Listen to the episode and read the show notes
Topics of Discussion:
- Purdue Pharma Settlement Update
- Breakin’ Down the Law – North Carolina Sneak 9/11 Vote
- Andrew Explains Brexit Legislation
- T3BE – Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 315. That is not pie, I dunno what that is. I’m Thomas Smith, that over there is Andrew Torrez, how ya doin’, sir?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: Great! Doin’ great!
Thomas: I’m still excited, I’m just as excited about the live show. [Chuckles] I might be a little more excited, in fact.
Andrew: I think I’m more excited than last episode.
Thomas: Yes, it’s slightly closer, so, excitement in proportion.
Thomas: There’s some interest on that excitement over time.
Live Show Teaser – Special Guest
And also I’m gonna tease a special announcement about that. We’re going to have, in all likelihood, it’s 95% certain that we’re gonna have a special guest, and it’ll be somebody you’ll be excited to see! Somebody who’s been on the show but it might be tough for you to guess, but we’ll announce that later. Special guest going to be making at least an appearance and I think we have a good segment planned, should be a lot of fun.
Also we’ll see if this person can come to, you know, the platinum – I’m not sure about that, they may be able to stay after for the VIP hang, though, so that’ll be just another reason to go buy your tickets to the L.A. live show!
It’s all public for everybody now, go in the show notes, click on that link, and buy your tickets, do not miss out, we are not going to be in that area anytime soon again, so if you’re anywhere near, buy those tickets, come to the show!
Andrew: Totally agree.
Thomas: Alright anything else? Any other new announcements?
Show Teaser – New upcoming content
Andrew: Yeah, I am really, really excited.
So we are continuing to try and build the show, we’ve talked about how Heather Loveridge is doing an amazing job on transcribing every single episode, if you haven’t checked those out you should share them out, it’s a great way to share on places like Reddit, in other areas where maybe folks are not gonna download a full podcast but you can cite to the transcript of what we’ve done.
In the spirit of that we’re gonna have regular updates from somebody who may be my favorite recurring guest on the show? Somebody absolutely fantastic and we’re gonna have a big rollout for that, but we’re gonna have a recurring segment from a voice that I’m really excited to add to the show, so a little tease there.
Thomas: Jeez, an awful lot of Vague-booking in this episode, sorry people!
Thomas: I don’t know why Andrew won’t just come out with it, but alright, that’s fine. We’re building a buzz nationwide, everybody’s murmuring. But we’ll tell you who everybody is soon.
Thomas: [Chuckles] That’ll be a lot of fun. We don’t like to play favorites, however we definitely have our favorites-
Thomas: -and this person is among our favorites. Okay, well I think that’s it for announcement talk. Only two announcements, nice change of pace, and now it’s time for good ol’ law talkin’ guy. [Laughing]
So today we are going to be talking about Purdue Pharma, this is an ongoing story, of course we talked about it already a little bit but this is one of the major stories of our time as much as Trump is all consuming, I do think with how big this opioid epidemic has been this is something that is gonna be in the history books in terms of how this was dealt with, so very interesting to cover the legal aspects of that and how these companies may or may not be held accountable, so I can’t wait to do an update there.
In the main segment we are going to be talking about this weird thing that happened. This was one of those where I saw the headlines and I instantly knew what’s Andrew gonna tell us about what really happened? Because North Carolina overrode a veto on 9/11 while the Democrats were gone? Who knows, sounds like a total mess but Andrew’s here to set it all straight for us.
Then finally we’re going to be talking about Brexit. Wow, I didn’t know you were an expert in British law now, huh Andrew?
Andrew: Apparently I am now! So [Laughing] we’ll see how that segment goes!
Thomas: I’d say you know as much about it as anybody else can predict what’s going on over there. Nobody seems to know, so that’ll be fun. So there you go, that’s our show! Let’s get to it!
Purdue Pharma Settlement Update
Thomas: Alright Andrew, what’s the update on Purdue Pharma? Tell us the hopefully good news?
Andrew: Yeah, well it is.
Overview of Settlement
Whatever your take was on our coverage after episode 311 is the tentative settlement that Purdue Pharma has reached in the pending Ohio multidistrict litigation cases. That will involved Purdue Pharma being taken into bankruptcy, an additional company being created that will continue to sell OxyContin, that additional company will not be run by the Sacklers.
The Sacklers will give up control, and in addition to taking Purdue Pharma and all of its assets into bankruptcy to pay off claims the Sacklers will kick in $3 billion of their own personal wealth, that is out of an estimated net worth between $13 and $15 billion.
Although I should add – and this is a really, really good point – a couple of listeners wrote in to say that their current net worth is a function of Purdue Pharma’s net wealth, because most of it comes from the fact that they own Purdue Pharma stock.
Andrew: And so events that reduce the value of Purdue Pharma stock also reduce the value of their net wealth, which is a good point.
So how does that rate as a settlement? You know, there are certainly Attorneys General who think that it’s not enough, Attorneys General who have promised to go after the Sacklers in an individual capacity, and there’s some potential theory to do that.
Limited Liability Corp. Protections
If you act on behalf of a corporation you are shielded, or an LLC. The “LL” in LLC stands for “limited liability” company, so when you have a corporate person, when you have a company, the acts you undertake on behalf of that company are not, generally speaking, attributable to you as an individual unless you’re acting ultra vires, unless you’re acting beyond the scope of the legitimate authority of the company, and certainly some of the allegations regarding the Sackler’s behavior in connection with Purdue Pharma are, you know, illegal acts.
And again, I wanna be 100% clear on this, no one is saying the Sacklers hired a hitman, [Chuckles] right? This is a hypothetical. So for everything I do on Opening Arguments, if I defame somebody that person gets to sue Opening Arguments Media, LLC, that’s the whole reason we have the LLC, but if I use OA’s bank account to hire a hitman to brutally murder Preet Bharara, let’s say, which I would never do!
Thomas: Why? Yeah, let’s pick more fun targets, how ‘bout-
Andrew: Well I was trying to pick the only show that’s, you know, competitive with our show, but-
Thomas: Oh! Oh, I see what you’re going for.
Andrew: You know, maybe Neal Katyal that does that Opening Arguments segment-
Thomas: Here I thought you were gonna do some like good activism with your hitman hiring.
Andrew: Oh, no, no no! It’s totally self-interested.
Thomas: Ah, okay! Fair.
Andrew: But, yeah Neal Katyal who runs the Opening Arguments segments on [Laughs]
Thomas: In that case makes sense to use the OA funds for that, I get it.
Andrew: Right, right. So, yeah, it benefits both of us ‘cuz I’m eliminating the competition.
Andrew: No, we love Preet Bharara, you’re totally fine!
Absolutely Preet Bharara would be able, not only to sue Opening Arguments, but sue me in my individual capacity because I’m acting beyond the scope of Opening Arguments actual legal entitlement to conduct business. Opening Arguments does not have the legal right to hire a hitman.
So there will be those theories, but as you might imagine it’s a high bar. This is called “piercing the corporate veil” and it’s a high bar to achieve. So how you view that settlement is a function of how you viewed the settlement on episode 311.
Apparently there were a couple of rounds of negotiation back and forth, the initial Plaintiffs were in a position where they requested more money and the Sacklers said no, this is it in terms of what we’re putting on the table, and the reporting is that they have taken that arrangement.
Why does this settlement require court approval?
Thomas: Okay, so some people wonder, why does this require a Court approval?
Andrew: Yeah, good question.
If you think about a normal settlement, most everyday settlements do not require Court approval. You and I get into a dispute over breach of contract, I sue you, we negotiate a settlement and then we can just go to the Court and say the parties have agreed to settle this litigation amicably and voluntarily dismiss the litigation, and the Court is super happy to get another case off of its docket.
But because of the procedural posture here, because Purdue Pharma will be taken into bankruptcy, there are – and Bankruptcy Court is not the only cases in which the Court will step in and assume control over settlements, it also happens in class action cases.
Thomas: Mm-hmm (Affirmative)
Andrew: There are a bunch of specific exceptions where the Court will say, “we’re concerned about fairness to other parties.”
Andrew: And bankruptcy is a really, really good example of that.
The whole point of bankruptcy, the minute you file for bankruptcy the Bankruptcy Court will issue what’s called an Automatic Stay, and it is what it sounds like. It’s designed to preserve whatever assets are left.
Ordinarily you’re running a business, you get to choose how you pay your bills. You pay ‘em first in, first out, last in, first out, the ones I like most and the ones I think I can get better terms on-
Thomas: Or if you’re Mnuchin you pay yourself first-
Andrew: [Laughs] Yeah.
Thomas: -and then nobody else, right?
Andrew: And then nobody else ever, that’s right.
Bankruptcy is designed to avoid the raid on the debtor’s assets. It says, “look, no no no, we are not just gonna say okay if you get lucky you can get 100 cents on the dollar until the assets are exhausted.”
Once a debtor has come under the egress of the Bankruptcy Code the law says “we want to treat similarly situated debtors similarly,” so if Purdue Pharma owes you money because you fall into “X” category, we want everybody who falls into that category to be treated similarly.
Now that means you’re probably not gonna get 100 cents on the dollar, but that way some victims won’t get 90 cents on the dollar or 100 cents on the dollar while everybody else gets zero. You’ll come up with a plan that allocates those assets in as fair a manner as possible.
So that’s why the Court has to assume jurisdiction over and approve the settlement, to make sure that it’s not violating some of the fundamental principles of Bankruptcy, which is – the main rule is treating similarly situated creditors similar.
Thomas: Yeah, and as far as the Court approving it, I seem to remember we talked about a case – gosh, what was this?
Where people were really mad at a Judge for approving some sort of settlement but I think you pointed out, well they have one job which is “is the settlement Constitutional? Can this settlement be done?” The judge doesn’t come up with the terms of the settlement, they just have to approve it, is this not incredibly unfair or something like that. Do you remember what that case was?
Anyway, that’s what you’re talking about, though, right?
Andrew: Yeah, that’s exactly right and I don’t remember the specific case but that principle is appropriate.
Remember that this is part of the argument in favor of the settlement at the moment. And again, you know, politically different folks are gonna fall on different sides of the issue here. If a Court tears up the settlement what Plaintiffs are entitled to the day after the Court tears up that settlement is zero.
Litigation is uncertain and litigation is expensive and so, so long as it doesn’t violate fundamental principles – and what violates fundamental principles? Paying one class of creditors in a manner that is grossly disproportionate to a similar class of creditors.
In a class action lawsuit – think about it, if you didn’t have court approval over class action lawsuits then what you would do is you would just take all of the named plaintiffs and be like “hey, how ‘bout we pay you guys all twice what you’re asking for and everybody else a penny?”
Andrew: It would be super easy to-
Thomas: Or say some settlement where a sex offender pedophile gets to live comfortably and go to work and like barely do any time for all their crimes, like that kind of settlement you think would be really unfair?
Andrew: [Laughs] Oh that would not be a civil settlement, but yes, right.
Thomas: Right, yeah.
Andrew: I am not claiming that we do not have an unequal justice system, that is patently evident, but yeah.
So that’s why the Court maintains jurisdiction and needs to sign off, probably by the – well, I don’t wanna predict that by the time this show airs they will have approved, but if the settlement is – and it is confidential right now, it has just been negotiated so I have checked the docket, it has not been uploaded as of the time that we records this show.
Andrew Prediction on ultimate settlement outcome
If it is what it’s reported to be I expect that the Court will approve of the settlement and enter it shortly and we will see a new company, not under Sackler control, that will continue to market OxyContin. Presumably it will have learned the lessons of the existing opioid crisis and will not replicate some of the very worst behaviors. It will not be under the control of the Sacklers and there will be a bankrupt trust funded with an additional $3 billion that will start paying out victims.
Again, could there be more? There could be more. Could it be more punitive? It could be more punitive. But we’re not gonna wind up with a situation where those plaintiffs get or risk zero and I think that’s a good outcome. But, you know, I’m a lawyer, your political view may vary.
Thomas: Yeah, it seems to me that it’s not nothing. It seems like it’s definitely way more harsh than perhaps our cynical expectations could have been going into this, so that’s good.
Andrew: Yup. Yup!
Thomas: Alright, well is that our update? Are we ready to move on?
Andrew: Yes we are.
Breakin’ Down the Law – North Carolina Sneak 9/11 Vote
Thomas: Alright well let’s talk about this weird thing that happened. So, Andrew, what is going on here? Because it sounds like – you’re gonna have to correct me if I’m wrong – it sounds like a bunch of America-loving, freedom-loving Republicans, like, tricked Democrats into going to a 9/11 memorial or something? And then they voted while they were gone? Is that – that’s kind of the representations I’ve seen. Is that some crazy liberal propaganda or what really happened in this situation?
Andrew: Yeah, this is the kind of thing that when I first saw the headlines I thought “oh great, the whole world has gone Occupy Democrats, I’m gonna have to get out and correct this” but no, essentially that’s true.
Andrew: [Laughs] And I’m gonna break down how it happened, how egregious this is. I’m actually going to have on, I hope next week, a member of the North Carolina State Legislature.
Andrew: A Democrat, to tell us about her experience and to talk about gerrymandering and talk about what the clownhorn is going on in North Carolina. But until then let me break it down as best as I can.
2016 Election causes republican POWER GRAB
North Carolina, in 2016 [Mumbling] (not a great year for Democrats.) But North Carolina, we elected Roy Cooper, Democrat, as governor, and at the time: A, Opening Arguments was in its first two dozen episodes; and B, we were rather distracted with Jill Stein’s recounts? What’s gonna happen with Trump? And this and that.
We missed this story in the lame duck session in December of 2016. I’d like to think we wouldn’t miss it today, but we missed it then, and what happened was the massively gerrymandered Republican state legislature in 2016, the same one we talked about last week, that the State Supreme Court has struck down the redistricting twice.
They called an emergency session. They did so under grossly pretextual circumstances, and they passed a raft of bills rather like the ones that we talked about in Wisconsin.
Andrew: Right, yeah.
Thomas: I remember that.
Andrew: They were designed to strip power away from the incoming Cooper administration. So the Cooper administration has basically been a holding action against the Republican State legislature.
I wanna sidebar on that a little bit, again, we’ll ask our guest next week. So Democrats have been fighting, and as we point out we’re gonna replicate these fights in Wisconsin, in Florida, in the States in which the Republicans have tried to maintain power in places where they’ve lost elections.
To some extent they’ve been successful. So, for example, one of the bills that passed in that session changed the Board of Elections, which is a State executive agency [Laughing] and transferred jurisdiction under the State House of Representatives. So taking it away from the Democrats and to the Republicans, and that was ruled unconstitutional. The gerrymandering was ruled unconstitutional.
And as we pointed out, despite the fact that the State is grotesquely gerrymandered into favorable districts for Republicans, the Democrats, statewide, were able to deprive the Republicans of their veto-proof majority in both Houses.
So even though, massive uphill battle, Democrats were able to win that uphill battle. So as a result, we now have a total deadlock in North Carolina. You have a howler monkey State legislature that can’t pass its own laws because they no longer have a veto-proof majority.
And part of the sidebar that I wanted to say is, when we talk about fighting holding actions, when we talk about what can you run on? Running on, “hey those guys tried to steal elections and do bad stuff and we’re stopping them” seems to have worked for Democrats in North Carolina.
Andrew: There are very few accomplishments that the Cooper administration can point to because of the gridlock, but the Democratic share, statewide, of running for the State legislature went up in 2018. So, you know, that seems to be some empirical evidence that in an area that certainly has a lot of conservative folks, that is a slightly Republican but not nearly as Republican as gerrymandering makes it seem, State that just running on “those guys are awful and we’re trying to stop them, help us continue to do that” has salience with voters. I’m encouraged by that.
So this is about the budget. The howler monkey Congress passed a budget, it’s a terrible budget, and Governor Cooper vetoed it. North Carolina has a very, very weird Constitution.
Thomas: Let’s pause and find out-
Thomas: -how weird the Constitution is right after this break!
[Commercial – forhims.com/oa for a $5 hair-loss kit]
Real Howler Monkey Revenge
Thomas: Alright Andrew, I’ve got two questions for you. One, do you ever think we’ll be named in a class action lawsuit of howler monkeys for how much we compare them to horrible people?
Thomas: I feel bad for howler monkeys.
Andrew: I do too!
Thomas: Defamation, per se, of howler monkeys. And then, two, tell us about this one weird Constitution that [Laughing] North Carolina has.
Andrew: [Laughs] Yeah, we have definitely defamed howler monkeys.
Andrew: So I should consider that.
Thomas: That admission is a bad document! Brian, delete that file!
Andrew: Yup! [Laughs]
Thomas: That’s gonna be bad for our defense!
Andrew: It will be bad for our defense.
North Carolina’s One Weird Constitutional Provision
So you may recall that when I was going through the gerrymandering decision I pointed out that the numbers that the North Carolina Supreme Court had used to describe having a veto-proof majority were at 60% rather than two-thirds or three-quarters.
Andrew: And that’s true. It’s not the weirdest provision. So, okay, the North Carolina Constitution says-
Thomas: Well am I just totally misinformed or is that how the United States Senate works? Don’t you need 60 for a-
Andrew: No, you need 60 for cloture in the Senate.
Thomas: Oh! Veto-proof! Oh, I’m sorry. Yeah, yeah yeah. Yup.
Thomas: I am just mixing it up, my fault.
Andrew: That’s okay! So this is Section 22 of the North Carolina Constitution and is says that if the State legislature passes a bill they send it to the Governor’s office, if the Governor approves then the Governor signs it, the bill becomes a law. “[I]f not, the Governor shall return it with objections, together with a veto message stating the reasons for such objections, to that house in which it shall have originated.”
Like the U.S. House of Representatives, State budgets originate in the State House in North Carolina, so it goes back to the House. “[W]hich shall enter the objections and veto message … on its journal, and proceed to reconsider it.”
Then here’s the crucial provisions: “If after such reconsideration three-fifths of the members of that house present and voting shall agree to pass the bill, it shall be sent … to the other house,” where, “if approved by three-fifths of the members of that house present and voting, it shall become a law notwithstanding the objections of the Governor.”
So you see the key words are “present and voting.” Unlike the U.S. House of Representatives where a no-vote, a not present essentially counts as a “no” vote, here-
Andrew: -to override the veto you just need three-fifths of those present. So technically-
Thomas: Oh man.
Andrew: -you can override a veto with 31% of the legislature.
Thomas: That’s like when you mess up some coding!
Andrew: It’s bonkers.
Thomas: Like you’re trying to program something, you’re like “oh yeah that makes sense” then you come back later and you’re like “oh no!” [Laughs] I’ve made it such that if one person is there – no, that can’t be right!
Andrew: Yeah. Well, you still have to have a quorum.
Thomas: Oh, yeah, okay.
Andrew: So the quorum has to be 50% plus one, but-
Andrew: Yeah. If you get 50% plus one and then three-fifths of that, which is [Teeth-clenched] exactly what the Republicans did.
What happened in north carolina on 9/11?
As far as I can tell, again, we’ll have someone on and ask them, they deked the Democrats into not showing up to go to a 9/11 memorial on September 11th being held at the Governor’s Mansion. Again, Democratic photo op.
And then they said, “oh, yeah we totally pinky swear we’re not gonna call an emergency session of the State House of Representatives while you’re gone!” … “Are they gone? Okay!” and then they called an emergency session and voted 55-9 to pass the budget, which was an official session and met the three-fifths requirement so it has now passed the North Carolina House of Representatives, it goes to the North Carolina Senate.
Now the North Carolina Senate is not a veto-proof majority, there is one Democrat that hangs in the balance.
Thomas: Okay, don’t go to any memorials! [Laughs]
Andrew: Yeah! So remember this! Because we’ve talked about, for example, on the Kavanaugh vote, and I forget which Democratic member of the Senate agreed to cast an abstain vote-
Thomas: Oh they kinda had like a deal because somebody needed to go visit-
Thomas: -their dying grandma or something?
Andrew: Yeah, right.
Thomas: Fair enough.
Lesson for the future on the new norm of dirty trickery
Andrew: So, you know, when they talk about civility and norms, remember this [Laughing] okay? Because that’s correct.
It is now the case in North Carolina that you can’t miss votes. If that one Democrat isn’t there on the day in which they call the vote they can probably get to three-fifths with just the Republicans, so you have to pick a day in which one or two Democrats are out and your entire Republican contingent is in.
That assumes, by the way, that there isn’t a Joe Manchin in the North Carolina State Senate. I don’t know the answer to that, but they may be able to pick off a State Senator anyway. I would hope that the shocking underhandedness, dirty trickery bight mean that the Democrats are able to pick off Republican members of the Senate and protect themselves, but again, we’re gonna find out those answers hopefully next week.
But, yes, this is the rare case in which the hyperbolic headlines that you’ve read are 100% correct due to this one weird provision in the North Carolina Constitution where you only need three-fifths of those present.
Thomas: Well yeah, plus depravity and disgusting behavior by Republicans.
Andrew: Correct, yeah.
Thomas: There’s also this one weird trick plus awful people willing to exploit a 9/11 memorial to get their-
Thomas: -agenda through. Wow.
Andrew: Never forget!
Thomas: [Laughs] Wow! Alright, well thanks for that breakdown. So headlines were accurate on that one. It’s important to note because not always true, but in this case they were true. Okay. Are we ready to talk Brexit?
Andrew Explains Brexit Legislation
Andrew: Let’s talk Brexit. [Sighs]
Thomas: I feel like this is a little weird, I feel like Boris Johnson is running into the brick wall that everyone runs into over there when they try to do something that is impossible, which is make everybody happy [Laughs] on the Brexit question. What angle did you want to cover on this? I don’t really think – have we covered Brexit before?
Andrew: Yeah, this is the first time we’ve done it in any depth. The angle I wanna discuss is as this show is being released, Tuesday September 17th, the U.K. Supreme Court is considering the justiciability of a particular question involving prorogueing the British Parliament. I learned what all this stuff is, and so I can’t wait to share it with everyone!
Thomas: That’s cool!
Andrew: And I can’t wait for the billion “Andrew Was Wrong” emails [Laughs] that I’m gonna get on this!
Dungeons and Dragons sidebar
Thomas: [Laughs] Well I’m pro-Rogue in general, but how does – just as a D&D class maybe.
Andrew: [Laughs] Oh, can I share – I’m gonna share this on the air, 20% of our audience will find it hilarious, 80% you can skip ahead 60 seconds. As a result of the Puzzle in a Thunderstorm drive there is a game, a D&D game that is-
Thomas: Oh man.
Andrew: -being met for one of the patreon drives. I’m not in it to play ‘cuz my schedule wouldn’t permit, and I just want to point out that in that D&D game Noah is playing a Gnome Illusionist [Laughs] and I just find that so funny!
Thomas: That is funny.
Andrew: Anyway, that’s my D&D humor for the day.
Thomas: Worthwhile. I enjoyed it.
Andrew: I thought it was worth it. Okay, back to our show!
So here’s what’s going on to the best of my abilities to understand. Brexit, as we all know, is racist and terrible and stupid. In addition, have you seen the John Oliver on Boris Johnson? I know you’re a fan.
Thomas: I have seen every John Oliver, yeah.
Andrew: Me too, and we have it on pretty good authority that at least someone on his writing staff listens to this show, they did a fantastic job. And so that Last Week Tonight painted Boris Johnson as, essentially, a craftier Donald Trump. It was pretty eye-opening.
Current Brexit Status
So the deadline for the British leave from the European Union is October 31st. The real issue right now is – my understanding is – everyone agrees, outside of cranks, even among the conservatives, even among pro-Brexit folks who are still pro-Brexit despite the fact that there doesn’t seem to be a good reason to still be pro-Brexit, that there must be some kind of transition period.
Part of those reasons that I can find are, number one, the laws that currently exist that prescribe regulations with respect to goods that are in the European Union have to be re-codified to apply only within the United Kingdom, otherwise there will be tremendous uncertainty. Number two, existing contracts, same thing.
So, in other words (and I know that there’s more and I started to read that) but it is kind of taken as read that allowing October 31st to come and go and just pulling the U.K. out of the European Union would be a disaster, and no one wants that.
So what has taken down the last two British Prime Ministers is the failure of the coalition government led by the conservatives to come up with an appropriate transition plan to implement Brexit.
Thomas: Did it take out two? I thought the first one was Brexit itself took-
Andrew: Well, yeah.
Andrew: But as we’re getting down to the wire it’s sort of like the Footloose tractor chicken sequence. It’s a very, very slow game of chicken and someone will blink because the alternative is a disaster.
Thomas: Yeah, and it’s such a contradiction. The problem is, yes, the people did end up voting for Brexit by a small margin but there was no detail. I think it’s interesting to consider, mathematically, the “Brexit or No Brexit” question was kind of unfair. It should have been “Brexit with a deal,” or “Brexit with this deal,” or “Brexit with that deal,” or whatever, versus staying in and because those were all blended into something called “Brexit” it passed, and yet nobody knew what that meant. Nobody knew what those terms would be.
And what I think is interesting about this situation (it’s annoying and it’s sad) is that someone like Boris Johnson and who knows how many others there could be? Any smart person, I would think, any informed person would realize that what people want to have happen, what Brexiters want to have happen – it’s a contradiction.
You can’t have everything you want here. There’s just no way the EU is going to agree to it, there’s nothing in it for them to give the UK a great deal on their Brexit, because all that would do is incentivize other countries to leave and get a good deal and it doesn’t make any sense, but Boris Johnson’s been able to bluster his way and just kind of bluff his way into saying “oh no, I could do it, this is great! I can definitely do it,” and then enough people believe him and now he’s in power and then he’s gonna run into the same problems that everybody’s running into and it’s a horrible mess.
Andrew: That’s exactly right. So Boris Johnson came up with this plan, and the idea was “if I can take Parliament off the table, if I can make them not be able to meet, not be able to propose solutions, not be able to evaluate my plan for as long a time as possible, then I can cram through my absolutely terrible plan at the last minute because when I offer everybody, hey, sign onto terrible plan or I’m just gonna let the tractor crash, eventually the other side will blink because that’s [Teeth clenched] what happens when you’re facing a monster.” It’s always somebody else who has to play the grownup.
In the U.K. the technique that he seized on to do this is called proroguing. Now, proroguing dates back to thirteenth century Saxony.
Andrew: It seriously does! It dates back to the Magna Carta.
Because Parliament is assembled from the People to intermediate between the People and the Crown and it began with the notion that to reach the Crown’s subjects you would send out various ministers and then they would go out and tell the folks what’s going on and then they would turn around and inform the ministers who would then convey their needs back to the Crown. So to prorogue Parliament means to dissolve that session of Parliament.
And look, this happens all the time – when I say all the time, it happens every couple of years automatically, and from a procedural perspective when Parliament is prorogued it is dissolved and all of the pending business is just taken off the table and then new Parliament is convened by the Crown. So you kind of get this do-over. It’s like, okay, well, we tried everything we were gonna do legislatively in the last Parliamentary session, we’ll prorogue for a couple of days, dissolve, convene a new Parliament and start over with a new agenda. The person with the authority to prorogue Parliament is-
Thomas: The queen?!
Andrew: The queen! Yes!
Andrew: And again, since time immemorial when the Prime Minister asks the queen to prorogue Parliament she says yes.
Thomas: Isn’t it just a formality – yeah.
Thomas: It’s like, alright, we’re still pretending that the queen matters or something, I dunno.
Andrew: Exactly right.
Boris Johnson’s Plan to Force No-Deal Brexit
So Boris Johnson’s plan, that he developed in the summer, was to prorogue parliament from September 9th to October 14th. That would leave them literally two weeks in which to reconvene and try and gum up the works from his perspective or, as you might say from the other side’s perspective, make sensible proposals for how to, or whether to, expedite, facilitate Brexit, to check against the worst impulses of what Johnson wants to do. That’s the game plan.
Have a month plus in which there’s no Parliament, there are no alternatives, and so when they come back it’s kind of a fait accompli. Like, “oh, sorry! I’m just driving this tractor and who knows where it’s gonna wind up.” So various members of Parliament, what is called a cross-party group (what we would call bipartisan, but again because there’s multiple-parties-
Thomas: Oh, yeah.
Andrew: -in a Parliamentary system) a cross-party group of MPs, Member of Parliament, and Peers, those are members of the House of Lords, got together and said “we are going to sue to prevent Boris Johnson from asking the queen to prorogue Parliament.”
On August 28th Boris Johnson did that, went to the queen and said “hey I want you to prorogue Parliament effective September 9th,” and the queen said “sure, I will do that,” and this went to the Courts.
High Court of England Legal Decision
Here’s where we have the legal question. So first it went to the High Court of England. Now, notwithstanding the fact that it’s called the High Court, this is a court of original jurisdiction, so it’s the equivalent of a trial court. Again, not a trial court for speeding tickets or minor tort or criminal offenses, but it’s the first court that you go to on Constitutional and Parliamentary matters.
That Court said “nope, the decision by the Crown to prorogue Parliament and the decision by the Prime Minister to ask the queen to do that is a nonjusticiable question. And again, our listeners know nonjusticiable questions from Rucho, from the gerrymandering case. They said, “I’m sorry, advice by the Prime Minister to the queen as to whether to suspend Parliament or not, that’s a political question and you can’t stop it in the Courts, it’s nonjusticiable.”
Thomas: And in the backdrop of this, the system is so different, right? Because it’s a bundle of weird-
Thomas: -Knights of the Round Table customs. I don’t even understand it! Right? It’s not the same as “oh they have the Constitution which says this”-
Thomas: It’s like there’s a lot more history going on.
Andrew: It is, but again remember that we do share a common law tradition.
Andrew: So you see this kind of overlap and the parallel between the U.S. and the U.K. of courts saying, “yeah there’s some questions we can’t answer.”
Andrew: And, essentially, political questions are questions that aren’t appropriate for the courts. That’s what the High Court said.
Scottish Court of Sessions Legal Decision
But then a couple of days later, just last week, the Scottish Court of Session [Laughs] and Court of Session is – I know. That is-
Thomas: I’m gonna break out my conversion chart and tell me where that is in the hierarchy.
Andrew: [Laughing] It’s the Supreme Court of Scotland, okay?
Andrew: It said, “No, no no no no! This is definitely a justiciable question, we have standing”
Thomas: We’re gonna justish it right now!
Andrew: Yeah! And they did. They justished it up!
Andrew: They said, “and it was absolutely an abuse of power beyond the authority of Boris Johnson to instruct the queen to prorogue Parliament for this improper purpose” which was to essentially give him a leg up in terms of ramming through whatever his Brexit proposal was gonna be. I’m gonna link that case in the show notes just because folks like reading Supreme Court cases and I’m telling you, reading the Scottish Court of Session is-
Andrew: It’s fun! It’s interesting!
Thomas: I’d rather hear it, can you read it to me in a Scottish?
Andrew: We could get someone on with a thick brogue to-
Thomas: Oh it’s so hard! I can understand one out of every seven words at most.
Thomas: So what did Ireland and Wales have to say about- so is this sort of like dueling Circuit Courts?
Andrew: Yes, that’s exactly right. That is exactly right! So the Scottish Court of Session is like the 4th Circuit for Maryland. It is the Supreme Court over these Parliamentary questions with respect to Scotland, but not with respect to England.
Andrew: But now you have this weird situation in which the English High Court has said “this is not a justiciable question,” the Scottish Court of Session has said that it is a justiciable question-
Thomas: Hold my beer! [Laughing] I’ll justish it right now!
Andrew: [Laughs] And the relief, of course, is not dissolving Parliament, which affects all of Parliament.
Thomas: Yeah, everybody. The whole thing.
Andrew: It’s not just the Scottish members of Parliament.
Thomas: Although that would be funny if it was just them! [Laughs]
Andrew: That would be great! Hey, maybe they could use the North Carolina rule, right?
Thomas: Oh man!
Andrew: And we would just have the Scottish members of Parliament. Our British listeners, chime in! Tell us what would happen with that. I know Marsh is listening. But no, so that’s what’s going on today. As you’re listening to this podcast the Supreme Court is reconciling these two contradictory opinions.
Thomas: Oh there is a Supreme Court!
Andrew: There is, yup!
Thomas: Oh, I was gonna say. So there’s a Higher Court made up of, what, royalty or something? [Laughs] Who decides this?
Andrew: [Laughs] There are a lot of wigs involved.
Thomas: Yeah! Wigs upon wigs!
[Commercial – vistaprint.com, promo code “OA2” for free shipping on all business cards]
Andrew: So you will be seeing news reports as you’re listening to this show, contemporaneously herewith, and that’s what it’s about.
The Supreme Court is reviewing whether this is a justiciable question and, if so, if the appropriate remedy is to require Parliament to stay in session. Or, at minimum, that the request that the queen prorogue Parliament is ultra vires, is beyond the power of the Prime Minister to do.
Andrew: I will add, the queen could still say no.
Andrew: It’s tradition that you say yes, and maybe – she lives in a house made of gold and parades around with the world’s most expensive jewels, maybe the thought process is “I don’t know what would happen if I said no and I don’t want to provoke a Constitutional crisis of what power the monarchy still has.” When you’re [Laughing] a hereditary monarch I could see how your inclination would be very, very conservative.
Thomas: Don’t rock the boat, yeah! [Laughs]
Andrew: Yeah, right!
Thomas: Well, I’ll be honest. In my [Sarcastic] expert opinion on this, as a not even American lawyer, it kind of feels like, you know, ignore all the details of everything, if I were just trying to decide what’s fair, it seems like this is how it’s done.
The Prime Minister asks the queen and then the queen does it, maybe that is how it works. If the queen says yes then who would this court be to say no? It’s almost like it would render that power completely meaningless, and maybe they want it to be completely meaningless but as a matter of law it seems as though it might render that meaningless if the idea is “oh no the queen can only say yes if it’s something we already want her to do.” [Laughs]
Andrew: Yeah, I don’t know the answer. And I think nobody really knows the answer.
Andrew: That’s what’s driving this. And as we pointed out, a 200-year old hereditary monarch is probably not gonna be out on the front lines of striking a blow for progressive change. There you have it.
Thomas: This is all very interesting, but I do wanna ask our British friends, our U.K. friends, and maybe Andrew if you have any insight; as much as this is, like, oh power grab, undemocratic, all this stuff, and it is. Certainly, I’m not in any way defending Boris Johnson!
Andrew Doesn’t have a prediction regarding brexit outcome
How much of a difference will this make? Because nothing was happening before, nothing’s getting done correctly now. They’re just gonna run into that hard deadline, right? Nobody’s going to approve either the no deal or the bad deal, so does this really make all that much of a difference?
Andrew: I don’t know the answer to that.
Thomas: Yeah, I don’t either.
Thomas: And maybe I am wrong, so please U.K. people message me.
Andrew: I want folks to write in, I have reached out. Our buddy Marsh has recommended a british lawyer – solicitor? I think she’s a solicitor, and she’s agreed to come on the show, so hopefully we can get those questions answered.
Thomas: Alright! But at the very least you’ve told us what prorogueing-
Andrew: Yeah, and I told you what to look for in terms of the coverage here. I think – okay and here is the question I really don’t know the answer to, and that is, is there an outcome in which the U.K. says, “you know what, forget it. We’re not ready, so no Brexit we’re sticking around,” essentially the “remain” option is going to stay.
I get that sense from political activists, but I lack the experience and knowledge to know whether that is the equivalent of the Jill Stein recounts or “we’re gonna get 37 faithless electors and it’s not gonna be Donald Trump” right? I don’t know how to rate that probability.
From what I have read that certainly there are folks thinking – and it makes sense to me as a practical matter to say “yeah, well look, we had a referendum, people voted Brexit but there’s no real way to do that and all of the ways that we tried to come up with were way worse, so no.” I don’t know how-
Thomas: Or just put it up to a vote with the new information.
Thomas: And my impression is it’s a little bit like Trump’s election in some ways. While Trump didn’t win a majority of the popular vote, but it’s sort of been like, sure, you, me, and everybody who we kind of think knows anything was thinking “okay, we’re not really doing this Trump thing, right?” That’s a joke, we’ll just get rid of him right away, we’ll impeach him right away, we’re not gonna really go through with this “he’s the President thing.” But then you see, well, he won the election and unfortunately that’s something and the system is in place.
That’s been my impression, where it’s “well, they won the referendum.” Brexit won and as much as like everybody that I listen to, because it does tend to divide along those lines of younger, less (maybe) anti-immigrant people are against Brexit and everybody else pro-Brexit, but it won. So there still is a majority of people – well, who knows if that would change with another referendum, but they still have that referendum to look back on and be like “no, this is what they decided,” and unfortunately it’s very confusing to you and I. Why can’t they just do a new referendum with better information? But that doesn’t seem to be happening.
Andrew: Yeah, that’s right and that is one of the many unresolved questions that I have there, but hopefully this helps people kind of parse through the news stories with respect to what these court rulings mean and what’s gonna happen.
Thomas: Alright, well that was … fun! It’s nice to beat up on somebody else for a change rather than the ol’ U.S. of A. [Laughs]
Andrew: [Laughing] Exactly right!
Thomas: Take that, U.K.! You think you’re so superior but you have the same person in power doing bad things too. [Laughs] It’s pretty much the same guy except I think Boris Johnson is ten times smarter than Trump, but he just doesn’t try.
That is what I found most interesting about that segment of John Oliver, because I had heard Boris Johnson on a few interviews back when he was just mayor of London or whatever, and he sounds so much more intelligent. Like I would trade Boris Johnson for Trump any day of the week, I really would, but it was interesting to learn. How could this guy who actually sounds way more intelligent than you would think, but it’s just because he doesn’t try and has [Laughing] no work ethic.
I really loved that part of the segment, yeah he doesn’t prepare for anything, he doesn’t put the work in, he doesn’t do any – I was like, oh, okay, that makes more sense. Alright, well I think it is time for our newly named Top Patron Tuesday over on patreon.com/law. What do you think, Andrew?
Andrew: I love it! Top Patron Tuesday, it’s got such a great ring to it!
[Patron Shout Outs]
T3BE – Answer
Thomas: Top Patron Tuesday, that was fun! Alright, let’s get to T3BE, or Thomas Overthinks the Bar Exam.
Andrew: Alright, so Thomas this was a contract for sale of an unidentified parcel of land, it provided the sale price, $150,000 in cash, did not specify the closing date. And the reason it did not specify the closing date is the buyer wasn’t sure how long and how she was going to raise the cash.
15 days pass, the seller gets a better offer and says “hey I’m gonna break this contract and sell it at a higher price, will you let me out?” The buyer says “no, we had a deal! What are you talking about?” And then the seller’s like, “well I’m gonna take the higher offer” and sells it to the other party.
The buyer sues for breach of contract, who wins?
Right off the bat you eliminated A, the buyer because of the Doctrine of Unjust Enrichment. That was a fantastic elimination because unjust enrichment is when I do a thing for you and even if it’s adjudicated that that wasn’t a valid contract you don’t just get to keep the benefit of the thing.
Doctrine of Unjust Enrichment Defined
Andrew: So I’ve always used that as an example of, I hire you to paint the fence or I think I do, you come and you paint my fence, I prove that there’s some defect in the contract so there’s no binding contract between the two of us, I don’t have to pay you under the contract, you can still recover the value of the thing you did for me. You came out and you painted my fence, so you are entitled to that because otherwise I would be unjustly enriched.
Thomas: Oh, okay!
Thomas: So that kinda almost sounds like it applies but it’s sort of backwards?
Andrew: Yeah, there’s no unjust enrichment here ‘cuz the buyer didn’t do anything.
Thomas: Gotcha. Yeah, yeah. But it’s an attractive distractor?
Andrew: Yes. And you saw right through that!
Thomas: Yeah, you’re darn right I did!
Andrew: Yup! You also eliminated – and I really like your thought process – you said C and D, if the premise is that the contract is unenforceable under the Statute of Frauds that D being true would also entail-
Thomas Was Right!
Andrew: Would be a more specific instance of C being true. That’s really, really perceptive. And so that left you with B, the buyer because the Court will infer that performance within a reasonable time was intended, and I’m super pleased to tell you that is the correct answer.
Thomas: Well, I got it wrong again, everybody!
Thomas: Another question in the – how many is this in a row that I got wrong?
Andrew: You got it correct! No, you’re right!
Thomas: I’m correct in that I got another one wrong…
Thomas: Sorry, Brian you’re gonna have to – am I going crazy? It sounds like you’re saying – so I picked B and what was the answer?
Andrew: The answer was B!
Thomas: I … okay, I’m not understanding, I’m not following.
Thomas: So I … but was there like a B1 and a B2 and I picked the B2?
Andrew: You picked the absolute right answer! Will infer performance within a reasonable time was intended for a contract for the sale of real estate. And this is one of those, like I said, I felt good about you going into it. Think about the way in which real property gets bought and sold. You agree to the sale and then closing is later, right? Because real property is expensive and in 13th century Saxony you had to gather together your goats and whatever-
Andrew: -and raise all the money. And now you’ve gotta go get a mortgage and you’ve gotta go get that approved. Most contracts will specify a closing date, but if they don’t, at common law, still a valid contract that the-
Andrew: -courts will infer a reasonable time to close the deal.
Thomas: Theresa, dust off the win column! Make sure the wiki can still accept input in that side of the ledger!
Thomas: Oh my gosh I got it right! Wow! Naw, he’s prankin’ me, I didn’t get it right, it’s okay.
Andrew: Nope! Congratulations!
When time is of the essence in contracts
And I wanna add one more thing in terms of D. That may be an attractive distractor for some of our listeners, for time to be of the essence, you will hear that phrase because it must be added to the contract to make it so. It’s the opposite of that.
Thomas: So it’s not presumed.
Andrew: Yeah, there’s no presumption. But sometimes you can say “time is of the essence.”
Andrew: You know, you put that in the contract.
Thomas: Say those magic words.
Andrew: Yup. And it’s a little bit of a magic word, it is specifying that we care.
Thomas: [Sighs] Wow!
Andrew: Good job!
Thomas: Holy moly I’m walking on sunshine! Don’t it feel good!
Thomas: Amazing. Well, there you go!
Andrew: Katrina and the Waves, baby.
Thomas: No need to jump in the time machine this week, Andrew, I know who the winner is! Right here, sittin’ in this chair. Winning.
Andrew: [Laughs] I think you should share that chair with one of our fine listeners.
Thomas: Alright. Who’s gonna sit on my lap! [Laughs] Jump in that time machine-
Andrew: Oh man! [Laughs]
Thomas: Never mind, sorry, I’ve just been told for liability purposes, for sexual harassment purposes I can’t say that. Okay! Who will join me near my chair as winner? Jump in your time machine and tell me who our big winner is this week.
Andrew: Oh man, Thomas, you are gonna love this week’s winner who is Tony ‘Too Many Scandals’ T. on Twitter, that’s a lot of alliteration, who says “Thomas is CORRECT, the answer to this week’s #T3BE (Formerly known as #TTTBE) is ‘B’, the buyer prevails because it’s reasonable to assume that Thomas *NEEDS* a win!!!”
Well he’s right, you’re right, that’s a fantastic answer and also I need to point out, everyone should give Tony T. a follow on Twitter, his handle is @fat_tony_77, so not only was it a shout-out to you Thomas but a shout-out to one of our favorite long running characters, Fat Tony on the Simpsons. Congratulations Tony for winning this week’s T3BE!
Thomas: Alright well all I remember from the last two episodes is that I got this question right, I don’t know what any of it was about, but I hope it was good. Good job, Andrew! I’m sure you talked about the law or somethin’, but I got the question right, that’s all I remember. Thank you for listening. Come see us at the live shooow! Buy your tickets and we’ll see you on Friday.
Andrew: See you then!
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