OA # 116

[INTRO]

THOMAS Hello and welcome to Opening Arguments, this is episode 116! I’m your host Thomas Smith, that over there is Andrew Torrez, how ya doin’, Andrew?

ANDREW I am super excited about today’s episode, how ‘bout you?

THOMAS Me as well, we’re gonna be talking to Beth Kingsley later on about “Lock Her Up” [chuckles]

ANDREW [chuckles]

THOMAS About whether or not we need to investigate the Clinton campaign to determine if maybe the Democrats violated some election law. We’re gonna get a bigger picture on that, a more precise picture on that. But in the meantime, we’ve got some good stories for you, we’re gonna talk about the changes to the bar exam, I think it was too easy for me, so they’re gonna try to address that.

ANDREW [chuckles]

THOMAS And then in the C segment we’re going to be talking about that – you may have seen the headline that the Senate struck down a rule involving suing banks and arbitration and stuff like that, we’re gonna get the Andrew breakdown on that. And I guess in the meantime, you’ve got an update on Phil Ivy?

ANDREW Yeah, we covered Phil Ivy’s method of – he claims – gaining an edge on the casino -

THOMAS Yeah.

ANDREW - the casino’s claimed cheating way back in episode number 32 with our buddy, friend of the show Chris Kristoffco, and he sent me notice today that a UK court has similarly required Ivy to pay back 7.7 million pounds to the Crockford’s Club in London for same-edge sorting scheme, so teeny tiny differences on the cards – if you wanna hear or are a gambler you can go back, listen to OA 32 – but at the time we talked about how he’d pulled off this scam not only in the United States but around the world, and now those dominos are starting to fall, so -

THOMAS Yeah, but I mean, if I remember correctly it was kinda within the rules, so -

ANDREW Yeah, yeah! No, this goes to show you, right? The house always wins.

THOMAS Yeah! [chuckles]

[Music: NCIS theme song? CSI theme song?]

ANDREW I wish I had a pair of mirrored sunglasses to put on with that one, I could have said it more dramatically.

THOMAS [chuckles] Definitely.

ANDREW We can get Brian to edit in some “Who” music in the background.

THOMAS [chuckles]

ANDREW No, the only good thing for Phil Ivy is that he’s paying back 7.7 million pounds and I think the pound has lost about 50% of its value since [chuckles] since he won, so …

THOMAS Smart, another layer to the scheme. Yeah.

ANDREW [chuckles] He’s arbitraged a couple million bucks there. So, yeah, what it goes to show you is don’t try and beat the game, the casinos will come after you.

THOMAS That wasn’t as good as your first run, sorry.

ANDREW I know. [chuckles]

THOMAS I’m gonna hafta [chuckles] Alright!

ANDREW I know, if I’d done two in a row I would have to quit this job and become and action hero, and - [chuckles]

THOMAS Oh yeah, that’s true! Okay, well, let’s talk about these changes to the bar exam. What’s going on? Because my experience with the bar exam has been nothing but positive, I can’t imagine -

ANDREW [chuckles]

THOMAS - needing to change it? I’m doing fine.

ANDREW Yeah, so I have talked to you about the structure of the bar exam, and my knowledge dates back to, you know, shortly after when dinosaurs roamed the earth, and so I have described the bar exam as containing the multi-state bar exam, the multiple choice questions that we’re doing in TTTBE, and those are uniform across 49 of the 50 states, they exclude Louisiana because Louisiana follows the Napoleonic Code -

THOMAS [chuckles]

ANDREW - and it’s super weird, and so isn’t part of our common law traditions. And that’s one day, and typically you would have your state – would draft, in most states including Maryland it was six essay questions. So you had a multi-state day and you had an essay day, and that’s how I’ve explained sort of the bar to you. But as it turns out there’s been a movement recently towards making the bar itself cross-jurisdictional. And that’s, you know, reflects the reality of today’s law practice, right? Lawyers move, clients are in multiple states, so you have not only the MBE, the multi-state questions that we’re doing, but multi-state essays as well. And 25 states and the District of Columbia have endorsed – when you put that all together it is called the Uniform Bar Exam, and the idea is not only that it’s sort of easier to administer, but you can waive into any jurisdiction that accepts the Uniform Bar Exam if you – but you have to do so really quickly, like you have to do it in a couple years after taking the exam, that varies sort of state by state. And the interesting thing was, I have talked about Covington and Burling, and I’ve talked about big law as, you know, sort of these powerhouse multi-national law firms with thousands of lawyers that are kind of the destination for most Ivy League law students, and they pay out the huge salaries and they work on these huge cases involving Fortune 500 companies that clog up the system. For the most part, states that have big law firms located in them have opposed the Uniform Bar Exam. I don’t know why.

THOMAS Huh.

ANDREW So you can take the UBE in the District of Columbia, they were one of the first, but D.C. has always been weird. Like, I never took – most people don’t take, who practice in D.C., don’t take the D.C. bar exam. D.C. is one of the – the only jurisdiction I know of that has always permitted you to waive in from another jurisdiction. So you would take, you know, if you wanted to practice in D.C., even if you lived in D.C., you would typically take either the Maryland or the Virginia bar and then waive into D.C. because -

THOMAS Right.

ANDREW - you might as well get two for the price of one, which is what I did. I took Maryland, waived into D.C. So D.C. was kinda weird, but all the other states that had big law firms in it – New York, California, Illinois (Chicago, obviously), Texas, Florida – all of these states have resisted the UBE, but something weird happened in New York, which is in 2015 their bar rate passage hit a 35-year low.

THOMAS Wow.

ANDREW Yeah, only 70% of first time takers passed the bar exam, and just 61% overall. And, obviously, when you’re sorting out people who’ve taken the exam multiple times those – the reason you’re taking it multiple times is ‘cuz you failed it the first time, so -

THOMAS Yeah.

ANDREW - that drags down your rate. Six out of ten -

THOMAS That’s still higher than I would have thought. Like, 70% first time? I actually would have thought it’d be lower. People talk about how hard this is. I mean -

ANDREW [chuckles]

THOMAS - that explains why it isn’t that hard, but go on.

ANDREW Well, most lawyers do study for several months cramming before taking it.

THOMAS Yeah.

ANDREW And think of the flip side of it, which is – and this is really the push – if you spent three years in law school [chuckles] and you get out, and you have a six in ten chance of practicing in the profession for which you have spent three years and -

THOMAS Well it would be -

ANDREW - six figures -

THOMAS - the 71% figure, I’m guessing, right?

ANDREW Yeah, right. But, well – the 71% figure is skewed a little high. That’s first time take – you don’t know if you’re going to wind up in -

THOMAS Taking it more than one time?

ANDREW - that, you know, that group -

THOMAS Yeah.

ANDREW - or if you’re gonna wind up in the repeat group. Yeah, so -

THOMAS Alright.

ANDREW -in any event, 60-70% -

THOMAS Yeah just really quick, the CPA exam is like under 50%, so it’s a little harder.

ANDREW Oh wow.

THOMAS Yeah, so let’s not, let’s not do that segment, I don’t wanna be answering CPA exam questions -

ANDREW [chuckles]

THOMAS Oh, no, I’ll have you answer them!

ANDREW There you go!

THOMAS Fair’s fair.

ANDREW Spinoff podcast!

THOMAS [chuckles]

ANDREW I will do nothing but answer CPA exam questions, that’ll be fantastic. Are there limits to how many times you can take the CPA exam?

THOMAS Hmm, not that I know of.

ANDREW Yeah.

THOMAS Is there a limit -

ANDREW The bar you get three bites at the apple.

THOMAS Oh, wow. And then you’re just done? You’re not a lawyer.

ANDREW Yeah.

THOMAS [chuckles] Someone comes up to and is like, “I don’t know what you’re gonna do for a living, but it’s not law.”

ANDREW [chuckles]

THOMAS “You are officially not a lawyer.”

ANDREW They do that. “All of those here in this room who would like to practice law for a career, step forward”

THOMAS Yeah.

ANDREW And then they look at you and go, “not so fast.”

THOMAS Yup, yup.

ANDREW So after New York rates hit their historic lows – and those were about ten points lower than their typical rates – they decided they wanted to up their rates, the reputation is that the UBE is easier than the traditional allowing states to write their own essays because you’re writing essays from the perspective of kind of the majority rule and common law rule across all jurisdictions, so it’s a little easier to issue spot. You can’t quite throw in as many curve balls. The way that the essay portion works is you can either allow the exam testing service to grade the uniform multistate essays, or the state bar examiners can grade it themselves, and they can grade it – they have the option either grade it under common law or under the specific law of the state. Because states do differ a little bit in their laws, you know, we’ve talked about that. So now those results are in from switching to the UBE, this is the July 2017 test – so, by the way, that also answers the question of how long do you have to wait in agony to get your bar exam results?

THOMAS Hmm.

ANDREW It’s three and a half months.

THOMAS Yeah, it’s a while.

ANDREW I remembered it being – yeah, I remembered it being a long time. So three and a half months, and the New York scores are back up to 78% of first time takers and 68% overall, that’s right in line with its historic passage rates, so they’re super happy and we will see if New York being kind of the first big state domino to fall, whether that’s gonna lead other states to adopt the UBE. Here’s how this works for you, because we’ve talked about – there are a couple of jurisdictions in which you can take the bar exam without having gone to law school. There’s still one -

THOMAS Hmm.

ANDREW - New Hampshire, in which you can take the bar exam without having gone to law school -

THOMAS That’s my ticket!

ANDREW - and it’s the newer, easier UBE! So, we gotta get your flight out here -

THOMAS Yeah.

ANDREW - as soon as we’re done TTTBE -

THOMAS How many states allow you to take it on a Podcast? There’s gotta be one or two!

ANDREW [chuckles]

THOMAS Right?

ANDREW Yeah, well, I think we should start lobbying the California legislature now.

THOMAS Yeah.

ANDREW That seems to be the best hope for finding that jurisdiction. So we’re gonna bring you out to New Hampshire, we’ll go up, you and I will rent a delightful Bed and Breakfast in Nashua and we’ll prep you, you’ll go in and take the newer, easier uniform bar exam and we’ll get Thomas’ Second Chance Law Firm up and running.

THOMAS Yeah, there we go! Alright, that’s good news, test takers! [chuckles]

ANDREW [laughs]

THOMAS So let’s attack that bar exam in New York, I guess – or, well I have to do it in New Hampshire, you said?

ANDREW Yup.

THOMAS But everyone else has gone to law school. Alright, well, let’s get over to our main interview for today, we’re gonna be talking about hot off the presses news about the DNC funding that dossier on Trump, so let’s go over to Beth Kingsley to get the full scoop on that.

[MUSIC]

ANDREW So, Thomas, to answer the breaking news about the Clinton campaign and DNC funding the Russian dossier on Donald Trump, I brought on an expert!

THOMAS All right!

ANDREW So, joining us is Beth Kingsley. Beth is a partner with Harmon Kern in Washington D.C., she’s a longstanding friend of mine for good or for ill, and her specific practice area is she represents non-profits with respect to their political advocacy, so it was really harder to find somebody who could better understand what was going on than Beth, so, welcome to the show!

BETH Well thank you! Glad to be with you.

ANDREW So, okay, here’s the landscape, and then I really really don’t want to have to do an “Andrew Was Wrong” segment -

THOMAS [chuckles]

ANDREW - so, if I can direct you in such a way [chuckles]

BETH [laughs] To affirm everything you’ve ever said.

ANDREW No, no. [chuckles] Please answer honestly. In episode 86 we talked about Donald Trump Jr.’s meeting with the Russians at their instigation under the auspices of receiving confidential information prepared by the Russian government against Hillary Clinton.

THOMAS Yeah, I think the email was something like, “Hey Don want to collude and definitely break election law?”

ANDREW [laughs]

THOMAS And he was like, “yes.” I think that was the email. “Okay, meet up here” and then they did.

ANDREW And we analyzed that under collusion statutes but also under election law under 52 USC § 30121 and expressed the opinion that opposition research counted as a, quote, “thing of value” for purposes of the election law. So, I guess, first question out of the box, did we get that right? [chuckles]

BETH Yes, no I think you got that right. I think – at least – maybe I can add a little bit of a gloss on that which is there is an exception for volunteer services, so if Natalia off the street in Moscow walks into the Trump campaign and says, “I want to do work for you and conduct volunteer opposition research,” that’s not a contribution. But that’s not what was going on here, it was fairly clear that this was a set of research that had been compiled by people working for pay in the service of the Russian government. So, yes, you got that right.

ANDREW Well, and let me drill down on that a little bit. Is it okay – ‘cuz that’s new to me – is it okay for Natalia, Russian official – sorry, in your hypothetical -

THOMAS Yeah, first question, is there a difference between like Russian official or Natalia who just happens to live in Russia?

BETH You know, there really isn’t in the election law. It just talks about foreign nationals.

THOMAS Hmm.

BETH And I think that’s an area where we may see legislation where we probably should see some distinction, because I think there’s a big difference between the agent of the Russian government who is speaking on their behalf and, you know, Joe down the block whose a student on a visa in the United States, you know, legally but not permanently, and has some interest in what’s going on here. There’s a range in between that, and the law doesn’t really distinguish, it just says –

THOMAS Wow, so Putin himself could have been doing it, same as if a student that just happened to be in the US did it. That’s crazy.

ANDREW But that’s right, if Putin does it pro-bono for the Trump campaign, right? If he shows up and says “I’d like to lick some envelopes”

BETH [chuckles]

ANDREW That’s okay under the election law?

BETH I don’t see - [laughs] I’m sorry, I love the –

ANDREW [chuckles]

BETH I don’t see anything that makes it illegal! [chuckles]

ANDREW Okay, wow! So now, I’m glad we cleared kind of hurdle one. Hurdle two comes in episode 93 we answered a question from conservative listener Sage Scott, who said “okay, I listened to 86, clearly the problem is giving a thing of value, you’ve said opposition research can be a thing of value, so what if Donald Trump Jr. shows up at that meeting with a giant briefcase full of cash and just pays the Russians,” doesn’t that get you around – I mean, leaving alone, you might get into some banking and transfer laws, right?

BETH [chuckles]

ANDREW But leaving that aside, if you pay for it doesn’t that eliminate the “giving a thing of value” and don’t you get out, you know, sort of get out of jail free from the violation of the election law?

BETH You would – I’m not sure that there’s any indication that that’s what was going on here. The email trail that we’ve seen doesn’t suggest there was any interest in purchasing this information. Now, I mean, I don’t think it’s a slam dunk that it was intended as a contribution because I just don’t think they got that far, but it would – if you paid fair market value for services, you don’t have to pay that to a US citizen, you can hire the services of a foreign national or the work product. You can buy your campaign t-shirts from an overseas company if you’re willing to take the political heat for doing that. But that’s also the key, if they had paid for it, that [chuckles] wouldn’t you have to do that by check? And it would have been reportable.

ANDREW [laughs]

BETH So you have this major disbursement to -

THOMAS Russians. Write “Russians” on the check and just –

BETH [laughs]

THOMAS “Payable to the Russians.”

ANDREW Make the check out to “cash,” right? [chuckles] Let him stop by the local CVS and have to pay the 1% fee to cash it but …

BETH Well, you could make the check out to “cash” but you still have to report – I mean, you would still be breaking the law if you didn’t report it on the FEC report as a disbursement to that payee, that person, for that purpose.

ANDREW Okay. And does it matter if – in other words, is this a way to potential launder illegal campaign contributions? That is, every time somebody says, “oh, I’m showing up with this valuable campaign stuff,” you just say “oh, well we were gonna pay fair market value for that.” Or does there have to be something – do you have to have sort of set up that transaction in advance?

BETH I mean, I think it may – I think it’s possibly a back door to get out of arguments about, say, criminal violations, because I think it’s hard to prove a knowing and willful violation when someone could say, “oh, no I meant to get a valuation of the information and pay for it,” but it also doesn’t get you out of laundering actual contributions because if you, you know, what we have here is a meeting that didn’t produce the contribution. We have the intent to show up and receive it, but at least allege – according to reports, it didn’t result in the contribution. If it had, and he hadn’t paid for it at the time, and they hadn’t negotiated and presumably gotten their lawyers to review the way they’re sending the payment, and point out to them that they’ll have to disclose “payment to the Russian government” on their next FEC report. But, if you did that, then you have a quid pro quo transaction and it’s at market value, it’s not a contribution, it’s not illegal. But I don’t think that that helps you launder anything, it just gets you services.

ANDREW Okay, so I think I’m following that, and I think what that means is that the investigation, the corner of Mueller’s investigation as pertains to Donald Trump Jr. is still viable, right? In other words, that’s not a reasonable – you have all the difficulties of proving intent, which obviously we’ve talked about on this show ad nauseam [chuckles] but you wouldn’t be able to plead as a matter of law, “oh, we never got to the stage where we were negotiating for the value for services,” you would still be able to sort of make the argument that it was conspiracy to violate the election laws.

BETH Yeah, I mean, I think you would need to know more about what happened at the meeting. I mean, I’m not – I don’t know that the emails themselves are sufficient to support a finding of a violation, but I think they’re certainly enough to make you want to inquire further. I think, if nothing else, it tells us that Trump Jr.’s reaction when he was offered the opportunity to break the law and accept an illegal corporate contribution, was “sounds great!”

ANDREW [chuckles]

BETH I’m sorry, I mean an illegal foreign contribution. [chuckles] Right? And that makes you wonder what else he was doing.

ANDREW Yeah. And so, obviously and email, “hey, these are the goods,” signed “Love and Kisses, V. Putin,” that would be great. But is there anything sort of less than that that would be good circumstantial evidence in your view in the investigation?

BETH I think that there may have been other communications, there may have been other – I mean, if there was just this one meeting then I think it’s hard to – other than getting testimony about what happened, so, you know, maybe getting someone who was one of the people involved in the meeting to roll, it’s hard to know how you get that evidence. But that’s why Mueller gets the big bucks and, you know –

ANDREW [chuckles]

BETH - for doing an investigation.

THOMAS Sure.

BETH I mean, it’s a hard thing to prove.

ANDREW Yeah. Okay, so that brings us to the present, and now, yesterday – actually, I think it was Tuesday night, the story was first broken by the Washington Post that Hillary Clinton’s campaign plus the Democratic National Committee paid – and here’s the chain, I think I’ve got this right – they paid attorney Mark Elias of Perkins Coie in Washington D.C., Elias then turned around and retained a firm called “Fusion GPS” that has, if you search the Fox News website I think every other story is about Fusion GPS –

BETH [chuckles]

ANDREW And then Fusion GPS hired Christopher Steele, he is an ex British intelligence agent with an expertise in Russia and he compiled the dossier on Donald Trump which was then transmitted back to the Hillary Clinton campaign. So, on the surface, the argument seems pretty straightforward. Here you have, admittedly through a more complicated chain of events, but you have the Clinton campaign paying a foreign national, that is Christopher Steele, for campaign information for this dossier. Is that – how concerned should we be about that? Does this – Go ahead.

BETH No, I don’t think we should be concerned at all, because they paid. I mean, the bottom line is you can pay foreign nationals to work on your campaign. There’s any number of rulings and it’s implicit, it’s inherit in the definition of a contribution, and that’s what is prohibited is a contribution by a foreign national, not a quid pro quo market rate exchange of services. So I don’t see an issue there. The only thing – see, what I thought when I read this, other than the political issue, I mean that’s – I really think it’s more a political story than anything – my question just had to do with reporting, because they paid their lawyer who then hires a firm to do the research, and they hire someone else, and all you see on the FEC reports is payment to the attorney, or to the law firm. But it is a fairly common practice to hire consultants through an attorney in order to try to protect their work under the attorney work product privilege or under the attorney-client privilege, so, you know, I think even my “is that a reporting issue question?” is probably the answer is no.

ANDREW Well, let me drill down on that a little because [chuckles] that was actually gonna be my next question.

BETH [chuckles]] Sorry.

ANDREW Well, no, no, no, it was good. You anticipated. As far as I can tell, the Clinton campaign paid Perkins Coie $5.6 million dollars in legal fees during the campaign, from June 2015 to December 2016 –

BETH Mm-hmm.

ANDREW And then the DNC paid the firm another $3.6 million, and that line item was described as “legal and compliance consulting,” [chuckles] which, at least – I mean, I tell you, when I issue bills to my clients I gotta be –

BETH [lauhgs]

ANDREW - slightly more detailed then that.

THOMAS [chuckles]

BETH Yeah.

ANDREW Particularly when I bill them for $3.6 million dollars. So now, let me kind of wrap that up as a question, isn’t there a problem that – at least for right now – the money doesn’t seem to be differentiated? We have a ton of money going to the law firm, but who knows where that was spent?

BETH Right. I mean, so to be fair, let me explain what the paperwork probably looks like, because what you’re seeing reported in the press is not a summary of the individual law firm invoices, and my guess is they are somewhat more detailed over the 18-months or something, I mean, it’s not one bill that –

ANDREW [chuckles]

BETH - “please write a check for $5 million dollars” right? But then the campaign has to report its disbursement to every vendor, and you have to do it on this form that gives you this, like, one-inch by 2-inch square to write the purpose of the disbursement.

THOMAS Oh.

BETH So legal and compliance services is about as much room – as much wording as you have room for, so that does not seem to be deceptive. It’s not as detailed as perhaps some people would like, but, yeah, I do think the interesting question is how you treat the payments to third-party vendors that the firm retains to provide that representation. And certainly it seems to me that if the campaign knows that the firm is doing that – for instance, as an example, if the firm, say, hires an independent contractor to help with the compli – with filling out those FEC reports, if that’s part of the compliance work they’re doing, I don’t think that you wanna make them, the campaign, report the payments to that independent contractor separate from the payment to the law firm. It’s all part of the service. But if they’re basically running money through their lawyers in order not to show who they’re paying, I think that raises some transparency issues and some reporting issues, but it’s not the – the facts on this particular case are not clear to me, how much the campaign knew and what the intent was.

ANDREW So, I get that. And, you know, I think you gave this example earlier of, you know, the campaign having t-shirts or red baseball caps made in China, for exa – right?

BETH [chuckles] Right.

ANDREW We know if you’re gonna distribute large quantities of consumer wearable goods that, you know, that’s gonna be done by foreign nationals. But I wanna drill down onto what you just said, which is, how – what could we look for to tell the difference? Because I don’t – one of the things we try and do on the show is, I mean, I don’t want a show for Hillary Clinton here, I mean everybody knows where Thomas and my politics lie, and, you know, we have not been shy about that, but how do we see if there’s more there there, if they’re covering up some shady payments or something like that?

BETH Well, I think the first place you can start with is – well, if they’re covering it up and not reporting it then it’s hard to know where you – that’s why you need investigation, subpoena authority – but the campaigns are filing really quite detailed reports on all their expenditures, and that’s why the reporters know exactly how much they paid their lawyers, which is a really big number. [chuckles] And you can go and search that, and the FEC makes it publicly available, and there are other organizations that make it publicly available in somewhat easier forms to manipulate and search, so that’s where I’d start. If it’s clear that something came into the campaign, you have evidence of that, you can go and try to find corresponding evidence in the payment, and if it’s not reported there is a problem.

ANDREW So the Perkins Coie bills, are they gonna be attachments to FEC disclosures? Or is that something that’s gonna have to be produced by – I believe Devin Nunez has already, you know, convened an investigatory committee -

THOMAS [chuckles]

ANDREW They can obviously subpoena those records, but are they presently out there? Or are we gonna have to wait?

BETH They’re not attached. They are – the reports that are filed, actually there are two levels of this answer. The reports that are filed summar – it’s this, you know, you use the FEC’s report form and their reporting software, and it comes in its format, and you don’t attach receipts or anything, but as I understand it, the presidential campaigns are all audited by the FEC for compliance purposes, and at that point they can come in and look at the records and make sure there is appropriate backup and that things have been reported the way they’re supposed to be, and they can audit other committees and other campaigns as well, it’s not automatic for everyone. But it’s a possibility.

THOMAS So what are you looking for Andrew? I mean, because it sounds like from the description early on that if they paid – or if they paid their lawyer money who paid someone else money who paid someone else money, either way, they paid money, apparently, so it sounds like, you know, what would be the issue? Just the political aspects of it? Or do you think there’s something – like what would be illegal now at this point?

ANDREW Yeah, and so I would put this to Beth, but my – the language that Beth used was “if you have paid fair market value in an arm’s length transaction for the thing of value that was conveyed by the foreign national,” then you’re not running afoul of 52 USC § 30121. But if you pay under-market value, if it just-

THOMAS Hmm.

ANDREW Just showing a transfer of money isn’t sufficient. If you paid over market value that would – that would be weird, but – so you’d want to have, if you’re truly looking to run this to ground, you would wanna know exactly how much was paid to Steele for his investigation in compiling the dossier. Do I have that right?

BETH Yeah, no, you have that right. And the interesting thing in this case is I think you have a benchmark, because as I understand it – and I’m going solely on the Washington Post article, so I have no other knowledge of these facts – but, they’re saying that some Republican entity, presumably – I don’t know if it was a primary opponent or some, you know, branch of sanity within the Republican party, had originally hired Fusion GPS, who hired Steele to start this work, and then when it became clear Trump was gonna be the nominee and they couldn’t stop him, they let go of it and the Dems picked it up.

THOMAS Huh.

BETH And we don’t know exactly how that transition happened, but we can see what was – you could tell whether there was a discount between the rates for the two different clients.

ANDREW Oh, that’s a really really good point. So let me ask you a politically loaded question, then. Given the uncertainties that are out there, is it a reasonable thing for Congressmen Nunez to have opened an investigatory committee?

BETH I don’t think it’s unreasonable to investigate. Partly because I think it’s not unreasonable to investigate all of this foreign involvement in our elections, because part of Congress’ role – in fact, the larger part of its role – is deciding whether we need new laws.

THOMAS Hmm.

BETH Whether the laws that are in place are sufficient to deal with what we see as problems, and I think with respect to foreign intervention in our election, they’re not. I don’t exactly know how they should be fixed, but there’s an awful lot that, you know, Putin or his people he’s directing can do that doesn’t cross the line currently of US law, but that we should be tremendously concerned about.

THOMAS Well it seems like step one -

ANDREW Well I just had to -

THOMAS - we need a distinction between just plain old foreign nationals and, you know, members of foreign governments and administrations, right? It seems like that would be step one.

BETH Absolutely.

ANDREW My next question was going to be, “so, Beth, how would you fix this problem then?” [chuckles]

THOMAS Yeah. [laughs]

BETH [lauhgs] Right.

ANDREW Seems to be permitted right now.

THOMAS Well, I took the easy answer –

BETH Yeah.

THOMAS So now, Beth, you have to come up with something harder. [chuckles]

BETH Yeah, what else would I do? Well, I think that we hav – so one of the things that we have been told that Russian operatives did to mess with our election was to buy Facebook ads that basically riled people up along fault lines in our country around, you know, talking trash about Black Lives Matter and targeting that to people who might be expected to react in particular ways and get angry and do things. There is nothing illegal about that currently, and it’s hard to craft a law that makes that illegal without –

THOMAS Stopping a bunch of other stuff?

BETH Without really trampling on speech rights, although, actually, when I say there’s nothing illegal about that, there might be. We don’t know who did that? There is the Foreign Agents Registration Act, which requires anyone who’s acting as an agent of a foreign government to conduct, among other things, public relations or fundraising activities, or ad policy advocacy in the United States, to disclose that fact. And they probably didn’t. But FARA is complicated, it’s really hard to comply with, it is – because it’s so hard to comply with it’s under – people don’t register sufficiently. People who probably should haven’t, and it isn’t really enforced rigorously, or hasn’t been enforced rigorously because it’s such a mess, and so I think that maybe having Congress take another look at FARA and make it something that captures more foreign agents, but in a way that is possible to comply with without completely going crazy. I mean, one of the requirements is that every single communication from a foreign agent has to have a disclaimer that’s a fairly long and detailed disclaimer saying, “this is a communication from an agent of a foreign principal.” [chuckles] And, you know, that doesn’t really work on a Facebook ad.

ANDREW Right. How is that enforced?

BETH Well, it’s enforced by the Justice Department when it is.

ANDREW Mm-hmm.

BETH If you check FARA and pull up all the cases, there’s not a huge number.

ANDREW [chuckles] No, I did. [chuckles]

BETH Okay.

ANDREW But what I’m trying to figure out is, let’s go outside the collusion context. Let’s assume you have Candidate A running against Candidate B and independently Moscow decides, because Candidate B is 70 years old with no political experience –

BETH [chuckles]

ANDREW - and of relatively low intelligence, that they would rather see Candidate B win the election. So then, Moscow starts all these targeted Facebook ads to try and pump up Candidate B, again, totally without knowledge or communication with Candidate B’s campaign. And, again, this is a hypothetical, so [chuckles]. I mean, on the one hand you certainly couldn’t have election laws that punished the campaign of Candidate B, because then you could meta-game the system, you know, there was an old GI Joe episode that did this.

BETH Oh, absolutely.

ANDREW All of a sudden now the foreign governments would publicly intervene on behalf of Candidate A because they really want Candidate B to win, right? You know, you have to go against the Russians, but that kinda seems like a tough thing to do, so …

BETH It is. Yeah, under current law the only thing that is illegal for – other than contributions. If they’re acting independently we’re not talking about contributions to a campaign. It’s only illegal when we get to express advocacy –

ANDREW Wait, wait, wait. I’m sorry, I just wanted to cut in before I lost – if a foreign government is agitating on behalf of a campaign for one particular candidate, that wouldn’t count as a contribution? Like an in kind contribution to that campaign?

BETH Not if it’s independent.

ANDREW Oh!

BETH So that’s the critical difference in the election law between what’s called Independent Expenditures and Contributions. If you don’t talk to the campaign at all – and this is actually something that’s at the heart of Citizens United – the distinction, corporations are still not allowed to make contributions to candidates, but they can at least, allegedly, independently advocate for or against candidates that they support or oppose.

ANDREW Yeah and we have Citizens United on the whiteboard but –

BETH [chuckles] Yeah …

ANDREW But it did not occur to me that the rational of Citizens United applied to Vladimir Putin.

BETH No, so the difference – no, no, no, it doesn’t actually. I mean, well, so far.

ANDREW [chuckles]

BETH Because the foreign national prohibition covers both contributions and expenditures, but expenditures are defined as involving express advocacy for or against a candidate, so just, again –

ANDREW Oh, wow. Yeah, yeah.

BETH Touching on hot button social issues to get people worked out, with an intent to influence the campaign, is not gonna be covered under current law. And I say it with the footnote that there’s still the FARA issue –

ANDREW Yeah.

BETH - but under campaign finance law.

ANDREW Wow. Wow. So, okay, how [chuckles] Now, how do we –

BETH How do we fix it?

ANDREW - make sure that that is included? [chuckles]

BETH One of the problems, too, in the modern world is the Russian tools are sitting somewhere in their mothers’ basement in Moscow or wherever, right? I don’t know that we have a lot of jurisdiction over them! So it has to be either laws or self-regulation from Facebook and Twitter and the various venders that are – Google – that are party to this, that are not currently – I mean, they’re just placing ads, right? They’re not making a contribution or receiving a contribution, but I think they have to be part of the answer.

ANDREW Alright, well now I’m just gonna shout “Freedom” for the next ten minutes.

THOMAS [chuckles]

BETH [laughs]

ANDREW Yeah, wow. That’s … and that’s sort of at the core of the enforcement question that I had asked previously, which is, once you’ve defined the thing that you don’t want them to do, which would be difficult, it’s gonna be twice as difficult to figure out who’s going to be in charge of not doing that. Because, you know, as you point out, it’s really really difficult for the DOJ to reach all the way to Moscow basements.

BETH You could have sanctions. I mean, you know, it could be a diplomatic issue. It should be a diplomatic issue when another country directly intervenes in our elections!

THOMAS Right.

BETH But, yeah …

THOMAS Well my impression was, yeah, that the Facebook ads weren’t regulated in the way that normally radio and TV political ads were, and is there a reason for that? Or couldn’t we just start doing that?

BETH Well, the reason for that is that technology has been moving really quickly –

THOMAS Yeah.

BETH And the law has not. So partly the law hasn’t caught up, but also the FEC actually looked at how it should regulate the internet, and the internet was not happy with that.

THOMAS Yeah.

BETH They got a lot of feedback about, you know, “don’t kill the internet.” And I think there was a legitimate point in the early days to not coming up with a bunch of rules that were, you know, written in stone in, say, 1997 that we would now be looking at and saying, “what? How do we apply this?” So it’s been a largely hands off approach, complicated by the fact that in recent years the FEC has been completely unable to get the number of votes necessary to take action on almost anything, particularly anything controversial. It’s a six member commission, three nominees suggested by Democrats and three suggested by Republicans, and you need four votes to do anything.

THOMAS Hmm. I could imagine a lot of issues with trying to regulate the internet in that same way, but it does seem like a really difficult loophole given that Facebook ads are so, apparently, effective.

BETH Well, there is some pending legislation, and I haven’t had a chance to read the bill – or at least proposed legislation to require just disclosure, a public file of – and I don’t know how they’ve defined it, if it’s all ads, or political ads, but what ads are being placed, who’s paying for them, and who they’re targeted at. Because Facebook has that information.

THOMAS You’re right.

BETH So it’s not that hard for them to put it into a file that people could see, and at least then maybe we can have some education and be aware who’s targeting those ads at who and be able to respond.

ANDREW Yeah, that sounds like a really reasonable first step. I guess if, you know, you’re talking about legislative solutions and, as we all know, our Congress cannot pass laws, so – but I suppose, if there is, as this politically continues to unfurl that if you get 70% of the country sort of in agreement with the broad principles that in, you know, a great many ways the Russian government directly influenced the 2016 presidential election, then maybe you’d get some kind of political will to at least start to tackle these problems. [chuckles]

BETH Maybe. And, you know, maybe – trying to play optimist – maybe some of these companies will decide that they wanna be good citizens, maybe they want to forestall more burdensome regulation or legislation and they’ll come up with some sort of self-regulatory solution.

ANDREW Yeah. Yeah, no that’s a good point. And we have seen that with Facebook’s regulations on hate speech and the like, so that’s possible.

BETH Yeah.

ANDREW Alright, so we’ve come down, we’ve said that -

THOMAS Andrew was wrong, everybody!

ANDREW - we’re endorsing – Yeah! Devin Nunez’s investigation into Hillary Clinton. Make America great again!

THOMAS Yeah, lock her up!

ANDREW [chuckles] Lock her up.

BETH Well, yeah, actually, can I go back to my answer on that?

ANDREW [laughs] Nope! No, it’s – sorry!

BETH No, I don’t think it’s inappropriate to investigate the foreign funds piece, I cannot believe we’re going back to damn emails!

ANDREW Oh, yeah, well …

BETH [laughs] Yes, that aside.

ANDREW We have been with you on that one since episode 13, so [chuckles] Anything else I’m missing in asking on this story while I’ve got you on the line?

BETH No, I think we’ve hit on everything.

ANDREW Awesome. Thomas, did you have anything else?

THOMAS No, I just, you know, I’m gonna gloat that you were wrong, but other than that, I don’t know if Beth has to be here for all of that so, you know …

ANDREW [laughs]

THOMAS [chuckles]

ANDREW Well, she’s a loyal listener so she’ll get a choice. [chuckles]

BETH There you go! [chuckles] Well –

ANDREW Yeah.

BETH - thanks guys! Good to talk to you.

ANDREW Thank you very much!

THOMAS Alright, well, how many more minute do we have for Andrew Was Wrong?

ANDREW [laughs]

THOMAS Let’s see, 15? 20? Yeah. So it sounds like – what are your thoughts? It sounds like the Donald Trump Jr. stuff, as much as we thought that was Clear as Kushner, maybe it wasn’t so Clear as Kushner?

ANDREW Yeah. It sounds like it. So, you know, I think ultimately where Beth came out was that, you know, we are still looking to see the results of the investigation, that you can still draw the inference, but that there’s a lot there to kind of potentially muddy the water. I am flabbergasted that under the current election rules that you can walk into Vladimir Putin’s office and say, “Hi, I’d like to pay you market value” -

THOMAS Contract your services, yeah! [laughs]

ANDREW Yeah! [laughs]

THOMAS “Do you sell compromising dossier’s?” “Oh sure!” “What’s the going rate for the” – You know I was gonna ask that, but it’s not worth it, I don’t think, because it just sounds like a different issue, but what in the world would be the fair market value for some of this stuff? Like I don’t even know how you would decide. You could go based on some past precedent, but then that was just based on some past – there’s no, you know, it’s just what someone decided to pay, so I don’t know how you could make a big case that, “oh, you underpaid for that dossier”

ANDREW [chuckles] Right.

THOMAS What is that worth? I mean, what would we all pay for Trump to not be president? It would just be infinite money, so …

ANDREW [laughs] Yeah, there is – the closest case that I could find is a case involving Grover Nordquist, you may know, activist with Americans for Tax Reform and has been active since the 1980’s in getting candidates to sign “No New Taxes” pledges. I think he was the one that got George H.W. Bush to say, “read my lips, no new taxes.” So his legacy’s kind of mixed -

THOMAS Yeah.

ANDREW You can probably thank him for Bill Clinton being president. But he turned over a list of donors to a Republican campaign, and was prosecuted under this same law, under 52 USC § 30121, and that was the case that I found that backed up the notion that, you know, intangible political stuff can be a thing of value. So you have a little bit of precedent, but yeah, I don’t know where you would begin to start determining fair market value for having an enemy power dig up dirt on your opponent. And notice we left open, you know, I asked Beth that question of “if it isn’t a fair market transaction, then it still falls under the election laws.” So, you know, it leaves some avenues open there, but my initial take was definitely – I thought that this was a much stronger case and apparently there are more nuances out there than that. So that’s why we go out and bring on the experts.

THOMAS Andrew was wrong, everyone!

ANDREW Yup! [chuckles]

THOMAS Alright. [laughs]

ANDREW [laughs] You are enjoying that far too much!

THOMAS I just wanna emphasize! Okay, it is time to get to “Breaking Down the Law,” here.

[BREAKING DOWN THE LAW]

THOMAS Now a chance for you to be right, Andrew. ‘Cuz you’re right, like, 99% of the time by volume, you know.

ANDREW [chuckles]

THOMAS If we measure it out, if we pour all your rightness into a vat and then we measure the volume of it, you know, most of the time you’re right. So what’s going on with this rule that the Senate has killed? It doesn’t sound great to me, but I don’t know if it’s gonna be one of those things that sounds worse than it is. What’s happening here?

ANDREW Yeah, so this is, again, breaking news this week. If you are a past donor to Elizabeth Warren, which I am, you would have received about 87 emails in your inbox saying “be on guard for,” you know, “the Senate’s gonna vote on the Consumer Financial Protection Bureau tonight” and then a bunch that said, “The Senate just gave a huge giveaway to Wall Street” -

THOMAS Yeah.

ANDREW - “in their vote on the Consumer Financial Protection Bureau tonight.” So, what’s going on? First, you might say, “wait, the Senate did something? How did that happen?” And the answer is, this is – drumroll please – one of these Congressional Review Act cases. And so what you have is a recent rule that was promulgated by the Consumer Financial Protection Bureau, that rule essentially invalidated the use of boiler plate form arbitration agreements in consumer cases. So, like, when you sign your credit card application and it has several pages of text in 3 point font that no one ever reads -

THOMAS Yeah.

ANDREW It includes, in many cases many banks include a waiver of your right to sue for any reason whatsoever, and specifies that all claims pursuant to the credit card agreement have to be arbitrated, typically pursuant to the auspices of the Commercial Arbitration Rules of the American Arbitration Association. Now, why is that a bad thing when we’re talking about consumers and credit card companies? Because, you know, you’ve heard me, and this was actually a question, it was sent in by a listener, that said, “hey, I’ve heard Andrew say good things about arbitration agreements -

THOMAS Yeah.

ANDREW - before,” and that’s true. It was Eric Johnson, a patron, who asked us. And that is true. When, in my day-to-day practice, right? When I have a business owner, a small business owner – and that’s what I represent are entrepreneurs, small business owners – who come into my office and say, “hey, I want to engage this contractor, and I don’t want any of us to be involved in a long messy lawsuit.” I will say, “Yeah, sure, look, what we’re gonna do is we’re gonna put in your contracting agreement an arbitration clause.” And the contractor gets to look at it and gets to decide, you know, do I want to do business with this company? Am I going to negotiate to take that provision out? But it’s sort of knowing – I shouldn’t say sort of. It is, in my view, and the reason I recommend it is, it is a knowing and deliberate waiver of your right to sue. And, you know, in a lot of these cases, I mean, you think about small business contracts, this is not a situation where people really want to file expensive lawsuits against one another anyway. So I am a firm believer in arbitration, particularly in the business context, to eliminate uncertainty so that six months down the road when everybody is mad, instead of people being mad and filing lawsuits they’re just mad. [chuckles]

THOMAS [chuckles]

ANDREW They’re mad, but, you know, you call ‘em up and go, “hey, remember we talked about that this might happen six months ago.” And I would add, whenever I have asked anybody to sign an arbitration agreement on – a contract containing an arbitration clause on behalf of my clients – I have disclosed exactly what that is to them. I think that’s part of my obligation -

THOMAS Yeah.

ANDREW - is to say, “hey look, this says if you need to sue us or we need to sue you, instead of suing we’re gonna arbitrate.” So, that’s the way arbitration, in my view, is supposed to work. When you have a situation like, an individual has a credit card, the issue that happens is, your credit card company, you discover, has been overcharging you – they’ve inserted a one dollar service fee that you never requested -

THOMAS Hmm.

ANDREW - that they didn’t disclose and you didn’t notice it for the past 13 months, so now they owe you $13 dollars, and they’ve done it to 10 million customers, right?

THOMAS Yeah.

ANDREW So now they’ve made $13 million dollars, each individual’s injury is vanishingly small at that point. Nobody is going to file a lawsuit, even a small claims lawsuit, for $13 dollars. But that’s where you use the vehicle of the class action. And we’ve talked about, in prior episodes, how because of the requirements of Federal Rule 23, it’s really hard to bring a lot of class action cases. It’s hard to bring a class action mass tort case because the injury suffered by individuals when they’re exposed to your pollutant or whatever are not likely to be typical across the class.

THOMAS Right.

ANDREW But, a consumer fraud case is really, really – right? Your injuries are all the same. Everybody had to pay the extra dollar.

THOMAS Mm-hmm.

ANDREW So it’s a really, really useful vehicle. It’s not – let me be 100% honest, it’s not useful for getting the consumer their dollar back.

THOMAS [laughs]

ANDREW Okay?

THOMAS It’s useful for making lawyers money, though?

ANDREW It does two things, right?

THOMAS Makes lawyers money.

ANDREW One, it makes plaintiffs lawyers a lot of money.

THOMAS Right.

ANDREW And number two, because it makes plaintiffs lawyers a lot of money, they have the incentive to be out there policing these kinds of cases, and they have the resources to bring cases against City Bank, whereas the average individual does not. So, yes, there’s an inefficiency in the process, and we can talk about – I think this is on our whiteboard, but we can talk about plaintiffs contingency fee practices. But there is certainly something to be said for law firm calls you up and says, “hey, you don’t have to do anything other than add yourself as a name to our class, or maybe be a named plaintiff, and we wanna go out and bring this lawsuit against City Bank to make sure they stop doing this kind of predatory behavior, where they sneak the extra dollar in on your monthly bill,” and that has a pro-social effect, in that it hopefully deters City Bank, or at least forces them to hire more clever lawyers to come up with a worse scheme.

THOMAS Yeah.

ANDREW So, yeah. That’s the dynamic. Eliminating plaintiffs class injury lawsuits against giant commercial institutions is then a double win. If you’re a member of the Republican party it is a double win, number one, because plaintiffs class action lawyers are almost always Democrats and give to Democratic candidates, and number two it’s a win for those mega-businesses that tend to give money to Republicans. So you get to hurt the other guy and benefit your constituency all at the same time. So that’s the rule that the Senate struck down 51 to 50 with Pence casting the tie-breaking vote, and if you’re wondering who are the two people who voted against it?

THOMAS Murkowski and Collins?

ANDREW The two Republicans? No, no. Lindsay Graham -

THOMAS Oh!

ANDREW - and somebody, freshman senator named John Kennedy from Louisiana. Don’t know anything about him at all. But, yeah, so if you have been putting out accolades for Jeff Flake, Bob Corker, John McCain, Olympia Snow, Lisa Murkowski, they all lined up -

THOMAS Wow!

ANDREW - to go with the Republican majority on this. There’s some really neat findings in the rule itself that I think really show, regardless of politically kind of where you come out, that in my view differentiate these kind of waivers from the typical use of arbitration that I’ve talked about. So the CFPB conducted a survey of 1,004 credit card holders, and one of the things they asked was, “do you know that your credit card requires” – and they asked the question as, “if your credit card imposed a surcharge on you that you didn’t authorize and they refused to take it off, are you allowed to sue your credit card company?”

THOMAS Hmm.

ANDREW And what they found was that more than half of the respondents whose contracts had pre-dispute arbitration agreements thought they could litigate anyway.

THOMAS Yeah.

ANDREW Like, 56.7%. And then -

THOMAS I’ve never read a single thing involving any of my credit cards.

ANDREW [laughs]

THOMAS I don’t even read the statement, I don’t read anything. I just have an amount, I pay it.

ANDREW That’s right.

THOMAS [laughs]

ANDREW And when you think about that, I mean, I do the same thing. Everybody does the same thing. And that is called, you know, boilerplate or contracts of adhesion, when you don’t really have a choice. Like, you can’t scratch out a line and send back your agreement and be like, “no, I’m willing to take your credit card, but we gotta change terms A, B and C.”

THOMAS Yeah.

ANDREW Your credit card companies just gonna be like, “nope! Not issuing you a credit card, then.” But when you dig down into the lack of knowledge, it’s, to me, it’s even more – So 56.7, okay, I was like “wow, I’m kinda surprised 44% knew, or 43% -

THOMAS Yeah I am too.

ANDREW You know, knew that they couldn’t -

THOMAS Maybe they just imagined there must be some other explanation for that. Like, they just thought you’re not allowed to sue, or something. [chuckles]

ANDREW Right. Yeah.

THOMAS Yeah.

ANDREW No, I think that’s right, because when you dig into the numbers – so, here are some of the findings. This is page 46 to 48. They say, “respondents were generally unaware of any ‘opt out’ opportunities, only one respondent” – so that’s one out of 1,004 -

THOMAS [laughs]

ANDREW - whose credit card contract permitted opting out of the arbitration agreement, recalled being offered such an opportunity. When asked an open-ended question about all the factors that affected their decision to obtain the credit card that they most often use for personal use, no respon – zero respondents -

THOMAS Yeah.

ANDREW - volunteered an answer that referenced dispute resolution procedures. When presented with a list of nine features of credit cards, features such as interest rates, customer service, rewards, and dispute resolution procedures, and asked to identify those factors that factored into their decision, respondents identified dispute resolution procedures as being relevant less than any other option. So, in other words, people don’t know that this is in their contract, they’re not making a decision as between two credit cards, right? Because rationally speaking, if you have two credit cards on roughly the same terms and one says you can sue us and one says you can’t, you ought to prefer the one that gives you more remedies. And nobody does that, right?

THOMAS Right.

ANDREW So it’s verifying exactly what you’ve said, which is, “people don’t read it, they don’t know what’s in it.” And that’s kind of the exa – and again, we have listeners that are across the political spectrum. In my view, if you’re going to have a Consumer Finance Protection Boards, that’s the kind of thing you want the Consumer Finance Protection Board to be doing. Intervening in situations of grossly disparate power, where people don’t know when they’ve given up their rights.

THOMAS Yeah.

ANDREW That was the point of the rule, that’s why it was promulgated, and that’s why the Senate killed it. [chuckles]

THOMAS Well, there you have it, thanks Republicans. [sighs] With that said, I think we’ll have to get to – let’s cheer ourselves up with our co favorite segment of the week, and that is nnnn – top patron Friday! [laughs]

ANDREW Yay! Top patron Friday!

[PATRON SHOUT OUT]

THOMAS Thank you top patrons for making this show go round, we can’t thank you enough. And, yeah, the names are just cracking me up every week. [laughs]

ANDREW I actually had a good friend of ours, Jeremiah, told me at PastaCon that reading the patron names on Friday is his favorite part of the show.

THOMAS [chuckles]

ANDREW So shout out to you, Jeremiah, for enjoying that. Although I think there’s maybe an implicit left-handed compliment? [laughs]

THOMAS I was gonna say, I don’t know if that’s a good … but, okay, sure, maybe we should up the rest of our show, I guess, if reading the names is the best.

ANDREW I guess so.

THOMAS And now it’s time for our co-favorite segment, our co-co-favorite segment, which is Thomas aces the way-too-easy bar exam.

ANDREW Yeah! We are down the home stretch here, just three questions left – I guess four, counting this one. Here you go: “A tenant’s four year old daughter fell from a second floor outdoor stairway at their apartment building. The tenant sued the landlord for negligent construction and maintenance of the stairway, steps, and railing. The stairs were built on a dangerously steep incline, the steps were loose, and the railing was insufficient to keep the baby from falling over the side. The jury found that the landlord was negligent in the design and construction of the stairs, and in failing to maintain the stairs, steps and railing in a safe condition. The landlord appealed on the basis of immunity from suit and the failure of the tenant to assert any exception to landlord immunity.”

THOMAS What?

ANDREW “Under the modern rule, will the appellate court affirm the jury’s verdict against the landlord?” So, shut and dried case, landlord appeals on the basis of landlord immunity, is the appellate court going to -

THOMAS Landlord immunity? [chuckles]

ANDREW - affirm the jury’s verdict against the landlord. [laughs]

THOMAS Oh, great! Cool! So this relies on my in-depth knowledge of the landlord immunity rule, okay.

ANDREW Right, right, which, yeah -

THOMAS I’ll just access that file.

ANDREW - you discussed at great length in both civil procedure and tort’s class, so -

THOMAS Oh, okay.

ANDREW - you got this, no problem.

THOMAS Okay, just think back.

ANDREW “A) Yes, the landlord is strictly liable for the abnormally dangerous condition that he knowingly allowed to exist. B) Yes, the modern rule is that the landlord, like anyone else, has a duty to use due care to protect its tenants and others from injury caused by a foreseeable risk of harm. C) No, because the landlord still enjoys the common law protection of the doctrine of ‘Lessee Beware’ and residential property is generally still rented as is. Or, D) No, because a landlord cannot be held liable for negligent design or maintenance, even under the modern rule.”

THOMAS Hmm. Alright, well, I’ve thought back to all my knowledge of the modern rule and it’s just – it’s nothing. But, okay, considering that, what would I guess that the modern rule will be? Well, let’s see, I’m gonna hope, in terms of eliminations, it seems like there’s a clear cut answer if you – if one were to know what the rule was, and I think I can eliminate – boy this is really hard! Because the ones I want – Okay, if I’m using my issue spotting thing, I would say that, you know, B and D are probably the – I mean, they involve the modern rule, that sounds like the question we’re evaluating, however A seems, like, totally reasonable, as in yes the landlord is strictly liable for the abnormally dangerous condition that he knowingly allowed to exist. I mean, that sounds reasonable. But is he strictly liable? What is this modern rule? What does it involve? Maybe the modern rule means that sometimes the landlord is not liable for certain things depending on how they go? I don’t know. But I’m gonna go with my issue spotting, you know, that you’ve taught me, and I’m gonna take a chance and eliminate A, which was yes the landlord is strictly liable, that was kind of the basic strictly – I mean, that’ll be wrong if it turns out this was one of those trick questions where it’s like “naw, the modern rule has nothing to do with anything and was just kinda trying to trick you.”

ANDREW [laughs]

THOMAS But I’m gonna take that chance. And then C is no because the Landlord still enjoys common law protection of the Doctrine of Lessee Beware and residential property is generally still rented as is. So I’m gonna hope it is about the modern rule, and that would leave us with B and D. So B was yes, the landlord like anyone else has a duty to use due care to protect its tenants and others from injury caused by foreseeable risk of harm, and D, no because a landlord cannot be held liable for negligent design or maintenance even under the modern rule. And I – you know, I’ll just guess B. I mean, it just sounds like, again, with the caveat that the bar exam as we’ve covered always involves like an incompetent judge or jury or whatever at the lower court level that just doesn’t know about a rule, usually. [chuckles] So that would be D, but anyway, I’ll go with B and just say, “yes, the modern rule is that the landlord, like anyone else, has a duty to use due care to protect its tenants and others from injury caused by a foreseeable risk of harm.” Eh, it sounds reasonable to me. I don’t know, we’ll see how this stacks up.

ANDREW [chuckles]

THOMAS Could be – this is one where it really could be any of them. Like, it wouldn’t be – in my opinion there’s no, like, oh that’s obviously a ridiculous answer, you know? Even C, I would – it seems possible. So, tricky question -

ANDREW No I agree. I agree.

THOMAS - it really seems like every answer could be it, so I dunno. We’ll see if I’m right.

ANDREW Alright! And, as always, if you’d like to play along with Thomas you know how to do that, just share or retweet out our episode on Twitter or Facebook, include the hashtag #TTTBE, your answer, your reasons therefore, and on Tuesday’s episode when we read the answer we will pick a winner and shower that person with never ending fame and fortune. Never ending fame and fortune not guaranteed.

THOMAS Alrighty, well, that’s it! Thank you so much Andrew! Thank you so much Beth Kingsley for comin’ on and educating Andrew about the law, because someone has to do it! [chuckles]

ANDREW Someone has to! [chuckles]

THOMAS Thanks for listening, and we will see you guys on Tuesday!

[OUTTRO]