May 20, 2025 • 32 mins
Eric Goldman, a professor at Santa Clara University Law School and co-director of the High Tech Law Institute, discusses the lawsuits filed by family members of the victims of the mass shooting in a Buffalo supermarket three years ago against social media giants. Anne Joseph O’Connell, a professor at Stanford Law School who specializes in political appointments. discusses recent presidents relying on interim appointments for important government roles. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's been three years since a white supremacist opened fire
inside a grocery store in Buffalo and killed ten people.
Speaker 3 (00:16):
This tragedy shocked us. It devastated us. It pushed us
to where we thought were beyond our limits. But it
didn't break us. It didn't break us. Instead, it revealed
a strength that runs deep in the veins of the city,
the strength of a community that binds together and refuses
to be defined by acts of hate.
Speaker 2 (00:35):
The eighteen year old shooter pleaded guilty to all state
charges and was sentenced to eleven concurrent life sentences. The
federal case against him is ongoing, but survivors and families
of the victims are seeking to hold social media companies responsible.
They're suing internet giants Google, Meta, Amazon, and Reddit for
(00:57):
publishing racist content that alleged motivated the shooter to commit
a hate crime by targeting people in a historically black
neighborhood hundreds of miles from his home.
Speaker 4 (01:08):
Our case is fundamentally about the isolation, obsession, lack of
impulse control, and desensitization resulting from the neurological and psychological
trauma inflicted on a teenager's brain by a highly addictive
social media product.
Speaker 2 (01:25):
And today both sides were in a New York appellate
courtroom where the social media companies are arguing that they
can't be held liable for the racist content on their sites.
The victim's families say the algorithms the Internet sites used
to deliver tailored content to users should be considered products
under the state's product liability law. Here are the attorneys
(01:48):
for the victims families and Meta.
Speaker 1 (01:51):
Any time our manufacturer places a dangerous product into the
stream of commerce that they reasonably know creates an unreasonable
risk of harm to the public, are libel are in
New York state products liability law. It's plain and dirt simple.
Speaker 5 (02:10):
And there are two sort of foundational problems here that
get us outside of the realm of traditional product liability.
One is that communicating intangible information is not a product,
and the second is that services are not products. And
here we have both of those things. Product liability law
(02:32):
is geared to the tangible world. That's the language of
the seminal Winter case.
Speaker 2 (02:38):
It would be a first in New York if a
court found a non tangible thing to be a product
for purposes of liability law. My guest is Eric Goleman,
a professor at Santa Clara University Law School and co
director of the High Tech Law Institute. Eric, can you
tell us about the allegations of the plaintiffs in these cases?
Speaker 6 (02:58):
The case involved the mass shooting in a Buffalo supermarket
by a white supremacist, and the basic gist of the
claims is that the shooter was radicalized on Facebook, and
so in order to fit that into legal doctrines, there's
a variety of different claims that the victims and families
(03:20):
have made in order to explain what's wrong with that?
Why does that actually create legal rights for the victims does?
Some of those include a claim that Facebook was negligent,
that it should have done something different to protect the victims,
and some of it is based on what we sometimes
(03:41):
call products liability. That Facebook is a product that is
dangerous and as a result, any harms is caused by
a dangerous product can be attributable to the supplier of
that product.
Speaker 2 (03:53):
Are the plaintiffs bringing it under the product liability law?
In order to get around sex.
Speaker 6 (04:01):
No. Section two thirty is a defense whereas the planets
have to still figure out a claim that actually fits
their facts. However, they do want to pick claims that
are not preempted by Section two thirty, which says, in short,
that websites aren't liable for third party content. So the
idea is that the planets are arguing that they're not
suing to hold Facebook liabel for the third party content.
(04:25):
They're suing based on Facebook's contribution to the radicalization of
the shooter.
Speaker 2 (04:31):
So when you think of product liability, you think of
tangible objects. You know, a mechanical device that injures you,
something like that. Has a New York court ever found
a streaming service or social media to be a product
under the state's product liability law.
Speaker 6 (04:50):
For decades, there have been legal theories that have held
that the supply of physical items that are at risk
of causing physical injury are live for those physical injuries.
And one of the classic old cases involved exploding coca
cola bottles, and if you didn't manufacture and fill the
coca cola bottle properly, it could literally explode and create
(05:11):
shards of laughs that were projectiles. And so the idea
is that we want manufacturers to be more careful in
the manufacture of an item like that because of the
physical risk of poses when that item is now in consumers' homes.
There's a very bright line in those doctrines between physical
items they are capable of causing physical injury and intangible
(05:33):
thinks or services which do not pose the same risk
of sending glass yards as projectiles, because there's literally nothing
like that in their possession. So the laws normally limit
products liability theories to actual physical products, not to services
like Internet services like Facebook. So it's a leap of
(05:58):
the theory to try and expand it to cover services.
This theory wasn't designed for that purpose, it's not optimized
to do so, and unlike the regulation of Coca Cola
bottles exploding with glass chards, there's significant speech implications if
we tried to regulate the dissemination of information as if
it's an exploding coke bottle. So there have been plaintiffs
(06:21):
across the country that have been trying out the theories
that internet services are subject to products liability doctrines, and
courts have split on that issue. Most courts have rejected it,
some have entertained it, and so it's a live frontier
in internet law today.
Speaker 2 (06:41):
And have there been rulings bipellate courts on that.
Speaker 6 (06:44):
Yes and no. There's been a variety of rulings in
different fact circumstances. But there's a leading case in this
area that just came out in February from the Fourth
Circuit involved a very very similar case involving the shooter
who allegedly was radicalized on Facebook, and the plaintiffs argued
products liability is part of the reasons why Facebook should
(07:04):
be liable, and in that case the Federal peblic Court
shut all that down and said that Facebook qualified for
Section two thirty. Everything that the Planets are arguing was
trying to hold Facebook liable for the third party content
available on service, and therefore the Planets lose. So the
plainliffs in this case aren't directly bound by that ruling,
but clearly there's a strong message from that ruling that
(07:27):
the Planetf's arguments should not be successful.
Speaker 2 (07:30):
Does that issue depend on the state's product liability law,
because those laws differ from state to state.
Speaker 6 (07:37):
It can we have to look at the terms of
the exact statute, what it says it covers. That might
very well restrict plaints claims, but not expand them. In
other words, there's some limit to the theory that as
far as it can go, at some point it has
to stop, either because of doctrines like Section two thirty,
which Congress enacted as the way to prevent that kind
(07:59):
of explan or because of the First Amendment that the
Constitution does not permit a physical based legal doctrine to
extend to the dissemination of the speech.
Speaker 2 (08:09):
If the court allows the case to go forward, well,
the plaintiffs have to prove that Facebook or the other
platforms led to the radicalization of the shooter. And how
difficult will that be?
Speaker 6 (08:22):
Definitely they'll have to show that what we call causation
when it comes to negligence. I believe that that will
also be relevant in the context of strict products liability,
and it will be difficult. And causation was also an
issue in the Federal Appellate Court. Rulin I mentioned from
the Fourth Circuit and the court independently said there was
(08:43):
not sufficient causation in that case. And when we think
about what causes someone to radicalize into a white supremacist
and even words, what causes a white supremacist to then
decide to engage in mass murder. There's so many things
that contribute to that outcome, and it's very difficult to
pull out one piece and say that's the cause. They
(09:05):
should bear all the burden of responsibility. In fact, it
really is a whole of society failure to have people
who end up in that circumstance, and we really need
to look at our society across the board to figure
out what went wrong and what we ought to be
doing differently, and to try and pin it on anyone
player in the ecosystem. To say Facebook was the reason
why this particular person pulled the trigger, I really think
(09:27):
kind of denies the reality of how we've all contributed
to a society that can lead to these outcomes and.
Speaker 2 (09:35):
Explain how Section two thirty would work here As a.
Speaker 6 (09:39):
Defense, So the planets started arguing that Facebook radicalized the shooter,
and Facebook itself normally doesn't publish content itself that it authored.
Its primary way of engaging in content distribution is to
gather third party content like the Facebook post that we
all make as the every day activity, and then share
(10:01):
that with an audience. And so the content that allegedly
radicalized the shooter didn't come from Facebook. Facebook most was
the mechanism by which some author matched with the shooter.
And so it's impossible really to describe Facebook's role in
radicalizing the shooter without talking about the content that regalized
(10:24):
the shooter, all of which came from a third party.
And if third party content can't create liability for Facebook
section two, there you will apply a note.
Speaker 2 (10:33):
Michael Bloomberg, the founder and majority owner of Bloomberg LP,
the parent company of Bloomberg Radio, is a donor to
groups that support gun control, including every Town for Gun Safety,
which represented the plaintiffs in this case in the lower courts.
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Eric Goleman of Santa Clara University
(10:55):
Law School. We'll talk more about the algorithms that issue
in the case. Survivors and families of the victims of
the mass shooting in a Buffalo supermarket three years ago
are suing Internet giants Google, Meta, Amazon, and Reddit for
publishing racist content that allegedly motivated the shooter to commit
(11:16):
a hate crime targeting people in an historically black neighborhood
hundreds of miles from his Home. The plaintiffs blame the
proprietary algorithms the companies use.
Speaker 1 (11:27):
Putting people in groups. There's something called confirmation bias. And
when you put people in groups where they're getting these
white supremacist theories and these calls to violence and these
calls to make a race war and think that that's
the right thing. That's what happened to Peyton Gendron, and
that's what this lawsuit is about him.
Speaker 2 (11:49):
But the Internet companies say they're protected from liability under
the law, which says no interactive computer service provider can
be treated as the publisher or speaker of any information
provided by another information content provider. I've been talking with
Professor Eric Goldman of Santa Clara University Law School. Eric
(12:09):
tell us about the plaintiff's claims about the algorithms.
Speaker 6 (12:14):
So, in order for the shooter to get access to
the radicalizing content, somebody has to upload it, and then
Facebook has to make the match to present that to
the reader to the shooter in this case, and so
plainists have often claimed that it was the algorithm Facebook
created that led to this radicalization. Now, there are a
couple of problems with that theory. One is it was
(12:34):
expressly rejected. In the Fourth Circuit opinion that I mentioned earlier,
Federal Peller Court said that's not a way of getting
around Section two thirty. The other piece, and the Appellate
Court mentioned this as well, that in order for Facebook
to do anything differently to prevent that requalization, it would
have to re architect its entire service. In other words,
there's not a way of it just changing the algorithm
(12:57):
to eliminate the risk of rattle and clovation with changing
any other element of its algorithm. So, in other words,
there's no easy fix here for Facebook. Facebook work the
way it was designed to work. It may matches between
people and content they might be interested in. Unfortunately, some
people are interested in content that is antisocial. Facebook's algorithm
(13:18):
treats that the same as all other content.
Speaker 2 (13:20):
The director of the Center for Democracy and Technologies Free
Expression Project, which filed in a MEEKS brief in support
of the social media companies, said if the automatic ranking
and delivery of content is separated from the Section two
thirty liability shield, it will suddenly make many pieces of
content open to liability and incentivized platforms that use automated
(13:43):
ranking systems to deliver content to suppress or eliminate delivery
of content they're worried about. So basically, would there be
a chilling effect if that happens.
Speaker 6 (13:53):
I think that's a riff on what I was just saying,
and maybe said better than I did. But let me
take another cut at it. So, if Facebook is liable
for radicalization content, and if and I'm going to hypothesize this,
it's true, people might debate it. There is no way
for Facebook to know which content is radicalized in or not,
(14:14):
or to properly separate that from the pro social content
that it would prefer to disseminate. Then Facebook basically becomes
the financial guaranteur of any harms that are caused by
people that can be traced back to someone's consumption content
on Facebook. We've seen so many cases in this genre.
This is not a unique case in Buffalo. Many times,
(14:35):
victims of shootings have claimed that the shooter was exposed
to content on social media, and social media should be
responsible for this, and that's just not tenable. Social media
cannot act as the financial guaranteur of all the shootings
that take place in the world, so then they have
to do something different. If they become the financial guarantur
they cannot exist in their current form.
Speaker 2 (14:55):
The easiest path for the Appellate Division right now in
this case is to allow the case to go forward
and to say, you know, the facts have to be
developed before we can make a decision on whether or
not this is subject to the state's product liability law.
Speaker 6 (15:13):
So that's essentially what the lower court did. The lower
court basically said, I understand Facebook's defenses, and yet I
need to see more facts than before I'm prepared to
make the conclusion that products valuability applies, or even that
Section two thirty applies. So one possibility is that pel
Court could say that District Court was right. Let the
(15:33):
case continue to evolve in its ordinary manner, and once
we get more information, then we'll be able to figure
out what defenses to actually apply in the circumstance. Most
cases evolving section two thirty don't do that. Most cases
in section two thirty. And at the motion the Smiths,
because it is obvious on the face there's nothing that
would be produced in a discovery that would show that
(15:55):
Section two thirty didn't apply. And here I don't think
anyone's contesting the Facebook provided or authored the radicalizing content.
The allegation is that it matched the shooter with their
party content. So everything that the court needs to know
about Section two theories, I think or are you available
to it. So punting on that question actually would be
(16:16):
a disservice to Facebook and I think to all other
social media that expect to be able to avoid the
liability for things that they're not legally responsible for.
Speaker 2 (16:26):
It's interesting that the plaintiffs to your chose state court
were in the other case you were discussing the plaintiffs
chose federal court.
Speaker 6 (16:34):
You know, planets get to pick the venue that they
think is the best place for them to achieve justice.
So it's completely logical that they might conclude that New
York state courts is opposed to New York federal courts
are a better venue for them. But I would hope
that the New York state courts will still take a
look at what's going on in the rest of the country,
because this is not a novel issue across the country,
(16:54):
and the case law is very clear that the New
York state trial courts got a wrong.
Speaker 2 (17:00):
How important is this case as a precedent, let's say,
for other cases around the country, and is it important
or is it just, you know, another one of the
cases that you've been talking about. Is there any import
to it?
Speaker 6 (17:12):
So every case that involves the situation where social media
allegedly contributed to some offline harm is important because if
those cases succeed, then all social media services face an
extreme amount of liability that may make them financially untenable.
So it's like the social media services have to bat
(17:35):
a thousand in these cases. If they only bout nine
to ninety nine and one case gets through, that one
case could potentially change the entire Internet ecosystem. So if
this case ends up like essentially all the others, and
the planiffs don't succeed, then this case became unimportant. It's
just one of the many. If for whatever reason, this
(17:56):
case does succeed, then this could be the case that
reshapes the Internet. And the district court opinion in this
case was so troubling, and because it clearly deviated from
pressing around the country, and because it basically said I
can't make any judgments, even though many people thought that
the court had all the facts that needed to make
(18:18):
a judgment. And so if that's the case, it opens
up the door for unpredictable results, and that unpredictable is
actually its own form of danger to the Internet.
Speaker 2 (18:28):
Any final thoughts.
Speaker 6 (18:30):
You know, the Buffalo shoe was horrific. You know, all
these mass murders are just heartbreaking. You know, they're a
sign of pathology in our country. They just absolutely tear
me up. And the fact that the shooter was espousing
the great replacement theory is even more troubling that this
theory continues to find an audience in our country when
(18:53):
it's both a factual but it's also deeply corrosive. I
will add that want to blame Facebook for the dissemination
of the great replacement theory, but many leading figures in
our country, whether that's media pundits or actual government officials,
have also dabbled in the great replacement theory, and so
(19:14):
to me, the idea that Facebook ratoclides this shooter misses
the whole ecosystem.
Speaker 2 (19:20):
We'll see if the New York Appellate Court here deviates
from the way most other courts have ruled. Thanks so much, Eric,
that's professor Eric Goldman of a Santa Clara University School
of Law. Coming up next on the Bloomberg Law Show.
The growing trend of presidents using temporary appointments for top
roles in government. President Trump has installed another loyalist in
(19:44):
one of the most powerful US attorney's offices in the country.
Former Fox News host Janine Piro has taken over as
the interim US Attorney for DC from Ed Martin, who
was the interim US Attorney for close to one hundred
and twenty days. The interim nature of both appointments test
the bounds of a federal statute governing temporary officials and
(20:07):
reflects a growing trend of presidents leaning on temporary appointments
for top roles in government. My guest is Anne Joseph O'Connell,
a professor at Stanford Law School who specializes in political appointments.
Will you explain the provisions that are at play when
a US attorney is given an interim appointment.
Speaker 7 (20:28):
So, when there's not a Senate confirmed US attorney in
a particular district, there are two statutes that can provide
for temporary service. So the first, what we call interim
US attorneys, is a specific provision in the United States
Code called Section five forty six, and that provision allows
(20:48):
for the Attorney General to choose a temporary interim US
attorney for the district in which there is not a
Senate confirmed person. There are no restrictions on who the
Attorney General can pick, so they don't have to pick
someone who's within the Department of Justice, unlike this other
statutory provision. And so the Attorney General can pick an
(21:09):
interim US attorney and that person can serve for one
hundred and twenty days under section five forty six, and
then after that one hundred twenty days expires, the district
court may right may appoint a US attorney to serve
until there is a Senate confirmed one.
Speaker 2 (21:30):
So what happened here is the term for ed Martin
was about to run out, and before the district court
could appoint someone, President Trump nominated as another interim US attorney.
Jeanine Piro I mean, is that according to the.
Speaker 7 (21:44):
Rules, Well, it depends whether you're looking at the text
of the rule or the intent of the provision. Under
the text, I think it's permitted. The provision Section five
forty six does not explicitly bar successive one hundred twenty
day appointments. And I should also note that even if
the district courts had chosen someone, the President in all
(22:08):
likelihood could have fired the district court pick and picked
another interim US attorney or turned this other statue the
Federal Vacancy's Reform Act. So I think the text permits
successive appointments. There's no explicit bar on it. There's no
provision that provides for a penalty if you see these
successive appointments end. In the past, we have seen successive appointments.
(22:34):
Now that's the text. When Congress reimposed time limits, so
put back the one hundred and twenty day constraint on
how long interim US attorneys can serve. They did that
in two thousand and seven after a US attorney scandal
involving Attorney General Darto Gonzalez, who had fired a number
(22:55):
of US attorneys. And the scandal was not whether the
president or the Attorney General could fire US attorneys. It
was about the reason that was given for those firings.
But at the time that it happened, there was no
limit on how long interim US attorneys could serve. And
this had occurred after September eleventh. There was a period
(23:16):
of years where there was kind of no time limit.
But then in two thousand and seven, Congress put back
this time limit, and I think the putting back of
the time limit suggests strongly that the intent of Congress
was not to have endless interim appointments of US attorneys.
Speaker 2 (23:33):
And was that the intent of the Framers as well.
In other words, they wanted the Senate to advise and consent.
Speaker 3 (23:40):
So we have.
Speaker 7 (23:42):
Had Senate confirmed appointments since the start of the United
States Constitution under the appointments Clause, and interestingly, we've had
statutes that provide for temporary appointments from about the same time.
The very first Vacancies Act, which applied generally, was in
seventeen ninety two, and there was another one in seventeen
(24:03):
ninety five. There it gets a little tricky about kind
of what were the time limits, because in the seventeen
ninety five Act, Congress imposed the six month time limit
on acting officials.
Speaker 2 (24:15):
Here a lot of actings. Have US presidents been using
interim positions more and more so I have done.
Speaker 7 (24:23):
Some research on recent administrations and looking at the very
highest level of positions, so the heads of agencies, cabinet
secretaries in particular, and definitely recent administrations, and that would
include President Obama, President Trump's first term and President Biden
(24:44):
have heavily relied on acting officials, much more, I would say,
than their predecessors in terms of modern government.
Speaker 2 (24:54):
What's the reason for this? I know that President Trump
in the past has said, you know, he likes the
idea of it.
Speaker 3 (25:00):
Is it because it's.
Speaker 2 (25:00):
Difficult to get people through the Senate? I mean, what's
the reason then they're using it more.
Speaker 7 (25:06):
I think there are several reasons. The first is it
takes time to nominate people. Though I will say that
President Trump in his second term has a much faster
nominations pace than he had in his first term. I
mean six or sevenfold more nominations at one hundred day
mark in his second term than in his first term.
(25:28):
But nominations still takes time to find the people and
to formally nominate them. There's a vetting that occurs, and
I think for President Trump that vetting has really focused
on loyalty, whereas in other administrations might be focusing on
ethical considerations, expertise and the like. And then there's the
confirmation process. And so even as we have now and
(25:52):
even as we did for President Biden, have a Senate
controlled by the same party as the White House. It's
still takes time because individual senators. Even though there's no
longer a sixty vote threshold to move a nomination to
a confirmation vote that went away in November twenty thirteen,
individual senators can still delay the confirmation's process, right, And
(26:16):
we saw this with Senator Tuberville in the Biden administration.
We've seen this in other cases as well. Right, Democrats
do it to Republicans. Republicans do it to Democrats, and
that can slow it down. And so I think both
the nominations and confirmation process make acting officials attractive. But
I would also say that what I think is a
(26:36):
large reason is that acting officials don't require Senate confirmation,
and so you can pick people to serve in the
temporary capacity that the Senate might not confirm. So in
President Trump's first term, the Republicans, as reported by the media,
did not want to confirm Ken Kucinelli to a senior
post in the Department of Homeland Security, but through acting
(27:00):
appointments and delegations of authority, mister Kuchinelli was able to
serve in very high profile roles in DXS. And I
think a similar story right for Ed Martin that Republicans
balked and he was able through the interim provision to serve,
whereas you know, if he had just been put up
as a nominee, not as an interim, he might not
(27:22):
have gotten true.
Speaker 2 (27:23):
Has President Trump pushed the limits of the Vacancy's Act
further than other presidents?
Speaker 7 (27:30):
I think the Vacancy's Act is pretty capacious. It allows
the government to function. I think the Vacancies Act should
be reformed in certain ways because I think it allows
more than perhaps what we want for an accountable government.
But I think in this term, President Trump is really
pushing an argument that no previous president has pushed, which
(27:52):
is that he believes that if the Vacancy's Act does
not apply, he has inherent article to authority name acting officials.
And this has come up in the Inner America Foundation
and the African Development Foundation, these are entities not covered
by the Vacancies Act, where President Trump has named acting
officials to Senate confirmed Board positions relying on claimed inherent
(28:18):
article to authority. It seems with the firing of the
Librarian of Congress that if the Library of Congress is
not subject to the Vacancies Act, and I don't think
it is President Trump. The White House is indicated that
there is Article two authority to name an acting librarian,
and I think this is an outrageous claim. We have
an appointments clause, we have a recess appointments clause. It
(28:39):
is true that the Vacancies Act and specific agency provisions
like section five forty six for interim US attorneys, do
allow vast use of temporary appointments, but outside of those,
presidents need to rely on the appointments clause or the
recess appointment.
Speaker 2 (28:55):
So some are saying that with the US attorney, for example,
with Piero becoming the second interim US Attorney for DC,
that defendants might be able to challenge some of the
you know, prosecutions, et cetera under her because of this issue.
Speaker 7 (29:15):
I think they would definitely have standing to sue. And
I think their argument would be that under five forty six,
successive one hundred and twenty day appointments are not allowed.
And I think that is a plausible argument. I just
don't think it's a winning argument. I think that courts
will look at the text. Right as Justice Kagan says,
(29:36):
we're all textless now, that the courts will look at
the text and see that successive one hundred and twenty
day appointments are not barred. It's happened in the past
and permitted. Now, that doesn't mean it shouldn't change. I
mean Congress could amend five forty six to make it
clear that you get one one hundred twenty day appointment,
(29:57):
then the district court gets to choose. And then I
should note that there is an alternative to these successive
one hundred and twenty day appointments. While a nomination might
be pending to a US attorney slot, is that I
believe that the Federal Vacancy's Reform Act is available for
temporary appointments to these positions. Now, the constraint why I
(30:19):
think the Trump administration doesn't want to turn to the
Vacancies Act is that under the Vacancy's Act, you can't
just choose anyone. You can't choose an outsider like the
current person. You can't choose an outsider to come in
as an acting US attorney. You either need to choose
someone who is the first assistant to the US Attorney right,
(30:39):
which is typically a career person. You need to choose
someone who has Senate confirmed already to another position, so
it has already kind of gone through the Senate process,
or you have to choose someone who was in the
agency for at least ninety days in the year before
the vacancy.
Speaker 2 (30:56):
So finally, you think there needs to be reform here.
Speaker 1 (30:59):
I think the.
Speaker 7 (31:01):
Law of governing temporary appointments are pretty broad and likely
too broad. On the other hand, we want the government
to function. We don't want the government to come to
a standstill. And so finding the balance between getting Senate
confirmed appointments through a dysfunctional appointments process and having the
(31:25):
government function is tricky. And sometimes we're on the right
side of the balance, and sometimes we're on the wrong
side of the balance. And so I think that Congress
really has a role to play in constraining the use
of acting an interim appointment.
Speaker 2 (31:42):
So we'll start counting now to see if Janine Pirou
is nominated to be the permanent US Attorney for DC
before the one hundred and twenty days expires. Thanks so
much for joining me today. That's Professor and Joseph O'Connell
of Stanford Law School, and that's it for the edition
of the Bloomberg Law Show. Remember you can always get
(32:03):
the latest legal news on our Bloomberg Law podcasts. You
can find them on Apple Podcasts, Spotify, and at www
dot bloomberg dot com, slash podcast slash Law, and remember
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm June Grosso and you're
listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's been three years since a white supremacist opened fire
inside a grocery store in Buffalo and killed ten people.
Speaker 3 (00:16):
This tragedy shocked us. It devastated us. It pushed us
to where we thought were beyond our limits. But it
didn't break us. It didn't break us. Instead, it revealed
a strength that runs deep in the veins of the city,
the strength of a community that binds together and refuses
to be defined by acts of hate.
Speaker 2 (00:35):
The eighteen year old shooter pleaded guilty to all state
charges and was sentenced to eleven concurrent life sentences. The
federal case against him is ongoing, but survivors and families
of the victims are seeking to hold social media companies responsible.
They're suing internet giants Google, Meta, Amazon, and Reddit for
(00:57):
publishing racist content that alleged motivated the shooter to commit
a hate crime by targeting people in a historically black
neighborhood hundreds of miles from his home.
Speaker 4 (01:08):
Our case is fundamentally about the isolation, obsession, lack of
impulse control, and desensitization resulting from the neurological and psychological
trauma inflicted on a teenager's brain by a highly addictive
social media product.
Speaker 2 (01:25):
And today both sides were in a New York appellate
courtroom where the social media companies are arguing that they
can't be held liable for the racist content on their sites.
The victim's families say the algorithms the Internet sites used
to deliver tailored content to users should be considered products
under the state's product liability law. Here are the attorneys
(01:48):
for the victims families and Meta.
Speaker 1 (01:51):
Any time our manufacturer places a dangerous product into the
stream of commerce that they reasonably know creates an unreasonable
risk of harm to the public, are libel are in
New York state products liability law. It's plain and dirt simple.
Speaker 5 (02:10):
And there are two sort of foundational problems here that
get us outside of the realm of traditional product liability.
One is that communicating intangible information is not a product,
and the second is that services are not products. And
here we have both of those things. Product liability law
(02:32):
is geared to the tangible world. That's the language of
the seminal Winter case.
Speaker 2 (02:38):
It would be a first in New York if a
court found a non tangible thing to be a product
for purposes of liability law. My guest is Eric Goleman,
a professor at Santa Clara University Law School and co
director of the High Tech Law Institute. Eric, can you
tell us about the allegations of the plaintiffs in these cases?
Speaker 6 (02:58):
The case involved the mass shooting in a Buffalo supermarket
by a white supremacist, and the basic gist of the
claims is that the shooter was radicalized on Facebook, and
so in order to fit that into legal doctrines, there's
a variety of different claims that the victims and families
(03:20):
have made in order to explain what's wrong with that?
Why does that actually create legal rights for the victims does?
Some of those include a claim that Facebook was negligent,
that it should have done something different to protect the victims,
and some of it is based on what we sometimes
(03:41):
call products liability. That Facebook is a product that is
dangerous and as a result, any harms is caused by
a dangerous product can be attributable to the supplier of
that product.
Speaker 2 (03:53):
Are the plaintiffs bringing it under the product liability law?
In order to get around sex.
Speaker 6 (04:01):
No. Section two thirty is a defense whereas the planets
have to still figure out a claim that actually fits
their facts. However, they do want to pick claims that
are not preempted by Section two thirty, which says, in short,
that websites aren't liable for third party content. So the
idea is that the planets are arguing that they're not
suing to hold Facebook liabel for the third party content.
(04:25):
They're suing based on Facebook's contribution to the radicalization of
the shooter.
Speaker 2 (04:31):
So when you think of product liability, you think of
tangible objects. You know, a mechanical device that injures you,
something like that. Has a New York court ever found
a streaming service or social media to be a product
under the state's product liability law.
Speaker 6 (04:50):
For decades, there have been legal theories that have held
that the supply of physical items that are at risk
of causing physical injury are live for those physical injuries.
And one of the classic old cases involved exploding coca
cola bottles, and if you didn't manufacture and fill the
coca cola bottle properly, it could literally explode and create
(05:11):
shards of laughs that were projectiles. And so the idea
is that we want manufacturers to be more careful in
the manufacture of an item like that because of the
physical risk of poses when that item is now in consumers' homes.
There's a very bright line in those doctrines between physical
items they are capable of causing physical injury and intangible
(05:33):
thinks or services which do not pose the same risk
of sending glass yards as projectiles, because there's literally nothing
like that in their possession. So the laws normally limit
products liability theories to actual physical products, not to services
like Internet services like Facebook. So it's a leap of
(05:58):
the theory to try and expand it to cover services.
This theory wasn't designed for that purpose, it's not optimized
to do so, and unlike the regulation of Coca Cola
bottles exploding with glass chards, there's significant speech implications if
we tried to regulate the dissemination of information as if
it's an exploding coke bottle. So there have been plaintiffs
(06:21):
across the country that have been trying out the theories
that internet services are subject to products liability doctrines, and
courts have split on that issue. Most courts have rejected it,
some have entertained it, and so it's a live frontier
in internet law today.
Speaker 2 (06:41):
And have there been rulings bipellate courts on that.
Speaker 6 (06:44):
Yes and no. There's been a variety of rulings in
different fact circumstances. But there's a leading case in this
area that just came out in February from the Fourth
Circuit involved a very very similar case involving the shooter
who allegedly was radicalized on Facebook, and the plaintiffs argued
products liability is part of the reasons why Facebook should
(07:04):
be liable, and in that case the Federal peblic Court
shut all that down and said that Facebook qualified for
Section two thirty. Everything that the Planets are arguing was
trying to hold Facebook liable for the third party content
available on service, and therefore the Planets lose. So the
plainliffs in this case aren't directly bound by that ruling,
but clearly there's a strong message from that ruling that
(07:27):
the Planetf's arguments should not be successful.
Speaker 2 (07:30):
Does that issue depend on the state's product liability law,
because those laws differ from state to state.
Speaker 6 (07:37):
It can we have to look at the terms of
the exact statute, what it says it covers. That might
very well restrict plaints claims, but not expand them. In
other words, there's some limit to the theory that as
far as it can go, at some point it has
to stop, either because of doctrines like Section two thirty,
which Congress enacted as the way to prevent that kind
(07:59):
of explan or because of the First Amendment that the
Constitution does not permit a physical based legal doctrine to
extend to the dissemination of the speech.
Speaker 2 (08:09):
If the court allows the case to go forward, well,
the plaintiffs have to prove that Facebook or the other
platforms led to the radicalization of the shooter. And how
difficult will that be?
Speaker 6 (08:22):
Definitely they'll have to show that what we call causation
when it comes to negligence. I believe that that will
also be relevant in the context of strict products liability,
and it will be difficult. And causation was also an
issue in the Federal Appellate Court. Rulin I mentioned from
the Fourth Circuit and the court independently said there was
(08:43):
not sufficient causation in that case. And when we think
about what causes someone to radicalize into a white supremacist
and even words, what causes a white supremacist to then
decide to engage in mass murder. There's so many things
that contribute to that outcome, and it's very difficult to
pull out one piece and say that's the cause. They
(09:05):
should bear all the burden of responsibility. In fact, it
really is a whole of society failure to have people
who end up in that circumstance, and we really need
to look at our society across the board to figure
out what went wrong and what we ought to be
doing differently, and to try and pin it on anyone
player in the ecosystem. To say Facebook was the reason
why this particular person pulled the trigger, I really think
(09:27):
kind of denies the reality of how we've all contributed
to a society that can lead to these outcomes and.
Speaker 2 (09:35):
Explain how Section two thirty would work here As a.
Speaker 6 (09:39):
Defense, So the planets started arguing that Facebook radicalized the shooter,
and Facebook itself normally doesn't publish content itself that it authored.
Its primary way of engaging in content distribution is to
gather third party content like the Facebook post that we
all make as the every day activity, and then share
(10:01):
that with an audience. And so the content that allegedly
radicalized the shooter didn't come from Facebook. Facebook most was
the mechanism by which some author matched with the shooter.
And so it's impossible really to describe Facebook's role in
radicalizing the shooter without talking about the content that regalized
(10:24):
the shooter, all of which came from a third party.
And if third party content can't create liability for Facebook
section two, there you will apply a note.
Speaker 2 (10:33):
Michael Bloomberg, the founder and majority owner of Bloomberg LP,
the parent company of Bloomberg Radio, is a donor to
groups that support gun control, including every Town for Gun Safety,
which represented the plaintiffs in this case in the lower courts.
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Eric Goleman of Santa Clara University
(10:55):
Law School. We'll talk more about the algorithms that issue
in the case. Survivors and families of the victims of
the mass shooting in a Buffalo supermarket three years ago
are suing Internet giants Google, Meta, Amazon, and Reddit for
publishing racist content that allegedly motivated the shooter to commit
(11:16):
a hate crime targeting people in an historically black neighborhood
hundreds of miles from his Home. The plaintiffs blame the
proprietary algorithms the companies use.
Speaker 1 (11:27):
Putting people in groups. There's something called confirmation bias. And
when you put people in groups where they're getting these
white supremacist theories and these calls to violence and these
calls to make a race war and think that that's
the right thing. That's what happened to Peyton Gendron, and
that's what this lawsuit is about him.
Speaker 2 (11:49):
But the Internet companies say they're protected from liability under
the law, which says no interactive computer service provider can
be treated as the publisher or speaker of any information
provided by another information content provider. I've been talking with
Professor Eric Goldman of Santa Clara University Law School. Eric
(12:09):
tell us about the plaintiff's claims about the algorithms.
Speaker 6 (12:14):
So, in order for the shooter to get access to
the radicalizing content, somebody has to upload it, and then
Facebook has to make the match to present that to
the reader to the shooter in this case, and so
plainists have often claimed that it was the algorithm Facebook
created that led to this radicalization. Now, there are a
couple of problems with that theory. One is it was
(12:34):
expressly rejected. In the Fourth Circuit opinion that I mentioned earlier,
Federal Peller Court said that's not a way of getting
around Section two thirty. The other piece, and the Appellate
Court mentioned this as well, that in order for Facebook
to do anything differently to prevent that requalization, it would
have to re architect its entire service. In other words,
there's not a way of it just changing the algorithm
(12:57):
to eliminate the risk of rattle and clovation with changing
any other element of its algorithm. So, in other words,
there's no easy fix here for Facebook. Facebook work the
way it was designed to work. It may matches between
people and content they might be interested in. Unfortunately, some
people are interested in content that is antisocial. Facebook's algorithm
(13:18):
treats that the same as all other content.
Speaker 2 (13:20):
The director of the Center for Democracy and Technologies Free
Expression Project, which filed in a MEEKS brief in support
of the social media companies, said if the automatic ranking
and delivery of content is separated from the Section two
thirty liability shield, it will suddenly make many pieces of
content open to liability and incentivized platforms that use automated
(13:43):
ranking systems to deliver content to suppress or eliminate delivery
of content they're worried about. So basically, would there be
a chilling effect if that happens.
Speaker 6 (13:53):
I think that's a riff on what I was just saying,
and maybe said better than I did. But let me
take another cut at it. So, if Facebook is liable
for radicalization content, and if and I'm going to hypothesize this,
it's true, people might debate it. There is no way
for Facebook to know which content is radicalized in or not,
(14:14):
or to properly separate that from the pro social content
that it would prefer to disseminate. Then Facebook basically becomes
the financial guaranteur of any harms that are caused by
people that can be traced back to someone's consumption content
on Facebook. We've seen so many cases in this genre.
This is not a unique case in Buffalo. Many times,
(14:35):
victims of shootings have claimed that the shooter was exposed
to content on social media, and social media should be
responsible for this, and that's just not tenable. Social media
cannot act as the financial guaranteur of all the shootings
that take place in the world, so then they have
to do something different. If they become the financial guarantur
they cannot exist in their current form.
Speaker 2 (14:55):
The easiest path for the Appellate Division right now in
this case is to allow the case to go forward
and to say, you know, the facts have to be
developed before we can make a decision on whether or
not this is subject to the state's product liability law.
Speaker 6 (15:13):
So that's essentially what the lower court did. The lower
court basically said, I understand Facebook's defenses, and yet I
need to see more facts than before I'm prepared to
make the conclusion that products valuability applies, or even that
Section two thirty applies. So one possibility is that pel
Court could say that District Court was right. Let the
(15:33):
case continue to evolve in its ordinary manner, and once
we get more information, then we'll be able to figure
out what defenses to actually apply in the circumstance. Most
cases evolving section two thirty don't do that. Most cases
in section two thirty. And at the motion the Smiths,
because it is obvious on the face there's nothing that
would be produced in a discovery that would show that
(15:55):
Section two thirty didn't apply. And here I don't think
anyone's contesting the Facebook provided or authored the radicalizing content.
The allegation is that it matched the shooter with their
party content. So everything that the court needs to know
about Section two theories, I think or are you available
to it. So punting on that question actually would be
(16:16):
a disservice to Facebook and I think to all other
social media that expect to be able to avoid the
liability for things that they're not legally responsible for.
Speaker 2 (16:26):
It's interesting that the plaintiffs to your chose state court
were in the other case you were discussing the plaintiffs
chose federal court.
Speaker 6 (16:34):
You know, planets get to pick the venue that they
think is the best place for them to achieve justice.
So it's completely logical that they might conclude that New
York state courts is opposed to New York federal courts
are a better venue for them. But I would hope
that the New York state courts will still take a
look at what's going on in the rest of the country,
because this is not a novel issue across the country,
(16:54):
and the case law is very clear that the New
York state trial courts got a wrong.
Speaker 2 (17:00):
How important is this case as a precedent, let's say,
for other cases around the country, and is it important
or is it just, you know, another one of the
cases that you've been talking about. Is there any import
to it?
Speaker 6 (17:12):
So every case that involves the situation where social media
allegedly contributed to some offline harm is important because if
those cases succeed, then all social media services face an
extreme amount of liability that may make them financially untenable.
So it's like the social media services have to bat
(17:35):
a thousand in these cases. If they only bout nine
to ninety nine and one case gets through, that one
case could potentially change the entire Internet ecosystem. So if
this case ends up like essentially all the others, and
the planiffs don't succeed, then this case became unimportant. It's
just one of the many. If for whatever reason, this
(17:56):
case does succeed, then this could be the case that
reshapes the Internet. And the district court opinion in this
case was so troubling, and because it clearly deviated from
pressing around the country, and because it basically said I
can't make any judgments, even though many people thought that
the court had all the facts that needed to make
(18:18):
a judgment. And so if that's the case, it opens
up the door for unpredictable results, and that unpredictable is
actually its own form of danger to the Internet.
Speaker 2 (18:28):
Any final thoughts.
Speaker 6 (18:30):
You know, the Buffalo shoe was horrific. You know, all
these mass murders are just heartbreaking. You know, they're a
sign of pathology in our country. They just absolutely tear
me up. And the fact that the shooter was espousing
the great replacement theory is even more troubling that this
theory continues to find an audience in our country when
(18:53):
it's both a factual but it's also deeply corrosive. I
will add that want to blame Facebook for the dissemination
of the great replacement theory, but many leading figures in
our country, whether that's media pundits or actual government officials,
have also dabbled in the great replacement theory, and so
(19:14):
to me, the idea that Facebook ratoclides this shooter misses
the whole ecosystem.
Speaker 2 (19:20):
We'll see if the New York Appellate Court here deviates
from the way most other courts have ruled. Thanks so much, Eric,
that's professor Eric Goldman of a Santa Clara University School
of Law. Coming up next on the Bloomberg Law Show.
The growing trend of presidents using temporary appointments for top
roles in government. President Trump has installed another loyalist in
(19:44):
one of the most powerful US attorney's offices in the country.
Former Fox News host Janine Piro has taken over as
the interim US Attorney for DC from Ed Martin, who
was the interim US Attorney for close to one hundred
and twenty days. The interim nature of both appointments test
the bounds of a federal statute governing temporary officials and
(20:07):
reflects a growing trend of presidents leaning on temporary appointments
for top roles in government. My guest is Anne Joseph O'Connell,
a professor at Stanford Law School who specializes in political appointments.
Will you explain the provisions that are at play when
a US attorney is given an interim appointment.
Speaker 7 (20:28):
So, when there's not a Senate confirmed US attorney in
a particular district, there are two statutes that can provide
for temporary service. So the first, what we call interim
US attorneys, is a specific provision in the United States
Code called Section five forty six, and that provision allows
(20:48):
for the Attorney General to choose a temporary interim US
attorney for the district in which there is not a
Senate confirmed person. There are no restrictions on who the
Attorney General can pick, so they don't have to pick
someone who's within the Department of Justice, unlike this other
statutory provision. And so the Attorney General can pick an
(21:09):
interim US attorney and that person can serve for one
hundred and twenty days under section five forty six, and
then after that one hundred twenty days expires, the district
court may right may appoint a US attorney to serve
until there is a Senate confirmed one.
Speaker 2 (21:30):
So what happened here is the term for ed Martin
was about to run out, and before the district court
could appoint someone, President Trump nominated as another interim US attorney.
Jeanine Piro I mean, is that according to the.
Speaker 7 (21:44):
Rules, Well, it depends whether you're looking at the text
of the rule or the intent of the provision. Under
the text, I think it's permitted. The provision Section five
forty six does not explicitly bar successive one hundred twenty
day appointments. And I should also note that even if
the district courts had chosen someone, the President in all
(22:08):
likelihood could have fired the district court pick and picked
another interim US attorney or turned this other statue the
Federal Vacancy's Reform Act. So I think the text permits
successive appointments. There's no explicit bar on it. There's no
provision that provides for a penalty if you see these
successive appointments end. In the past, we have seen successive appointments.
(22:34):
Now that's the text. When Congress reimposed time limits, so
put back the one hundred and twenty day constraint on
how long interim US attorneys can serve. They did that
in two thousand and seven after a US attorney scandal
involving Attorney General Darto Gonzalez, who had fired a number
(22:55):
of US attorneys. And the scandal was not whether the
president or the Attorney General could fire US attorneys. It
was about the reason that was given for those firings.
But at the time that it happened, there was no
limit on how long interim US attorneys could serve. And
this had occurred after September eleventh. There was a period
(23:16):
of years where there was kind of no time limit.
But then in two thousand and seven, Congress put back
this time limit, and I think the putting back of
the time limit suggests strongly that the intent of Congress
was not to have endless interim appointments of US attorneys.
Speaker 2 (23:33):
And was that the intent of the Framers as well.
In other words, they wanted the Senate to advise and consent.
Speaker 3 (23:40):
So we have.
Speaker 7 (23:42):
Had Senate confirmed appointments since the start of the United
States Constitution under the appointments Clause, and interestingly, we've had
statutes that provide for temporary appointments from about the same time.
The very first Vacancies Act, which applied generally, was in
seventeen ninety two, and there was another one in seventeen
(24:03):
ninety five. There it gets a little tricky about kind
of what were the time limits, because in the seventeen
ninety five Act, Congress imposed the six month time limit
on acting officials.
Speaker 2 (24:15):
Here a lot of actings. Have US presidents been using
interim positions more and more so I have done.
Speaker 7 (24:23):
Some research on recent administrations and looking at the very
highest level of positions, so the heads of agencies, cabinet
secretaries in particular, and definitely recent administrations, and that would
include President Obama, President Trump's first term and President Biden
(24:44):
have heavily relied on acting officials, much more, I would say,
than their predecessors in terms of modern government.
Speaker 2 (24:54):
What's the reason for this? I know that President Trump
in the past has said, you know, he likes the
idea of it.
Speaker 3 (25:00):
Is it because it's.
Speaker 2 (25:00):
Difficult to get people through the Senate? I mean, what's
the reason then they're using it more.
Speaker 7 (25:06):
I think there are several reasons. The first is it
takes time to nominate people. Though I will say that
President Trump in his second term has a much faster
nominations pace than he had in his first term. I
mean six or sevenfold more nominations at one hundred day
mark in his second term than in his first term.
(25:28):
But nominations still takes time to find the people and
to formally nominate them. There's a vetting that occurs, and
I think for President Trump that vetting has really focused
on loyalty, whereas in other administrations might be focusing on
ethical considerations, expertise and the like. And then there's the
confirmation process. And so even as we have now and
(25:52):
even as we did for President Biden, have a Senate
controlled by the same party as the White House. It's
still takes time because individual senators. Even though there's no
longer a sixty vote threshold to move a nomination to
a confirmation vote that went away in November twenty thirteen,
individual senators can still delay the confirmation's process, right, And
(26:16):
we saw this with Senator Tuberville in the Biden administration.
We've seen this in other cases as well. Right, Democrats
do it to Republicans. Republicans do it to Democrats, and
that can slow it down. And so I think both
the nominations and confirmation process make acting officials attractive. But
I would also say that what I think is a
(26:36):
large reason is that acting officials don't require Senate confirmation,
and so you can pick people to serve in the
temporary capacity that the Senate might not confirm. So in
President Trump's first term, the Republicans, as reported by the media,
did not want to confirm Ken Kucinelli to a senior
post in the Department of Homeland Security, but through acting
(27:00):
appointments and delegations of authority, mister Kuchinelli was able to
serve in very high profile roles in DXS. And I
think a similar story right for Ed Martin that Republicans
balked and he was able through the interim provision to serve,
whereas you know, if he had just been put up
as a nominee, not as an interim, he might not
(27:22):
have gotten true.
Speaker 2 (27:23):
Has President Trump pushed the limits of the Vacancy's Act
further than other presidents?
Speaker 7 (27:30):
I think the Vacancy's Act is pretty capacious. It allows
the government to function. I think the Vacancies Act should
be reformed in certain ways because I think it allows
more than perhaps what we want for an accountable government.
But I think in this term, President Trump is really
pushing an argument that no previous president has pushed, which
(27:52):
is that he believes that if the Vacancy's Act does
not apply, he has inherent article to authority name acting officials.
And this has come up in the Inner America Foundation
and the African Development Foundation, these are entities not covered
by the Vacancies Act, where President Trump has named acting
officials to Senate confirmed Board positions relying on claimed inherent
(28:18):
article to authority. It seems with the firing of the
Librarian of Congress that if the Library of Congress is
not subject to the Vacancies Act, and I don't think
it is President Trump. The White House is indicated that
there is Article two authority to name an acting librarian,
and I think this is an outrageous claim. We have
an appointments clause, we have a recess appointments clause. It
(28:39):
is true that the Vacancies Act and specific agency provisions
like section five forty six for interim US attorneys, do
allow vast use of temporary appointments, but outside of those,
presidents need to rely on the appointments clause or the
recess appointment.
Speaker 2 (28:55):
So some are saying that with the US attorney, for example,
with Piero becoming the second interim US Attorney for DC,
that defendants might be able to challenge some of the
you know, prosecutions, et cetera under her because of this issue.
Speaker 7 (29:15):
I think they would definitely have standing to sue. And
I think their argument would be that under five forty six,
successive one hundred and twenty day appointments are not allowed.
And I think that is a plausible argument. I just
don't think it's a winning argument. I think that courts
will look at the text. Right as Justice Kagan says,
(29:36):
we're all textless now, that the courts will look at
the text and see that successive one hundred and twenty
day appointments are not barred. It's happened in the past
and permitted. Now, that doesn't mean it shouldn't change. I
mean Congress could amend five forty six to make it
clear that you get one one hundred twenty day appointment,
(29:57):
then the district court gets to choose. And then I
should note that there is an alternative to these successive
one hundred and twenty day appointments. While a nomination might
be pending to a US attorney slot, is that I
believe that the Federal Vacancy's Reform Act is available for
temporary appointments to these positions. Now, the constraint why I
(30:19):
think the Trump administration doesn't want to turn to the
Vacancies Act is that under the Vacancy's Act, you can't
just choose anyone. You can't choose an outsider like the
current person. You can't choose an outsider to come in
as an acting US attorney. You either need to choose
someone who is the first assistant to the US Attorney right,
(30:39):
which is typically a career person. You need to choose
someone who has Senate confirmed already to another position, so
it has already kind of gone through the Senate process,
or you have to choose someone who was in the
agency for at least ninety days in the year before
the vacancy.
Speaker 2 (30:56):
So finally, you think there needs to be reform here.
Speaker 1 (30:59):
I think the.
Speaker 7 (31:01):
Law of governing temporary appointments are pretty broad and likely
too broad. On the other hand, we want the government
to function. We don't want the government to come to
a standstill. And so finding the balance between getting Senate
confirmed appointments through a dysfunctional appointments process and having the
(31:25):
government function is tricky. And sometimes we're on the right
side of the balance, and sometimes we're on the wrong
side of the balance. And so I think that Congress
really has a role to play in constraining the use
of acting an interim appointment.
Speaker 2 (31:42):
So we'll start counting now to see if Janine Pirou
is nominated to be the permanent US Attorney for DC
before the one hundred and twenty days expires. Thanks so
much for joining me today. That's Professor and Joseph O'Connell
of Stanford Law School, and that's it for the edition
of the Bloomberg Law Show. Remember you can always get
(32:03):
the latest legal news on our Bloomberg Law podcasts. You
can find them on Apple Podcasts, Spotify, and at www
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