Transcript of OA368: Your Guide to the Coronavirus, Part 2

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 368, I’m Thomas, that’s Andrew.  How’re you doing, Andrew?

Andrew:         I am doing fantastic.  For those whom I met and shook hands with last week in Houston, I have zero signs of fever or coughing, fatigue, any of that.  So I’m fine, I’m healthy, how are you?

Thomas:         Still operating under the impression that I already had coronavirus.

Andrew:         Yeah.

Thomas:         I don’t think anyone’s ever gonna talk me out of that.  I was trying to pretend like I was joking, still not joking.

Andrew:         [Laughing]  You do know it’s not the chickenpox, right?

Thomas:         [Laughs]  

Andrew:         You can still get it again.

Thomas:         Wait.  No you can’t, what?  Seriously?  No, it’s a virus that you – don’t you build up the immunity to it?  You can get it again?

Andrew:         Like, have you gotten the flu more than once before we started developing-

Thomas:         Oh, you can get it each year?  That’s the kind of thing?

Andrew:         Yeah.  This could be a permanent part of the – well let’s not give away the show.

Thomas:         Hey, doctors write in and please tell me Andrew is wrong about all that.

Andrew:         Yeah.

Thomas:         I thought it was the viruses where you build a little bit of immunity to it.  Yeah, I guess I didn’t think about the fact if it’s seasonal and you get the flu every season.  Wow, okay.  But I’m good for like the next few months, right?  [Laughs]  

Andrew:         [Laughs]  I mean, don’t take medical advice from the unscripted portion of this show, but sure!

Thomas:         [Laughs]  

Andrew:         Let me go with yes, you’re fine.

Thomas:         Yeah, yeah.

Andrew:         Everybody go lick Thomas for the next couple of months.

Thomas:         Well forget all that.  Look, I’ve been thinking and I think if enough of us band together we can overthrow the alien government that is making us change our clocks on ourselves every couple months.

Andrew:         [Laughs]  

Thomas:         I’m just thinking, it’s gonna take a ragtag team, adventurers and rebels but I think we can do it.  There’s no other explanation, Andrew, for why we do this to ourselves twice a year! 

Andrew:         [Laughs]  

Thomas:         Other than there must be some alien empire, cabal-thingy, that is making us do it, ‘cuz otherwise it’s the stupidest thing of all time!  That we would do this to ourselves.  Anything else we wanna do to ourselves, like pour ice cold water on ourselves each morning?  Like just ‘cuz, for no reason?  Gah!  Sorry, I hate it!  Every time!

Andrew:         [Laughs]  

Thomas:         Every time I hate it more than the last time.  You know what a bunch of people are gonna be overtired, probably weaken their immune systems a little more, and then they get the coronavirus and then it’ll be even worse!  That’s just science!

Andrew:         [Laughs]  That is just science.  Nothing to add to that.

Thomas:         Okay, I’ve got it out of my system and now we can go on with the show.

Andrew:         Okay, alright.

Thomas:         We can go on with the show, we’ve got lots to talk about.

Andrew:         The show must go on, Thomas.

Thomas:         Yes.  [Sighs] Daylight savings.  God!  Unbelievable.  So mad!  I’m so mad about it, every time!  Oh, wow, I wish I was joking.  I’m this mad! 

Andrew:         [Laughs]  No!

Thomas:         When this happens – nobody was talking about it because we’ve got so many other things!  We’re all dying of a disease or whatever, virus, and the presidential stuff and then all of a sudden it was like “hey, you know that’s today?” What?! Oh my- and we had to, yeah, anyway.  Okay.  So! [Laughs]  Astronaut ice cream or something, what’ve you got here?

Andrew:         [Laughs]  Yeah, so I wanted to thank everyone who came out to the Houston Oasis speech, which was this past weekend.  I am getting the audio for that, we’re gonna make that available at least to Patrons.  It was, I think, a really, really good and timely speech subtitled “We’re All Gonna Die,” that had nothing to do about the coronavirus.

Thomas:         Oh, good!

Andrew:         Other reasons to die.  During the last Q&A I remarked that I have never had astronaut ice cream, and I wanna say I love our listeners-

Thomas:         Oh ho ho!

Andrew:         Somebody came to Houston-

Thomas:         Did Buzz Aldrin come?

Andrew:         [Laughs]  Yeah, and gave me a packet of astronaut ice cream and two separate listeners have sent them to my law firm office.

Thomas:         [Laughs]  

Andrew:         So during our next Q&A I will eat astronaut ice cream live on the air.

Thomas:         Oh!  I thought you were gonna say you already had it and it was disgusting like I remember.

Andrew:         No, no. 

Thomas:         Oh, okay!

Andrew:         Look, if I have waited four decades I can wait another couple of weeks.

Thomas:         Oh, well then can you mail me some and then we’ll do it together.

Andrew:         Sure, yeah! 

Thomas:         [Laughs]  I mean I already know it sucks, but just maybe I was wrong, I dunno.

Andrew:         Excellent!  I will do that, I will send one of those to you, we will do it together.  So I greatly, I appreciate, I love our listeners.  I sort of envision this snowballing as more people listen to the Q&A and there being the Miracle on 34th Street [Laughing] bags and bags of astronaut ice cream being delivered to my office!

Thomas:         Every day! They’re like is P. Andrew Torrez, is he some sort of ice cream lawyer?  Is he like a- That’s all he gets is these ice cream packets!

Andrew:         Hey!  I could be an astronaut lawyer!

Thomas:         [Laughs]  Yeah, astronaut law?  Space Force is gonna need some lawyers.

Andrew:         Yeah that’s much more – can’t you picture me as like a 5 year old and all the kids are going around, what do you wanna be?  I wanna be a racecar driver, I wanna be an astronaut!  And me being like I wanna be an astronaut …. Lawyer!

Thomas:         [Laughs]  

Andrew:         I could do that!  Anyway, so thank you so much, listeners, but please, you can stop sending the astronaut ice cream now.

Thomas:         Definitely do not stop sending Andrew astronaut ice cream.  Send more of it, actually.

Andrew:         [Laughs]  

Thomas:         It’s lightweight so it’s no problem with the freight!  That’s the whole point!

Andrew:         That’s true, it is cheap to- [Laughs]  

Thomas:         [Laughs]  The postage is nothing!

Andrew:         [Sighs] Alright.

Thomas:         Uh, you know what?  Maybe we can do, you can be an astronaut lawyer and we’ll do a class action lawsuit for all 4th grade kids who had to taste that garbage?  You know what, it’s probably the reason I’m not an astronaut to this day! [Laughs]  

Andrew:         [Laughs]  

Thomas:         It’s just I tasted that ice cream, I was like no thank you!  This is not the job for me!

Andrew:         [Laughs]  

Thomas:         I’m sure I would’ve made it otherwise! 

Andrew:         [Laughs]  [Sighs] Oh, gosh!

Thomas:         [Sighs]

Andrew:         Well we are fortunate to have you here on earth, Thomas.

Thomas:         Oh good.

Andrew:         I’m glad for that.

Thomas:         I also was gonna say, we’ve got Law’d Awful Movies coming up very soon, we’re gonna get that out to you guys, and that and your speech will make great listening for everybody who’s probably cooped up somewhere!  Can’t go anywhere.  Everything’s cancelled!  Andrew, I feel like we made the right choice on our live show.

Andrew:         That seems-

Thomas:         When I mentioned, like, hey, maybe we shouldn’t do it I was like am I being dumb right now?  I’m probably being dumb right now.  Now it’s like, wow, we definitely couldn’t have done that.

Andrew:         Yeah.  With everything being cancelled we’re gonna dedicate another main segment to all of the legal issues surrounding COVID-19, this strain of coronavirus, and we also have – gosh, we’ve got an Andrew was – I still say I’m right but some people think I’m wrong on presidential succession.

Thomas:         Oh, that’s the best kind.

Andrew:         Yeah! [Laughs]  

Thomas:         Andrew was … ambiguous.

Andrew:         And then, I have – I know I’ve got it marked as a Wild Card Segment because there are like 8 different line items under coronavirus-

Thomas:         I’m seeing a lot of bullet points, Andrew! 

Andrew:         [Laughs]  

Thomas:         I see an awful lot of bullet points in this episode.

Andrew:         There are!  I do want to give a 2 minute preview of what could become the most influential law review article certainly of 2020-

Thomas:         Oh wow.

Andrew:         Could be going forward, it’s really, really important.  We’re gonna dedicate a whole show to this but I just got my copy of it yesterday, so it’s gonna wait-

Thomas:         So you’ve only read it three or four times and then you gotta read it a couple more?

Andrew:         Exactly right.  Well, you know, I was also sort of hip deep in researching coronavirus law, which everyone will appreciate.  That is coming, I think it has the potential to be monumentous and I wanna give you a quick preview of it.

Thomas:         Alright!  Well hopefully you can get to the Wild Card Segment, we’d better get going!  Okay, let’s talk Andrew Was … Something.

Andrew:         [Laughs]  

Andrew Was (?) About Presidential Succession

[Segment Intro]

Thomas:         What were you something about?  Succession?  What could you have gotten wrong in that?  I can’t wait to hear.

Andrew:         So I have said- let’s re-summarize.  The question that came in was a sort of tongue in cheek could Joe Biden pick Barrack Obama as his running mate and then I answered that the way I think 95%, 99%, 99.99% of lawyers would answer it, which is the 12th Amendment says that no person who is constitutionally ineligible to the office of President shall be eligible to that of Vice-President, and then the 22nd Amendment makes anybody who has served two terms as President- we’re gonna talk about the specific text in a minute – constitutionally ineligible to be President.  You put those together and to me, I think the answer is obvious.

I think every serious court to consider this question would come to the same conclusion, and some folks wrote in with at hyper technical textualist argument.

Thomas:         Ah.

Andrew:         Which I initially dismissed and then I went and looked at the actual law review literature and there is – this is a PhD student in government and a then associate, so this is not quite the same level of authority as having a renowned constitutional scholar embrace the position, but I think some liberal Originalists like Akee Lamar may be somewhat sympathetic to this position, so let me explain it.

The 22nd Amendment says “No person shall be elected to the office of President more than twice, and no person who has held the office of President or acted as President for more than two years of a term, to which some other person was elected President, shall be elected to the office of President more than once.”  That seems totally straightforward.  You get to be President for two terms, and what counts as two terms?  Two full terms or one term plus more than half of somebody else’s term.  That’s how we understand the 22nd Amendment.

The argument that is being made is an argument that says oh no, the 22nd Amendment is about being elected to the office of the Presidency and does not impose a constitutional disqualification.  The law review article that sets that out is a 1999 article in the University of Minnesota by Bruce Peabody and Scott Gant, which I will link in the show notes

I do not find it persuasive, but Peabody & Gant’s argument is – and they go through a bunch of different scenarios, but they basically say let’s imagine that you have a former President, Barrack Obama is now serving as Secretary of Health and Human Services.  That if you got to Barrack Obama in the line of succession, he would not be constitutionally ineligible to be President because he would not have been elected President more than twice.

Thomas:         Hmm.

Andrew:         He would be serving as the acting President in the event of the deaths of, I dunno, the 905 people that come before the Secretary of Health and Human Services in the presidential line of succession, but it would not have triggered the “elected” portion of the 22nd Amendment.  I don’t read, having been through not only the history of the 12th Amendment but been through what we have of the legislative history underlying the 22nd Amendment, I certainly don’t read it that way.

I think the straightforward reading of the 22nd Amendment is this was a backlash to FDR serving four terms.  We had a longstanding history and tradition in this country that president’s serve two terms and that’s it, FDR broke that and then all of a sudden we sort of got together as a nation and we’re like notwithstanding the fact that FDR is arguably our nation’s finest President, let’s not have that happen again.  Let’s codify that longstanding prohibition into an Amendment to the Constitution. 

The counterargument, indeed, is the Biden/Obama example.  If this is only a narrow restriction on election then you could take a very popular President and essentially have them run for a 3rd term by being the Vice-Presidential nominee and then you’ve got an entire Constitutional Amendment that’s worthless.

Thomas:         Which we should do…

Andrew:         [Laughs]  I certainly wouldn’t object to that, but I think that the idea that we could completely jettison an amendment to the constitution knowing the level of difficulty that it takes to get constitutional amendments passed-

Thomas:         Yeah.

Andrew:         -the idea that oh, no, everybody voted.  Literally the millions of people who voted for this or who voted for proxies who voted for this, the idea that you could circumvent that with one weird trick strikes me as an argument against originalism and not an argument in favor of reading this very, very narrowly.  But I do wanna acknowledge there’s a law review article out there that says that there has been some debate over this.  Again, all of this- maybe this would be better suited for a Philosophers In Space episode because none of this is gonna happen.

Thomas:         [Laughs]  

Andrew:         Nobody is gonna try it, it’s all in the abstract, but I want to acknowledge I said no person takes that seriously and people have taken it seriously.  I still think they’re wrong, I still think I’m right, I still think a court would come out my way, but I wanted to acknowledge that.

Thomas:         Well you weren’t wrong.  I’m declaring you weren’t wrong on that.

Andrew:         Thank you, Thomas, I appreciate that.

Thomas:         Just more clarification.  Okay, time to get to our main massively subdivided segment here that you’re gonna have to get through all these sub-points.  Let’s see how it goes!  Okay!

Andrew:         Alright!

Your Guide to the Coronavirus, Part 2

[Segment Intro]

Thomas:         Alright, let’s talk coronavirus. 

Andrew:         Yeah, [Laughing] so things changed a bit from last week, didn’t they?  Um, this is … folks are using the tip of the iceberg issue as an analogy and I think that may understate it.

Thomas:         Yeah.

Andrew:         As of today-

Thomas:         Well every sport is cancelled, so-

Andrew:         And that’s exactly right.

Thomas:         Which FYI means I’m gonna see the same number of Sharks wins-

Andrew:         [Laughs]  

Thomas:         But I don’t get to watch them lose, I guess.

Andrew:         Let’s talk about the implications of this a little bit.  This morning I woke up knowing yesterday that a handful of college basketball conferences had cancelled their conference championship tournaments.  Then this morning I learned that the NCAA championships, the March Madness games, were going to be played at empty stadiums.  And I think as we go to press it is still up in the air, I would say there is an over 90% chance, I mean if I do an Andrew Was Wrong on this I’ll be shocked – that the March Madness, the NCAA basketball tournament, will be cancelled.

Thomas:         I think you’re behind the times, I thought it already was.

Andrew:         Has it officially?  Because I haven’t seen that all of March Madness was cancelled.

Thomas:         Oooh.

Andrew:         I’ve seen that most major conferences, the ACC, the Big Ten, the SEC, have all cancelled their championship games.

Thomas:         Oh, you’re right.  The tournaments kinda leading into the March- gotcha.

Andrew:         Yeah, those determine automatic qualifiers.

Thomas:         In all likelihood, though, you’re thinking the whole thing’s gonna-

Andrew:         I think the entire thing is going to be cancelled.

Thomas:         Makes sense.

Andrew:         And I need to tell you, this is a multi-billion dollar revenue generation for the country.

Thomas:         Well what’s confusing me is I thought they were gonna do the play to empty stadium thing for all the sports.  I was like okay, maybe all the sports’ll do that, at least they still get the-

Andrew:         The ad revenue.

Thomas:         Yeah, get the ad revenue.  For one thing, first off for people who aren’t sports people this is no minor thing.  There’s only a handful of seasons where in all the record books you’ll be like, well there was the – when was the baseball?  I mix up all the years.  But I think hockey lockout was before I was watching, but I wanna say it was like 2004 or something like that and then it’ll be in every stat book.  Oh, well that shortened season from the lockout kind of thing.  And this is a major, major big deal, so I thought they would just do the play to empty stadiums because it would be less of a loss to still get the ad revenue than it is to just stop the season completely.

Andrew:         Yeah.

Thomas:         But what do you think is their calculation there?  Is it that they need the ticket revenue or-

Andrew:         Oh no.

Thomas:         -is it just that the team is gonna get it by being around the team or something?

Andrew:         Oh, so I think it is much more that the process of orchestrating those games – and let me do a slight sidebar.  In addition to March Madness, Major League Baseball has cancelled the rest of Spring Training which 100%- they have not announced that that’s gonna affect opening day and the first week or month of games, it 100% will.

Thomas:         Yeah.

Andrew:         So, for example, California has a temporary emergency measure in effect right now that bans gatherings of more than 250 people.

Thomas:         Yeah, Santa Clara County was one of the first to do that.

Andrew:         Yup.

Thomas:         So the Sharks were like the first to say okay, well we’ll play to empty arenas. 

Andrew:         Right.  So I think the thought process in consultation with epidemiologists is yeah, but just getting together sports teams and traveling and everybody that-

Thomas:         Wow.

Andrew:         -supports that is still likely to be a risk, and we don’t want the potential legal liability from being a vector of that risk. 

Thomas:         Oh.  Wow.

Andrew:         That has to be the thought process-

Thomas:         Well by that logic, then, can they even practice?

Andrew:         I think practices are gonna be cancelled.  I mean, that’s what Spring Training is.

Thomas:         Yeah that’s true, but I mean there’s also fans and stuff that go to it.

Andrew:         Fans do lightly show up but you could close Spring Training to fans and still practice and MLB said “yeeeah, we’re not gonna do that.”

Thomas:         Wow.

Andrew:         All of these, every day that a sporting event doesn’t take place is a loss of millions of dollars of revenue.  Now you put that into combination, you have schools saying kids are not gonna come back after spring break, some of those schools are gonna go to virtual campus, lots of businesses are going to working from home, but this is the beginning of a huge – saying it’s the tip of the iceberg I think is – people have not realized the multi-multi-billion dollar shock to the economy that is coming, because these things haven’t happened yet. 

We’ve announced it and you sit there and you think about it, but then, you know now, again let’s stick on basketball.  The NCAA derives 75% of its overall revenue from this first weekend of March Madness.

Thomas:         Wow.

Andrew:         That’s not gonna happen.  So I don’t know how many organizations that can suffer a 75% hit to their budget.  I doubt that there are many.  So, yeah, the economic shocks are going to be terrible.  Now-

Thomas:         Anyway, we gotta go to our sponsor, this bucket of survival food!

Andrew:         [Laughs]  Well, can we skip ahead?  We’ll do it out of order.

Thomas:         It’s up to you, you’re in charge of this ship.

Andrew:         Yeah, well as you may know, televangelist and con-artist Jim Bakker sells buckets of survival gear.

Thomas:         Yeah!

Andrew:         Crappy, giant, huge markup, survivalist kind of buckets.

Thomas:         Is this the thing that he tried to say would cure coronavirus?

Andrew:         Absolutely, this is the thing that he said would cure coronavirus.

Thomas:         [Laughs]  [Sighs]

Andrew:         Let me read you exactly what was said on his show.  This was covered by, among other places, our friends over at The Scathing Atheist.  But here’s what Jim Bakker said.  So Jim Bakker, disgraced televangelist, but that doesn’t keep televangelists down for long.

Thomas:         Hold on, I was gonna say disgraced or still making zillions of dollars off of people’s ignorance?

Andrew:         Yeah, well obviously.  Those are the same.

Thomas:         Because I’ll take some of that disgrace!

Andrew:         [Laughs]  Uh, and among the crap he hawks, we’ve talked about the buckets which I find befuddling because aren’t Christians supposed to be raptured away?

Thomas:         Yeah… Good point.

Andrew:         I don’t get why they need the survival buckets, but-

Thomas:         Is it like an insurance plan?  Of like okay, we know all the good Christians should get raptured but let’s be real, we all have some skeletons.

Andrew:         [Laughs]  I mean, who knows what that crazy guy’s gonna do?

Thomas:         And then everybody has to pretend.  No, it’s for my son-in-law. 

Andrew:         [Laughs]  

Thomas:         Definitely not for me!  It’s just ‘cuz, you know, [Nervous Laughing] I’ll be up there with you guys!  We’ll be high-fiving, but you know, just in case-

Andrew:         [Laughs]  Just in case, yeah.

Thomas:         -My A-hole relatives, you know.

Andrew:         [Laughs]  So Jim Bakker had on Sherrill Sellman who was there to describe the effects of “Silver Solution.”

Thomas:         Oh my god.  [Groans]

Andrew:         Which you can buy from the Jim Bakker Store.  He said “yeah, this silver solution, that’ll totally kill the coronavirus, right?”  And Sherrill Sellman says (quote) “well let’s say it hasn’t been tested on this strain of the coronavirus, but it has been tested on other strains of the coronavirus and it has been able to eliminate it within 12 hours.”

Thomas:         [Laughs]  

Andrew:         Then Jim Bakker says “right, eliminate it!  It eliminates the coronavirus.” 

Thomas:         [Sighs]   

Andrew:         This has led one State already, the State of Missouri, again not crazy communist, leftist, enclave.  Missouri! Deep red State, to sue Jim Bakker for being a lying piece of garbage, and it has led the State of New York to serve a cease and desist letter.  This is Letitia James, Attorney General of the State of New York to send on March 3rd a cease and desist letter to Jim Bakker saying “uh, you’re gonna retract those claims, you’re going to affix the disclaimer that your products are garbage-

Thomas:         [Laughs]  

Andrew:         And you are going to sign and contact our office on or before what will be today, tomorrow, Friday the 13th, telling us that you are gonna comply with that or we’re going to sue the pants off of you.

Thomas:         Yeah.

Andrew:         Good for all of them!  The lawsuits, by the way, the Missouri lawsuit will be the model for the New York lawsuit, this will be replicated everywhere, and essentially it is an unfair trade practices lawsuit.  You can’t go on TV and sell a bottle of nonsense and say it eliminates the coronavirus!  That’s gonna apply to Alex Jones who thinks he has magic toothpaste that kills the coronavirus?

Look, our listeners know that these people are snake oil- I mean, literally in the silver solution thing!  I mean you’d be better off drinking the oil of a snake than ingesting diluted heavy metals, but you’d be better off still not buying anything from Jim Bakker or Alex Jones or anybody else that tells you they have a cure for coronavirus. 

At least the one thing that is positive for me about the coronavirus is I think lawyers are gonna come out of this just fine!

Thomas:         Ooh!

Andrew:         So my industry will be okay.

Thomas:         Because no one likes them so you’re not socializing with anyone anyway so you won’t get it?

Andrew:         [Laughs]  

Thomas:         Oh, no!  Sorry!  That’s not the direction- I thought it was a setup for a lawyer joke!

Andrew:         Ahh!  Brian can you do a [Drum Noises] badum-tss! [Laughs]  

Thomas:         [Laughs]  Yeah!

Andrew:         That would be great!  So let’s talk about what our government is doing.

Thomas:         Fixing it all up!  Just patchin’ it, going right as rain!

Andrew:         Look, I wanna talk to you about the negative stuff.  Our listeners probably know what the negative stuff is, but I want to begin with the positive stuff that is out there. 

Thomas:         Alright.

Andrew:         I wanna emphasize, yes, we have a criminally insane gameshow host as President.  Yes, major executive agencies are lacking direcotrs, have interim directors who are political hacks.  All of that is super bad. 

The wheels of government, the people who work in executive agencies are still professionals doing their jobs, and a really good illustration of how you can leverage the existing institutions of government in this crisis came from California congressperson Katie Porter.  She represents the 45th District of California.

Thomas:         She’s great! 

Andrew:         Yeah, she is great!  And in a 6-minute segment asking questions of the Director of the Center for Disease Controls, the Trump-appointed Director for the CDC, Katie Porter pointed out, correctly – we’re gonna talk about this regulation in a minute – that the existing law as interpreted by 42 CFR § 71.30 allows the Director to, at his sole discretion and subject to the availability of appropriations (by the way those appropriations are made by Congress, not by the President) may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, and conditional release.

So what can they pay for?  They can pay for testing, for your ambulance or other medical transportation, to the bills to the hospital, medical facility, or medical transportation services for all quarantine-able, communicable diseases.  And in particular what Representative Porter did was calculated the out of pocket costs to an individual, which is over $1300 to get tested for COVID-19 and pressured the Director.  It took 5 tries.  I’m gonna link the video in the show notes.  This dropped literally right as we were recording.

It took five tries, but ultimately the Director said “yes, I will instruct that the CDC will pay your out of pocket costs associated with testing.”

Thomas:         Hmm.

Andrew:         That is a binding admission on the floor of Congress.  So I believe, we’ll see if the Trump Administration tries to do otherwise, but I believe that that is something for which you could get judicial relief, you could get a writ of mandamus.  At this point it is left to – the Director has discretion, so ordinarily you don’t get mandamus when there’s discretion, we’ve talked about that before, but when the Director says “yes, I have decided and I will do X.”  If they do not release the funds you can get a court order saying, hey, you said you were gonna release the funds, release the funds.

Thomas:         So let me make sure I have this straight.  Is that saying everybody?  Who can get paid for – hold on, what did this Mr. Smith Goes to Washington style intervention from Katie Porter, which sounds awesome, what did this get us exactly?

Andrew:         It is, it is awesome.  It is if individuals are determined that they need to be tested for coronavirus-

Thomas:         Determined by who?

Andrew:         Now look, that is… that’s what’s up in the air.

Thomas:         Okay.

Andrew:         But in terms of if they are required as part of those four conditions that I have described – medical examination, quarantine, isolation, and conditional release.  If you fall into one of those four categories and a government official is telling you you must be tested for the coronavirus, and by the way you’re gonna have to pay for it, the answer that Katie Porter got from the Director of the Center for Disease Control is “no, the CDC will authorize-

Thomas:         Wow.

Andrew:         Subject to 42 CFR § 71.30, the payment of those expenses.”  Look, this is just – it’s a masterful five and a half minutes.  She makes reference to the point that we’ve made on the show many times, which is that a large plurality of American households cannot afford a $400 bill let along a $1300 bill.  This would absolutely be crippling to probably a majority of Americans if the costs were just passed onto them directly.

Thomas:         Yeah, and they just won’t do it as well.  People who need to be tested would just be like sorry, I can’t.

Andrew:         I can’t afford it, that’s right.

Thomas:         Anyway, I’m off to my shift. 

Andrew:         Yeah!  So it was fantastic work, I know people are gonna want to know, is this law – and again, this is a regulation interpreting existing legal provisions.  Is this what Congresswoman Porter says it is?  It is! 

Thomas:         Wow!

Andrew:         I have read to you from sections A and B, those bits that I quoted to you, and the rest of the CFR says exactly what she says it does.  It lists out subparagraphs (b) through (h) are the specific qualifications on exactly what must be paid.  For example, subsection (h) says “for ambulance or other medical transportation payment shall be limited to the costs for such services and other items reasonable and necessary for the safe medical transport of the individual.”

Those things are in there to prevent people from using this as a slush fund, but absolutely Congress can appropriate, that starts in the House of Representatives and so long as there are available funds the Director of the CDC has said yeah, we will pay for your testing.  An unbelievable and great moment.  I wanted to lead with it because there’s not a lot of other great stuff coming out of our government.

I did find, 10 minutes prior to recording, that the Senate agreed that they weren’t just gonna go home tomorrow, so…

Thomas:         Yeah, but they were for a second, right?

Andrew:         They absolutely were!  The plan, as announced by Lamar Alexander was “yeah, you know, we’re gonna take a break, we’re gonna come back March 23rd, I’m sure nothing will happen with disease vector in 10 days and then maybe we can come up with some kind of relief package emergency provisions to individuals and businesses to help them get through this emergency.  [Laughs]  But look, I haven’t been back to Tennessee in a couple of weeks so it’s really important that I do that!”

Fortunately, saner heads prevailed and so the Senate has scrapped its week off, good for them, and this should not be a challenge, and of course it is given how broken our government is.  But look, this is an area where both sides really can get what they want, because Democrats want individuals to be protected, they want guaranteed sick time off from work, they want to make sure that basic utilities and other services are not interrupted, they want the testing and potentially treatment paid for.

Republicans want small business loans and tax breaks.  Again-

Thomas:         Yeah.

Andrew:         We should be in favor of that.  I don’t care how far left you are, businesses are about to take a massive economic hit because you know it’s really super hard to make money if you don’t have any employees that show up. [Laughs]  

Thomas:         I agree, but it’s still kind of annoying and obnoxious that the whole conservative response or Trump’s response is like “you know what’ll fix this disease? Some Reaganomics!”

Andrew:         [Laughs]  

Thomas:         Here we go!  Trickle down, baby!  Just a couple more payroll tax cuts will fix it.

Andrew:         Look, I agree, and it’s why I made the argument because I have that same reaction, but I wanna point out that Republicans, in fairness to our two Republican listeners, Republicans have that same reaction to the initial Democratic proposals. 

Thomas:         Hmm.

Andrew:         The, like, oh yeah, what you wanna do is expand Medicare, expand Medicaid-

Thomas:         Yeah.

Andrew:         Expand unemployment insurance.

Thomas:         Yeah, you mean things that make sense that would absolutely have helped curtail this slightly?

Andrew:         Look, I’m steel-manning the other side as much as I can here!

Thomas:         Things that unambiguously would have helped us in this situation that we find ourselves?!

Andrew:         That’s right!  And again, you still have, if you’re one of our 99% of our audience that are liberal listeners, you can still stick it to Uncle Frank. 

Thomas:         Whelp, just got the news alert! 

Andrew:         Oh?

Thomas:         New York State is banning gatherings of more than 500 people including Broadway shows.

Andrew:         Yup, yup.

Thomas:         Cool!  Our vacation’s ruined!

Andrew:         Yeah, well. [Laughs]  

Thomas:         I know it’s not the most important thing.

Andrew:         At least you won’t be an incubator for the next strain.

Thomas:         It’s only like the second most important part of all this is that Lydia and I were gonna, for our first time, go away from the kids.

Andrew:         Oh, and if anybody needs to go to Broadway it’s you and Lydia.

Thomas:         I got lots of Broadway tickets we already bought, and now we can’t!  It’s okay, it’s okay, everybody’s suffering.

Andrew:         Look, that’s a good plug for our last episode from a week ago in which we went through – that was episode 366, in which we went through the doctrine of force majeure and how people who find themselves with events that might be cancelled can go about analyzing how strongly to make the argument for getting paid back.  So I will point out, a bunch of people have shared this out with us that a post referencing our show was front paged on Reddit, so if you’re a Redditor feel free to share this one out too.  We’re gonna continue to try to break down all of the legal aspects.

The takeaway from episode 366, force majeure, you have to be very, very specific in terms of identifying the intervening event and the performance by the other party in the event that they have not shifted loss away, must be rendered virtually impossible.  Not just impractical, it must be something that is unforeseeable, so you know, market downturns and “we can’t pay our vendors” are typically not the kind of things that you get to invoke force majeure over.  People may have remedies, but look, this is going to be a tough time for both individuals and businesses is the way that I would summarize all of that.

Thomas:         [Sighing] Yeah, wow.  I know in my dumb head part of me is like “okay, can’t we just all agree?  Just pause.”  [Laughs]  Can we all just agree to pause for a minute, then I’m like wait you moron, there’s all kinds of stuff that’s perishable, you can’t just pause business!

Andrew:         Yup.

Thomas:         People have to eat, people have to do stuff, so I wonder in the best case scenario, if you had the most amazing government and organizations, everything, what would be the minimum that you could impact the economy?  It’s still gonna be substantial because there’s just such a cost to everybody having to stop everything for who knows how long?

Andrew:         It is, and what I worry about is the joke that I just made in the last segment, and that is when rights and obligations are uncertain is when people wind up litigating rather than reaching reasonable accommodations together.

Thomas:         Hmm.

Andrew:         When it’s not clear and one side feels really strongly hey, this is a terrible thing that happened to me and there’s nothing I can do about it, and the other side feels very strongly of hey, I wrote you a check so you should send me back my money.  Those are the kinds of situations that if cooler heads don’t prevail wind up in litigation.  That’s way worse for everybody except … of course, the lawyers involved in the litigation.

Thomas:         Is this gonna be like one of those things where – this happens after fires and floods where everybody has insurance and then because there’s a big event they’re like “well we can’t pay all you because there was a fire, so we’re bankrupt.”  Is it gonna be one of those types of things?  The whole point of insurance companies is to exist to protect from this stuff and then when the crap hits the fan they’ll be like “well we never wanted to pay any money, we just accepted your money, so we can’t do that.”  What’s gonna happen there?

Andrew:         [Laughs]  

Thomas:         If they go bankrupt-

Andrew:         That question sounds like it was phrased by a man who [Laughing] maybe has not had the best relationship with the insurance industry.

Thomas:         Yeah, I hate insurance as business, I don’t think it should exist.  They suck billions and billions out of us then when something bad happens their like oh.  We can’t pay.  Sorry.  It’s like maybe dip into the billions you’ve hoarded from us for decades to pay us all out right now?  But I just don’t like insurance as a business, that’s my political view.

Andrew:         That political view, so noted.  I will say this, unlike force majeure clauses, typically policies of insurance will cover the kinds of events and the kinds of triggering conditions that we’re going to see in the next couple of weeks, couple of months, however long it takes for us to get a handle on some sort of return to normal after coronavirus.

So here’s what that means.  That means we will be gearing up for long series of lawsuits between businesses and their insurance carriers, but look, primary insurance carriers and those that have issued umbrella policies, those insurance companies are not going bankrupt over this.  As you point out, the money is there.  In terms of whether they’re going to pay claims cheerfully or after being forced to by the courts?  I litigated insurance coverage cases for fifteen years so that might give you some hint of where it’s likely to go.

But I would just point out, I think the business is in a better relationship vis-à-vis its insurance policy than they are with respect to you as the consumer.  Here’s why, I think this gets to the second to the last issue on our bullet point so I’m feeling pretty good here!

A lot of folks have asked about the stance taken by the South by Southwest Festival, where they’ve very publicly said hey, we have a no refunds policy and while I cannot find the underlying contract – the reason for that being that the South by Southwest Festival which was scheduled to take place in Austin, Texas, Austin has one of these gathering bans, so they’ve said no, that can’t take place.  People have contacted South by Southwest and said “hey, I want my money back,” and South by Southwest is trying to develop a policy to roll that forward to the 2021 event?  Trying to figure something out.

But what they’ve said is “we’re not just issuing blanket refunds.”  Their justification for this is-

Thomas:         Well they probably don’t have that money.

Andrew:         You’ve cut ahead to the punchline.

Thomas:         Sorry.

Andrew:         No no no no!  I’m glad to cover it!  Which is think about our Seattle Live Show writ large.  If we had pre-sold out the Seattle Live Show and had to cancel it then you and I would be paying out of pocket to reimburse the people who-

Thomas:         Right.

Andrew:         To refund everyone’s tickets.  The reason is you place down deposits on the space and other things that you’re just not gonna get back and so even if we get back some of our travel in the form of vouchers and everything else we’re gonna be out fixed costs and as you go to turn around you kinda look at an organization that survives on attendees and I know that it would involve paying out of pocket and that may deplete or over-deplete the funds that they may have.

But that being said, I think they will be incentivized to find a solution that works for attendees because the language they quote is not great.  Again, subject to the disclaimer that I don’t have the full contract and I can’t get it because they took it offline ‘cuz they don’t want you buying tickets to a show that’s not gonna happen.

Thomas:         [Laughs]  

Andrew:         But it says “South by Southwest does not issue refunds under any circumstances including failure to use credentials,” that’s your pass that you buy, “due to illness, acts of god, travel related problems, acts of terrorism-

Thomas:         Right.

Andrew:         -loss of employment, and/or duplicate purchases.”

Thomas:         So they had that policy in effect if someone’s like “hey, I got the flu, can’t come” and they’re like “sorry.”

Andrew:         Right, yeah.

Thomas:         I guess multiply that times a zillion. 

Andrew:         Yeah, I was gonna say though, but to me I don’t know that that explicitly shifts the risk enough. 

Thomas:         Well because that’s different from them cancelling the event because of the illness.

Andrew:         Exactly right.

[Commercial –]

Andrew:         The fundamental reason here why these businesses are in worse shape vis-à-vis their customers than they are vis-à-vis their insurance carriers is the doctrine of consideration in contract.  We know, we have centuries, literally centuries of case law that says insurance is valid consideration even if the thing doesn’t happen.  So I buy insurance when I’m shipping my goods from England to the 13 colonies, and that is designed to insure against loss of there’s a big storm at sea and the boat sinks.

The boat successfully makes it to New Amsterdam and arrives and I unload my shipments of tea, I couldn’t then go back and say “no no no, that insurance contract was worthless because there was no accident.”  The courts would be like no, you were buying insurance a hedge against the possibility of accident.  But think about it the other way around.  When you buy a ticket to a Broadway show or you buy a ticket to South by Southwest, you’re not buying the percentage likelihood, you’re buying the show!  When the show doesn’t take place the question is then can the contract legitimately shift the risk of that non-occurrence back to you? 

That’s the force majeure analysis we did in episode 366, but the second half of that is in the absence of it being clear, you’re left with the argument in court, and this is the argument I would make on behalf of an individual plaintiff.  I would say yeah, the event didn’t take place.  The question is whether I, as the prospective attendee, can get my money back?  Giving me back the money is certainly something they can do and the question is did their contract shift the risk of this event not taking place to me under these conditions?

Given what I’ve seen, I don’t think generic language about “well, if you don’t show up that’s o you.”  That’s very different than “you can’t show up because we’re not having this, because this isn’t happening.”

Thomas:         Yeah, you’d think. 

Andrew:         Yeah!   But again, remember the flip side of it! [Laughs]  There has to be money there for you to get paid back from.

Thomas:         Yeah.

Andrew:         So, you know, I believe – the optimal result in almost all of these cases is going to be working out an accommodation with the vendor, with the person that sold you your access to that event for something that you feel like fairly compensates you for that event.  Missed Broadway show, hey how about we get tickets for some date in the future?

Thomas:         Yeah.  Yeah, I guess we’ll – but right now I’m evaluating, like are they gonna bar us from flying?  Because what if I just wanna fly to New York to get away from the kids for a day or two or whatever?

Andrew:         [Laughs]  

Thomas:         Just pretend we’re seeing the show.

Andrew:         I have to [Laughs]  A, I think that’s an amazing idea.  B, in terms of are there going to be universal travel bans? 

Thomas:         Who knows!

Andrew:         I wouldn’t have thought – a week ago I would’ve said yeah, that’s a 1%, and now… 10%?

Thomas:         Yeah.

Andrew:         Certainly seems – look, we are still in the data-gathering phase and the more preventative steps that take place the better the long term prognosis is and those preventative steps, as we’ve detailed on this show, are not fantastic.  I absolutely have to get through this segment because I’ve got my sacred honor riding on it.

Thomas:         You see all the, you know, all the people – and frankly it’s often conservatives because they’re trying to minimize this thing because it has Trump’s name all over it, but you see all the people citing like “oh! There’s only been 30 something deaths in the US” or whatever, and it’s just like yeah, we don’t know, right?  There have got to be so many cases, including mien from a few months back, that we don’t even know about! 

Andrew:         Yeah.

Thomas:         It’s like in the Chernobyl show where they’re like “oh that’s not that bad of radiation” and then it turns out it’s because the instrument has a max that it tops out at? [Laughs]  

Andrew:         Right! [Laughs]  

Thomas:         It’s like yeah, we’re all great, no big deal.  We don’t know!  We don’t have the testing to know how many people even have this in this country.

Andrew:         I agree with that 100%, let me give you a concrete example of something that I researched from one of Trump’s claims.  Trump said “the overwhelming majority of these cases so far have been mild.”  That is true.  Do you know how the CDC defines “mild?”

Thomas:         [Laughs] Not dead, maybe?

Andrew:         So I will tell you!  Yeah, the CDC defines “mild” as anything shy of requiring respiratory assistance, mechanical respiratory assistance.  In other words, so long as your lungs don’t fail you could be hospitalized, you could be dehydrated, you could have what we would think of as not mild symptoms, and you will be classified as “mild” unless your lungs collapse or worse.  Be wary of language like that.

Thomas:         Yeah.

Andrew:         When I hear 80% of the cases are mild, you’re thinking “oh, yeah, great!”  A mild cold is one where I’m like, I feel crappy for a day and then the next day it’s not great but then the day after that I’m fine again.  That is not what mild means in this context.

Thomas:         Not only that, but if everybody gets it that means 20% of people or whatever it is are not mild!

Andrew:         Notwithstanding the fact that yes, you wanna look for-

Thomas:         If you flipped it around and the headline was like “hey, only 70 million people are gonna have a horrible, horrible thing,” you’d be like … that sounds really bad.  That’s a lot of 9/11’s.  Multiply it by that.

Andrew:         Yeah, that is a lot of 9/11’s, I agree with you on that.

Thomas:         Alright.  Well you might get to your segment?

Andrew:         Last-

Thomas:         Oh, last thing, sorry.

Andrew:         I’m definitely gonna do that.  So last question comes from Bob who says “if people don’t show for the jury pool and deputies can’t round up enough will defendants have to be released because a jury can’t be assembled?”

Thomas:         Wow!

Andrew:         “Are any jurisdictions thinking ahead to how to work around this?  Can you jury via Skype?  I sure as heck would not go and sit with a room full of strangers at this time, summons or no summons.”  He also adds on, “can I be arrested for all of that?”  Let’s work from that backwards.

The way in which your jury obligations are enforced vary State by State, but generally speaking, I’m gonna talk about how Maryland does it.  Generally speaking States do this in that you have a medical excuse not to show up for jury duty, that’s a subset of the larger conditions for excusal, which in Maryland is § 8-402 of the Courts and Judicial Proceedings Article of the Maryland Code, but again, your State statute’s gonna be similar.  Which says, hey, you’re excused from jury duty on extreme inconvenience, public necessity, or undue hardship.

Typically for a medical, in practical application that means your doctor has to actually fax a note over to the courthouse if you can’t show up.  If you don’t show up for jury duty, most States, like Maryland has a statute that says “failure to report and to show good cause therefore,” means that you are subject to a misdemeanor, which can be a fine in Maryland up to $1000 and imprisonment for up to 60 days.  That is section 8-504 of the same Courts and Judicial Proceedings Article.

The practical upshot is – again, don’t take legal advice or medical advice or anything from this podcast.  There is zero chance that you are [Laughing] gonna get charged with a misdemeanor for failing to report for jury duty.

Thomas:         During a zombie apocalypse.

Andrew:         During a zombie apocalypse.

Thomas:         Yeah.

Andrew:         I wanna point out, this first part I loved about Bob’s question because the court has inherent contempt powers.  If you don’t show up, if you are subpoenaed and you don’t show up they can send out the Marshall and drag you off in handcuffs.  If you are held in contempt in court they don’t have to prove that beyond a reasonable doubt, they can just throw you in prison until you purge the contempt. 

This is not like that.  Your obligation to report to jury duty is subject to a separate crime and if you fail to show up you would have to be charged with that crime and then you would have to be prosecuted and proven beyond a reasonable doubt in front of a jury of your peers which we will not be able to assemble!  So again, don’t take legal or medical advice from this podcast, but do not think that –

[Laughs] Again, let me not say this as advice, I would say it this way: if I were a prosecutor there is not a chance in hell I would bring any kind of complaint, any kind of criminal indictment against anybody who failed to show for jury duty as a result of coronavirus.  How ‘bout I say it that way and then I’ll let you, after consulting with your own lawyer, decide on how you wanna handle appealing for jury duty.

But the larger social question is super interesting.

Thomas:         Yeah, I was trying to think, I like the other part of the question which is what happens to the defendant if they take all this time or there’s some reason that they can’t get a jury together?  Does it start to be civil rights violation to hold them without a trial for that long?

Andrew:         It 100% is.  So the 6th Amendment to the Constitution says that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.  That has been incorporated out to the States.  Yeah, we have a fundamental constitutional right if you are a criminal defendant to get tried.  So far I have not seen anything from the courthouse, and I will as soon as this happens, that jury pools are not being assembled and that- but that’s gonna happen!  Because if Bob is thinking this, lots and lots of people are thinking it.  Yeah, I’m not gonna show up to the court, to that germ factory, are you kidding me?

Thomas:         [Laughs]

Andrew:         Lots and lots of people are gonna think that, so courts are going to suspend the convening of juries, and what this is going to do in a practical sense is we already have an overloaded court system.  I’ve talked about this a lot on this show because it’s really, really important to me. 

This is absolutely going to compound that backlog in a way that is difficult to imagine at this point because the minute that it’s possible to assemble jury pools again, courts are going to have to resume and all of your civil trials, your civil dockets, are gonna get pushed back because you do not have a 6th Amendment right – if I have sued you and I’ve demanded a jury trial and I’m entitled to one under State law, that’s great and all, but I don’t have a constitutional right to a speedy trial of my civil dispute against Thomas Smith.

Thomas:         Hmmm.

Andrew:         I have a constitutional right to a speedy trial on the criminal charges that are levied against me.

Thomas:         What if you demanded a trial by combat? 

Andrew:         [Laughs]

Thomas:         Can we still do that?

Andrew:         [Laughs] We may need to come up with some alternative means of resolution, yeah.

Thomas:         When we do our legal movie that’s our Purge equivalent.  Wow, there’s just not enough juries so everybody demand trial by combat!

Andrew:         I wanna point out, trial by combat with the like judicial scales but you-

Thomas:         [Laughs]

Andrew:         -have an AK-47 on one side?

Thomas:         You pick your weapon and one of them is those scales, and the other- what else could we have?  What other justice-ey things?  A gavel?

Andrew:         [Laughs]

Thomas:         Like a hammer?

Andrew:         Yeah, a big gavel with spikes on it!  I’m telling you, if we could time travel back to 1985 and get Arnold Schwarzenegger and Steven Seagal to sign on this movie would make hundreds of millions of dollars.  So let’s work on that, because teenage me would’ve seen the hell out of [Announcer Voice] Trial By Combat!  [Laughs]

Thomas:         [Laughs] Well, I think you got through it all!  Is that everything?

Andrew:         I do, I think so too!

Thomas:         Geez, you’re getting good at this, Andrew!  We’ve finally calibrated your bullet-point to time ratio. 

Andrew:         Yeah, I skipped pointing out that the presidential executive order restricting travel from Europe exempts the United Kingdom and Ireland where Donald Trump has golf courses?

Thomas:         Ah, yeah.

Andrew:         [Laughs] But I snuck it in right there!

Thomas:         There’s talk of the, like, oh we need to help, uh, businesses like hotels and other things that have Trump names on them and that seems-

Andrew:         Yeah, I’m sure that that’s just a coincidence.

Thomas:         Yeah.

Andrew:         I’m sure Donald Trump has absolutely not, you know, proven a demonstrated history in print of telling foreign diplomats to stay at his properties and profiting off of the action.  We know what this grifter of a President is gonna do with any kind of power regarding international travel.  To be honest, right now as long as we can fashion some kind of relief that will keep the economy going and help save lives, the fact that Donald Trump is gonna grift some more profit off of that, I don’t like it but I’m willing to take that in order to save lives.  But that’s coming!

Thomas:         Alright well you know what else is coming?  Law’d Awful Movies, very soon, and also your talk-

Andrew:         Trial By Combat!

Thomas:         For patrons.  Yeah [Laughs] Trial By Combat, that’s a fine film, we would never make fun of that.  It’s an A+ film.  What’re we gonna do, Citizen Kane next?  Come on, Trial By Combat, 100% on Rotten Tomatoes.

Andrew:         [Laughs]

Thomas:         Anyway!  [Laughs] So these are all great things that you can find on!  You know, we’re all gonna be cooped up, we need the extra listening, so hop on over and I’m just gonna thank our new patrons real quick.  Just a handful this week.

[Patron Shout Outs]

Thomas:         Thank you so much for the pledges, we hope you enjoy that bonus stuff and everybody else hop on too!  Get the access to the bonus recordings.  And now it’s time for T3BE!

T3BE – Question

[Segment Intro]

Andrew:         Alright Thomas! 

Thomas:         This easy test!

Andrew:         This question is gonna-

Thomas:         That I just ace!

Andrew:         You’re just- you are rocking this test so far!  But I have the four most terrifying words-

Thomas:         Oooh.

Andrew:         -for any T3BE-

Thomas:         Here we go!

Andrew:         -participant.  This question begins with “A man owned land.”

Thomas:         NOoooo! [Laughs]

Andrew:         [Laughs] He took out a loan-

Thomas:         [Sighs]

Andrew:         -that was secured by a mortgage on the land. 

Thomas:         Okay, sure.

Andrew:         The man had personal liability on the loan.  The man sold the land to a purchaser, who expressly assumed the mortgage debt. 

Thomas:         Interesting.

Andrew:         The purchaser failed to make two installment payments. 

Thomas:         Okay.

Andrew:         To prevent default and foreclosure, the man paid the overdue installments. 

Thomas:         Huh.

Andrew:         After making the payments, the man sued the purchaser for reimbursement. 

Thomas:         Interesting.

Andrew:         Will the man be likely to prevail? 

Thomas:         [Exhales] Interesting.

Andrew:         A) No, because the man did not initiate foreclosure proceedings before seeking reimbursement;

Thomas:         Hmm.

Andrew:         B) No, because the man was personally liable on the loan; C) Yes, because the law of sir- sorry! 

Thomas:         It’s a good sign if the lawyer can’t even pronounce the word that might be the answer!

Andrew:         [Laughs] It’s coronavirus getting my tongue, here!

Thomas:         Yeah.

Andrew:         C) Yes, because the law of suretyship-

Thomas:         [Laughs]

Andrew:         -permits the man to seek reimbursement; and if you’re wondering-

Thomas:         She sells suretyship by the sheshore!

Andrew:         Yeah, the amount of suretyship law I do is zero.  So that is the first time I think I have had to say that word allowed.

Thomas:         Suretyship.  Is it shur-et-ey-ship or sur-et-ey-ship?

Andrew:         I think both would be acceptable.

Thomas:         I think it should be, because it’s-

Andrew:         Sure is the, yeah.

Thomas:         Shur-et-ey-ship.  Okay, that’s easy.

Andrew:         But to me that sounds like I have a mouth full of marbles, so suretyship.

Thomas:         It also sounds like one of those English villages?

Andrew:         Yeah.

Thomas:         That they would pronounce like “shur-ship” or something.  Like Worcestershire?

Andrew:         Worcestershire, yeah, exactly! 

Thomas:         Straight to shoosh with you!

Andrew:         Yeah! [Laughs] C) Yes, because the law of Worcestershire permits the man to seek reimbursement!

Thomas:         Yeah!

Andrew:         Or D) Yes, because the man’s transfer of the land discharged him from any personal liability on the loan.

Thomas:         Well that’s very interesting.  What a weird question, I don’t even know- I guess it’s real property but it’s kind of about loans and such.  So okay.  He owns the land, he has a loan that is secured by mortgage on the land.  And it says he has personal liability on the loan.  He sells the land to a purchaser who expressly assumed the mortgage debt.  When the purchaser failed to make two installment payments then the man- this is the part I don’t get.

To prevent default and foreclosure the man paid the overdue installments.  To prevent- is the man just worried that he had personal liability and it wasn’t gonna transfer?  Because this just sounds like why did he do that?  [Chuckles] I mean, he sold the land … so he sold the land, what does he care about default and foreclosure?  I guess because they can go – I don’t understand.

But anyway, after making the payments the man sued the purchaser for reimbursements.  Well this seems really hard because I don’t get it.  I don’t really know why he would have even bothered.  So if I just pay two of Andrew’s mortgage payments for no reason can I sue him to get that money?  I dunno! [Laughs] I’ve never thought about that before.

Okay, I guess we assume he’s worried about his personal liability on it?  But there’s still the land, wouldn’t they just go after the land that he no longer owns so it doesn’t matter to him?  I’m very confused.  Okay, we’ll do our best here.  So will he prevail?  If I’m just thinking rationally I honestly don’t even know if it’s going to be a yes or no answer.  I can’t even come up with “oh, this probably should be a yes answer or no answer” I’m pretty divided on this.  If you just pay somebody’s mortgage for them for absolutely no reason that I can understand, I dunno if you just get that money back or what?  Why would you be able to get it back?

So, will the man be likely to prevail in getting his money he paid for no conceivable reason back?  A, no because the man did not initiate foreclosure proceedings before seeking reimbursement.  So that’s the idea, I guess you can foreclose… what is he even foreclosing!  I don’t understand!  He owned land, he took out a loan that was secured by a mortgage on the land.  He sells the land and the purchaser of the land expressly assumed the mortgage debt.  So what is he even foreclosing on?  I don’t understand.  You’re done, there’s no connection that you even have to this person.  Am I losing my mind?

Like if I sell you a car, let’s say I still owe on a car – it probably wouldn’t work the same with cars, but just assuming it did.  If I sell you a car and you’re like – you and probably the car loan people are like yeah, we’ve agreed that you’ve taken on this loan now and then you miss payments, what do I care?! Augh, this is weird.  Okay, can’t wait to find out what’s going on in this question.

No because the man did not initiate foreclosure proceedings before seeking reimbursement.  I don’t know what that would mean, what would you foreclose on?  I have no idea.  Are we to assume that the purchaser owes … no.  The purchaser failed to make two installment payments… Whatever.

B, no because the man was personally liable on the loan?  I mean that’s possible.  Maybe because he still has some personal liability somehow that he’s just kinda making the payments and that’s on him?  I dunno.

C, yes because the law of suretyship permits the man to seek reimbursement.  [Sighs] D, yes because the man’s transfer of the land discharged him from any personal liability on the loan.  But I don’t even know.  Again – D sounds kinda the most right, but I almost – so D, I like the rest of D.  Because yeah, the man’s transfer of the land discharged him from any personal liability on the loan, although it’s not really the transfer of the land.  Hmm.  It’s more that the purchaser assumed the mortgage debt.  Yeah.

Okay, I like that.  I’m gonna grasp onto that little thing and disqualify D for … some reason.  C.  [Sighs] Everyone’s gonna quit listening because this is an impossible question.  That’s fine.  Fast forward.  Sorry everybody.  This is ridiculous.  C yes because the low of suretyship.  So do I wanna go with suretyship?

B, no because the man was personally liable; A no because the man did not – I don’t like any of these answers.  Suretyship permits- you know what?  I’m gonna go with C!  I’m just gonna gamble with law of suretyship and just hope it’s that, I don’t understand this question in the least.  Sometimes that happens, C, final answer, see you later!

Andrew:         [Laughs] Alright, and if you’d like to play along with Thomas and maybe have a better reason than “eh, I’m gonna pick something”-

Thomas:         Suretyship!  Good enough for me!

Andrew:         [Laughs] You know how to do that!  Just share out this episode on social media, which is a coronavirus-free way of introducing everyone to the show!  Include the hashtag #T3BE, your answers therefore and we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, thanks for listening.  Wash your hands, don’t touch your face!

[Show Outro]

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