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Final SCOTUS Decisions & Dogs Are Part of the Family · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: In one of the most high profile cases of the term,
• 0:11
  Speaker 2: the Supreme Court divided six to three down ideological lines
• 0:16
  Speaker 2: limited the power of judges to block government policies nationwide.
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  Speaker 2: President Trump praised the decision as a monumental victory.
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  Speaker 3: Thanks to this decision, we can now promptly file to
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  Speaker 3: proceed with numerous policies that have been wrongly enjoined on
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  Speaker 3: a nationwide basis. And some of the cases we're talking
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  Speaker 3: about would be ending birthright citizenship, which now comes to
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  Speaker 3: the fore.
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  Speaker 2: But the ruling did not address the constitutionality of Trump's
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  Speaker 2: ban on automatic birthright citizenship, and the justices returned the
• 0:52
  Speaker 2: three cases to the lower courts to consider whether to
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  Speaker 2: keep the ban on hold for longer, at least in
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  Speaker 2: part of the country and perhaps in the entire country.
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  Speaker 2: My guest is constitutional law expert David super, a professor
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  Speaker 2: at Georgetown Law. David, the administration seems to be giving
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  Speaker 2: this decision of very broad reading. Tell us what the
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  Speaker 2: justice is actually ruled here.
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  Speaker 4: It's really a very narrow technical decision. There are some
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  Speaker 4: lower court decisions that enjoin the administration's birthright citizenship policy nationwide,
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  Speaker 4: and the Court says that district courts can only issue
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  Speaker 4: injunctions on behalf of parties in front of them, So
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  Speaker 4: the injunctions to protect particular plaintiffs can stay. And the
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  Speaker 4: Court's very clear that if the plaintiffs can certify a
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  Speaker 4: class action, that all members of the class can get relief.
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  Speaker 4: But they say the district courts cannot issue nationwide injunctions
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  Speaker 4: where they are not hearing a case involving people from
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  Speaker 4: all over the country.
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  Speaker 2: Justice amy Cony Barrett wrote the majority opinion and went
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  Speaker 2: back in history to reach our conclusion. Tell us about it.
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  Speaker 4: Yeah, what Justice Barrett did was say that district courts
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  Speaker 4: don't have statutory authority to issue this sort of injunction.
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  Speaker 4: She said that you would have to analyze the Judiciary
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  Speaker 4: Act of seventeen eighty nine, when the country was first
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  Speaker 4: coming together under the Constitution, and find that at that
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  Speaker 4: time district courts could issue this kind of order. Her
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  Speaker 4: view is that these orders came about only late in
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  Speaker 4: the twentieth century and therefore have no precedent at the
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  Speaker 4: time time that the Judiciary Act was being passed.
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  Speaker 2: Barrett wrote that the government's application to partially stay the
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  Speaker 2: district court's preliminary injunctions are granted, but only to the
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  Speaker 2: extent that the injunctions are broader than necessary to provide
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  Speaker 2: complete relief with respect to each plaintiff withstanding to sue.
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  Speaker 2: What is she saying there?
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  Speaker 4: She's saying two things. One is that for the plaintiffs
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  Speaker 4: that are already in the case, that they stay protected,
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  Speaker 4: they're not losing anything. And then she is effectively inviting
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  Speaker 4: plaintiffs to refile this or amend this into being a
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  Speaker 4: class action.
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  Speaker 2: But the Supreme Court in recent years has cut back
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  Speaker 2: on class actions, haven't they They.
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  Speaker 4: Have, but not likely in a way that would affect
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  Speaker 4: this case. The Supreme Court has gotten very skeptical of
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  Speaker 4: class acts actions that involve bringing different plaintiffs together to
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  Speaker 4: get damages. The Court has also become more skeptical of
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  Speaker 4: class actions where there are lots of different facts that
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  Speaker 4: have to be proven relating to different people. For example,
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  Speaker 4: a class action over racial discrimination might fail because the
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  Speaker 4: court would say, oh, discrimination is different for each employee,
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  Speaker 4: so we can't do that as a class. But here
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  Speaker 4: there are absolutely no facts that need to be proven.
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  Speaker 4: The administration's policy applies to all newborn children and does
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  Speaker 4: not require making any determinations about those children, and is
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  Speaker 4: being challenged on that legal basis. So nothing that the
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  Speaker 4: Supreme Court has said makes class certification less likely. Here.
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  Speaker 4: There is a concurrence that says the district courts should
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  Speaker 4: not be irresponsible in certifying class actions. Well, who could
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  Speaker 4: argue with that? But it doesn't really suggest any concrete
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  Speaker 4: basis for objecting to a class action in this case.
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  Speaker 2: I mean, did the majority opinion actually say that the
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  Speaker 2: lower courts were wrong to issue injunctions here?
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  Speaker 4: They did, but only to the extent that the district
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  Speaker 4: courts protected people who were not parties in the case.
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  Speaker 4: In a sense, the Supreme Court is saying that the
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  Speaker 4: district courts were sloppy, although they've got lots of company.
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  Speaker 4: There were a lot of sloppy district courts in Texas
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  Speaker 4: under this standard during the Biden administration who were in
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  Speaker 4: joining as the Court notes just about every major presidential action.
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  Speaker 2: So Justice Sonya Sotomayor wrote dissent. She said, with the
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  Speaker 2: stroke of a pen, the President has made it a
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  Speaker 2: solemn mockery of our constitution. Rather than stand firm, the
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  Speaker 2: Court gives way.
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  Speaker 4: Yeah, Justice Sotomayor believes that the history cited by the
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  Speaker 4: majority is incomplete and inconclusive. Justice so too. Mayor also
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  Speaker 4: makes the pretty compelling point that the whole history of
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  Speaker 4: injunctions of the body of Law that includes injunctions called
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  Speaker 4: equity is constant change and constant adaptation to whatever is
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  Speaker 4: needed to serve the ends of justice, and that the
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  Speaker 4: mechanism or the reasoning that Justice Bearit is using is
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  Speaker 4: in itself somewhat a historical and is not the way
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  Speaker 4: that judges at the time of the nation's founding would
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  Speaker 4: have analyzed an equitable question. So Justice Sotomayor meets Justice
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  Speaker 4: bear It on the technicality. But then Justice Sotomayor's larger point,
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  Speaker 4: which prompted the comment that you quote, is that the
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  Speaker 4: most serious issue here is that the administration is completely
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  Speaker 4: disregarding the fourteenth Amendment of the Constitution, and the Supreme
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  Speaker 4: Court is addressing a small tactical matter based on some
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  Speaker 4: dubious history, rather than facing the open defiance that the
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  Speaker 4: Constitution had on.
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  Speaker 2: President Trump held a press conference after this decision came
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  Speaker 2: out calling it a monumental victory.
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  Speaker 4: It's hardly any victory at all. It may help them
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  Speaker 4: in some other cases, it won't help them on this one.
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  Speaker 4: Their position on this case is hopeless. The Court has
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  Speaker 4: made very clear that a class action can be filed
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  Speaker 4: to enjoin the full implementation of this action. The administration
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  Speaker 4: will lose almost exactly as quickly under this decision as
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  Speaker 4: they would have under the opposite.
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  Speaker 2: Does this mean we won't see a nationwide injunction issued
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  Speaker 2: from this point.
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  Speaker 4: On, No, It means that the plaintiffs will have to
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  Speaker 4: amend their complaint to allege a nationwide class. There are
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  Speaker 4: a few minor technicalities that they'll have to address when
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  Speaker 4: they do that, but my guess is that that will
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  Speaker 4: happen in a matter of weeks. And once they do that,
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  Speaker 4: the district courts will surely find that there is a
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  Speaker 4: definable class of people affected by this policy, will grant
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  Speaker 4: an injunction for a nationwide class, and the technical issue
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  Speaker 4: here will have been surmounted.
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  Speaker 2: What's the next thing that's going to happen here?
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  Speaker 4: The district court will most immediately cut back their orders. Certainly,
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  Speaker 4: they won't be covering people in states that are not
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  Speaker 4: suing and that are not members of some class of litigants.
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  Speaker 4: What exactly they'll do about the states that are suing
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  Speaker 4: on their own behalf is a little less clear. The
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  Speaker 4: Court makes some vague comments about there being problems in
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  Speaker 4: that area, but doesn't address it. So I don't know
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  Speaker 4: what the courts will do on that, but they will
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  Speaker 4: narrow their injunctions initially, but I think plaintiffs will then
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  Speaker 4: within a matter of weeks amend their complaint to alleged
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  Speaker 4: nationwide classes or possibly classes involving groups of states. But
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  Speaker 4: my guess is just nationwide class action, and at that
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  Speaker 4: point the case will go back to being litigated on
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  Speaker 4: the merits.
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  Speaker 2: And did the court give any opinion at all on
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  Speaker 2: the legality of Trump's ban on automatic birthright citizenship.
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  Speaker 4: Do not really know. They acknowledged that the dissenters regard
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  Speaker 4: this order as completely unlawful. They don't comment on that
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  Speaker 4: belief as they move forward, so they are staying true
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  Speaker 4: to their word and only addressing tactical issues here. Many
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  Speaker 4: people thought they wouldn't be able to resist getting into
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  Speaker 4: the substance. Obviously they did.
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  Speaker 2: Why is this particular opinion down ideological lines? Why are
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  Speaker 2: the liberals on one side and the conservatives on the
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  Speaker 2: other on this Well, that's.
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  Speaker 4: A good question, because nationwide injunctions were a huge problem
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  Speaker 4: for President by then a significant problem for President Obama.
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  Speaker 4: But I think there really are more internal reasons here.
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  Speaker 4: I think that the three liberals are generally believers that
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  Speaker 4: the courts have a duty to dispense justice unless the
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  Speaker 4: Constitution clearly prevents them from doing so, and this ruling
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  Speaker 4: hobbles the lower court's ability to do justice against an
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  Speaker 4: administration that is aggressively disregarded statutes and off of the Constitution.
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  Speaker 2: Do you think this decision will embold in the Trump
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  Speaker 2: administration to issue even broader executive orders.
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  Speaker 4: I really haven't seen any evidence that the administration has
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  Speaker 4: been holding back on anything, so I think they will
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  Speaker 4: keep on issuing the executive orders that they've been wanting
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  Speaker 4: to issue for a long time anyway, And those who
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  Speaker 4: will have to get litigated on their merits, I hope
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  Speaker 4: this will serve as a refresher for people who litigate
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  Speaker 4: these cases that they ought to rely on a different
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  Speaker 4: form of standing the one that was found in this case.
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  Speaker 4: That they will likely be able to find other precedents
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  Speaker 4: that serve them better. But this is going to be
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  Speaker 4: a very small blip whichever way the Court ultimately comes out,
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  Speaker 4: this case is likely to be fairly quickly forgotten.
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  Speaker 2: Do you think that this issue will come back to
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  Speaker 2: the Supreme Court at some point?
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  Speaker 4: Oh? Yes. The administration is determined to pursue its birthright
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  Speaker 4: citizenship policy. There's no legal support, so they're going to
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  Speaker 4: keep losing in the lower courts on it, and they
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  Speaker 4: will ask the Supreme Court to rule. This is an
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  Speaker 4: issue obviously of great importance to the administration and to
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  Speaker 4: the people involved, so the Supreme Court will surely take it.
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  Speaker 2: Yet another case that will bounce back to the Supreme Court.
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  Speaker 2: Thanks so much, David. That's Professor David super of Georgetown Law.
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  Speaker 2: Coming up next, the Court bolsters the rights of religious parents.
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  Speaker 2: I'm June Grosso and you're listening to Bloomberg. Religious rights
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  Speaker 2: once again won out at the Supreme Court on Friday.
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  Speaker 2: In a six to three decision. The Court ruled that
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  Speaker 2: public school parents have a right to opt their children
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  Speaker 2: out of classroom lessons that intrude on their religious beliefs.
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  Speaker 2: In this case, it was about the reading of LGBTQ
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  Speaker 2: themed storybooks. Justice Samuel Alito wrote the majority opinion for
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  Speaker 2: the Conservatives and Justice Sonia Sotomayor wrote the descent for
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  Speaker 2: the liberals, it was a matchup you might have predicted
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  Speaker 2: after the oral arguments where the two justices basically bickered
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  Speaker 2: over one of the books entitled Uncle Bobby's Wedding.
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  Speaker 5: Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy,
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  Speaker 5: and everything is you know, it portrays this. Everyone accepts this,
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  Speaker 5: except for the little girl Chloe, who has reservations about it,
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  Speaker 5: but her mother corrects her. Shouldn't have any reservations about this.
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  Speaker 5: As I said, it has a clear more, It has a.
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  Speaker 4: Clear moral message.
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  Speaker 6: Just answer my question is looking at the pictures, is
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  Speaker 6: there any affidavid from any parent that merely looking at
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  Speaker 6: people getting married holding hands? None of them are even
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  Speaker 6: kissing at any of these books. The most they're doing
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  Speaker 6: is holding hands. That mere exposure to that is coercion.
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  Speaker 2: Joining me is an expert in First Amendment law, Professor
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  Speaker 2: Caroline Malacorbin of the University of Miami Law School. Caroline,
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  Speaker 2: given the Roberts Court's record on religious rights and LGBTQ rights,
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  Speaker 2: was any part of this decision a surprise?
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  Speaker 7: This opinion was not at all a surprise, but It
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  Speaker 7: was nonetheless a great disappointment, both for the outcome and
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  Speaker 7: for the court continuing miscar jurization and manipulation of doctrine
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  Speaker 7: to get a result that it wants.
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  Speaker 2: Tell us about the conflicting claims from the school district
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  Speaker 2: and the religious parents and how Justice Aldo came to
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  Speaker 2: his conclusions.
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  Speaker 7: On the one hand, you had a school district that
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  Speaker 7: has a very diverse population, and they were trying to
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  Speaker 7: do what a good public school do, which was not
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  Speaker 7: only to have books that represented the people in your community,
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  Speaker 7: but also what a school is supposed to do, which
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  Speaker 7: is exposed children to different kinds of people and to
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  Speaker 7: teach them how to all get along. Right. That's part
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  Speaker 7: of a public schools goal in our country is to
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  Speaker 7: teach our very very population about each other and how
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  Speaker 7: to treat each other with respect, which is the sort
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  Speaker 7: of precondition for democracy. On the other hand, you have
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  Speaker 7: the religious parents who argued that having their children exposed
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  Speaker 7: to ideas that did not conform to their religious belief
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  Speaker 7: was an attack on their ability to practice the religion,
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  Speaker 7: which is a completely novel claim. And although it was
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  Speaker 7: a completely novel claim, Justice Toledo said, oh, yes, we
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  Speaker 7: have always said that this kind of burden on religious
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  Speaker 7: exercise trigger strict scrutiny, and therefore this is a severe
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  Speaker 7: burden on these religious parents, and therefore the school is
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  Speaker 7: now constitutionally obligated to allow them to pull those children
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  Speaker 7: out of any lesson that exposes them to ideas that
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  Speaker 7: their religion disapproved. So basically, how did he do it?
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  Speaker 7: He just claimed that this had always been a law,
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  Speaker 7: and there was nothing novel in this claim, and they
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  Speaker 7: are just recognizing religious liberty in this country as they
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  Speaker 7: always had. Now, that's not accurate, but that's how we
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  Speaker 7: did it.
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  Speaker 2: The Supreme Court has recognized that parents have an interest
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  Speaker 2: in directing their children's religious and educational upbringing. But did
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  Speaker 2: Justice Alito take it a step further?
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  Speaker 7: Yes, So parents have always had a right to direct
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  Speaker 7: the religious upbringing of their children, and that includes teaching
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  Speaker 7: them their religious beliefs and sending them to religious schools. Now,
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  Speaker 7: in relation to the public school system, the right to
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  Speaker 7: control your child's upbringing, which includes the right to control
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  Speaker 7: their religious upbringing, has included the right not to send
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  Speaker 7: them to public school. So the parents' right to control
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  Speaker 7: their children's religious upbringing means they had the right to
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  Speaker 7: pull them out of public school and home school them,
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  Speaker 7: or pull them out of public school and them to
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  Speaker 7: a private religious schools whose values aligned with their own.
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  Speaker 7: That has been the extent of parents' religious rights with
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  Speaker 7: regard to public school education. That was it. It did
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  Speaker 7: not go beyond that, however, Justice Alito claimed otherwise. He said, actually,
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  Speaker 7: we have always said that if public school education imposes
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  Speaker 7: this kind of clash with someone's religious values, then the
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  Speaker 7: public school has to do something to accommodate them. At least.
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  Speaker 7: That is how he described a case that did nothing
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  Speaker 7: of the sort tell.
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  Speaker 2: Us about that case, the Yoder case, because Alito and
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  Speaker 2: Soto Mayor disagreed about the interpretation of that case.
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  Speaker 7: So the case he relied on was a case involving
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  Speaker 7: the Amish, and the Amish challenged law that required them
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  Speaker 7: to send their children to public school until they turned sixteen,
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  Speaker 7: and the Amish argued, this is contrary to our religious
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  Speaker 7: beliefs for two reasons. First, it exposes their child to
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  Speaker 7: worldly education and values which we disapprove. And in addition,
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  Speaker 7: it's going to underline the continuing vitality of our Amish
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  Speaker 7: culture if we cannot teach them how to be Amish
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  Speaker 7: in the community. So they basically wanted to pull them
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  Speaker 7: out of public school education and give them sort of
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  Speaker 7: Amish vocational education in their community. And the Supreme Court said, fine,
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  Speaker 7: we agree. It's a violation of your religious rights if
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  Speaker 7: you do not have this chance to pull your child
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  Speaker 7: out of public school and teach them at home as
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  Speaker 7: you see fit. That is the case. So Alito somehow
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  Speaker 7: goes from the case where the Supreme Court says the
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  Speaker 7: Amish can pull their children out of public school and
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  Speaker 7: train them as they see fit, elsewhere two religious people
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  Speaker 7: have a right to insist that the public school itself
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  Speaker 7: crafts the curriculum that complies with their religious right. These
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  Speaker 7: two things are not the same, and yet Alito keeps
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  Speaker 7: insisting that they're exactly the same.
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  Speaker 2: One of the things that Justice Sotomayor was concerned about
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  Speaker 2: in her dissent was the chilling effect of this decision.
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  Speaker 7: Imagine you're a cash strap school and you are trying
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  Speaker 7: to create a curriculum with books of all different kinds
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  Speaker 7: of people, and a quarter of the parent now object
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  Speaker 7: to a book with an LGBT two character. And so
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  Speaker 7: not only do you have to plan the original lesson
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  Speaker 7: with the book with the LGBT character. You also have
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  Speaker 7: to plan something for the kids who are going to
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  Speaker 7: leave the classroom. And imagine this happens not just with
• 20:51
  Speaker 7: one particular idea that some conservative people disagree with, but
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  Speaker 7: a whole panoply of them. It's going to get logistically
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  Speaker 7: impossible to be able to accommodate the diversity of objections
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  Speaker 7: that parents are going to raise now. And so what's
• 21:09
  Speaker 7: going to happen in reality, unfortunately, is that the school
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  Speaker 7: is just going to say, well, you know what, We're
• 21:15
  Speaker 7: just not going to include the books with the LGBT characters.
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  Speaker 7: One of her themes was the incredible chilling effect that
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  Speaker 7: this decision is going to have because now the school,
• 21:29
  Speaker 7: you know, it, still has to run, it still has
• 21:31
  Speaker 7: teachers who have to teach everyone. They're already overworked and underresourced.
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  Speaker 7: The simplest path is just going to be, you know what,
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  Speaker 7: We're just not going to teach any of these books
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  Speaker 7: that the religious conservatives don't like.
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  Speaker 2: I mean, this ruling is just one in a long
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  Speaker 2: line of Supreme Court decisions in the past decade that
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  Speaker 2: have bolstered religious rights even when they collide with LGBTQ rights.
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  Speaker 2: Or reproductive rights. Religion always seems to win out with
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  Speaker 2: this Court.
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  Speaker 7: In the past, I had always felt fairly uncomfortable with
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  Speaker 7: proticting the outcome of Supreme Court decisions. But I really
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  Speaker 7: feel like for most cases involving these kinds of cultural questions,
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  Speaker 7: if you ask what would conservative Christians want, that is
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  Speaker 7: the holding that the Supreme Court is going to deliver.
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  Speaker 7: They're going to figure out a way to get the
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  Speaker 7: answer that comforts with what conservative Christianity would approve. You know,
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  Speaker 7: if if a statue doesn't matter what the text says,
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  Speaker 7: if it's constitutional law, doesn't matter what Preston says, it
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  Speaker 7: doesn't matter what values are, like, that's the answer you're
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  Speaker 7: going to get.
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  Speaker 2: Do you think this opinion will open the door to
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  Speaker 2: more complaints like this?
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  Speaker 6: Absolutely?
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  Speaker 7: This is not going to be limited to LGBT storybooks
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  Speaker 7: about the Prince and the Night. Actually, when I was
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  Speaker 7: reading it and I thought it sounded adorable because the
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  Speaker 7: Court did not include a limiting principle. The only plausible
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  Speaker 7: principle they might have made is that this is fact dependent.
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  Speaker 7: And one of the things to consider is the age
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  Speaker 7: of the child, because when they're very young, they're going
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  Speaker 7: to assume anything their teacher says is normative. The teacher
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  Speaker 7: says people of the same sex get married and their
• 23:22
  Speaker 7: families are happy, They're going to think that, oh, it's
• 23:25
  Speaker 7: perfectly fine for people of the same sex to get
• 23:27
  Speaker 7: married and have their families be happy. So perhaps the
• 23:32
  Speaker 7: same ruling may not come out if the students are older. Frankly,
• 23:37
  Speaker 7: I think they insist on a fact dependent evaluation so
• 23:41
  Speaker 7: that it's progressive. Brings a parallel claim. They can say, well,
• 23:45
  Speaker 7: we said it was fact dependent, and the facts here
• 23:48
  Speaker 7: don't support a religious liberty exception. But other than that,
• 23:51
  Speaker 7: there really isn't a clear limiting principle. Meaning, if a
• 23:56
  Speaker 7: parent doesn't want their child to hear about evolution because
• 24:00
  Speaker 7: it's contrary to the religious beliefs about how the earth
• 24:03
  Speaker 7: was created, they can argue that their child should not
• 24:07
  Speaker 7: have to go to the section in biology about evolution,
• 24:12
  Speaker 7: And if you have enough parents complaining about that, then
• 24:17
  Speaker 7: the school might simply decide not to teach that unit anymore.
• 24:21
  Speaker 7: There's so many things that people object to now. The
• 24:25
  Speaker 7: one example that Justice Sotomayor are also highlighted. What about
• 24:28
  Speaker 7: all the religions that believe that men and women have
• 24:31
  Speaker 7: very different roles in society and in particular oppose women
• 24:35
  Speaker 7: assuming positions of power. Are they going to object to
• 24:38
  Speaker 7: learning about women in law and business and politics? Are
• 24:44
  Speaker 7: they going to insist it undermines my religious view that
• 24:48
  Speaker 7: my daughter's proper role is to marry and have children,
• 24:53
  Speaker 7: to be exposed to all these female figures who divide
• 24:57
  Speaker 7: God's law about her proper role. We're just not going
• 25:00
  Speaker 7: to talk about successful women in schools, or at least
• 25:05
  Speaker 7: are the schools going to have to notify parents every
• 25:08
  Speaker 7: time they teach about women. Again, there is absolutely no
• 25:13
  Speaker 7: limits to what a parent might object to on religious grounds,
• 25:18
  Speaker 7: and under this ruling, they are now constitutionally guaranteed the
• 25:24
  Speaker 7: right to pull their child out of that class.
• 25:27
  Speaker 2: We'll have to see how the ramifications of this decision
• 25:30
  Speaker 2: play out. Thanks for joining me today, Caroline. That's Professor
• 25:34
  Speaker 2: Caroline Malacorbin of the University of Miami Law School. Coming
• 25:39
  Speaker 2: up next. It's a groundbreaking decision in the world of
• 25:42
  Speaker 2: animal law. A New York judge rules that dogs are
• 25:46
  Speaker 2: part of the family. I'm June Grosso and you're listening
• 25:49
  Speaker 2: to Bloomberg. Dogs have found their ways every corner of
• 26:00
  Speaker 2: our lives. Hey, his Louis, there are companions.
• 26:09
  Speaker 1: Your dog are saviors, I think take it to Greg
• 26:14
  Speaker 1: are pop culture.
• 26:15
  Speaker 4: Icons, Peter, Peter, you hear that, and yet we're.
• 26:21
  Speaker 1: Only beginning to understand how their brains actually work.
• 26:26
  Speaker 2: The documentary Inside the Mind of a Dog was a
• 26:29
  Speaker 2: hit on Netflix. No surprise, since about sixty five million
• 26:33
  Speaker 2: Americans have dogs as pets, well known for their loyalty
• 26:37
  Speaker 2: and affection for the humans they bond with, and now
• 26:41
  Speaker 2: a groundbreaking decision recognizes that emotional bond. A Brooklyn judge
• 26:46
  Speaker 2: has ruled that dogs are no longer just property in
• 26:50
  Speaker 2: the eyes of the law. They're members of the immediate family,
• 26:54
  Speaker 2: something dog owners knew all along. Joining me is Christopher Berry,
• 26:59
  Speaker 2: executive director of the Non Human Rights Project, tell us
• 27:03
  Speaker 2: about the case.
• 27:04
  Speaker 1: The plaintiffs in the case was walking the family dog
• 27:07
  Speaker 1: named Duke through a crosswalk in New York when a
• 27:10
  Speaker 1: driver ran a stop sign, killing Duke, who died in
• 27:13
  Speaker 1: front of her. While the plant is barely escaped injury herself.
• 27:16
  Speaker 1: She was walking him on a leash as well, which
• 27:19
  Speaker 1: was relevant to the judge's decision, and that was caught
• 27:22
  Speaker 1: on security camera footage and historically.
• 27:25
  Speaker 2: What's New York's law regarding recovering emotional distress damages for
• 27:32
  Speaker 2: the loss of a dog.
• 27:33
  Speaker 1: So the traditional rule is that you cannot recover emotional
• 27:38
  Speaker 1: damages for loss of property. You're limited to economic damages,
• 27:43
  Speaker 1: which is usually just the market value, and that applies
• 27:46
  Speaker 1: for all forms of property and has applied to companion
• 27:49
  Speaker 1: animals as well historically.
• 27:52
  Speaker 2: So dogs are treated as property.
• 27:53
  Speaker 1: Then, yes, companion animals are generally treated as property under
• 27:58
  Speaker 1: the law in most ways. But binary categories don't necessarily
• 28:03
  Speaker 1: describe things perfectly accurately, and that is especially true in
• 28:08
  Speaker 1: the context of animal law, and in particular with companion animals.
• 28:12
  Speaker 1: People feel and treat companion animals as though they are
• 28:15
  Speaker 1: members of the family and not just a piece of
• 28:17
  Speaker 1: property that serves some utilitarian function. In addition to that, actually,
• 28:22
  Speaker 1: we can look at animal cruelty laws as another example
• 28:25
  Speaker 1: of ways that animals are distinguished from typical personal property.
• 28:29
  Speaker 1: And so it's exactly those types of tensions that are
• 28:32
  Speaker 1: adding up into context of recovery for emotional distress in
• 28:36
  Speaker 1: cases of involving companion.
• 28:38
  Speaker 2: Animals and treating duca's property would mean that plaintiffs could
• 28:43
  Speaker 2: only recover about two thousand dollars, despite the fact that
• 28:47
  Speaker 2: he'd been run down.
• 28:48
  Speaker 1: So one case that really crystallizes the problem of being
• 28:52
  Speaker 1: limited only to economic damages for a companion animal was
• 28:56
  Speaker 1: one from the Texas Supreme Court and around twenty I
• 28:59
  Speaker 1: think thirteen or so. It was Dricklin v.
• 29:02
  Speaker 4: Medlin.
• 29:03
  Speaker 1: And what had happened there is a family dog been
• 29:05
  Speaker 1: euthanized by a shelter improperly. It actually had gone to
• 29:10
  Speaker 1: recover the dog from the shelter and were told they
• 29:12
  Speaker 1: had to come back later. When they came back, the
• 29:14
  Speaker 1: dog had been euthanized, so they food for In Texas,
• 29:17
  Speaker 1: it wasn't emotional damages, it was sentimental damages, and sentimental
• 29:21
  Speaker 1: damages are available for special property like family heirlooms in Texas,
• 29:25
  Speaker 1: and the court unfortunately adhered to the traditional rule, citing
• 29:29
  Speaker 1: an eighteen hundreds case that in the case of dogs,
• 29:33
  Speaker 1: you are limited to the economic damages to the market
• 29:36
  Speaker 1: value and sentimental damages aren't available. But what was really
• 29:39
  Speaker 1: interesting and I thought inequitable about that decision is the
• 29:43
  Speaker 1: Texas Supreme Court acknowledged an argument from the amicus in
• 29:47
  Speaker 1: that case on behalf of the animals that in the
• 29:49
  Speaker 1: case involving the destruction of a taxidermied dog who happened
• 29:53
  Speaker 1: to be a family heirloom, that sentimental damages would be available.
• 29:56
  Speaker 1: And so I thought that, in the most concrete way
• 29:59
  Speaker 1: that it seen in my fifteen years or so of practice,
• 30:03
  Speaker 1: just really quite clearly illustrated the problem and attention in
• 30:07
  Speaker 1: the law.
• 30:08
  Speaker 2: That's quite a contrast in Duke's case. The pointif sued
• 30:13
  Speaker 2: for negligent infliction of emotional distress, tell us how the
• 30:17
  Speaker 2: concept of zone of danger fits.
• 30:20
  Speaker 1: In Negligent infliction of emotional distress is a torque cause
• 30:24
  Speaker 1: of action, and zone of danger is an important and
• 30:27
  Speaker 1: traditional qualification to a negligent infliction of emotional distress, which
• 30:32
  Speaker 1: is that you have to have been within the zone
• 30:34
  Speaker 1: of danger yourself, meaning that you almost suffered the injury
• 30:37
  Speaker 1: that caused the emotional distress, and that a family member
• 30:41
  Speaker 1: was the one who ultimately was injured and caused the
• 30:44
  Speaker 1: emotional distress.
• 30:46
  Speaker 2: And what did the driver argue?
• 30:48
  Speaker 1: The attorneys for the driver said that this was just
• 30:51
  Speaker 1: a simple application of the traditional rule that you cannot
• 30:54
  Speaker 1: recover emotional distress or destruction of personal property, and you know,
• 31:00
  Speaker 1: didn't see it as being really any more complicated than that.
• 31:03
  Speaker 1: The issue, of course, is that because this involved a
• 31:06
  Speaker 1: dog duke who was considered to be entreated like a
• 31:09
  Speaker 1: member of the family, that binary sort of distinction of
• 31:12
  Speaker 1: you know, animals must always be treated as personal property
• 31:15
  Speaker 1: under all circumstances. Simply, I think doesn't feel right, It
• 31:19
  Speaker 1: doesn't fit well, It doesn't feel fair to consider him
• 31:22
  Speaker 1: that way.
• 31:23
  Speaker 2: Why did the judge ask for outside groups to file papers?
• 31:28
  Speaker 1: The judge asked for amicist brief in this case at
• 31:31
  Speaker 1: the trial level, which is actually itself very unusual, and
• 31:35
  Speaker 1: it seemed that the judge was really struggling with the
• 31:38
  Speaker 1: rigid application of the traditional rule to the facts of
• 31:41
  Speaker 1: this case where you had a dog who was treated
• 31:43
  Speaker 1: as a family member. The judge had the video footage
• 31:46
  Speaker 1: of the accident. The dog duke had been in a
• 31:49
  Speaker 1: ring bearer for the family during a wedding. So under
• 31:53
  Speaker 1: those circumstances, it seems quite at odds with justice, right,
• 31:56
  Speaker 1: with fairness, with equity, with all the principles that we
• 31:59
  Speaker 1: lawed in the lead profession. To rigidly apply the traditional
• 32:04
  Speaker 1: rule that you're limited to economic damages in the loss
• 32:08
  Speaker 1: of a companion animal.
• 32:09
  Speaker 2: It seems surprising to me, but maybe not to you,
• 32:12
  Speaker 2: that a lot of big animal groups like the New
• 32:15
  Speaker 2: York State Veterinary Medical Society the American Kennel Club wrote
• 32:20
  Speaker 2: briefs siding with the driver rather than the family here.
• 32:24
  Speaker 1: Yeah, it's surprising. The veterinary community, you know, often considered
• 32:28
  Speaker 1: to be animal welfare groups. You know, fundamentally, though, these
• 32:32
  Speaker 1: are professional trade organizations, and professional trade organizations are duty
• 32:36
  Speaker 1: bound really by the nature of their own organization to
• 32:39
  Speaker 1: promote the professional interests of the practitioners, the veterinarians in
• 32:43
  Speaker 1: this case, and not the animals. And their argument has
• 32:46
  Speaker 1: been concerns that emotional damage recovery involving, you know, deaths
• 32:52
  Speaker 1: of companion animals through negligence will increase overhead for veterinary practices.
• 32:58
  Speaker 1: Fundamentally is it's about the dollars and cents for the profession.
• 33:01
  Speaker 2: So the judge here wrote, the court fails to see
• 33:03
  Speaker 2: why a beloved companion pet could not be considered immediate family.
• 33:08
  Speaker 2: Tell us how he came to that decision.
• 33:10
  Speaker 1: The recognized that he was between a rock and a
• 33:13
  Speaker 1: hard place in this case because you have the traditional
• 33:16
  Speaker 1: role that you're limited to economic damages. But then there's
• 33:19
  Speaker 1: also the fundamental principle of tort law that people should
• 33:24
  Speaker 1: be compensated and made a whole when they suffer damages.
• 33:27
  Speaker 1: There's also instructions that you know, courts are duty bound
• 33:31
  Speaker 1: to do justice and to bring the law in accordance
• 33:33
  Speaker 1: with present day standards of wisdom and justice in the
• 33:36
  Speaker 1: words of the New York Court of Appeals. So recognizing
• 33:39
  Speaker 1: that the judge found that Duke could qualify as an
• 33:43
  Speaker 1: immediate family member for purposes of the negligent infliction of
• 33:46
  Speaker 1: emotional distress zone of danger claim, the headline is that
• 33:50
  Speaker 1: Duke is included within an immediate family but the subtext
• 33:53
  Speaker 1: there is there were a lot of limitations to this
• 33:55
  Speaker 1: holding as well. There are several factors that the judge
• 33:59
  Speaker 1: cited that limited the case. For example, that not only
• 34:02
  Speaker 1: was she within the zone of danger, but she had
• 34:04
  Speaker 1: Duke on a leash right which heightened the physical risk
• 34:08
  Speaker 1: to her and importantly did not extend this theory to
• 34:13
  Speaker 1: emotional distress claims. Beyond the zone of danger. There was
• 34:16
  Speaker 1: a claim from another family member in the house who
• 34:19
  Speaker 1: hadn't been present but also suffered emotional distress, and the
• 34:23
  Speaker 1: judge did not allow that emotional distress claim to go forward.
• 34:26
  Speaker 2: So I mean, is this the first time a judge
• 34:28
  Speaker 2: has found that a companion pad could be considered a
• 34:32
  Speaker 2: member of the immediate family.
• 34:34
  Speaker 1: Yes, it is the first time that a judge considered
• 34:37
  Speaker 1: a companion animal to be a member of the immediate
• 34:39
  Speaker 1: family in the context of negligent and infliction of emotional distress.
• 34:43
  Speaker 1: And I include that qualification because one of the points
• 34:46
  Speaker 1: that the Non Human Rights Project made in our amaricust brief,
• 34:48
  Speaker 1: and that the court recognized as well, is that companion
• 34:50
  Speaker 1: animals do enjoy family status and other circumstances, in particular
• 34:56
  Speaker 1: when a divorce happens. There's a New York statute requiring
• 35:01
  Speaker 1: courts to consider the best interest of the animal in
• 35:04
  Speaker 1: awarding custody.
• 35:06
  Speaker 2: Now I was surprised by that. I didn't realize that
• 35:08
  Speaker 2: is there any indication the case is going to be appealed.
• 35:11
  Speaker 1: So this decision was a trial court decision in New York.
• 35:14
  Speaker 1: They can be published and cited, so you know it's
• 35:18
  Speaker 1: discoverable on West Law, and it'll have some persuasive authority
• 35:21
  Speaker 1: just through the strength of its analysis. I wouldn't be
• 35:24
  Speaker 1: surprised to see this case be appealed, not particularly if
• 35:27
  Speaker 1: there's no settlements, pisely because it is pushing the envelope
• 35:31
  Speaker 1: in some ways.
• 35:32
  Speaker 2: It certainly seems to be. I remember the case that
• 35:35
  Speaker 2: your organization filed to try to get Happy the elephant
• 35:40
  Speaker 2: released from the Bronx Zoo, which didn't have a happy
• 35:44
  Speaker 2: ending at the New York Court of Appeals. So if
• 35:47
  Speaker 2: this case involving Duke is appealed, will the decision in
• 35:51
  Speaker 2: Happy's case be relevant.
• 35:53
  Speaker 1: Well, there's some relationships between Happy's case and our claiment
• 35:58
  Speaker 1: in that case and this termination of family membership, but
• 36:01
  Speaker 1: there are some distinctions as well. So the overlaps that
• 36:05
  Speaker 1: I think is key is that courts, especially when they're
• 36:08
  Speaker 1: applying the common law powers, need to really look at
• 36:11
  Speaker 1: the laws animating purposes and not be beholden to artificial barriers.
• 36:16
  Speaker 1: So there's a flexibility and a liveliness that is a
• 36:20
  Speaker 1: part of the common law that we saw applied in
• 36:24
  Speaker 1: this case regarding a dog being a member of the family,
• 36:27
  Speaker 1: and that the Non Human Rights Project was arguing that
• 36:29
  Speaker 1: the court should do on behalf of Happy. That's the similarity.
• 36:32
  Speaker 1: And I'll note too, in the same way that companion
• 36:34
  Speaker 1: animals now are seen as members of the family by
• 36:37
  Speaker 1: the vast majority of Americans. We also have modern science
• 36:42
  Speaker 1: informing us that animals have actual liberty interests. You know,
• 36:46
  Speaker 1: they care about their liberty and they suffer when those
• 36:48
  Speaker 1: liberty interests are violated, and we have laws that they
• 36:51
  Speaker 1: that we care about liberty. So there's certainly a connection there.
• 36:55
  Speaker 1: The distinction, of course, is that you know, it's a
• 36:58
  Speaker 1: companion animals family status and one case, and an elephant's
• 37:01
  Speaker 1: cognitive abilities and their liberty interests in another case. Right,
• 37:05
  Speaker 1: So there's certainly a distinction there.
• 37:07
  Speaker 2: Has the law in this area been evolving or does
• 37:11
  Speaker 2: the fact that we're talking about this case mean that
• 37:14
  Speaker 2: it hasn't.
• 37:15
  Speaker 1: Yeah, there's sort of a paradox there, right, because on
• 37:17
  Speaker 1: the one hand, you know, this is so limited, right,
• 37:20
  Speaker 1: it's emotional to threats, it's a zone of danger, and
• 37:24
  Speaker 1: the fact that Duke was on a leash was relevant
• 37:27
  Speaker 1: to the decision as well. So there's something that's very
• 37:28
  Speaker 1: limited and incremental. But really that's the way the law works.
• 37:31
  Speaker 1: And I think it's important to think about this sort
• 37:34
  Speaker 1: of legal progress not just as a snapshot in you know,
• 37:37
  Speaker 1: one holding in one case, but to broaden our framework
• 37:41
  Speaker 1: to be thinking about it as a trend over time,
• 37:45
  Speaker 1: and in the case of the legal status of animals,
• 37:48
  Speaker 1: the trend over time is unmistakable that there's a positive
• 37:51
  Speaker 1: trend arrow there and we see that in this case
• 37:53
  Speaker 1: and many others.
• 37:55
  Speaker 2: Well, it's encouraging to see that trend line. Thanks so much, Christopher.
• 37:59
  Speaker 2: That's Christopher, executive director of the Non Human Rights Project,
• 38:03
  Speaker 2: And that's it for this edition of The Bloomberg Law Show.
• 38:06
  Speaker 2: Remember you can always get the latest legal news on
• 38:08
  Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
• 38:13
  Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
• 38:18
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• 38:21
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• 38:25
  Speaker 2: and you're listening to Bloomberg