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Weekend Law: Prosecuting Parents in Shootings & Engagement Ring Fight · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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Speaker 2: From where I'm.
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Speaker 3: Saying, I could see him like through the window, and
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Speaker 3: then he just kind of turned to my right and
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Speaker 3: then he fired about ten to fifteen shots.
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Speaker 4: Well, when we heard.
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Speaker 3: The shots, he kind of just like dropped to the
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Speaker 3: floor and like flung ourselves into like a corner.
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Speaker 5: Sixteen year old Lila Sayairaz had been sitting next to
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Speaker 5: Colt Gray in a math class just before the shooting
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Speaker 5: that killed two students and two teachers and injured nine others.
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Speaker 5: The shooting at Georgia's Appalanchi High School last week is
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Speaker 5: the twenty third school shooting this year and the deadliest.
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Speaker 6: In essence, you were charged with four counts of felony murder,
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Speaker 6: as outlined in the state warrants that have been issued
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Speaker 6: against you.
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Speaker 5: Fourteen year old Colt Gray has been charged with four
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Speaker 5: counts of murder, and for only the second time nationwide,
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Speaker 5: his father is also being prosecuted for the shootings. Colin
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Speaker 5: Gray has been charged with two counts of second degree
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Speaker 5: felony murder, four counts of involuntary manslaughter, and eight counts
1:14
Speaker 5: of cruelty to children.
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Speaker 6: The maximum penalty for each count is up to thirty
1:20
Speaker 6: years imprisonment.
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Speaker 5: Barrow County District Attorney Brad Smith says there's no broader
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Speaker 5: meaning behind bringing charges against the father.
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Speaker 4: I'm not trying to send a message.
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Speaker 6: I'm just trying.
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Speaker 5: To use the tools.
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Speaker 4: Of arsenal to prosecute people.
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Speaker 5: For the crown to commit joining me is Echo Yanka,
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Speaker 5: a professor at the University of Michigan Law School. They
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Speaker 5: charged the father right away. Do you think the speed
1:45
Speaker 5: is because there was sort of a precedent already set
1:49
Speaker 5: in the case against the parents in the Michigan school shooting.
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Speaker 2: You're right to notice the speed at which they charged
1:55
Speaker 2: the father. It is one of the things that shows
1:57
Speaker 2: that we're entering into a new legal world. As you
2:00
Speaker 2: point out, the Ethan Crumley case in Michigan, where the
2:04
Speaker 2: parents were convicted, was considered precedent setting and path breaking.
2:08
Speaker 2: But it doesn't take long for a case that was
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Speaker 2: seen as utterly novel to be in a prosecutor's back
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Speaker 2: pocket and result in charges in just hours in the
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Speaker 2: next set of gregious horrible cases. But it shows you
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Speaker 2: that what was completely novel becomes a ready made tool
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Speaker 2: for the next case.
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Speaker 5: The charges against the father, and this Georgia case are
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Speaker 5: more severe than in the Crumbley case. There the parents
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Speaker 5: were charged with involuntary manslaughter. Here the father is not
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Speaker 5: only charged with involuntary manslaughter but also with two counts
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Speaker 5: of felony murder for the deaths of the students. Do
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Speaker 5: murder charges against the father seem like a stretch?
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Speaker 6: Here?
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Speaker 2: These are charges that see yet another step forward in
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Speaker 2: holding parents accountable, to hold that they're directly responsible. Involuntary
3:00
Speaker 2: manslaughter is typically related to somebody's recklessness or negligence the
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Speaker 2: cause death. Second degree murder is a stronger claim that
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Speaker 2: in some sense you killed somebody, even without preditation. As
3:14
Speaker 2: you know, Georgia's murder laws are some way to do
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Speaker 2: a syncratic and so those second degree murder charges look
3:20
Speaker 2: to be attached to the idea that his son killed
3:24
Speaker 2: two children, and thus the cruelty charged the children the
3:27
Speaker 2: second degree murder. But as a general position, it stands
3:30
Speaker 2: for prosecutors being even more aggressive in saying that this
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Speaker 2: father didn't just recklessly lead to this death, but that
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Speaker 2: his actions in some serious way caused these deaths.
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Speaker 5: In May of twenty twenty three, the father and son
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Speaker 5: were interviewed in connection with online threats to carry out
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Speaker 5: a school shooting, but the teenager wasn't arrested because authorities
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Speaker 5: couldn't connect him to the online account. At some point
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Speaker 5: after that interaction, Gray bought his son an AR fifteen
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Speaker 5: style rifle. Do you think that's going to be a
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Speaker 5: main focus of the prosecution. You know, you had a
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Speaker 5: warning in this conversation and then you went and bottom
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Speaker 5: a gun.
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Speaker 2: Yeah, it sounds much like the cases we've seen that
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Speaker 2: came before. It's these sort of horrible and gut wrenching facts,
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Speaker 2: the fact that give you a feeling as though a
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Speaker 2: parent not only ignored a child who was crying out
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Speaker 2: from mental health health, not only ignored a child who
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Speaker 2: is fascinated with violence and school shootings in particular, but
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Speaker 2: instead of steering this child away from these kinds of
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Speaker 2: things or securing your weapons, you have parents in both cases,
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Speaker 2: but in particular in this great case, who not only
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Speaker 2: metaphorical but quite literally put the gun in the child's hands,
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Speaker 2: goes and buys them the weapon and arms them. And
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Speaker 2: it's those kind of egregious facts that lead prosecutors to
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Speaker 2: eventually seek direct responsibility. Now, I'll say in many parts
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Speaker 2: of the country, one of the reasons we really care
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Speaker 2: about trying people in front of juries is that different
5:01
Speaker 2: communities will have very different relationships to these moments. So
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Speaker 2: there are just lots of communities where a father buying
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Speaker 2: a gun and taking their son hunting seems like a
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Speaker 2: perfectly ordinary part of the communal experience. I teach cases
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Speaker 2: where courts come to very different decisions because they're very
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Speaker 2: different communal norms on what counts as negligence with a gun.
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Speaker 2: You know, one of the cases is a Georgia case
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Speaker 2: where the judge says, in Georgia we have a long
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Speaker 2: and proud history of hunting, and in other communities this
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Speaker 2: is close to unthinkable. And so I don't think the
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Speaker 2: facts are without anything for a defense lawyer to point out.
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Speaker 2: But when you have a child who's so troubled, who's
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Speaker 2: so fascinated with violence, it's not surprising that we all
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Speaker 2: are outraged when a father, instead of making sure guns
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Speaker 2: are away, arms the child with essentially a rifle that's
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Speaker 2: made for war.
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Speaker 5: In the Crumbly case, there was a lot of evidence
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Speaker 5: that the parents ignored their sons, deteriorating mental health. In
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Speaker 5: the case of Colt Gray, there also seems to have
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Speaker 5: been contact between the family and the school about his
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Speaker 5: mental health. We don't know that much about the facts
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Speaker 5: at this point, but the mental health warnings are sure
6:15
Speaker 5: to be a big part of the prosecution's case against
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Speaker 5: the father.
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Speaker 2: Look, even among trained psychiatrists, they will tell you that
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Speaker 2: it's very hard to predict when a patient is actually
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Speaker 2: going to resort to violence when there's a gap between fixation, fascination,
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Speaker 2: mental health issues, and actual action. That being said, you know,
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Speaker 2: part of what drives these cases is that there are
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Speaker 2: particularly egregious facts. So for example, when this mother took
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Speaker 2: him in seeking mental health help, apparently, and we're all
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Speaker 2: finding out the facts, but hearn notes said something like
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Speaker 2: he should have been in therapy for months now. He
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Speaker 2: deeply needs help. And so it's those facts on the
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Speaker 2: ground that parents themselves did see or could have seen
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Speaker 2: this coming. Indeed, the latest reporting shows that when he
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Speaker 2: texted her, she immediately called the school because she was
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Speaker 2: afraid that he was going to resort to violence. You know,
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Speaker 2: you mentioned earlier that this father was arrested quite quickly.
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Speaker 2: So I think one of the things that we're going
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Speaker 2: to see developed their trial is not only what was
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Speaker 2: the reported incident beforehand where he posted about school shootings?
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Speaker 2: How much was he fascinated with school shootings? How much
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Speaker 2: did parents have reason to know about his fixation with violence?
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Speaker 2: And frankly, what kinds of things did they discover in
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Speaker 2: their investigation or in their interview with him that would
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Speaker 2: lead to such quick charges. And so, you know, alongside
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Speaker 2: the rest of the country, I'll be waiting to find
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Speaker 2: out exactly who knew, what went, what did he say?
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Speaker 5: As you mentioned, the mother called the school to warn
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Speaker 5: them about her son. Could a possible defense for the
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Speaker 5: father be well, the school didn't act quickly enough.
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Speaker 2: Yeah, I don't think that'll be much of a defense
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Speaker 2: for him at his criminal trial, especially because he's not
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Speaker 2: the new did From what the reporting is now, it
8:02
Speaker 2: seems like a horrible set of missed opportunities. A school
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Speaker 2: counselor went to see if he was there, taking him
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Speaker 2: for another child with a similar name, and took a
8:12
Speaker 2: backpack of the wrong child. So it's all these sort
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Speaker 2: of horrible miss moments after miss moments that lead to
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Speaker 2: the death of four people. I do think the real
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Speaker 2: question will be whether or not. Those moments play into
8:25
Speaker 2: further civil liability for the school. As you know, in
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Speaker 2: the Oxford shooting in Michigan, the Oxford School system was
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Speaker 2: eventually not found liable for any negligence on their part criminally,
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Speaker 2: But that doesn't settle the question whether or not those
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Speaker 2: individual parents and injured people will think that the school
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Speaker 2: missed its own duties to protect them.
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Speaker 5: Some critics say that charging the parents is a misguided
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Speaker 5: effort to make parents escapegoats while lawmakers failed to pass
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Speaker 5: gun control legislation.
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Speaker 2: I think that's right. I mean, look, I think in
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Speaker 2: some sense these are not the exact same question. I
9:03
Speaker 2: am cautious about the way in which we treat every
9:06
Speaker 2: social problem as though as a criminal law problem. But
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Speaker 2: I don't pretend to have an easy answer about whether
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Speaker 2: or not parents who are so grossly negligent or so
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Speaker 2: reckless should be held liable. You know, it goes against
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Speaker 2: a long standing criminal law principle. The principle that I
9:22
Speaker 2: taught just last week to my criminal law students in
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Speaker 2: their first week is that you're not responsible for the
9:27
Speaker 2: actions of others. You're not responsible. Barring of very few
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Speaker 2: exceptions for accomplished liability or felony murder. But yes, extraordinary
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Speaker 2: cases are going to push that intuition. The real point
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Speaker 2: is whether or not you think this parent should be culpable.
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Speaker 2: It's clear to me that what needs to happen is
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Speaker 2: the way we treat our society that's saturated in guns.
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Speaker 2: What do we think about gun regulation, what do we
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Speaker 2: think about red flag laws? And what do we think
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Speaker 2: about safe storage laws? In Michigan, it was only after
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Speaker 2: the Crumbley shooting that we passed the first set of
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Speaker 2: gun regular including safe storage laws in for decades. So
10:05
Speaker 2: his heartbreaking is this particular cases and whatever one thinks
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Speaker 2: about what should happen this father. It seems to me
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Speaker 2: a kind of hopeless mission to think that we're going
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Speaker 2: to solve this never ending social problem with school shootings
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Speaker 2: by prosecuting one parent at a time. And if legislators
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Speaker 2: are going to think that we have our anger seated
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Speaker 2: by essentially, you know, blaming one parent at a time,
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Speaker 2: or bringing the hammer down on one parent at locking
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Speaker 2: up a parent here, a parent there, while forever telling
10:36
Speaker 2: us that we'll think about gun regulation in some other time,
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Speaker 2: then we're going to keep visiting these tragedies.
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Speaker 5: The prosecutor said he wasn't trying to send out a
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Speaker 5: message by charging the father, that he was just using
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Speaker 5: the tools in his arsenal. But he gave a full
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Speaker 5: press conference after the first court appearances. Isn't there a
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Speaker 5: message here?
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Speaker 2: Prosecutors are people too, and they live in these communities,
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Speaker 2: and they are heartbroken and devastated when these things happen
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Speaker 2: as well, And so I believe that when a prosecutor
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Speaker 2: looks at something like this, they are like all of us,
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Speaker 2: outraged and think, I want to hold somebody accountable. But no. Ultimately,
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Speaker 2: of course, part of what prosecutors do is use the
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Speaker 2: law as a tool for sending a message to what
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Speaker 2: they believe is unacceptable behavior, what they believe their community
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Speaker 2: wants to hold as a line of accountability, and even
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Speaker 2: what they think matters for their own views of the
11:32
Speaker 2: law and even their own ambition. I don't think he's
11:35
Speaker 2: necessarily cynical or lying, but it's too much to believe
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Speaker 2: that a prosecutor wouldn't think that this kind of immediately
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Speaker 2: nationwide visible case wouldn't send the message.
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Speaker 5: Do you think this is the second case charging a
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Speaker 5: parent with many more to come.
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Speaker 2: I understand why a prosecutor would want to hold parents
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Speaker 2: like this accountable. But I do think we shouldn't be
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Speaker 2: so cavalier about what it means to hold parents accountable
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Speaker 2: for the behavior of their children, and in particular, what
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Speaker 2: will mean when the next case is not as egregious
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Speaker 2: and prosecutors still use these tools to prosecute a case.
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Speaker 2: And the overwhelming majority of our cas is something like
12:15
Speaker 2: ninety five percent are Bee bargains. And so every time
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Speaker 2: we empower prosecutors to threaten people with further criminal liability,
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Speaker 2: we're also giving them the power to exact a huge
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Speaker 2: number of guilty pleas that will never see a jury
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Speaker 2: or a reporter.
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Speaker 5: Thanks Zecho. That's Professor Echo Yanka of the University of
12:34
Speaker 5: Michigan Law School. A note. Michael Bloomberg, the founder majority
12:39
Speaker 5: owner of Bloomberg LP, the parent company of Bloomberg Radio,
12:43
Speaker 5: is a donor to groups that support gun control, including
12:46
Speaker 5: Every Town for Gun Safety. I couldn't agree more with
12:50
Speaker 5: President Biden. US Steel should remain American owned and American operator.
12:56
Speaker 5: It was no coincidence that while courting union voters in
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Speaker 5: the crucial battleground state of Pennsylvania, where US Steel is headquartered.
13:06
Speaker 5: Vice President Kamala Harris announced her opposition to nip On
13:10
Speaker 5: Steel's fourteen point one billion dollar takeover of the iconic
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Speaker 5: American company, a deal that the US steel Workers union
13:19
Speaker 5: vehemently opposes. The proposed deal is under review by the
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Speaker 5: Secretive Committee on Foreign Investment in the United States or SCIPHIUS.
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Speaker 5: Of course, Biden already announced his opposition to the deal
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Speaker 5: back in March, and in April at the United steel
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Speaker 5: Workers headquarters in Pittsburgh, the President made this promise to
13:40
Speaker 5: the union workers.
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Speaker 6: US Steel has been an iconic American company for more
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Speaker 6: than a century, and it should remain a totally American company,
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Speaker 6: American owned, American operated by American union steel workers, the
13:56
Speaker 6: best in the world, and that's going to happen, I
13:58
Speaker 6: promise you.
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Speaker 5: Several business groups, including the US Chamber of Commerce, sent
14:04
Speaker 5: a letter to Treasury Secretary Janet Yellen on Wednesday, warning
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Speaker 5: that the administration's national security review of the deal is
14:13
Speaker 5: being used to further political agendas. Both nip On Steele
14:17
Speaker 5: and US Steel have suggested they may challenge an adverse
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Speaker 5: decision in court. Joining me is Rick Sofield, a partner
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Speaker 5: at deb of was in Plimpton. He was formerly the
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Speaker 5: Justice Department, Sifius representative and participated in the review of
14:33
Speaker 5: more than a thousand transactions Rick SCYTHEUS has yet to
14:36
Speaker 5: make its recommendations, but in March, President Biden announced his
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Speaker 5: opposition to the deal. Is that unusual.
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Speaker 1: That's very unusual. To my knowledge, President Biden's statement was
14:47
Speaker 1: made even before a filing had been made with Syphius,
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Speaker 1: And that's not how the process ordinarily works. Ordinarily, a
14:55
Speaker 1: filing gets made to the committee by the parties they
14:58
Speaker 1: usually got together, and Ciphius evaluates the transaction using what
15:04
Speaker 1: it calls a risk based analysis, and that risk based
15:07
Speaker 1: analysis looks at the threat posed by the fear investor,
15:12
Speaker 1: the vulnerability of the US business, and the consequences if
15:16
Speaker 1: the threat actor were to take advantage of vulnerable the
15:20
Speaker 1: US business. And so looking at the threat, vulnerability and
15:23
Speaker 1: consequences altogether, Sophius comes up with its overall risk assessment
15:27
Speaker 1: and bases its recommendation to the President on that risk assessment.
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Speaker 1: So back in March, to my knowledge, Cifius would not
15:35
Speaker 1: have completed a risk analysis, and so the President really
15:39
Speaker 1: wouldn't have had the benefit of that insight from Syphius
15:43
Speaker 1: in making his pronouncement there had been no risk analysis,
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Speaker 1: and to me, frankly, you know that creates potential litigation
15:50
Speaker 1: risk because parties to the cifious process are entitled to
15:53
Speaker 1: due process, and it's hard to see where there would
15:56
Speaker 1: be adequate due process, which is to notice and opportunity
16:00
Speaker 1: to be heard, meaningfully heard on an issue. How they
16:03
Speaker 1: could have had due process if the President had already
16:06
Speaker 1: made a decision before the committee had done its work
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Speaker 1: and done its risk based analysis.
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Speaker 5: In late August, as first reported by Reuters, Sophias sent
16:15
Speaker 5: a letter to the companies warning that their proposed deal
16:19
Speaker 5: would threaten US national security by weakening the country steel
16:23
Speaker 5: supply chain. What can the companies do to change Siphius's
16:27
Speaker 5: mind or alley its concerns.
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Speaker 1: So it sounds like what the company's got is what
16:34
Speaker 1: if this colloquially calls a rawls letter or a due
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Speaker 1: process letter. This has become a pretty routine part of
16:42
Speaker 1: the scipious process over the last decade or so. And
16:46
Speaker 1: really the rationale guns from litigation involving company called Rolls
16:51
Speaker 1: that was building a wind farm in Oregon, and Syphius
16:56
Speaker 1: was concerned that the wind farm could be used to
16:59
Speaker 1: how listening devices that would spy on a naval training
17:03
Speaker 1: base near the wind farm, and so Sifius moved blocked
17:06
Speaker 1: that transaction. The parties to that transaction suit and said
17:10
Speaker 1: that Siphius's decision was not based on due process and
17:14
Speaker 1: actually invited the court to review the president's determination. What
17:18
Speaker 1: the court did there is it reaffirmed congresses mandate and
17:22
Speaker 1: Thessifious statute that courts should not stand in the shoes
17:26
Speaker 1: of the president and do their own national security assessment.
17:30
Speaker 1: And so the court didn't say that the president got
17:32
Speaker 1: the national security decision wrong. Instead, what it did is
17:35
Speaker 1: it said, hey, Siphius, you need to go back and
17:38
Speaker 1: check and make sure that you gave the parties adequate
17:41
Speaker 1: due process. You gave them all the information about what
17:44
Speaker 1: your concerns are and gave them an opportunity to be
17:47
Speaker 1: hurt on those concerns and to see if there could
17:50
Speaker 1: be some package of mitigation measures that would allay the
17:54
Speaker 1: national security concerns short of a block. So that's what
17:58
Speaker 1: seems to be happening here is if this is now
18:00
Speaker 1: communicated specifically what its national security concerns are, and you know,
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Speaker 1: I would assume what's happening now is the companies are,
18:09
Speaker 1: now that they understand what the concerns are, trying to
18:11
Speaker 1: convince the government that those concerns can be addressed in
18:15
Speaker 1: some way short of the President blocking the transaction.
18:20
Speaker 5: Nip On sent a senior executive to Washington this week
18:23
Speaker 5: to meet with White House officials about the deal. Would
18:27
Speaker 5: you call that a last ditch effort to save the
18:29
Speaker 5: deal or just part of the process.
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Speaker 1: I mean, you know, CIFIE hasn't already said they have
18:34
Speaker 1: concerns they don't think they can mitigate, and so, you know,
18:37
Speaker 1: normally in process that doesn't necessarily mean the decision is done,
18:41
Speaker 1: but it's kind of hard to get them to change
18:43
Speaker 1: their mind if they've gotten this far. So you know,
18:47
Speaker 1: maybe you could call it a last ditch effort, but
18:48
Speaker 1: it is part of the process, right where CIFIS gives
18:51
Speaker 1: a written description of the concerns and then the parties
18:54
Speaker 1: have discussions to try to address it.
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Speaker 5: Talking about due process, the companies were reportedly on given
19:00
Speaker 5: something like five days to respond to Syphius's letter about
19:05
Speaker 5: national security concerns, and according to the Washington Post, the
19:09
Speaker 5: companies had written to Syphius asking to withdraw their submission
19:14
Speaker 5: which would start the clock over, but Syphius never responded,
19:18
Speaker 5: are those things that might support an argument of a
19:22
Speaker 5: lack of due process here?
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Speaker 1: They cut SIDIS is usually pretty liberal about granting companies
19:28
Speaker 1: an opportunity to withdraw a filing and to refile it,
19:32
Speaker 1: to stretch the clock and continue discussions on whether a
19:37
Speaker 1: pact of mitigation measures can be constructed that would be
19:41
Speaker 1: adequate and appropriate to address the national security concerns. So
19:45
Speaker 1: it is abnormal in my view for Cifius to not
19:48
Speaker 1: allow the parties to withdraw. And that's especially true in
19:52
Speaker 1: a transaction like this where the deal hasn't been completed.
19:56
Speaker 1: If we're in a situation where Syphius was reviewing it
20:00
Speaker 1: transaction that had already occurred, then the national security harm
20:04
Speaker 1: would be accruing every day, and Syphius may choose to
20:08
Speaker 1: act quickly in that case to stop the national security
20:12
Speaker 1: harm from occurring. But here the transactions dot com and
20:15
Speaker 1: so it's odd to me that Cyphius wouldn't give the
20:19
Speaker 1: parties an opportunity to take the time to put together
20:24
Speaker 1: some meaningful proposals on how to address the government's or
20:27
Speaker 1: risk concerns.
20:29
Speaker 5: If the companies decide to challenge a decision blocking the
20:32
Speaker 5: deal in court. What are the risks to Syphius from
20:35
Speaker 5: a proceeding like that, I mean, with the Supreme Court's
20:39
Speaker 5: recent elimination of the Chevron doctrine and its deference to
20:43
Speaker 5: agencies play a part.
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Speaker 1: So this is a really interesting question. Firstly, the Roles
20:49
Speaker 1: case that I referred to earlier, it kind of gave
20:52
Speaker 1: a guideline of how the court might think about due process,
20:57
Speaker 1: and so I think certainly here there could be some
20:59
Speaker 1: due process arguments, particularly in light of the fact that
21:03
Speaker 1: the President put his thumb on the scale back in
21:06
Speaker 1: March before any record had been put together, and so
21:10
Speaker 1: I think that can really call into question whether or
21:13
Speaker 1: not there has been due process here. The decision might
21:16
Speaker 1: have been made before the transaction was even filed with
21:19
Speaker 1: the Scifius Committee, and so I think that can put
21:22
Speaker 1: the government in a very difficult position if due process
21:25
Speaker 1: arguments are raised in the courts now on the issue
21:28
Speaker 1: of what effect the overturning of Chevron deference might have.
21:33
Speaker 1: I do think this is a tougher argument, but maybe
21:35
Speaker 1: not an impossible one in today's environment. And that is
21:40
Speaker 1: Congress has said that the courts should not put themselves
21:44
Speaker 1: in the president's shoes and assess national security risk on
21:48
Speaker 1: their row that the courts should defer to the president's
21:51
Speaker 1: authority in this space, and deference to the executive branch
21:56
Speaker 1: to the president on national security matters. It's a long
21:59
Speaker 1: standing press it's a long standing difference, and it's for
22:02
Speaker 1: good reason. Right, the president has the benefit of inputs
22:04
Speaker 1: from the intelligence community that the courts just don't have,
22:08
Speaker 1: and so to kind of attack that long standing deference,
22:12
Speaker 1: I think that's an uphill battle. That said, though, you know,
22:16
Speaker 1: we have this trend that we're seeing in the courts
22:19
Speaker 1: away from giving difference, and so that could impact the
22:23
Speaker 1: court's thinking here, particularly if we're in a circumstance where
22:27
Speaker 1: there's a really weak administrative record, where there are significant
22:31
Speaker 1: due process concerns, that could invite the court to go
22:35
Speaker 1: further than just pointing to due process fouls and to
22:39
Speaker 1: potentially somehow the guardrails around or curb the president's supreme
22:44
Speaker 1: authority to make national security determinations through the Scifius process.
22:50
Speaker 5: That would be a first, then, right.
22:51
Speaker 1: Absolutely be a first. But you know, there's a saying
22:54
Speaker 1: in legal circles that you've probably heard, which is bad
22:57
Speaker 1: facts make bad law. If you've got bad facts, you've
23:00
Speaker 1: got a bad written record. You've got a record of
23:04
Speaker 1: sort of the decision maker making a decision months before
23:09
Speaker 1: the matter has even been put before him, and then
23:13
Speaker 1: the supporting documentation is not convincing that the parties are
23:19
Speaker 1: not given an adequate time to prepare responses to the
23:24
Speaker 1: government's written concerns. And you have all these factors pointing
23:29
Speaker 1: to perhaps a precipitous decision by the government. You could
23:33
Speaker 1: be inviting the courts to take aggressive action. And so yes,
23:37
Speaker 1: I think it would be novel for sure, and I
23:40
Speaker 1: think it would be a hard argument to make and
23:43
Speaker 1: win to challenge the president's national security determination. But he
23:47
Speaker 1: give the court a bad enough record, they just might
23:49
Speaker 1: do it.
23:50
Speaker 5: Thanks so much, Rick, that's Rick Sofield of Debevois and Plimpton.
23:54
Speaker 5: As we've been discussing nip On and US Deal have
23:57
Speaker 5: been making last ditch efforts to save the deal. This week,
24:00
Speaker 5: they unveiled correspondence with the United Steel Workers to show
24:04
Speaker 5: how union leaders snub their efforts to negotiate an agreement,
24:08
Speaker 5: and US Steel warned that plants could be shut down
24:11
Speaker 5: if the deal falls through. Their strategy appears to at
24:14
Speaker 5: least have bought them some time. The Washington Post is
24:17
Speaker 5: reporting that a decision on blocking the deal may not
24:21
Speaker 5: be made until after the presidential election, though Biden remains
24:25
Speaker 5: opposed to it. Coming up next seven years, and they
24:28
Speaker 5: still haven't decided who gets the engagement ring. This is bloomberg.
24:43
Speaker 5: And if you do decide to put a ring on
24:46
Speaker 5: it and then the engagement is broken off, who gets
24:49
Speaker 5: that ring, Well, it depends. And that's why a fight
24:53
Speaker 5: over a seventy thousand dollars Tiffany engagement ring has reached
24:58
Speaker 5: Massachusetts highest court. Bruce Johnson called off his engagement to
25:03
Speaker 5: Caroline Settino in twenty seventeen because he suspected she was
25:07
Speaker 5: having an affair, which she denied. He took her to
25:10
Speaker 5: court to get the Tiffany engagement ring back, but a
25:14
Speaker 5: judge found that he was mistaken about the affair, so
25:17
Speaker 5: she could keep the ring. That's because in Massachusetts since
25:21
Speaker 5: nineteen fifty nine, an engagement ring is considered a conditional
25:25
Speaker 5: gift and the gift giver is entitled to its return
25:29
Speaker 5: as long as that person was not at fault for
25:32
Speaker 5: calling off the wedding. But then an appeals Court reversed
25:36
Speaker 5: the trial court, finding that Johnson may have had other
25:40
Speaker 5: reasons besides the alleged affair to call off the engagement.
25:44
Speaker 5: So he gets the ring back, but not so fast.
25:48
Speaker 5: Now Massachusetts Supreme Judicial Court will get to make the
25:53
Speaker 5: final decision on who gets the ring, even though the
25:57
Speaker 5: justices seemed a bit uncomfortable or even silly deciding who
26:02
Speaker 5: was at fault in the relationship. As Justice Scott Kafker said, I.
26:06
Speaker 7: Mean we all we seem to look silly trying to
26:09
Speaker 7: do this, either under your justification or your fault analysis,
26:14
Speaker 7: because it's so indetermined who's who's at fault for not
26:19
Speaker 7: going forward with marriage?
26:21
Speaker 5: Right, And some of the justices questioned why an engagement
26:25
Speaker 5: ring should be given a unique legal analysis unlike other gifts.
26:29
Speaker 5: Here are Justices Dalia Wentlin and Cathker quizzing Johnson's attorney
26:34
Speaker 5: Stephanie Taverna siden if.
26:36
Speaker 6: It was a tennis bracelet, yeah, or a car yeah?
26:41
Speaker 5: I agree, I think all of those. Why is it
26:43
Speaker 5: the ring?
26:44
Speaker 6: Well, the ring has special value in our society.
26:47
Speaker 7: Traditionally, but no one wants to keep the ring, and
26:50
Speaker 7: the ring is no longer a symbol of love. It's
26:53
Speaker 7: a symbol of you know that the thing broke a
26:56
Speaker 7: seventy thousand dollars exactly, And that's what Cooper V's smith said.
27:00
Speaker 7: The ris cash. It's not that the ring has any value,
27:03
Speaker 7: it's that the ring is worth a certain amount of money.
27:06
Speaker 5: Joining me is Rebecca Tushnett, a professor at Harvard Law
27:09
Speaker 5: School who's an expert in intellectual property law and engagement rings. Rebecca,
27:15
Speaker 5: most states now follow no fault rules when it comes
27:18
Speaker 5: to returning engagement rings, but Massachusetts follows a fault rule.
27:23
Speaker 4: Yet the most recent case on point, exactly on point,
27:27
Speaker 4: is that it's fault based. There are old cases saying
27:31
Speaker 4: that fault matters. I think there's a reasonable argument to
27:34
Speaker 4: be made that they might have already adopted the sort
27:38
Speaker 4: of modern no fault view in some ways, just by
27:40
Speaker 4: adopting no fault divorce.
27:42
Speaker 5: The trial court here found that Bruce Johnson was at
27:45
Speaker 5: fault and so Caroline Satino could keep the ring. But
27:49
Speaker 5: then the appellate court reversed, finding different facts. But isn't
27:53
Speaker 5: the trial court the finder of facts?
27:56
Speaker 4: So this is why many courts re treated from the
28:01
Speaker 4: idea of fault in relationships. Because it's not actually very
28:06
Speaker 4: easy to say, you know, what is legally wrongful, or
28:10
Speaker 4: you know, when you're entitled to break up with someone.
28:13
Speaker 4: Courts have become increasingly unwilling to say you're not entitled
28:17
Speaker 4: to break up with someone just because you don't want
28:19
Speaker 4: to be with them.
28:19
Speaker 5: Yeah, and when they say at fault, is it fault
28:22
Speaker 5: if you call off the engagement or is it more
28:24
Speaker 5: than that?
28:25
Speaker 4: So you're not supposed to call off the engagement without
28:27
Speaker 4: a good enough reason. So, you know, the temptation of
28:30
Speaker 4: a no fault rule is that you don't have to
28:32
Speaker 4: make those judgments.
28:33
Speaker 5: At the oral arguments at the Supreme Judicial Court, Satino's
28:37
Speaker 5: attorney argued that Massachusetts should follow Montana's law, which is
28:43
Speaker 5: a no takebacks approach. Is Montana the only state with
28:47
Speaker 5: a rule like that?
28:48
Speaker 4: So I think it's the only one where the state
28:50
Speaker 4: Supreme Court has adopted that rule, And I have to say,
28:55
Speaker 4: citing me, so I'm very happy that they did that.
28:58
Speaker 4: It's just like any other right. So you know, if
29:01
Speaker 4: you gave someone a car while you were dating, you
29:03
Speaker 4: don't get to take it back just because you broke up.
29:05
Speaker 4: But it's also you know, one of the very few
29:07
Speaker 4: cases to decide anything on this, since you know, the eighties,
29:12
Speaker 4: there just aren't a ton of state Supreme court cases
29:15
Speaker 4: about engagement ranks.
29:16
Speaker 5: Johnson's lawyer argued that the ring should be treated as
29:20
Speaker 5: a conditional gift and it should be returned to the giver,
29:23
Speaker 5: regardless of who's at fault. Is that a rule that
29:26
Speaker 5: many states follow?
29:28
Speaker 4: Yeah, in many states they made up a special rule
29:30
Speaker 4: just for the engagement rank. So it's actually not the
29:33
Speaker 4: usual rule for a conditional gift. Even so, the usual
29:37
Speaker 4: rule for conditional gift is that the donye can keep
29:41
Speaker 4: it as long as they remain willing to perform the condition.
29:45
Speaker 4: And so if you know, your parents say I'll give
29:48
Speaker 4: you a car if you go to law school, and
29:50
Speaker 4: you go to law school and you remain willing to
29:52
Speaker 4: go to law school, they can't take it back even
29:54
Speaker 4: if they change their minds.
29:56
Speaker 3: But for the.
29:56
Speaker 4: Engagement ring, the condition is actually the marriage actually happening,
30:01
Speaker 4: and so even if the donor unilaterally decides I changed
30:05
Speaker 4: my mind, they can get the ring back. So it's
30:08
Speaker 4: fair to say it's conditional gifts, but it's useful to
30:11
Speaker 4: point out that it's not really the conditional gifts rule
30:15
Speaker 4: for everything else.
30:16
Speaker 5: Why have the courts been treating engagement rings different from
30:21
Speaker 5: other gifts that might be as expensive.
30:24
Speaker 4: So I have argued that it's a legacy of sexist
30:28
Speaker 4: ideas about gold diggers that got run through various stages
30:33
Speaker 4: of legal development. So courts initially said, well, you know,
30:38
Speaker 4: the ring goes back if the woman was at fault,
30:41
Speaker 4: that is, if she was a gold digger basically, and
30:43
Speaker 4: then as no fault divorce arose, courts started saying, well, look,
30:47
Speaker 4: you know, if getting divorced isn't a question of fault,
30:50
Speaker 4: then breaking off an engagement can't possibly be a question
30:54
Speaker 4: of fault. In fact, you did everyone a favor by
30:56
Speaker 4: not getting married, you know, so it wasn't going to
30:58
Speaker 4: work out. And so once you do that, you want
31:03
Speaker 4: to have a no fault rule for other aspects of
31:06
Speaker 4: the premarital relationship. And then there's just two possibilities. You
31:10
Speaker 4: could have a no fault rule where everybody just walks away,
31:13
Speaker 4: or you could have a no fault rule where the
31:15
Speaker 4: gift always goes back. And they somewhat surprisingly chose the
31:19
Speaker 4: no fault rule where the gift always goes back. I
31:22
Speaker 4: think that's because of this sort of history of suspicion
31:26
Speaker 4: of women, and.
31:27
Speaker 5: You favor the no takebacks approach.
31:31
Speaker 4: Neither approach is exactly how sort of ordinary people are
31:35
Speaker 4: likely to think about it, Like people do think that
31:37
Speaker 4: there is such a thing as fault in relationships. But
31:40
Speaker 4: the course have, in my view, wisely decided it's really
31:45
Speaker 4: hard for us to do this. It's not a good
31:46
Speaker 4: thing for a legal system to try and do. And
31:49
Speaker 4: so you have to choose between two situations or two
31:52
Speaker 4: rules that aren't perfect, that don't match up with people's
31:55
Speaker 4: you know, intuitions about morality. And I think the one
31:58
Speaker 4: more consistent with our our goals for a legal system
32:02
Speaker 4: is you just walk away that gifts stay where they're given.
32:06
Speaker 5: The justices seem to be dismayed about delving into the
32:11
Speaker 5: details of this messy romantic relationship. Justice Scott Casker said
32:16
Speaker 5: this old rule seems old fashioned and kind of silly,
32:20
Speaker 5: and Justice Dahalia wen Lent questioned if the ring was
32:23
Speaker 5: different from any other gifts. She asked, what if it
32:26
Speaker 5: was a tennis bracelet, why is it the ring? Do
32:29
Speaker 5: you think that the court will make new law here?
32:33
Speaker 4: So, you know, I think in the sense that the
32:35
Speaker 4: possible rules are reasonably clear, and we have examples of
32:39
Speaker 4: all of them. So my guess is that they won't
32:42
Speaker 4: keep the old Massachusetts rule, but some of them may
32:45
Speaker 4: be attracted to the idea that there's a special set
32:48
Speaker 4: of expectations around the engagement rank as opposed to a
32:52
Speaker 4: car or a tennis bracelet.
32:54
Speaker 5: I mean, would you be surprised if the Massachusetts Supreme
32:57
Speaker 5: Court didn't change the rule, just left as it is?
33:01
Speaker 4: Yeah, I think I would. You know, this is classic
33:03
Speaker 4: common law material, where you know, the job of the
33:07
Speaker 4: court is to make sure that the common law evolves
33:11
Speaker 4: and reflects you know, current situations and understanding.
33:14
Speaker 5: And do you have any feel for which way they'll go?
33:17
Speaker 4: You know, I have my own preference, but I wouldn't
33:19
Speaker 4: say I have any feel.
33:20
Speaker 1: You know.
33:21
Speaker 4: I think in general and in relationships, you get what
33:24
Speaker 4: you get, and so I would favor a rule that says,
33:27
Speaker 4: you know, we're not going to go back into any
33:29
Speaker 4: of the gifts and reallocate them. You know, if you
33:32
Speaker 4: gave a gift, that stays a gift. So I just
33:34
Speaker 4: don't think the conditional gift framework works very well. This
33:38
Speaker 4: is an example of the ways in which the rules
33:42
Speaker 4: for living may not be reducible to legal rules. Right
33:47
Speaker 4: that there may be plenty of conducts worthy of judgment
33:51
Speaker 4: in relationships that court still shouldn't be judging.
33:54
Speaker 5: The parties have been in litigation for close to seven years.
33:59
Speaker 5: I mean, with all this litigation, it seems like it
34:01
Speaker 5: might be more expensive than the seventy thousand dollars ring.
34:05
Speaker 5: Is there more to this?
34:07
Speaker 4: I don't know the parties in any way, but this
34:10
Speaker 4: is actually one of the things motivating the courts from
34:14
Speaker 4: withdrawing from faults in most relationship situations, which is, you know,
34:20
Speaker 4: they don't want to be deciding these cases because of
34:23
Speaker 4: course there's lots of motives that are non monetary, right,
34:27
Speaker 4: The relationships are intimate, and you know, you're dealing with
34:31
Speaker 4: a lot of emotions, and it's just it's just a
34:35
Speaker 4: very difficult situation. And you know, it's awkward to look
34:40
Speaker 4: at that and say, Okay, who's the one who's really
34:43
Speaker 4: to blame for this relationship falling apart when frankly, you know,
34:46
Speaker 4: your usual reaction is these people shouldn't be together.
34:49
Speaker 5: It seems like the engagement ring should be something that's
34:52
Speaker 5: addressed if there's a prenup, so certainly.
34:55
Speaker 4: That, and you know, it's also useful to remember that
34:58
Speaker 4: of course, most broken in don't end up in court,
35:01
Speaker 4: and you know, usually people live with whatever happens, including
35:06
Speaker 4: you know, many times a woman will give the ring
35:09
Speaker 4: back because it does have symbolic meeting. But my interest
35:12
Speaker 4: in this situation came about after I read a case
35:15
Speaker 4: where the man and the woman were at a bar.
35:17
Speaker 4: They got in a fight and the man hit the woman.
35:20
Speaker 4: The woman quite sensibly stumped out, you know, she threw
35:24
Speaker 4: the ring in a field and didn't want to see
35:27
Speaker 4: him again, and she was held liable because of the
35:29
Speaker 4: no fault rule for the value of the ring, and
35:32
Speaker 4: that just seemed.
35:33
Speaker 1: Wrong to me.
35:34
Speaker 5: Are there cases where after marriage, let's say, in a divorce,
35:38
Speaker 5: there's a fight over the ring.
35:40
Speaker 4: So this is a classic legal fiction. So at the
35:45
Speaker 4: moment you get married, the ring retroactively becomes a gift
35:51
Speaker 4: that was given during the engagement, and therefore it enters
35:55
Speaker 4: into the marriage as separate property of the woman.
35:58
Speaker 5: That really is a legal fiction.
36:00
Speaker 4: Yeah, it's quite wild. So if you're married for you know,
36:02
Speaker 4: two hours, the ring is yours.
36:04
Speaker 5: And these cases over engagement rings are the last vestige
36:09
Speaker 5: of litigation over broken engagements.
36:13
Speaker 4: Yeah, so most states abolished by statute the heart bomb
36:17
Speaker 4: tourts reach to promise mary alienation of affections, criminal conversation
36:21
Speaker 4: and seduction. Criminal conversation is a great one. It means
36:24
Speaker 4: having sex.
36:25
Speaker 1: With a married woman.
36:26
Speaker 4: And so they have bossed them by statute. And then
36:29
Speaker 4: basically people men used conditional gift theory to say, you know,
36:35
Speaker 4: I'm not doing for one of the heartbone sports. I'm
36:37
Speaker 4: doing you know, on a basically a contract theory, and
36:41
Speaker 4: many courts allowed that to proceed despite the abolition the
36:44
Speaker 4: heart bonb courts. And then that became increasingly weirder as
36:48
Speaker 4: all states adopted new.
36:50
Speaker 2: Fault of force.
36:51
Speaker 5: This has been fascinating. Rebecca, thanks so much, and we'll
36:54
Speaker 5: see what the court decides here. That's Harvard Law School
36:57
Speaker 5: professor Rebecca Tushnet, and that's it for this edition of
37:00
Speaker 5: the Bloomberg Law Podcast. Remember you can always get the
37:03
Speaker 5: latest legal news by subscribing and listening to the show
37:06
Speaker 5: on Apple Podcasts, Spotify, and at Bloomberg dot com slash
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Speaker 5: podcast Slash Law. I'm June Grosso and this is Bloomberg