# Weekend Law: Live Nation, A Justice Apologizes & Justice Dept Errors

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 18 Apr 2026, 41 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/0fe1914c-146d-4000-a176-b430015e092f/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Antitrust law expert Harry First, a professor at NYU Law School, discusses the landmark verdict against Live Nation. Then constitutional law expert David Super, a professor at Georgetown Law discusses Justice Sonya Sotomayor’s apology and the shadow docket. And former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses how errors by Justice Department lawyers are testing the patience of federal judges. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:12] Speaker 2: Days.
[0:27] Speaker 1: Whether you're buying tickets for the upcoming concerts of VTS, Bruno,
[0:32] Speaker 1: Mars or Shakira, you probably purchased them on Ticketmaster and
[0:37] Speaker 1: may have experienced sticker shock, especially when looking at the
[0:42] Speaker 1: added service fees. Music lovers who've been complaining for years
[0:46] Speaker 1: about Ticketmaster's fees are surely reveling in a jury verdict
[0:51] Speaker 1: that found that its parent company, Live Nation illegally monopolized
[0:56] Speaker 1: the live events industry and overcharged fans for tickets to
[1:00] Speaker 1: music performances. The verdict is a major win for a
[1:04] Speaker 1: coalition of thirty four states in DC that pursued the
[1:08] Speaker 1: case after the Justice Department walked away from it. Here's
[1:12] Speaker 1: their attorney, Jeffrey Kessler.
[1:14] Speaker 3: It's a great day for consumers and fans, and it's.
[1:17] Speaker 1: A great day for the thirty four States District of Columbia,
[1:21] Speaker 1: wife and honored to work for on this matter. But
[1:24] Speaker 1: it will take quite a while, perhaps through years of appeals,
[1:28] Speaker 1: for those fans to see if the verdict really leads
[1:31] Speaker 1: to changes that make concerts more affordable. Even though the
[1:35] Speaker 1: stage is set for a possible breakup of Live Nation
[1:39] Speaker 1: and Ticketmaster. Live Nation continues to insist it's not a
[1:44] Speaker 1: monopoly and says the jury verdict is not the last word.
[1:49] Speaker 1: My guest is an expert in anti trust law, Harry First,
[1:52] Speaker 1: a professor at NYU Law School. Harry, would you call
[1:55] Speaker 1: this a landmark verdict? How would you characterize it?
[1:59] Speaker 3: Yes, I think it is. It's landmarky in a number
[2:02] Speaker 3: of ways. So monopolization cases historically are pretty infrequent. I
[2:08] Speaker 3: say historically because you know recently there have been a
[2:11] Speaker 3: couple of high profile monopoly cases. But you know, these
[2:15] Speaker 3: kinds of cases, not a tech case in a direct sense,
[2:19] Speaker 3: pretty unusual. So that's first landmark part. Second, a jury
[2:24] Speaker 3: trial in a government case really unusual. The federal government
[2:29] Speaker 3: hasn't paid attention to juries in any trust cases particularly,
[2:33] Speaker 3: and I think during the Biden administration some good lawyers
[2:37] Speaker 3: there said, you know, juries can be on our side.
[2:40] Speaker 3: They understand when consumers are abused, So you have to
[2:44] Speaker 3: be asking for money. Normally the Justice Department asks for
[2:48] Speaker 3: an injunction, don't do this, or do this, so you
[2:51] Speaker 3: have to ask for money to get a jury, and
[2:53] Speaker 3: that's what they did. So they joined with the states
[2:55] Speaker 3: who can ask for money on behalf of their citizens.
[2:59] Speaker 3: So that's the second thing. It's a jury trial for money.
[3:02] Speaker 3: Third thing is the government often settles cases saying, you know,
[3:07] Speaker 3: it's really risky to go to trial. We can get
[3:10] Speaker 3: a darn good, even better settlement. Makes no sense, of course,
[3:14] Speaker 3: if you settle, you get less, but they often say this,
[3:17] Speaker 3: and this has been true historically. So what happened here
[3:21] Speaker 3: They got a worse settlement, They didn't go to trial,
[3:24] Speaker 3: and there were the States sitting there, you know, messy
[3:28] Speaker 3: plaintiffs saying no, you can settle for you, but you
[3:32] Speaker 3: can't settle our claims, and so they didn't. So third
[3:35] Speaker 3: landmark aspect. And usually when the States litigate and the
[3:39] Speaker 3: Justice Department doesn't necessarily go so well for the States.
[3:44] Speaker 3: So fourth landmark aspect.
[3:47] Speaker 1: So let me backtrack a little and explain what happened.
[3:50] Speaker 1: Days into the trial. The Justice Department dropped out and
[3:53] Speaker 1: reached this eleventh hour deal which was reached in DC
[3:57] Speaker 1: and was so secretive it even caught the government's own
[3:59] Speaker 1: trial team by surprise, and the judge called the way
[4:03] Speaker 1: he was informed about it mind boggling. But then more
[4:05] Speaker 1: than thirty States said no, as you explain, we're not
[4:08] Speaker 1: going to take that settlement and pressed ahead with the trial.
[4:11] Speaker 1: Is this a black guy for the Justice Department? Should
[4:14] Speaker 1: they be embarrassed?
[4:16] Speaker 3: This Justice Department doesn't embarrass easily, so you know, in
[4:20] Speaker 3: normal times, yes, but this was clearly something I had
[4:24] Speaker 3: normal going on, which we still don't really know the
[4:27] Speaker 3: backstory on. Frankly, and yes, they should be embarrassed is
[4:33] Speaker 3: a nice word for saying it.
[4:35] Speaker 1: Yes, you have to give it to the States. They
[4:37] Speaker 1: had to scramble to take over the case because the
[4:41] Speaker 1: Justice Department had been leading it. They had like thirty
[4:44] Speaker 1: people on the trial team, and then the States come
[4:47] Speaker 1: in and have to pick up just a week later
[4:50] Speaker 1: where the Justice Department left off. It's amazing to me
[4:54] Speaker 1: that they were able to do it as well as
[4:56] Speaker 1: they apparently did.
[4:58] Speaker 3: So I agree with that. I know this they you know,
[5:00] Speaker 3: they weren't just sitting around, and I'm sure that they
[5:04] Speaker 3: were familiar with the economist testimony and who was going
[5:08] Speaker 3: to testify. But but yes, the leading war had been
[5:12] Speaker 3: taken by the Justice Department, and it was a challenge.
[5:15] Speaker 3: I mean, at first, they wanted to delay, they wanted
[5:17] Speaker 3: to put it off by a month to prepare. So yeah,
[5:21] Speaker 3: it's quite a challenge to step into the shoes, particularly
[5:25] Speaker 3: when you're worried that the jury is looking and saying
[5:29] Speaker 3: where are those other guys?
[5:30] Speaker 4: You know?
[5:32] Speaker 1: The jury four person said the verdict was influenced by
[5:35] Speaker 1: those Live Nation internal documents. And we've talked before about
[5:39] Speaker 1: those emails where Live Nations ticketing directors bragged about the
[5:44] Speaker 1: outrageous prices, called customers so stupid, and boasted that the
[5:50] Speaker 1: company was quote robbing them blind baby. And there was
[5:54] Speaker 1: also a recording of an expletive filled phone call where
[5:59] Speaker 1: Michael Rapina, the CEO of Live Nation, threatened the head
[6:02] Speaker 1: of Barkley Center that he would withhold concerts after Barkley
[6:06] Speaker 1: switched to a rival Ticketer, and followed through on those threats,
[6:11] Speaker 1: according to testimony, And that's the kind of evidence that's
[6:15] Speaker 1: made for jury trials.
[6:17] Speaker 3: It sure is. Yeah, here you sort of have to
[6:19] Speaker 3: pity counsel for Live Nation. They said, you know, please
[6:22] Speaker 3: don't look over there at the car wreck. Really are
[6:25] Speaker 3: we condemn bad driving? We really don't like it, and
[6:29] Speaker 3: we're gonna deal with those bad drivers. Look over here,
[6:32] Speaker 3: look at how much people like ticket Master they think
[6:36] Speaker 3: our prices are great. I mean, maybe they had the
[6:39] Speaker 3: real challenge and that's what makes the case a jury
[6:42] Speaker 3: triable case. You know, Jeffrey Kessler said, who talks like this?
[6:46] Speaker 3: I mean, really, it sounds like the mafia.
[6:50] Speaker 1: The jury found that Ticketmaster had overcharged customers a dollar
[6:53] Speaker 1: seventy two per ticket in twenty two states. That may
[6:57] Speaker 1: sound like not much, but it adds up. The judge
[7:00] Speaker 1: will calculate the damages, but that could amount to hundreds
[7:04] Speaker 1: of millions of dollars.
[7:06] Speaker 3: Well, I don't know the number of tickets sold, so
[7:08] Speaker 3: it could be a lot of money. Yes, I mean
[7:10] Speaker 3: how much each person will get is you know, it's
[7:13] Speaker 3: not going to be huge for each person, but they're
[7:16] Speaker 3: going to have to give back a fair amount of money.
[7:18] Speaker 1: So the original goal of this complain from the Justice
[7:23] Speaker 1: Department in twenty twenty four was to separate ticket Master
[7:26] Speaker 1: from Live Nation. In your opinion, is that the only
[7:30] Speaker 1: way to fix this market?
[7:32] Speaker 3: That that is the remedy and that is the only way.
[7:35] Speaker 3: I mean, this has been going on since twenty ten,
[7:40] Speaker 3: so we're now in twenty twenty six and they've gone
[7:45] Speaker 3: through two consent decrees where they say, oh, we promised
[7:49] Speaker 3: we'll never do this again, and then they do it again,
[7:52] Speaker 3: and you know why not. They make money out of it.
[7:55] Speaker 3: And in truth, the only thing surprising to me is
[7:59] Speaker 3: that we're Pino has to actually say what he said,
[8:03] Speaker 3: and the guy from Barclays was too stupid to understand
[8:06] Speaker 3: what he had to do, which was to use Live
[8:08] Speaker 3: Nation and Ticketmaster. He thought he could do this scott free,
[8:12] Speaker 3: when you know, there was testimony and Senate hearings that, well,
[8:16] Speaker 3: we don't pressure them, but of course we do what's
[8:18] Speaker 3: best for our business. What's best for our businesses. If
[8:20] Speaker 3: a venue uses Ticketmaster and if they don't, well we've
[8:24] Speaker 3: got the talent. Maybe we'll move them someplace else. Everybody
[8:27] Speaker 3: knows that you can't unring that bell. So there really
[8:31] Speaker 3: is no to my mind, effective way of ending this
[8:35] Speaker 3: and getting some competition in ticketing. I mean, in the end,
[8:39] Speaker 3: that's what you want. He won competition with Ticketmaster.
[8:42] Speaker 1: Breaking up a company is a big ask. Do you
[8:45] Speaker 1: think the judge will have enough nerve that's the only
[8:48] Speaker 1: word I can think of to order Live Nation to
[8:51] Speaker 1: be split up.
[8:52] Speaker 3: I don't know. It's funny. The Justice Department had said
[8:56] Speaker 3: before the trial this is the only effective remedy. And
[8:59] Speaker 3: then when they settled, oh, the judge will never order it. Great,
[9:03] Speaker 3: thank you very much. I don't know. I think it
[9:05] Speaker 3: depends in part on how forcefully the case is argued.
[9:09] Speaker 3: This is a very unusual case in the sense that
[9:12] Speaker 3: you have an experiment. They tried a lesser remedy than
[9:17] Speaker 3: keeping the two companies apart. We've tried this, We've seen
[9:21] Speaker 3: how it works. It doesn't. The world is not going
[9:24] Speaker 3: to look different. There's an old Supreme Court case that
[9:28] Speaker 3: had the same sort of fact pattern. Government wanted to
[9:31] Speaker 3: break up a company. The judge said, no, no, I
[9:34] Speaker 3: don't want to do that. We'll issue some specific requirements
[9:39] Speaker 3: they've got to go through. Ten years later, Justice Department
[9:42] Speaker 3: comes back and says, we still enough competition. Supreme Court
[9:45] Speaker 3: said ten years is enough break them up, And.
[9:49] Speaker 1: With Live Nation it's sixteen years. So we'll see. There
[9:53] Speaker 1: are other sanctions the judge could impose, right For example,
[9:58] Speaker 1: he could force them to sell off some venue.
[10:00] Speaker 3: I mean there is the venue side. I mean, over
[10:02] Speaker 3: the time, Live Nation, which was not a monopoly originally,
[10:06] Speaker 3: but because of the interconnection with Ticketmaster and controlling tickets
[10:11] Speaker 3: and then controlling a lot of talent and then buying
[10:15] Speaker 3: up venues. Yes, he could do that, but the heart
[10:18] Speaker 3: of this thing is controlling the tickets, the ticketing. You know,
[10:23] Speaker 3: the venues have to have a ticketing service. The system
[10:26] Speaker 3: doesn't work if you can't sell a ticket to a
[10:29] Speaker 3: concert live.
[10:30] Speaker 1: Nation of course denies it an illegal monopoly and says
[10:33] Speaker 1: the jury verdict is not the last word. It also
[10:36] Speaker 1: predicted that once the remedies phase of the case plays
[10:40] Speaker 1: out and appeals are resolved, the outcome likely won't be
[10:43] Speaker 1: much different from the deal it reached with the federal government.
[10:48] Speaker 3: Well, so there is a good question of how this
[10:50] Speaker 3: is going to work. Now you have an effect dueling remedies.
[10:54] Speaker 3: This is another unusual part where the federal government says
[10:59] Speaker 3: xx is and the states may or may not. I mean,
[11:02] Speaker 3: the States might join that, I doubt it, but the
[11:05] Speaker 3: States could ask for more, and then the judge is
[11:08] Speaker 3: going to have to try to see if he can
[11:11] Speaker 3: mesh those two remedies, or maybe he'll, you know, grant
[11:15] Speaker 3: the remedies in a Justice Department case and then grant
[11:18] Speaker 3: what the States asked for. I don't know. This will
[11:21] Speaker 3: be interesting to watch. It's not unprecedented, but it's pretty rare,
[11:25] Speaker 3: so that'll be interesting to see.
[11:28] Speaker 1: The judge has to approve the settlement that the federal
[11:31] Speaker 1: government and some states made with Live Nation. Group of
[11:34] Speaker 1: Democratic Senaters wrote to the judge after the verdict Wednesday,
[11:39] Speaker 1: urging him to closely scrutinize the proposed settlement before he
[11:44] Speaker 1: considers granting approval, saying the deal was negotiated under suspicious circumstances,
[11:49] Speaker 1: which we've discussed, and doesn't go far enough in restoring
[11:53] Speaker 1: competition or protecting customers, artists and independent venues. How unusual
[11:59] Speaker 1: is it for a judge to reject a settlement that
[12:02] Speaker 1: the Justice Department has reached.
[12:05] Speaker 3: It's pretty unusual. A judge has to approve any trust settlements.
[12:09] Speaker 3: There's a specific statute has to be approved as in
[12:13] Speaker 3: the public interest. Courts of appeals have sort of kept
[12:17] Speaker 3: the discretion of trial judges pretty narrow in this area.
[12:22] Speaker 3: They can create, you know, a lot of smoke. It's
[12:25] Speaker 3: hard for them to make really big changes in it.
[12:28] Speaker 3: This is not the only case now being litigated like this.
[12:31] Speaker 3: There's another merger case that was settled under well, suspicious
[12:37] Speaker 3: would be even too polite a word, I mean the
[12:40] Speaker 3: people involved have said there, you know, was just outright
[12:44] Speaker 3: lobbying and no relation to the public interests. So this
[12:48] Speaker 3: is a theme and it's unusual. You know, we've had
[12:52] Speaker 3: concerns about settlements historically, but this is just a little different.
[12:57] Speaker 3: It's not political value, it's just lobb issues. I think
[13:01] Speaker 3: that's what this letter meant. It meant something smells in this,
[13:05] Speaker 3: and judge you find.
[13:07] Speaker 1: Out, Harry. I think most concert goers look at this
[13:10] Speaker 1: verdict and ask, does this mean I'm going to be
[13:13] Speaker 1: paying less for concert tickets? Is that happening anytime soon?
[13:18] Speaker 1: Or is it ever happening.
[13:19] Speaker 3: Here's my guess. Taylor Swift is going to look at
[13:22] Speaker 3: this and say, great, I'll drop my ticket price in half,
[13:26] Speaker 3: you know, and all the other big talents say, you know,
[13:29] Speaker 3: enough of that high prices.
[13:31] Speaker 4: No.
[13:31] Speaker 3: So I think there may be a little disappointment in
[13:35] Speaker 3: what the result will be immediately. If we're lucky, there'll
[13:39] Speaker 3: be more competition and we'll have different kinds of ticketing
[13:43] Speaker 3: services with different options, and maybe lower prices for the
[13:49] Speaker 3: ticketing service itself, and maybe if there's some divestiture of
[13:54] Speaker 3: the arenas, maybe lower prices on the talent. I don't know.
[13:59] Speaker 3: Hard to see say how that'll all come out. But
[14:01] Speaker 3: my guess is, you know, tomorrow the tickets for these
[14:06] Speaker 3: big ticket concerts are not going to change, at least
[14:10] Speaker 3: not very much.
[14:11] Speaker 1: The Trump administration appears to be a lax enforcer of
[14:15] Speaker 1: the anti trust laws. Do you think this verdict gives
[14:18] Speaker 1: an impetus to the states and private parties to bring
[14:21] Speaker 1: more anti trust actions.
[14:23] Speaker 3: I mean, I think that that impetus has been there.
[14:26] Speaker 3: The problems are there as well. Anti trust litigation is expensive,
[14:30] Speaker 3: has to be highly resourced. Private parties have to have
[14:34] Speaker 3: some confidence that they can collect because they usually bring
[14:37] Speaker 3: these class actions where they get awarded a part of
[14:40] Speaker 3: the recovery. So I don't know whether it gives them
[14:43] Speaker 3: more incentive or it just makes it more important that
[14:47] Speaker 3: they stay in the game. And this has been the
[14:50] Speaker 3: game for a while, and it often heats up when
[14:53] Speaker 3: the federal government's efforts seem misdirected, lack a daisical and so,
[15:00] Speaker 3: but it's also something the federal governments to keep in mind.
[15:04] Speaker 3: They don't have a monopoly on enforcement. You know, they
[15:07] Speaker 3: may prefer all this stuff to go away, but the
[15:10] Speaker 3: states may have other ideas.
[15:12] Speaker 1: And perhaps winning ideas like continuing this trial. So he's
[15:16] Speaker 1: great to get your insights, Harry, thanks so much. That's
[15:19] Speaker 1: Professor Harry First of NYU Law School. Coming up next
[15:23] Speaker 1: on Bloomberg Law. A rare apology from a justice. I'm
[15:27] Speaker 1: June Grosso and you're listening to Bloomberg. Justice Sonya so
[15:31] Speaker 1: to Mayor was on the road about a week ago
[15:34] Speaker 1: speaking about her latest children's book and her experiences as
[15:38] Speaker 1: a Supreme Court justice during a Q and A at
[15:41] Speaker 1: the University of Alabama Law School on April ninth, when
[15:45] Speaker 1: Sotomayor was asked how she builds bridges across ideological lines
[15:50] Speaker 1: with her colleagues, her answer was blunt.
[15:53] Speaker 2: If you mean bridges by bridges, convince them that they're wrong.
[16:04] Speaker 2: I just sent so much. I'm not very successful.
[16:07] Speaker 1: Two days earlier, during an appearance at the University of
[16:10] Speaker 1: Kansas Law School, the liberal justice had taken a personal
[16:14] Speaker 1: swipe at one of those colleagues from across the ideological divide.
[16:19] Speaker 1: She criticized Conservative Justice Brett Kavanaugh for a concurrence where
[16:24] Speaker 1: he wrote that legal residence detained in ice immigration stops
[16:29] Speaker 1: promptly go free after a typically brief encounter so Tomyor said,
[16:34] Speaker 1: this is from a man whose parents were professionals and
[16:38] Speaker 1: probably doesn't really know any person who works by the hour.
[16:42] Speaker 1: That rare personal criticism of a colleague led to an
[16:45] Speaker 1: equally rare apology from Soda Mayor. Joining me is David Super,
[16:50] Speaker 1: a professor at Georgetown Law. David on Wednesday, so eight
[16:54] Speaker 1: days after those remarks, Soda Mayor said in a statement
[16:58] Speaker 1: that her remarks were in a appropriate I regret my
[17:01] Speaker 1: hurtful comments. I have apologized to my colleague. Do you
[17:05] Speaker 1: think a public apology was really necessary morally necessary?
[17:10] Speaker 4: No, because what she said was true, both in its
[17:15] Speaker 4: specifics and in its generality. But practically, I'm very glad
[17:20] Speaker 4: she did it because she has an unusual role that
[17:25] Speaker 4: you and I don't. She has to work with six
[17:27] Speaker 4: people who don't agree with her much, and letting personalized
[17:32] Speaker 4: comments get into that is going to make it harder
[17:35] Speaker 4: for her to put together the votes for a majority opinion,
[17:39] Speaker 4: or when she does put together the vote's going to
[17:42] Speaker 4: make it harder for her to negotiate a good majority opinion.
[17:46] Speaker 4: So the kind of comments she made are appealing to
[17:51] Speaker 4: many of us that are frustrated with the court. In
[17:54] Speaker 4: general and that justice in particular. But I don't think
[17:57] Speaker 4: it was wise, and I think she made the right choice.
[18:00] Speaker 1: And you rarely hear justices criticizing each other, especially personal criticism.
[18:06] Speaker 1: Actually I can't think of another time.
[18:08] Speaker 4: You don't usually hear that, and I think the reason
[18:11] Speaker 4: you don't is because they're afraid that it will interfere
[18:16] Speaker 4: with their ability to work with one another in the future.
[18:18] Speaker 4: But when justices believe that there already is no ability
[18:24] Speaker 4: to work together, frustration can boil over. There are not
[18:29] Speaker 4: a lot of controversial cases on with Justice Soto my
[18:33] Speaker 4: Orange Justice Kavanaugh have been on the same side, and
[18:36] Speaker 4: there have been quite a few where it's been otherwise.
[18:39] Speaker 4: But I think that the point that she's making, perhaps
[18:43] Speaker 4: more bluntly than some would, is an important point. And
[18:47] Speaker 4: about the shadow docket, Justice Kavanaugh asserted as a indisputable
[18:53] Speaker 4: fact that US citizens and legal permanent residence are immediately
[18:58] Speaker 4: let go. There's overwhelmed. Evan is that's not true? And
[19:02] Speaker 4: if the Supreme Court was taking cases that were properly
[19:05] Speaker 4: developed in the lower courts on the facts, it would
[19:08] Speaker 4: know that's not true, and it could say we don't care,
[19:13] Speaker 4: or it could say we will allow orders designed to
[19:17] Speaker 4: make that so or it could say this means these
[19:20] Speaker 4: stops are inappropriate, but it wouldn't be able to make
[19:25] Speaker 4: absolute assertions of fact that are simply false. And if
[19:29] Speaker 4: you want to decide cases on the law, maybe there's
[19:32] Speaker 4: an argument for an emergency docket, although I don't agree
[19:37] Speaker 4: with it. But if you want to decide cases on
[19:40] Speaker 4: the fact, which he's doing there, then you have to
[19:42] Speaker 4: let the lower courts develop the facts.
[19:45] Speaker 1: And by the way, those are now referred to as
[19:47] Speaker 1: Kavanaugh stops. And at an appearance two days after those remarks,
[19:52] Speaker 1: so Tomayor seemed to be going out of her way
[19:55] Speaker 1: to describe the collegiality on the court.
[19:58] Speaker 2: I look to them as people to have a relationship
[20:01] Speaker 2: with them, and I dare say that with virtually all
[20:07] Speaker 2: of them, I certainly have a civil relationship, and with
[20:12] Speaker 2: many of them, I think I dare say that I
[20:14] Speaker 2: have a friendship.
[20:15] Speaker 4: I mean, these are professionals, and I'm always a little
[20:20] Speaker 4: skeptical about the claims that these people are big friends
[20:24] Speaker 4: of one another. I know Justice Ginsberg and Justice Clia
[20:29] Speaker 4: went to the opera together, but I think that in
[20:33] Speaker 4: many ways, these are nine independent offices, each in the
[20:38] Speaker 4: same building, that interact mostly through paper and occasionally in
[20:44] Speaker 4: fairly formal ways, like oral arguments in conference. So I'm
[20:48] Speaker 4: not sure that this changes a great deal. I don't
[20:51] Speaker 4: see a lot of outward evidence of much comedy. The
[20:55] Speaker 4: Court is working very, very fast. I'm sure it is
[21:00] Speaker 4: jamming that the descending justices to work to all hours
[21:04] Speaker 4: to get their descents out, rather than holding up and
[21:07] Speaker 4: giving them a little bit of time, which has been
[21:09] Speaker 4: done on very very big cases in the past.
[21:12] Speaker 1: Another liberal justice made some critical remarks this week, but
[21:16] Speaker 1: about the Court's emergency docket, not about any justice in particular.
[21:21] Speaker 1: In a lecture at Yale Law School on Wednesday, Justice
[21:24] Speaker 1: Katanji Brown Jackson expressed concerns that the Court's handling of
[21:29] Speaker 1: its emergency docket is having an enormously disruptive and potentially
[21:35] Speaker 1: corrosive effect on the federal judiciary.
[21:39] Speaker 5: So the Court has left confusion in its wake, and
[21:43] Speaker 5: it offers little guidance because it ordinarily does not spell
[21:46] Speaker 5: out the circumstances giving rise to its own equities evaluation,
[21:51] Speaker 5: making it incredibly difficult for lower courts to understand which
[21:56] Speaker 5: facts were important to the state determination and thus es
[22:00] Speaker 5: identify like cases.
[22:03] Speaker 1: David, will you explain the confusion in the lower courts
[22:07] Speaker 1: about orders from the emergency docket that Jackson is referring to.
[22:12] Speaker 4: The lower courts are bound by the Supreme Court's holding.
[22:17] Speaker 4: But if it's only holding is that an injunction in
[22:21] Speaker 4: this case or that is stayed, and they don't give
[22:25] Speaker 4: us any reasoning, then the lower courts are not bound
[22:30] Speaker 4: by reasoning that they are speculating. They're bound by what
[22:34] Speaker 4: the Court tells us to decide cases.
[22:37] Speaker 1: We've seen pushback from federal district court judges, especially after
[22:41] Speaker 1: Justice Neil Gorsuch scolded them for not following shadow docket
[22:46] Speaker 1: rulings and accuse him of defying the Supreme Court. And
[22:50] Speaker 1: now that's billed over into the appellate courts. Last week,
[22:54] Speaker 1: judges on the Fourth Circuit, we're trading insults about how
[22:58] Speaker 1: much weight to give the Supreme Court. It's rulings from
[23:00] Speaker 1: the shadow docket. And this was an on bank panel.
[23:04] Speaker 1: So all the judges on the Fourth Circuit, so tell
[23:07] Speaker 1: us what the majority decided in that case.
[23:09] Speaker 4: Yeah, the case was about an injunction limiting Doz's access
[23:16] Speaker 4: to extremely sensitive social security information on you and me
[23:21] Speaker 4: and hundreds of millions of other people. And the Supreme
[23:25] Speaker 4: Court had previously held that an earlier lower court injunction
[23:30] Speaker 4: in that case could not be enforced until appeables were
[23:35] Speaker 4: fully exhausted up to the Supreme Court. And so what
[23:39] Speaker 4: the majority in the Fourth Circuit decided was that it
[23:44] Speaker 4: was going to send the case back down to the
[23:46] Speaker 4: district court. It was not going to purport to reinstate
[23:52] Speaker 4: an injunction because the Supreme Court had pretty clearly said
[23:55] Speaker 4: it couldn't do that.
[23:56] Speaker 1: And that prompted a rebuke from Judge James Win, joined
[24:00] Speaker 1: by four other judges and descent. He wrote that to
[24:03] Speaker 1: treat interim orders as binding precedent abandons our long held
[24:07] Speaker 1: jurisprudence of deciding constitutional law through reasoned opinions, not emergency
[24:13] Speaker 1: motions made under intense time pressure. So basically we don't
[24:17] Speaker 1: have to follow those Supreme Court orders. Is that just
[24:19] Speaker 1: utter defiance of the court.
[24:22] Speaker 4: It's absolutely not defiance. It's actually a very traditionalist and
[24:26] Speaker 4: the Supreme Court has lectured us often on the importance
[24:30] Speaker 4: of following the rules that were in place when the
[24:33] Speaker 4: Constitution was adopted. And this is although it doesn't call
[24:36] Speaker 4: itself originalists. This is originalist in that courts have two
[24:42] Speaker 4: entirely different functions that they often perform in the same case.
[24:45] Speaker 4: They decide the rights of the parties before them, and
[24:48] Speaker 4: they make precedent for the future. Those are different functions.
[24:52] Speaker 4: And nobody, not the concurring justices, not Justices Jackson, and
[24:58] Speaker 4: so to nobody questions that the Supreme Court can decide
[25:02] Speaker 4: the rights of the parties before it on the shadow docket.
[25:05] Speaker 4: The question is whether when it issues an order for
[25:08] Speaker 4: the parties in front of it without an opinion or
[25:11] Speaker 4: without a meaningful opinion, if that should be also treated
[25:15] Speaker 4: as president and the history is that court's issue opinions
[25:23] Speaker 4: to tell us why they're deciding things. Often the parties
[25:27] Speaker 4: are making half a dozen different arguments and knowing that
[25:31] Speaker 4: that party one doesn't tell you which of those six
[25:34] Speaker 4: arguments was persuasive with the court. And if we just
[25:38] Speaker 4: guess as to why the Court did what it did,
[25:41] Speaker 4: will often be creating a law out of thin air,
[25:45] Speaker 4: playing ventriloquist, which is not the lower court's job. It's
[25:48] Speaker 4: not any of our jobs.
[25:50] Speaker 1: In a case on the emergency docket where the Supreme
[25:52] Speaker 1: Court allowed President Trump to remove three democratic members of
[25:57] Speaker 1: the Consumer Products Safety Commission, so that its interim order
[26:01] Speaker 1: informs how a lower court should exercise its equitable discretion
[26:06] Speaker 1: in like cases. In her speech, Jackson criticized that guidance,
[26:11] Speaker 1: if we can call it guidance, will you explain what
[26:14] Speaker 1: the court was trying to get across there?
[26:16] Speaker 4: The question is what kind of precedent is it? And
[26:20] Speaker 4: the Justice there says that it informs what the lower
[26:26] Speaker 4: courts can do, but only in like cases. When you
[26:29] Speaker 4: don't have much of an opinion from the Supreme Court,
[26:33] Speaker 4: it's very hard to know what like cases are, and
[26:38] Speaker 4: it can inform only to the extent that it provides information.
[26:43] Speaker 4: And if they don't tell us what's important, then it's
[26:47] Speaker 4: very hard for lawyers or judges or voters to know
[26:52] Speaker 4: how they are to change what they're doing. Also critical
[26:56] Speaker 4: here that the Justice mentions equitable question. Equity is not
[27:01] Speaker 4: a system of rigid rules. Equity is a system of
[27:06] Speaker 4: judges applying judgment, and that judgment should be consistent with
[27:11] Speaker 4: the general principles of our system. But it's never a
[27:15] Speaker 4: rigid process, and so asking lower court judges to act
[27:20] Speaker 4: rigidly in an equitable case is like asking for a
[27:25] Speaker 4: ocean without any water, it doesn't work that way.
[27:28] Speaker 1: And continuing that analogy, there's been a stream of criticism
[27:33] Speaker 1: of the emergency docket, known as the shadow docket, for
[27:36] Speaker 1: its lack of transparency, and the Court perhaps recognize the
[27:40] Speaker 1: criticism by taking some of the shadow docket cases and
[27:45] Speaker 1: putting them on the regular docket so there could be
[27:48] Speaker 1: full briefings in oral arguments. That was done, for example,
[27:51] Speaker 1: in the birthright citizenship case. As always, thanks for joining me, David.
[27:55] Speaker 1: That's Professor David Super of Georgetown Law coming up next
[27:59] Speaker 1: on Bloomberg Law. The errors being made by Justice Department
[28:03] Speaker 1: lawyers are testing the patience of judges and the credibility
[28:07] Speaker 1: of the Justice Department. I'm June Grosso and you're listening
[28:11] Speaker 1: to Bloomberg. Todd Blanche, now the acting Attorney General and
[28:17] Speaker 1: once President Trump's defense lawyer, recently cheered the fact that
[28:22] Speaker 1: all the Justice Department lawyers who were involved in the
[28:25] Speaker 1: past investigations of Trump have either been fired or resigned.
[28:31] Speaker 6: There is not a single man or woman at the
[28:34] Speaker 6: Department of Justice who had anything to do with those prosecutions.
[28:41] Speaker 1: So two hundred experienced lawyers are no longer at the
[28:44] Speaker 1: Department of Justice. Add that to more than three thousand attorneys,
[28:49] Speaker 1: many veteran career lawyers in leadership positions, who left the
[28:52] Speaker 1: department last year. The result is a smaller, less experienced
[28:57] Speaker 1: group of lawyers handling an eva expanding universe of litigation.
[29:03] Speaker 1: Could that be connected to the hundreds of instances of
[29:06] Speaker 1: Justice Department lawyers being scolded by judges for making false, misleading,
[29:11] Speaker 1: or inaccurate representations in court in defense of Trump policies.
[29:16] Speaker 1: Last week, a federal judge in Manhattan ordered Justice Department
[29:20] Speaker 1: lawyers to preserve all internal communications after they disclosed they'd
[29:26] Speaker 1: been relying on incorrect information in their arguments for months
[29:30] Speaker 1: in a fight over the administration's migrant arrest tactics. Could
[29:35] Speaker 1: sanctions be in their future? My guest is former federal
[29:38] Speaker 1: prosecutor Robert Mintz Apartment macarter in English. So Justice Department
[29:43] Speaker 1: lawyers are representing government agencies? What are their duties when
[29:47] Speaker 1: appearing in court for those agencies?
[29:49] Speaker 6: When you go into court as an assistant US attorney
[29:53] Speaker 6: or any attorney representing the Department of Justice, you always
[29:57] Speaker 6: bring with you the credibility of us years and years
[30:01] Speaker 6: of attorneys who have stood in your shoes before you
[30:04] Speaker 6: addressing the court, and there's a tremendous responsibility to make
[30:08] Speaker 6: sure that anything you say to a judge is one
[30:11] Speaker 6: hundred percent accurate. And if you don't know the answer,
[30:13] Speaker 6: you tell the judge you don't know the answer, and
[30:15] Speaker 6: you'll get the correct information back to the judge at
[30:18] Speaker 6: some point. Because in order for the Department of Justice
[30:21] Speaker 6: to be able to advocate effectively on behalf of the
[30:24] Speaker 6: federal government, it's critical that judges can rely on the
[30:28] Speaker 6: representations of government lawyers. And so it's incumbent on DOJ
[30:33] Speaker 6: prosecutors and other lawyers representing the government to make sure
[30:37] Speaker 6: that whatever information they're conveying on behalf of their agency
[30:41] Speaker 6: clients or on behalf of the Department of Justice is accurate.
[30:45] Speaker 6: And what we've seen here is a slow but steady
[30:48] Speaker 6: erosion of that confidence of the federal courts that Department
[30:53] Speaker 6: of Justice lawyers are giving them information that is accurate.
[30:57] Speaker 6: And it's come about as a result of a series
[30:59] Speaker 6: of cases in which Department of Justice lawyers have been
[31:02] Speaker 6: forced to make embarrassing corrections about information that they frankly
[31:06] Speaker 6: should have known about.
[31:08] Speaker 1: The Justice Department lost about a quarter of its attorneys
[31:12] Speaker 1: last year about thirty four hundred. A lot of them
[31:15] Speaker 1: were experienced career prosecutors. So can these errors in court
[31:20] Speaker 1: be explained by the inexperience of the attorneys or are
[31:24] Speaker 1: they not doing enough preparation or something else.
[31:28] Speaker 6: I think it's a combination of inexperience and understaffing. The
[31:31] Speaker 6: experience of the lawyers going into court representing the United
[31:34] Speaker 6: States government is absolutely critical. US attorney's offices are generally
[31:39] Speaker 6: around the country considered training grounds for exceptional attorneys.
[31:45] Speaker 1: The job of a.
[31:45] Speaker 6: Federal prosecutor has historically been something that is an extremely
[31:51] Speaker 6: sought after position, and so the Department of Justice really
[31:55] Speaker 6: has its pick of attorneys in selecting assistant US attorneys
[31:59] Speaker 6: and offices around on the country. And what they do
[32:01] Speaker 6: is they try to train those attorneys.
[32:03] Speaker 1: They do not.
[32:04] Speaker 6: Select attorneys who necessarily have any criminal experience when they
[32:08] Speaker 6: pick people who will be representing the Department of Justice
[32:11] Speaker 6: in criminal cases. Instead, they bring in attorneys that they
[32:14] Speaker 6: believe are among the best and the brightest, and they
[32:17] Speaker 6: train those lawyers using the more experienced attorneys in the office. So,
[32:22] Speaker 6: as an example, when a new attorney comes into the
[32:24] Speaker 6: office and tries his or her case for the first time,
[32:28] Speaker 6: they will have a second chair with them. They will
[32:30] Speaker 6: have a more experienced attorney sitting next to them and
[32:34] Speaker 6: assisting them throughout that trial. And that's the way these
[32:37] Speaker 6: attorneys learn. The problem right now is that there has
[32:40] Speaker 6: been a mass exodus of experienced attorneys from the Department
[32:43] Speaker 6: of Justice, from US Attorney's offices around the country, and
[32:47] Speaker 6: so that level of experience and oversight is simply not
[32:50] Speaker 6: there right now.
[32:51] Speaker 4: And we've seen case.
[32:53] Speaker 6: After case where inexperienced attorneys who have not been given
[32:57] Speaker 6: the guidance that is necessary to make sure that they
[33:00] Speaker 6: are doing the job they're supposed to be doing, are
[33:02] Speaker 6: placed in positions in front of judges and can't really
[33:06] Speaker 6: effectively advocate on behalf of the government. And in the
[33:09] Speaker 6: course of all of this, they are losing the confidence
[33:12] Speaker 6: and the trust of the judiciary in the representations that
[33:16] Speaker 6: they often make to the court during these matters.
[33:20] Speaker 1: And Bob, you are a federal prosecutor. It used to
[33:23] Speaker 1: be hard to get into the Justice Department, right, but
[33:25] Speaker 1: now they're deciding that they're going to take people right
[33:28] Speaker 1: out of law school.
[33:30] Speaker 6: Yeah, when I applied to the US Attorney's office, there
[33:32] Speaker 6: was something like fifty to seventy five applications for every
[33:35] Speaker 6: single position, and that was generally true around the country,
[33:39] Speaker 6: whether you're in the Southern District of New York, the
[33:41] Speaker 6: District of New Jersey, Chicago, Los Angeles, or other offices
[33:45] Speaker 6: around the country. These jobs are extremely highly sought after
[33:49] Speaker 6: because it gives a young attorney the opportunity to practice
[33:53] Speaker 6: at the highest level, to be able to litigate in
[33:56] Speaker 6: federal court on behalf of the United States government, and
[33:59] Speaker 6: some of them most complex and interesting cases that you'll
[34:02] Speaker 6: ever handle as an attorney. And so these are positions
[34:06] Speaker 6: that typically you find the best and the brightest, coming
[34:10] Speaker 6: out of the best law schools, coming out of the
[34:12] Speaker 6: best clerkships. And it's from this pool of applicants that
[34:16] Speaker 6: they have over many, many years drawn assistant US attorneys
[34:20] Speaker 6: from around the country, many of whom go on to
[34:23] Speaker 6: the federal banks or other prestigious jobs in the law.
[34:26] Speaker 6: And right now they're facing a real exodus of that
[34:30] Speaker 6: type of talent, and that has created the crisis that
[34:33] Speaker 6: we're facing right now with the judiciary and with the
[34:35] Speaker 6: Department of Justice.
[34:37] Speaker 1: During the past year, many judges have issued opinions with
[34:40] Speaker 1: strong language calling out violations of court orders. Minnesota's chief
[34:47] Speaker 1: US district judge threatened to hold Ice in contempt for
[34:50] Speaker 1: violating orders more than one hundred times in cases brought
[34:54] Speaker 1: by immigrants in his court. If Ice or any other
[34:58] Speaker 1: agency doesn't follow a judge's order, is the Justice Department
[35:02] Speaker 1: attorney responsible for that in any way?
[35:05] Speaker 6: Well, that's exactly the argument that the Department of Justice
[35:08] Speaker 6: has made in these cases. Essentially, the DOJ has argued
[35:13] Speaker 6: that the attorney representing the agency in federal court doesn't
[35:17] Speaker 6: control the agency, and the.
[35:19] Speaker 4: Government lawyers do not.
[35:20] Speaker 6: By representing an agency in a district court personally guaranteed
[35:24] Speaker 6: the agency's compliance with court orders. So we have these
[35:28] Speaker 6: circumstances where federal prosecutors and other Department of Justice attorneys
[35:33] Speaker 6: are being asked to convey messages back to the agency
[35:37] Speaker 6: to make sure that an agency carries out a judge's order,
[35:40] Speaker 6: and if the agency fails to do that, the prosecutor
[35:43] Speaker 6: or attorney is getting essentially caught in the crossfire where
[35:46] Speaker 6: some judges have entered contempt orders personally against the attorneys
[35:51] Speaker 6: for the failings of the agencies. The Department of Justice
[35:54] Speaker 6: has argued that that's unfair because they can't control the agencies,
[35:58] Speaker 6: But it really is in large measure and failure of
[36:01] Speaker 6: the entire system, because the agencies should be following the judges'
[36:05] Speaker 6: orders and the agency's failure to do that really reflect
[36:09] Speaker 6: a breakdown in the communications between the judiciary and the
[36:14] Speaker 6: executive branch and is something that is going to take
[36:17] Speaker 6: a long time to repair given all the damage that's
[36:20] Speaker 6: been done over the past several years.
[36:22] Speaker 1: Also, there is an additional factor here, and that's that
[36:26] Speaker 1: some former employees say that new policies at the Justice
[36:29] Speaker 1: Department have discouraged attorneys from challenging the accuracy of the
[36:34] Speaker 1: information they're getting from agencies. And we've seen instances where
[36:38] Speaker 1: an attorney will admit something in court and then they're
[36:41] Speaker 1: fired the next day. So there's a different mindset at
[36:45] Speaker 1: this Justice Department.
[36:47] Speaker 6: What you're touching on here is really at the heart
[36:49] Speaker 6: of this issue because it really goes down to something
[36:52] Speaker 6: that is known in the law as the.
[36:54] Speaker 4: Presumption of regularity.
[36:56] Speaker 6: It's a concept where judges rely on this principle that
[37:00] Speaker 6: essentially means they trust the government to share accurate information
[37:04] Speaker 6: and they trust that the government is acting in good faith,
[37:07] Speaker 6: and in order to ensure that that baseline level of
[37:11] Speaker 6: confidence remains, there has to be this understanding that prosecutors
[37:16] Speaker 6: will make efforts to fairly inform the court of information,
[37:21] Speaker 6: information that may not necessarily be helpful to the government's case,
[37:26] Speaker 6: but information that is nonetheless accurate. And it's more important
[37:30] Speaker 6: that prosecutors give accurate information to the court than that
[37:33] Speaker 6: they give information that is necessarily going to further advocate
[37:37] Speaker 6: on behalf of the government's interests. And so this concept
[37:40] Speaker 6: of candor to the court is something that all lawyers
[37:43] Speaker 6: are responsible for. Ethically speaking, all lawyers have an obligation
[37:48] Speaker 6: to make sure that whatever information is provided to the
[37:50] Speaker 6: court that it is not knowingly false. But federal prosecutors
[37:54] Speaker 6: and Department of Justice lawyers have an even higher standard
[37:58] Speaker 6: because although they're advocating on behalf of a client, in
[38:01] Speaker 6: this case, the United States government, they also have a
[38:04] Speaker 6: duty to fairness and justice, and that means that there
[38:08] Speaker 6: are certain times where federal prosecutors have to provide information
[38:12] Speaker 6: to a court that may not be helpful to the
[38:15] Speaker 6: government's case. Prosecutors in criminal cases, as an example, have
[38:19] Speaker 6: a duty to provide exculpatory evidence to the defense. They
[38:23] Speaker 6: have to give the defense information that may hurt their
[38:26] Speaker 6: case and help.
[38:27] Speaker 4: The defendant's case.
[38:28] Speaker 6: But that's a duty that's placed upon federal prosecutors, and
[38:31] Speaker 6: it's an obligation that other lawyers.
[38:33] Speaker 4: Do not have to comply with.
[38:35] Speaker 6: But it underscores this point that federal prosecutors have to
[38:39] Speaker 6: make sure that whatever information they're providing to the court
[38:42] Speaker 6: is not only advocating on behalf of their client, but
[38:45] Speaker 6: is also fair and accurate. And I think what's happened
[38:48] Speaker 6: here is we've seen instances where zealous advocacy on behalf
[38:52] Speaker 6: of the administration has in some instances overridden the candor
[38:58] Speaker 6: to the court that all lawyers, and particularly federal lawyers,
[39:02] Speaker 6: are obligated to provide. And that's why we're seeing instances
[39:05] Speaker 6: where judges have become skeptical of representations made by government
[39:09] Speaker 6: lawyers during the course of certain cases, particularly immigration cases.
[39:14] Speaker 1: And recently in a Fourth Circuit case involving Doge, where
[39:18] Speaker 1: the government lawyers had made a correction admitting after the
[39:22] Speaker 1: court issued an injunction that they'd given the court incorrect information,
[39:26] Speaker 1: and the appellate judges disagreed about how to handle that admission.
[39:31] Speaker 1: And one judge wrote that this shows that quote, going forward,
[39:36] Speaker 1: we should not accord the defendants the government any benefit
[39:39] Speaker 1: of the doubt or readily trust in anything they say.
[39:43] Speaker 7: That's pretty astonishing, absolutely, I mean, you don't typically see
[39:47] Speaker 7: those kinds of statements coming from the court, and you're
[39:50] Speaker 7: absolutely correct that you're seeing judges grappling with this issue
[39:54] Speaker 7: in different ways.
[39:55] Speaker 6: Where some judges are being quite direct and quite pointed
[39:59] Speaker 6: in their criticism of the government's lawyers, others are giving
[40:02] Speaker 6: the government lawyers the benefit of the doubt somewhat more
[40:06] Speaker 6: now understanding that some of these mistakes may be the
[40:09] Speaker 6: result of being understaffed and simply an experience, but nonetheless
[40:14] Speaker 6: you can tell that the patience of the federal judiciary
[40:18] Speaker 6: is being frayed as they have to deal with these
[40:21] Speaker 6: inaccuracies and misrepresentations, whether or not they're done intentionally, but
[40:26] Speaker 6: it is something that is creating havoc in the federal courts,
[40:29] Speaker 6: and some judges are simply more fed up with the
[40:32] Speaker 6: situation than others and are expressing that directly on the
[40:36] Speaker 6: record during court proceedings, which is something that we've really
[40:39] Speaker 6: never seen before.
[40:40] Speaker 1: Well, federal judges are usually dealing with heavy dockets and
[40:43] Speaker 1: mistakes mean that cases take longer. Thanks so much for
[40:47] Speaker 1: joining me again, Bob. That's Robert Mints of McCarter and English.
[40:51] Speaker 1: And that's it for this edition of The Bloomberg Law Show.
[40:54] Speaker 1: Remember you can always get the latest legal news on
[40:56] Speaker 1: our Bloomberg Law Podcast. You can find them on Apple
[40:59] Speaker 1: pod podcast, Spotify, and at www dot bloomberg dot com
[41:04] Speaker 1: slash podcast slash Law, and remember to tune into The
[41:07] Speaker 1: Bloomberg Law Show every weeknight at ten pm Wall Street Time.
[41:12] Speaker 1: I'm June Grosso and you're listening to Bloomberg

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