to fired
0:34
Speaker 4: federal workers try to reign in the billionaire and his
0:38
Speaker 4: relentless campaign to slash government spending by firing thousands of workers,
0:44
Speaker 4: dismantling agencies, canceling contracts, and accessing sensitive information with speed
0:51
Speaker 4: and secrecy and DOGE. Many of the lawsuits argue that
0:55
Speaker 4: the virtually unchecked authority Musk wields is unconstitutional. In fact,
1:00
Speaker 4: judges are questioning Musk's role in DOGE and the government,
1:04
Speaker 4: and the answer from the White House has been that
1:07
Speaker 4: Musk isn't the head of DOGE, but rather is a
1:10
Speaker 4: senior advisor to the President with no authority to make
1:14
Speaker 4: government decisions. But that was contradicted by President Trump himself
1:19
Speaker 4: as he gave a shout out to Musk during his
1:21
Speaker 4: speech on Tuesday night.
1:23
Speaker 5: I have created the brand new Department of Government Efficiency Goes.
1:30
Speaker 5: Perhaps you've heard of it, perhaps, which is headed by
1:37
Speaker 5: Elon Musk, who's in the gallery tonight.
1:41
Speaker 4: In the gallery, in the Oval office, at cabinet meetings,
1:45
Speaker 4: and on Capitol Hill. The unelected billionaire seems to be everywhere,
1:50
Speaker 4: and courts want to know just what is Elon Musk's role.
1:54
Speaker 4: My guest is an expert in constitutional law, Jamal Green,
1:58
Speaker 4: a professor at Columbia Law School. Some of the lawsuits,
2:02
Speaker 4: including the one by fourteen Democratic Attorneys General, argue that
2:06
Speaker 4: Trump's granting sweeping powers to Mosque without proper authorization from Congress,
2:13
Speaker 4: and that it's a violation of the appointment's clause. Can
2:16
Speaker 4: you tell us more about that argument?
2:18
Speaker 6: So, the first thing to note is we don't actually
2:20
Speaker 6: have a whole lot of transparency about exactly what the
2:23
Speaker 6: nature of his appointment is. But what we do know
2:26
Speaker 6: from a constitutional perspective is that if you are exercising
2:31
Speaker 6: what the Supreme Court refers to as significant authority on
2:34
Speaker 6: behalf of the United States, and if you don't have
2:37
Speaker 6: a supervisor other than the President, then you have to
2:40
Speaker 6: be appointed consistent with the Constitution, and for that kind
2:43
Speaker 6: of person, a high level figure exercising authority on behalf
2:47
Speaker 6: of the United States, it has to be presidential appointment
2:50
Speaker 6: and Senate confirmation, and we know for sure he hasn't
2:53
Speaker 6: been confirmed by the Senate. So the argument would be
2:56
Speaker 6: that he is basically exercising government power without going through
2:59
Speaker 6: the accountability that the Constitution provides for officials of that sort.
3:04
Speaker 4: As you mentioned, there's no transparency about Musk's role and
3:08
Speaker 4: what DOJE is doing behind the scenes, and judges in
3:12
Speaker 4: many of these cases have been trying to find out,
3:15
Speaker 4: and the Justice Department has argued that Musk may carry
3:19
Speaker 4: sway or influence within the executive branch, even significant influence,
3:24
Speaker 4: but that's not the same as exercising authority that the
3:28
Speaker 4: Constitution's appointments clause says is reserved for officers of the
3:32
Speaker 4: United States. So they're contending that his role is more
3:36
Speaker 4: like a senior advisor.
3:38
Speaker 6: Yes, that's the argument they'd make. That's probably the argument
3:41
Speaker 6: I would make if I were them, That there are
3:43
Speaker 6: people in the president's orbit, and the Chief of Staff
3:45
Speaker 6: is an example of that, who don't have to go
3:47
Speaker 6: through the appointment's clause, and the reason they don't have
3:50
Speaker 6: to go through the appointment's clause is they're essentially acting
3:52
Speaker 6: on behalf of the president and kind of conveying the
3:55
Speaker 6: president's wishes, but they themselves are not the ones exercising
3:58
Speaker 6: the authority that Here's that kind of argument can try
4:02
Speaker 6: to get to the bottom of the facts of the matter.
4:04
Speaker 6: The President himself said that Elon Musk is the head
4:07
Speaker 6: of this entity called DOGE. He said that in front
4:10
Speaker 6: of a joint meeting of Congress, and others in the
4:13
Speaker 6: administration have said that they're taking some directions from Musk.
4:17
Speaker 6: Musk is showing up at cabinet meetings, and all the
4:19
Speaker 6: cabinet officials are people who are principal officers, So it
4:22
Speaker 6: can be a matter of kind of semantic to say, well,
4:25
Speaker 6: he's not actually been appointed to had an agency, but
4:28
Speaker 6: if he's actually exercising authority, he's actually issuing directions, you know,
4:32
Speaker 6: he sort of walks like a cabinet official, talks like
4:35
Speaker 6: one a court can certainly say that he's exercising authority
4:38
Speaker 6: in the way in which the Secretary of the Treasury
4:40
Speaker 6: or the Attorney general or someone else who counts as
4:42
Speaker 6: what's called the principal officer would be exercising authority.
4:45
Speaker 4: I think it just took a few hours for the
4:48
Speaker 4: lawyers in one of the lawsuits to cite what President
4:52
Speaker 4: Trump said about Elon Musk in his speech as an
4:56
Speaker 4: admission that Elon Musk is acting as a head of
5:00
Speaker 4: an agency.
5:01
Speaker 6: Yeah, he sure doesn't sound like an advisor in the
5:03
Speaker 6: way in which the President himself spoke about him and
5:06
Speaker 6: in the aggressiveness with which he's proceeding. You know, if
5:09
Speaker 6: this is directions directly from the President and you're trying
5:13
Speaker 6: to litigate this kind of thing, you'd want to hear
5:15
Speaker 6: more from the President about the way in which he's
5:17
Speaker 6: operating according to directions. But he seems pretty autonomous from
5:21
Speaker 6: what we can tell.
5:22
Speaker 4: So are they trying to insulate Mosque from oversight by
5:27
Speaker 4: making him an advisor he would enjoy executive privilege.
5:31
Speaker 6: Then well, if he's really an advisor and really is
5:34
Speaker 6: not actually exercising authority on behalf of the government, then
5:38
Speaker 6: if he's in the White House and it's just a
5:41
Speaker 6: White House advisor, he wouldn't be subject to Freedom of
5:44
Speaker 6: Information Act requests, whereas if he's part of an agency
5:47
Speaker 6: or issuing directions to the agency he starts to fall
5:49
Speaker 6: within federal transparency laws so as to oversight. Congress isn't
5:54
Speaker 6: really doing much oversight right now, but if it were,
5:58
Speaker 6: he may have certain kinds of defenses grounded in what's
6:02
Speaker 6: called a presidential communications privilege, so that he is issuing
6:06
Speaker 6: orders based on his conversations with the president or the
6:09
Speaker 6: wishes of the president. That I think doesn't depend so
6:11
Speaker 6: much on what his actual position is. It depends more
6:14
Speaker 6: on the nature of his interactions with the White House.
6:18
Speaker 4: I'm not sure that the Justice Department has raised that
6:21
Speaker 4: in any of these lawsuits. I haven't seen it referred to.
6:24
Speaker 4: You know that he has executive privilege.
6:26
Speaker 6: Well, depending on what the nature of the privilege is.
6:29
Speaker 6: You know, anyone in the executive branch might be able
6:31
Speaker 6: to claim some kind of executive privilege. It depends on
6:34
Speaker 6: what is being shielded. Now Here, we actually have orders
6:38
Speaker 6: being issued to departments to actually engage in activity, cutting programs,
6:44
Speaker 6: canceling contracts, and so forth. Those are final actions of
6:48
Speaker 6: the executive branch and finding out whether those things are
6:51
Speaker 6: happening or not. It is something that the American people
6:54
Speaker 6: have a right to know, and I don't just mean
6:56
Speaker 6: that in a general sense, but based on federal transparency laws,
7:00
Speaker 6: so that those aren't things that he'd be able to
7:01
Speaker 6: claim privilege about. He might be able to claim a
7:04
Speaker 6: privilege if you know, someone were to ask, when did
7:07
Speaker 6: the President tell you to do this? If he were
7:09
Speaker 6: to say, well, let's privilege, well, that might be something
7:11
Speaker 6: that someone could claim privilege about. But there are actions
7:14
Speaker 6: being taken and they're coming from somewhere, and that's not
7:16
Speaker 6: a privileged back.
7:18
Speaker 4: Several judges, perhaps all the judges, are having trouble finding
7:22
Speaker 4: out the information about Musk and Doge. For example, Marilyn
7:27
Speaker 4: Judge Theodore Schwang was brought in government lawyers for clarity
7:32
Speaker 4: on Musk's role, and he said their answers were highly suspicious.
7:36
Speaker 4: Another problem is the judges are getting conflicting information from
7:41
Speaker 4: the Justice Department lawyers or no information at all. A
7:45
Speaker 4: lot of the time, the Justice Department lawyers can't answer
7:47
Speaker 4: the questions that the judges are asking.
7:50
Speaker 6: Yeah, and there's a real irony about this, which is
7:53
Speaker 6: that part of the overall philosophy of the administration is
7:58
Speaker 6: what sometimes referred to as unitary executive theory, which is
8:01
Speaker 6: sort of all power in the executive branch runs to
8:04
Speaker 6: the president and is accountable to the president. And that's
8:08
Speaker 6: a theory that is popular among some circles of legal
8:11
Speaker 6: scholars and judges and so forth, but it relies on
8:14
Speaker 6: a theory of accountability. And when you don't even know
8:17
Speaker 6: who's exercising authority, how they're appointed, where they got their
8:21
Speaker 6: power from, whether they're answering to the president or not,
8:24
Speaker 6: and those basic questions are unclear, it's entirely at odds
8:28
Speaker 6: with the idea of unitary executive theory. It's really kind
8:31
Speaker 6: of a chaotic environment. And I have to think that
8:34
Speaker 6: for at least some judges, some of the arguments that
8:37
Speaker 6: the president has to have certain levels of control over
8:41
Speaker 6: the executive branch are going to start to fall flat
8:44
Speaker 6: when it seems as though there are other entities or
8:47
Speaker 6: other power centers within the executive branch that are either
8:50
Speaker 6: not controlled by the president or that the administration is
8:53
Speaker 6: unwilling to be transparent about.
8:55
Speaker 4: On Thursday, the Supreme Court rejected Trump's request to talk
9:00
Speaker 4: us out a lower court ruling that requires the quick
9:03
Speaker 4: dispersement of as much as two billion dollars owed to
9:08
Speaker 4: contractors for already completed work. Four justices dissented. Does that
9:13
Speaker 4: indicate to you that there are at least five justices
9:17
Speaker 4: who are willing to put the brakes on Trump.
9:20
Speaker 6: I think the most we can say from that decision
9:23
Speaker 6: and from the few other ways in which the Supreme
9:26
Speaker 6: Court has weighed in so far on the Trump administration,
9:29
Speaker 6: is that the Court is acting extremely cautiously. So by
9:33
Speaker 6: the court, I mean the middle of the court, which
9:35
Speaker 6: in this case is Chief Justice Roberts and Amy Clay Barrett.
9:39
Speaker 6: I think the Court knows that whenever it weighs in,
9:41
Speaker 6: people are going to be paying a lot of attention
9:43
Speaker 6: and reading those tea leaves very carefully, and so they're
9:46
Speaker 6: kind of holding their powder a little bit until they
9:50
Speaker 6: really have to rule on something. And so in this
9:52
Speaker 6: USAID related case involving money owed under contracts, they didn't
9:57
Speaker 6: really weigh in on whether the money was road or
10:00
Speaker 6: anything like that. It was really just to say, we're
10:03
Speaker 6: not going to throw out what the district Court has done,
10:05
Speaker 6: but we're going to ask it to make sure that
10:08
Speaker 6: it clarifies exactly what it's asking the government to do,
10:11
Speaker 6: so that it can give the government a very specific
10:13
Speaker 6: order rather than something broader than that. It's really kind
10:16
Speaker 6: of a we're not going to reveal too much kind
10:19
Speaker 6: of decision that I would interpret as at least there
10:22
Speaker 6: are five people on the court who are not willing
10:25
Speaker 6: at this stage to give the Trump administration everything at once,
10:29
Speaker 6: But that doesn't necessarily mean that they won't get there
10:31
Speaker 6: at some point.
10:32
Speaker 4: Lower courts have been stepping into these cases. But do
10:36
Speaker 4: you think they can move quickly enough to stop what
10:39
Speaker 4: Musk is doing or will he be done before the
10:42
Speaker 4: cases are done?
10:44
Speaker 6: So they are moving as quickly as we ever really
10:46
Speaker 6: see courts move. A lot of these decisions are coming
10:49
Speaker 6: within a matter of days. A lot of these courts,
10:51
Speaker 6: especially in the District of Columbia, are really in un
10:54
Speaker 6: days with a lot of cases, so they are certainly
10:56
Speaker 6: working extremely hard and working around the clock on this.
10:59
Speaker 6: But even the fastest courts in the world can't operate
11:02
Speaker 6: as quickly as the so called doge seems to be operating.
11:06
Speaker 6: Where if you can just send someone into agency and
11:08
Speaker 6: then attach a flash driver, have access to payment systems,
11:12
Speaker 6: fire people, freeze contracts, refuse to pay out money. However illegal,
11:17
Speaker 6: so many of these things are They do damage immediately
11:21
Speaker 6: if someone isn't getting a drug that they need that
11:23
Speaker 6: day or that hour. Then even if a court says
11:26
Speaker 6: two days later, you've got to pay that money and
11:29
Speaker 6: you've got to provide those resources, and then that winds
11:32
Speaker 6: its way through the system, and then another day passes.
11:34
Speaker 6: You know that person may lose their life in that interim,
11:37
Speaker 6: And so multiply that by hundreds of thousands of potential cases,
11:41
Speaker 6: and there's really a lot that can happen even if
11:44
Speaker 6: courts are moving as fast as they can.
11:46
Speaker 4: More than one hundred lawsuits have already been filed over
11:49
Speaker 4: Trump administration actions. It's sort of astonishing in such a
11:54
Speaker 4: short time.
11:55
Speaker 6: We're at the beginning rather than the end of this,
11:58
Speaker 6: and that they're going to do more things. But you
12:00
Speaker 6: haven't really seen yet his spoil litigation. Trying to figure
12:02
Speaker 6: out what's going on inside of these agencies, because after
12:05
Speaker 6: you file a floya SAT, there are twenty business days
12:08
Speaker 6: before you can file litigation between the requests and the litigation,
12:11
Speaker 6: and so we'll just be getting to the point where
12:13
Speaker 6: you'll see lots of foil litigation and that's all going
12:15
Speaker 6: to go to the same courts in DC, and there'll
12:18
Speaker 6: be lots of rulings of various sorts, so it'll get
12:20
Speaker 6: harder to follow.
12:21
Speaker 4: Especially because often the same issue is being decided by
12:25
Speaker 4: different courts. Thanks so much for being on the show.
12:28
Speaker 4: That's Professor Jamal Green of Columbia Law School. Mexico is
12:32
Speaker 4: suing US gun makers for the violence committed by drug
12:36
Speaker 4: cartels with the thousands of guns that are trafficked across
12:40
Speaker 4: the border each year, but it appears that Mexico's lawsuit
12:44
Speaker 4: will end at the Supreme Court, where both liberal and
12:47
Speaker 4: conservative justices appeared skeptical that the claims could clear the
12:52
Speaker 4: hurdles in US law that protect gun makers from most
12:56
Speaker 4: civil lawsuits. Liberal just as Elena Kagan said Mexico wasn't
13:01
Speaker 4: pointing out specific gun makers that were deliberately supplying the firearms.
13:07
Speaker 7: What you don't have is particular dealers, right, I mean,
13:10
Speaker 7: it's a pretty There are lots of dealers, and you're
13:13
Speaker 7: just saying they know that some of them do and
13:16
Speaker 7: which some of them? I mean, who are they aiding
13:18
Speaker 7: and a betting in this complaint?
13:20
Speaker 4: And Conservative Justice Brett Cavanaugh was concerned that allowing Mexico's
13:25
Speaker 4: aiding and a betting claims to go forward could have
13:28
Speaker 4: repercautions for US companies when they're products from baseball bats
13:33
Speaker 4: to prescription drugs are used to commit crimes.
13:38
Speaker 8: You make baseball outs and you know they're being used
13:40
Speaker 8: in a particular way in particular areas by particular gangs,
13:48
Speaker 8: and you should. So therefore, yeah, we got to make
13:50
Speaker 8: sure that we're not selling to those sporting goods stores
13:53
Speaker 8: that are in particular neighborhoods.
13:55
Speaker 4: Joining me is Andrew Willinger, executive director of the Duke
13:59
Speaker 4: Center for Firearms Law. Andrew tell us about Mexico's claims here.
14:03
Speaker 9: So, Mexico is alleging in this case that a group
14:08
Speaker 9: of major US gun manufacturers aided and embedded the illegal
14:15
Speaker 9: trafficking of guns into Mexico through straw purchasers that were
14:20
Speaker 9: conducted by people within the United States who then trafficked
14:23
Speaker 9: the guns across the border. That those guns were then
14:26
Speaker 9: used by cartels in Mexico to commit various active violence,
14:31
Speaker 9: and Mexico is seeking to recover for the costs of
14:36
Speaker 9: that violence that occurred in the country. And the issue
14:40
Speaker 9: before the court is what are these claims are barred
14:44
Speaker 9: by a federal statute that immunizes gun makers from certain
14:49
Speaker 9: legal claims based on the third party misuse of their products,
14:54
Speaker 9: or whether Mexico's claims fit within one of the listed
14:58
Speaker 9: exceptions in federal law.
15:01
Speaker 4: That federal law is called the Protection of Lawful Commerce
15:04
Speaker 4: in Arms Act from two thousand and five. So the
15:08
Speaker 4: exception is that it allows suits against gun makers that
15:13
Speaker 4: knowingly violate a state or federal gun law.
15:16
Speaker 9: Yes, that's right. So this is one of a series
15:19
Speaker 9: of exception to the immunity shield in PLACA. It's often
15:24
Speaker 9: called the predicate exception, and it allows, as you said,
15:28
Speaker 9: actions where a manufacturer knowingly violates a state or federal
15:33
Speaker 9: statute that's applicable to the sailor marketing of a gun,
15:37
Speaker 9: and then that violation has to be the proximate cause
15:40
Speaker 9: of the harm for which the plaintiffs is seeking to recover.
15:44
Speaker 4: No Francisco, the former US Solicitor General, represented the gun
15:49
Speaker 4: makers who claim they're so far removed from Mexico's injuries
15:54
Speaker 4: that their actions can't be the foreseeable results or proximate cause.
15:59
Speaker 10: Indeed, if Mexico right, then every law enforcement organization in
16:02
Speaker 10: America has missed the largest criminal conspiracy in history, operating
16:07
Speaker 10: right under their nose and Budweiser is liable for every
16:11
Speaker 10: accident caused by underage drinkers, since it knows that teenagers
16:15
Speaker 10: will buy beer, drive drunk and crash.
16:18
Speaker 4: That was also a concern of Justice Brett Kavanaugh, who
16:21
Speaker 4: started talking about baseball bat manufacturers being held liable if
16:26
Speaker 4: their back cause is injury.
16:28
Speaker 9: Yeah, that's right. There are a lot of extended hypothetical
16:30
Speaker 9: discussions about baseball bats, about beer makers and sort of
16:34
Speaker 9: what level of knowledge or specific marketing to underage individuals
16:41
Speaker 9: of beer, for example, might be sufficient to give rise
16:44
Speaker 9: to liability. And you know, I think this is a
16:48
Speaker 9: sort of broader concern about what the impact would be
16:53
Speaker 9: in various industries of extending liability in this way. You know,
16:57
Speaker 9: it really underlies all aspects the case at this stage,
17:01
Speaker 9: both the proximate cause question and the question of whether
17:05
Speaker 9: aiding and a betting liability. So the theory that here
17:09
Speaker 9: the gun makers have aided and abetted these retailers who
17:12
Speaker 9: are actually selling to straw purchasers, knowing that they're going
17:17
Speaker 9: to bring the guns into Mexico. Whether allowing these claims
17:20
Speaker 9: to proceed could have damaging consequences beyond the gun industry.
17:25
Speaker 9: I mean it.
17:25
Speaker 4: Seemed to be liberals and conservatives across the board, we're
17:30
Speaker 4: having a problem with Mexico's lawsuit.
17:33
Speaker 9: I think that's right. That was my impression from the
17:36
Speaker 9: arguments as well. And actually I was notable is that
17:39
Speaker 9: Justice Tanji Brown Jackson had this line of questioning. You know,
17:44
Speaker 9: she seemed to be very concerned about this threshold issue
17:48
Speaker 9: of whether PLACA even contemplates sort of broader common law
17:54
Speaker 9: aiding and a betting as a potential predicate exception claim
17:59
Speaker 9: that could be brought notwithstanding the immunity shield. So she
18:03
Speaker 9: seemed to be voicing some concern that maybe, you know,
18:06
Speaker 9: Congress when it enacted PLACO was actually thinking about something
18:10
Speaker 9: far narrower in terms of the lawsuits that it would allow,
18:13
Speaker 9: and she was worried. It seemed about courts, about judges
18:17
Speaker 9: putting in their own more expansive view of what the
18:20
Speaker 9: exception could permit. So I thought that was interesting. And
18:23
Speaker 9: you know, it's always difficult to speculate about how justice
18:27
Speaker 9: will vote based solely on their questions and oral argument,
18:30
Speaker 9: but Justice Jackson seemed very concerned about that point, and
18:32
Speaker 9: it would suggest to me that maybe she's more on
18:35
Speaker 9: the fence, or maybe even on the side of the
18:37
Speaker 9: gunmakers in this case.
18:39
Speaker 4: So then what issue do you think the decision will
18:42
Speaker 4: turn on?
18:43
Speaker 9: I had to predict. I think based post on how
18:46
Speaker 9: the argument went, it's most likely that the Court will
18:48
Speaker 9: decide this on the aiding and a betting point. That
18:51
Speaker 9: the Court won't really want to get into the proximate
18:54
Speaker 9: cause case law, which you know, at various times, and
18:57
Speaker 9: the arguments that we heard it called kind of a
18:59
Speaker 9: mess and very and you know that it's not clear
19:01
Speaker 9: exactly you know, what the court requires in terms of
19:04
Speaker 9: approximate cause in its past case law. So there seemed
19:07
Speaker 9: to be more of an appetite among several of the
19:10
Speaker 9: justices to decide, you know, on the basis of aiding
19:13
Speaker 9: in a betting, which would mean, as I suspect, the
19:16
Speaker 9: court sides with the gunmakers and then throws this case out,
19:20
Speaker 9: it would say that Mexico's allegations did not plausibly establish
19:24
Speaker 9: and aiding in a betting violation of the straw sales
19:28
Speaker 9: by these retailers further down the line.
19:32
Speaker 4: So then could Mexico come back with new information, you know,
19:36
Speaker 4: specific dealers or straw purchasers or whatever that would allow
19:40
Speaker 4: them to bring the case again.
19:42
Speaker 9: I think that's possible. I could imagine there being a
19:45
Speaker 9: more sort of limited case where they're again, you know,
19:48
Speaker 9: reading a little bit between the lines of the arguments,
19:51
Speaker 9: some justices seem to maybe be pushing in this direction
19:54
Speaker 9: that if this were a complaint that was based on
19:57
Speaker 9: specific transactions, where Mexico is saying, you know, these specific
20:02
Speaker 9: gunmakers sold these guns to these distributors and then dealers,
20:05
Speaker 9: and they knew that they were going to go into
20:07
Speaker 9: the hands of straw purchasers and go into Mexico on
20:11
Speaker 9: a transaction by transaction basis listing that out, that maybe
20:15
Speaker 9: that would be a different outcome. That would obviously be
20:17
Speaker 9: a much different type of case. The damages will presumably
20:20
Speaker 9: much lower because we would be talking about fewer guns.
20:23
Speaker 9: But I think that's theoretically possible.
20:25
Speaker 4: This comes at a time for US Mexico relations, and
20:29
Speaker 4: President Trump has said that the threatened tariffs are aimed
20:33
Speaker 4: at forcing Mexico to step up its fight against illicit
20:37
Speaker 4: drugs and illegal migrants crossing the southern border. I didn't
20:41
Speaker 4: think that that would enter into the arguments, But then
20:43
Speaker 4: just as Samuel Alito asked the lawyer representing Mexico this question.
20:49
Speaker 11: There are Americans who think that Mexican government officials are
20:52
Speaker 11: contributing to a lot of illegal conduct here. So suppose
20:57
Speaker 11: that one of the fifty States the government of Mexico
21:01
Speaker 11: for aiding and a betting illegal conduct within the state's orders.
21:05
Speaker 11: It costs the state to incur law enforcement costs, public
21:09
Speaker 11: welfare costs, other costs. Would your client be willing to
21:15
Speaker 11: litigate that case in the courts of the United States.
21:18
Speaker 4: I thought that was a very aggressive question that clearly
21:22
Speaker 4: revealed his position.
21:25
Speaker 9: Yeah, I was very surprised to hear this question be
21:27
Speaker 9: asked that oral argument. I will say, you know, he's
21:29
Speaker 9: Justice Aledo did preface it by sort of, you know,
21:32
Speaker 9: put it in some kind of disclaimer of you know, well,
21:34
Speaker 9: this doesn't actually relate to any of the legal issues
21:36
Speaker 9: in the case, which of course it doesn't. And you know,
21:39
Speaker 9: it's certainly true that this is going on in the background,
21:41
Speaker 9: that you know, the case itself has become kind of
21:44
Speaker 9: a bargaining ship in some sense in these negotiations or
21:48
Speaker 9: discussions between the US and Mexico. But it wasn't clear
21:51
Speaker 9: to me exactly what this question was meant to do,
21:55
Speaker 9: other than just to kind of put this idea on
21:58
Speaker 9: the record, because clearly Mexico attorney in this case was
22:01
Speaker 9: not going to go down the path of saying that
22:04
Speaker 9: the Mexican government would waive a sovereign immunity and in
22:06
Speaker 9: some kind of future hypothetical litigation. So this surprised me
22:10
Speaker 9: as well. I didn't expect it to come up so
22:12
Speaker 9: viscerally at oral arguments.
22:14
Speaker 4: Yeah, I felt for the attorney at that point, because
22:17
Speaker 4: how could you possibly answer that question? So do you
22:21
Speaker 4: think they'll just write an opinion throwing out the case,
22:24
Speaker 4: or that the opinion might have implications for other cases.
22:30
Speaker 9: This case, of course, is a little bit unique deals
22:33
Speaker 9: with a foreign country. I think one of the real
22:35
Speaker 9: questions will be what impact, if any, the decision has
22:40
Speaker 9: on domestic tort lawsuits against the gun industry, and specifically
22:46
Speaker 9: lawsuits that are brought pursuant to a recently enacted set
22:51
Speaker 9: of laws in a handful of states that are designed
22:54
Speaker 9: specifically within the predicate exception and provide you know, a
22:57
Speaker 9: statutory claim. These are sometimes called or industry nuisance statutes
23:02
Speaker 9: that have been passed in states like New York and California,
23:04
Speaker 9: for example. And I think it's going to depend on
23:07
Speaker 9: what basis the court decides this case, because one of
23:11
Speaker 9: the reasons that states are passing these laws is sort
23:14
Speaker 9: of to have less doubt out there about whether a
23:18
Speaker 9: predicate violation is actually something being alleged. So instead of
23:22
Speaker 9: having to rely on the type of aiding in a
23:24
Speaker 9: betting theory that Mexico did here, if you are operating
23:28
Speaker 9: under one of these state laws, you have an actual
23:30
Speaker 9: statute that you can point to and say, I'm alleging
23:33
Speaker 9: that this gun manufacturer violated this specific state law. But
23:37
Speaker 9: on the other hand, there's still proximate cause requirements. So
23:41
Speaker 9: the extent the court does say something about proximate cause,
23:44
Speaker 9: that could have an impact on these domestic lawsuits, and
23:48
Speaker 9: anything that is in that opinion that talks more broadly
23:52
Speaker 9: about PLACA, about the intent of PLACA, what types of
23:56
Speaker 9: lawsuits PLACA was meant to sort of cut off. Any
23:59
Speaker 9: of those broader atmospheric statements could be pretty impactful, even
24:03
Speaker 9: in these domestic cases.
24:05
Speaker 4: So it appears we know the final decision, but not
24:08
Speaker 4: how the justices will get there. Thanks so much, Andrew.
24:11
Speaker 4: That's Andrew Willinger of Duke Law School.
24:16
Speaker 1: Since I was born, I dreamed of being a Budweiser Clydesdale.
24:21
Speaker 1: The only problem is I was born a donkey, so
24:26
Speaker 1: all my life I practiced the Clydesdale walk.
24:29
Speaker 4: Who hasn't felt a tug at their heartstrings as the
24:32
Speaker 4: Budweiser Clydesdale's have bonded with donkeys, puppies and yes bulls,
24:38
Speaker 4: fought against the odds, played football in the snow, and
24:42
Speaker 4: even fallen in love with a dancing circus horse, winning
24:46
Speaker 4: hearts in nearly fifty Super Bowl ads. It's no wonder, then,
24:50
Speaker 4: that Brenton Marchisi wanted a Clydesdale ever since seeing Budweiser's
24:55
Speaker 4: famous team when he was a boy, and his dream
24:58
Speaker 4: came true in twenty fifteen when a friend showed him
25:01
Speaker 4: a photo of a foal named Michigan Breeze and said
25:05
Speaker 4: he could buy her for eleven hundred dollars. Marquisi says
25:09
Speaker 4: it melted my heart. Breeze became the cornerstone of his
25:13
Speaker 4: life until a hit and run accident last December took
25:16
Speaker 4: her from him. What followed brought Marquesi to the Delaware
25:21
Speaker 4: Chancery Court and Chief Judge Kathleen McCormick. The same judge
25:25
Speaker 4: in court that Elon Musk and his online followers have
25:30
Speaker 4: been attacking for nearly a year. Joining me is Jennifer
25:33
Speaker 4: Ka Bloomberg Lost Senior correspondent. Jennifer tell us about the
25:37
Speaker 4: history and relationship between Marquisi and Breeze.
25:42
Speaker 3: So friend in Marquisi is a construction worker, lives in
25:46
Speaker 3: a small Delaware town outside of Wilmington and its famous courthouses.
25:52
Speaker 3: Is a pretty rural area for the most part, and
25:55
Speaker 3: he has had this Clydesdale for about a decade. He
25:59
Speaker 3: bought her when she was just a few months old.
26:02
Speaker 3: She came with the name Michigan's Breeze, and you know,
26:06
Speaker 3: for him, it was kind of love at first sight.
26:08
Speaker 3: That first sight being a picture on a friend's cell
26:11
Speaker 3: phone front of a friend was selling the horse, and
26:14
Speaker 3: he had always wanted a Clydesdale ever since being the
26:18
Speaker 3: Budweiser team when he was a kid. Brenton Marquisi has
26:22
Speaker 3: not had, I think, the easiest life. He's definitely had
26:25
Speaker 3: some losses and some difficult relationships, but the one steady
26:30
Speaker 3: presence in his life was always this horse, Breeze, and
26:34
Speaker 3: she turned out to be that way for a lot
26:36
Speaker 3: of his friends as well. Some of them are military
26:39
Speaker 3: veterans coming home with trauma that they need to process.
26:43
Speaker 3: And instead of turning maybe to different substances, you know,
26:48
Speaker 3: Marquisi knew that he could always turn to this horse
26:51
Speaker 3: who always needed him to show up every day, and
26:54
Speaker 3: so she became kind of an emotional support animal for
26:57
Speaker 3: his social network. That she was always there, always happy
27:01
Speaker 3: to see them, always needing them to show up, and
27:05
Speaker 3: was just that kind of one steady presence. So he
27:09
Speaker 3: and breathe. They had a routine of just going out
27:12
Speaker 3: for a short ride after work every day. And in December,
27:17
Speaker 3: it was a day like any other. They were riding
27:19
Speaker 3: back to the barn where she lived in a kind
27:23
Speaker 3: of a double stall because she's such a large horse,
27:26
Speaker 3: and unfortunately, that's when a driver came up behind them,
27:31
Speaker 3: going really fast and clips her in the hind legs
27:35
Speaker 3: just as she was moving, you know, off the road
27:38
Speaker 3: into the shoulder of the road, and the driver briefly stopped,
27:42
Speaker 3: Ben just kept right on going, and unfortunately, no one
27:45
Speaker 3: got to look at the car or the license plate,
27:48
Speaker 3: and mister Marquisi was injured. Amazingly, he walked away without
27:53
Speaker 3: any broken bones, but he was injured at the scene,
27:56
Speaker 3: and the paramedics wanted him to go to the hospital.
28:00
Speaker 3: He was near the barn where the horse lived, so
28:02
Speaker 3: the barn's owner came out and was waiting for a
28:06
Speaker 3: veterinarian to come and take a look at the horse.
28:09
Speaker 3: And mister Marquisi knew it was pretty bad, you know,
28:14
Speaker 3: with the horse breaks its leg, that's usually a fatal injury.
28:18
Speaker 3: He knew it was bad, but he also knew that
28:21
Speaker 3: everybody who was at the scene knew how much he
28:23
Speaker 3: loved this horse and that he wouldn't want her just
28:26
Speaker 3: taken away and forgotten that he would want to honor her,
28:29
Speaker 3: that he'd always said that he would plan to cremate
28:32
Speaker 3: any of his pets or animals, and so when he
28:36
Speaker 3: left in an ambulance, he kind of left her in
28:38
Speaker 3: the care of the small number of people at the scene,
28:41
Speaker 3: and unfortunately, somewhere between the accident and the hospital, he
28:44
Speaker 3: lost track of his phone. He wasn't able to get,
28:47
Speaker 3: you know, clear word on what had happened to the horse,
28:50
Speaker 3: So it was pretty much twenty four hours later before
28:53
Speaker 3: he really got the messages that unfortunately the horse had
28:57
Speaker 3: to be put down there at the scene and then
29:01
Speaker 3: someone at the scene gave the okay for the horse
29:05
Speaker 3: to be transported to a landfill, and that was the
29:07
Speaker 3: one thing that he really didn't want to do with
29:09
Speaker 3: his animal.
29:10
Speaker 4: And when the landfill refused to let Marquisi enter to
29:14
Speaker 4: get Breeze's remains, he turned to his only hope, which
29:18
Speaker 4: was the Delaware Chancery Court, which was in the spotlight
29:21
Speaker 4: at the time.
29:23
Speaker 3: Chancery Court has become famous, I think as the place
29:25
Speaker 3: that Elon Musk loves to hate, because this is the
29:28
Speaker 3: court that made him by Twitter in the first place.
29:31
Speaker 3: Is the court where the same judge has said no
29:35
Speaker 3: your pay package at Tesla for fifty six billion dollars
29:39
Speaker 3: that wasn't past reclation. There were too many conflicts of
29:42
Speaker 3: interest on the board. You can't have that. He's been
29:45
Speaker 3: using those rulings as a means of attacking the Court
29:51
Speaker 3: of questioning basically the bedrock of corporate loss for Corporate
29:56
Speaker 3: America for the Fortune five hundred. You know, all of
29:59
Speaker 3: his criticis has led now to new corporate law amendments
30:03
Speaker 3: being proposed in the Delawares legislature. There's a lot of
30:07
Speaker 3: criticism directed at the court that this is not how
30:10
Speaker 3: judges are supposed to act, and some of that criticism
30:13
Speaker 3: is coming from people who just really aren't regular to
30:16
Speaker 3: the corporate law world. So this court is really the
30:20
Speaker 3: home for any legal question involving the fortune five hundred
30:24
Speaker 3: because all the judges are business law experts, including Chancellor
30:28
Speaker 3: Kathleen McCormick, who has overseen the Elon Musk cases. But
30:32
Speaker 3: it's also this very traditional court where anyone who is
30:36
Speaker 3: looking for some kind of remedy that doesn't involve money,
30:40
Speaker 3: Like if you have a property dispute and money isn't
30:43
Speaker 3: really going to solve the problem for you, you go
30:45
Speaker 3: to chancery court. If you have a will that you
30:48
Speaker 3: need to contest, or in a state that's sort of
30:50
Speaker 3: in question, you go to chancery court. So all of
30:53
Speaker 3: these judges also from time to time have to take
30:56
Speaker 3: on these so called smaller cases that don't really eyes
31:00
Speaker 3: to the headlines that you see with Elon Musk. It's
31:03
Speaker 3: a very old fashioned kind of court in that sense.
31:08
Speaker 3: Most states don't have a court like this. They just
31:11
Speaker 3: kind of go through civil court regardless of what the
31:13
Speaker 3: question is. But in Delaware there are really two civil
31:16
Speaker 3: courts and chancery court. Is the one where you go
31:19
Speaker 3: when money isn't really going to solve the problem for you.
31:22
Speaker 3: And in this case, what mister Marquise he wanted wasn't
31:25
Speaker 3: money for his course. He just really wanted the horseback.
31:29
Speaker 4: So on the afternoon of Christmas Eve, Marquis's lawyer, who
31:33
Speaker 4: was representing him pro bono, got a call from the
31:36
Speaker 4: Chancery Court.
31:38
Speaker 3: So this crash happened basically late in the week before Christmas,
31:43
Speaker 3: and it was I believe December twenty third when the
31:46
Speaker 3: petition was filed, and the attorney, Angelica Mamani, she didn't
31:51
Speaker 3: think anybody at the court was actually going to see
31:53
Speaker 3: it until after Christmas because it was so close to
31:56
Speaker 3: the holiday and things tend to shut down for holidays.
32:00
Speaker 3: She got word in the afternoon on Christmas Eve that
32:03
Speaker 3: Chancellor McCormick have a position and wanted to hold a
32:07
Speaker 3: zoom meeting that night to try to see what she
32:11
Speaker 3: could do to resolve the question because there was this
32:14
Speaker 3: urgency behind it.
32:16
Speaker 4: So what was the question before the judge?
32:18
Speaker 3: All Breton mccusey wanted was to reclaim the remains of
32:22
Speaker 3: his horse so that he could have her cremated and
32:25
Speaker 3: he could celebrate her life with some dignity. He didn't
32:28
Speaker 3: want to just leave her remains dumped in the landfill,
32:31
Speaker 3: because he had seen other horse owners who really mistreated
32:35
Speaker 3: their horses, their animals, you know, just ended up dumped,
32:38
Speaker 3: uncared for, unloved, and Breeze wasn't unloved. What he wanted
32:42
Speaker 3: was a court order go in and retrieved the horse's
32:46
Speaker 3: remained so that he could take it and cremate it.
32:48
Speaker 3: The state agency that runs the landfill, however, said, look,
32:52
Speaker 3: we understand these issue. We're not, you know, trying to
32:55
Speaker 3: keep mister Murkuisi from grieving his horse, but we we
32:59
Speaker 3: can't allow allow people in because landfills just aren't meant
33:04
Speaker 3: for this purpose. When something is in, we're not going
33:07
Speaker 3: to go in and try to disturb the infrastructure. We
33:10
Speaker 3: don't want to release any toxic gases or other hazardous
33:13
Speaker 3: material out where it might harm public safety. So these
33:17
Speaker 3: are the questions that Chancellor McCormick suddenly had to consider
33:21
Speaker 3: on Christmas Eve.
33:22
Speaker 4: And so how did she weigh the equities.
33:25
Speaker 3: Chancellor McCormick said that this case was presenting new questions
33:29
Speaker 3: for her that she had never had to consider in
33:33
Speaker 3: all of her experience in corporate law, and as a
33:36
Speaker 3: judge at the chancery court, you know, first of all,
33:38
Speaker 3: has this ever happened? And has anyone been able to
33:42
Speaker 3: go into a landfill to retrieve something that was wrongly
33:46
Speaker 3: placed there? And then how was she supposed to balance
33:49
Speaker 3: public safety with the rights of this person whose property
33:53
Speaker 3: was taken without their consent? And so she said, this
33:56
Speaker 3: was just a really really hard question, that there was
33:59
Speaker 3: no out that mister Marquisi loved his horse and wanted
34:03
Speaker 3: to do right by her and really just had a
34:06
Speaker 3: simple request. He didn't want anything else out of a landfill.
34:09
Speaker 3: He just wanted his property. But she had to acknowledge
34:12
Speaker 3: that landfills are really delicate things, and you know, balancing
34:16
Speaker 3: the equities required her to compare the relative importance of
34:21
Speaker 3: the public safety and a landfills infrastructure with you know,
34:25
Speaker 3: the dignity of this horse that was wrongly interred there. Ultimately,
34:30
Speaker 3: she decided that the risks to public safety and public
34:33
Speaker 3: health were too high to allow him to go into
34:36
Speaker 3: the landfill. The state argued during one of the hearings
34:40
Speaker 3: before her that really no one had ever been allowed
34:43
Speaker 3: to go into a landfill and search for something except
34:47
Speaker 3: for a murder case about thirty years ago, a famous
34:50
Speaker 3: murder case involving an ubernatorial aid named Anne Marie Fahey.
34:54
Speaker 4: And how did Marquisi feel the judge treated him and
34:57
Speaker 4: handle the case for.
34:59
Speaker 3: These interactions the Chancellor McCormick, he met with her over
35:03
Speaker 3: Zoom and she really let him talk at great length
35:06
Speaker 3: about his relationship with his horse and why he was
35:09
Speaker 3: so adamant about retrieving her remains. He said, look, I
35:13
Speaker 3: didn't get what I wanted, but I know that I
35:15
Speaker 3: was heard, and she let me talk, and she listened
35:18
Speaker 3: to me and responded to what I was saying, not
35:22
Speaker 3: what she wanted to hear. And that he could at
35:25
Speaker 3: least walk away from the experience knowing that she treated
35:28
Speaker 3: him compassionately even if she couldn't give him what he
35:32
Speaker 3: thought he should have gotten out of this.
35:34
Speaker 4: And how did lawyers in Delaware feel about this opinion?
35:38
Speaker 3: You know, it's really interesting. This opinion came out right
35:42
Speaker 3: after New Year's kind of in between two big rulings
35:45
Speaker 3: involving Elon Musk and Tesla. And I think when this
35:49
Speaker 3: one posted and it had Chancellor McCormick's name on it,
35:52
Speaker 3: and they actually read it and saw how torn she
35:57
Speaker 3: was in making this decision against the horse's own own
36:00
Speaker 3: They were really struck by how she took the time
36:04
Speaker 3: when she's under fire from the world's richest man and
36:08
Speaker 3: all of his fans who have been warming the court
36:11
Speaker 3: with online criticism, that she would take the time to
36:14
Speaker 3: listen to this one man about his horse that he
36:18
Speaker 3: can't get back out of a landfill. That really struck
36:21
Speaker 3: people as such shows how special this court is, that
36:24
Speaker 3: it's not only set up to weigh these kinds of
36:27
Speaker 3: questions as though they are the most important questions prip
36:31
Speaker 3: before a corporate board or a billionaire. She was able
36:34
Speaker 3: to turn around this opinion really quickly, and she kind
36:39
Speaker 3: of let everybody walk away feeling like they were heard,
36:43
Speaker 3: even if they couldn't get exactly what they wanted. No
36:46
Speaker 3: one felt like they were disadvantage or that she was
36:49
Speaker 3: biased against them or anything like that.
36:51
Speaker 4: This is a great story, Jennifer, about how the Delaware
36:54
Speaker 4: chance record has these two very different sides to it.
36:57
Speaker 4: That's Bloomberg Law Senior Correspondent Jennifer K. And that's it
37:01
Speaker 4: for this edition of The Bloomberg Law Show. Remember you
37:04
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37:06
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37:10
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