Guns, Avenatti, and Bathrooms

It’s an (almost) Supreme Court-free podcast episode today. First, David talks about a ruling from ...

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It’s an (almost) Supreme Court-free podcast episode today. First, David talks about a ruling from the 4th Circuit striking down federal prohibitions on adults under 21 purchasing firearms, and Sarah gives her thoughts on whether the decision will stand. Then, our hosts dive into the latest in the Michael Avenatti saga, a ruling from a federal judge sentencing him to two and half years in prison for extortion. Finally, Sarah and David chat about a new Tennessee law requiring businesses to notify their customers about their transgender bathroom access policies.

Show Notes:

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    Good show! I'm listening to back episodes of AO during the Christmas to New Year's gap, and have no expectation therefore that many folks will read or respond to these belated comments.

    I am VERY sure that one's Second Amendment rights don't vary with the state of development of one's frontal lobes, nor with the average state of development of the frontal lobes of people one's same age. That is neat research that has nothing whatsoever to do with constitutional law.

    Avenatti inevitably reminds me of an old lawyer joke:

    Q: What's the difference between a catfish and a lawyer?
    A: One's a scum-sucking, slimy bottom-dwelling scavenger. And the other's a fish.

    I've dealt with his like for four decades. That he kept his law license(s) as long as he did is a blot on the profession's self-policing efforts, but the profession's self-policing record is, to put it mildly, a very blotted one, year-in and year-out, coast-to-coast, and has been as long as we've had law licensure.

    Lawyer threats to put an opposing litigant out of business — even as a litigation consequence essentially untethered from the merits of a particular claim, based solely on bad PR and its resulting effects on the target company — are essentially UNIVERSAL.

    I think the fact that Nike was being represented by David Boies' law firm, Boies Schiller Flexner, is an essential part of the fact-scenario behind Avenatti's extortion conviction. The average civil trial lawyer — or even the average BigLaw litigator from another Wall Street firm of the sort that represents companies like Nike — would almost certainly NOT have gotten the SDNY's enthusiastic support and cooperation in resolving his or her client's threatened lawsuit between private parties. Nothing that Avenatti has ever said or done has surprised me; he's the most common sort of viper. But the SDNY's white-knight performance here on behalf of Nike, at the behest of its well-connected lawyers, surprised the HELL out of me. I have profound ethical concerns about it, frankly — concerns directed at the AUSAs who became Boies Schiller's enthusiastic handmaidens.

    And scum-sucking pond-dweller that Avenatti is, and notwithstanding all of the other felonies he has been alleged and/or proven to have committed, I do not think that the extortion statute, as previously interpreted in the context of negotiations of civil disputes by lawyers on behalf of clients, can support this conviction. I expect it to be reversed.

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  2. Avatar photo
    Jake

    Avenatti potentially crossed the line from lawyering to extorting when he tied the payout to an expressly punitive event of tanking Nike’s earnings call and market cap. Lawyering would just file the lawsuit.

    I’m not a lawyer.

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  3. Nathaniel

    It was interesting to listen to this while on a cross-country car trip with three kids (my wife is pregnant, so she will fly with our 2-year-old and meet us on the other side).

    My older daughters (6 and 8) have now reached the age where they are aware of their bodies and are uncomfortable going into the men's restroom with me. They are timid but are willing to go into the women's restroom without a parent if they have each other.

    In what world are the feelings of little girls less important than those of grown men and women?

    The compelled-speech inherent in the sign coloring, etc., is unfortunate, but I would strongly support a less inflammatory version of the Tennessee law in my own state.

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  4. Avatar photo
    Michael Berkowitz

    I was surprised at the unveiling of the fMRI study about temporal-lobe development. If there was dispositive information there, we didn't hear it on the podcast.

    What percent does a lobe typically grow between the ages of 18 and 25? 50%? 0.5%?
    How many rash decisions does a given amount of lobe prevent? How rash?
    Is my underdeveloped lobe at 18 still bigger than your developed one at 25?
    How much gun violence can be attributed to poor impulse control, and specifically to the impulse-control delta between an 18-year-old lobe and a fully-developed one?

    That's just off the top of my head, but I *am* working with a fully-developed lobe. Maybe as many as two-and-a-third, by now.

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  5. Rodney Rubert

    I was very disappointed in David and Sarah during the discussion of the gun rights case. While they examined the larger statistical level of violence in 18 to 20 year old adults, they failed to mention that males make up the overwhelming super majority of the violence committed. Given the fact that the case concerns a woman's right to obtain an handgun, how could they not examine a ruling that would find the state does not have a compelling interest in limiting handguns for 18-20 year old women but can limit it to 18-20 year old males? If you want to carry it further, how would gender change impact such a ruling. I am especially shocked that Sarah did not bring this up.

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  6. Lanky

    I think they’d need to require places that don’t have non-gendered restrooms to post a sign that says something like “This establishment does not employ someone to ascertain the biological birth gender of every customer entering its restrooms, thoroughly enough to ensure that the customer has not undertaken genital reassignment surgery.”

    Without those essential restroom sentries, what’s stopping anyone, male or female, cis or trans, from entering any darn restroom they please? People have a right to know the risks their taking when they use a restroom, for goodness sake!

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  7. Avatar photo
    Pastorfbt

    Avenatti: not only do hard cases make bad law, so do despicable defendants.

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  8. Tom (Inadvertent Obfuscation)

    Sarah and David -- Please forgive that this post belongs to another podcast. Your run down of the statistics of the Supreme Court was very interesting and enlightening. The institutionalism axis for understanding a justice' approach makes sense.
    You seem to have also presented anecdotal evidence that this court has written more opinions per case. Do statistics bear that out? Do you think that is only because fewer cases have been attempted? What do you think of a theory that the justices are more expressive and cooperative because their team includes an experienced basketball coach?

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  9. James D

    I hadn't heard about that Tennessee law! The signage itself seems fine, but my goodness, the alarming colors the state is imposing there just make the whole thing come off as small-minded cruel. We stray ever further from the party of "small government"!

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    1. Avatar photo
      Kevin C. Smith

      Agreed!

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