May 17, 2025 • 36 mins
June Grasso talks to legal experts about the top legal stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:09):
I just know that on a daylight today that redemption
is possible.
Speaker 3 (00:15):
Nearly thirty years after there were sentenced to life in
prison without the possibility of parole for the cold blooded
murders of their parents, a remarkable turn for Eric and
Lyle Menendez. They now have a chance of getting out
of prison. Family members have supported the brothers throughout the years,
and they were in court to testify for them at
(00:37):
a re sentencing hearing on Tuesday.
Speaker 4 (00:39):
They are truly deeply sorry for what they did, and
they are profoundly remorseful. They are filled with remorse over
what they did, and through that they have become pretty
remarkable with people.
Speaker 5 (00:53):
This is something my grandmother, Joan has fought for or
for thirty five years. I really wish she was here today,
but I'm really excited to give her the news.
Speaker 3 (01:07):
The new LA District Attorney Nathan Hafckman had attempted to
block the resentencing at every turn, arguing repeatedly that Eric
and Lyle had not taken complete responsibility for their crimes
and didn't show true remorse in.
Speaker 1 (01:22):
Order to be truly rehabilitated.
Speaker 6 (01:24):
You have to acknowledge the full breath of your criminal conduct,
your cover up, and your life.
Speaker 3 (01:30):
But Lyle told the judge, I take full responsibility. I
killed my parents. I offer no excuse and I don't
blame my parents. Eric said, I have profound sorrow for
the tragedy I created. I took the lives of my
mom and dad. My actions were criminal, cruel, and cowardly.
(01:50):
After their statements, Judge Michael Jessic reduced their sentences from
life in prison without parole to fifty years to life,
making them immediately eligible for parole. But there's still a
long road ahead that goes through the parole board and
the governor. My guest is Dave Ahrenberg, former Palm Beach
(02:11):
County State Attorney and managing partner.
Speaker 1 (02:14):
At Dave Ehrenberg Law.
Speaker 3 (02:16):
Dave, let's talk about what this resentencing hearing was and
what it wasn't. It wasn't about re litigating the murders,
but it was about whether the brothers have been rehabilitated.
Speaker 2 (02:29):
This hearing was surely for the judge to decide whether
or not the Menendez brothers can be resentenced, and he
heard testimony from family members and decided that in the
interest of justice, that Menanda's brothers would be resentenced under
the rules of the time, which permitted someone who committed
(02:51):
such a horrific offense who's under the age of twenty
six to be eligible for parole. At the time, they
were sentenced to life in prison without parole. But now
they're changing it to with pearol and now the Menendez
brothers can go before the parole board.
Speaker 7 (03:05):
To let him out.
Speaker 3 (03:06):
Early Nathan Hawkman, the LA District Attorney, opposed to resentencing
and attempted to block it in every way he could.
Speaker 1 (03:15):
Why was he so opposed to it?
Speaker 2 (03:18):
He ran on a law and ordered platform and he
got elected to be tougher on crime as opposed to
the predecessor, Gassone, who was seen as one of those
Soro's reform prosecutors. So this is in line with Takman's
brand to be tough on crime. And he represented what
I considered like pres the silent majority, not the celebrities
(03:38):
who came out and masked to support the Menendez brothers,
but people who said, I remember this horrific crime and
they were sentence a life in prison to get life
in prison and that didn't mean thirty five years in prison.
Speaker 3 (03:51):
The testimony was from family members about how they have
rehabilitated themselves in prison.
Speaker 2 (04:00):
Members were the biggest supporters of an early release. Now
all the family members but seemingly one who passed away,
wanted them out early. But the district attorney does not
represent the victims, does not represent the family members. They
represent the people. That's why it's usually the people versus
Menendez or the state versus Menendez. And in this case,
(04:21):
the decision of the district attorney was that it is
in the interest of the people of California that the
Menendez brothers stay behind bars.
Speaker 3 (04:30):
They've been described as model prisoners who helped other prisoners
by setting up programs. Were they ever accused of violence
or other infractions.
Speaker 2 (04:42):
Well, there was a report that showed that they did
have contraband inside the prison, which was cell phone and
potential drugs. That's part of a report. And whether or
not that means they have not been reformed. Well, when
it comes to violence, they clearly did not to commit
anything like that in prison. They were different people behind bars.
(05:04):
They helped others, But yet there are a lot of
people who find God behind bars. And they help others
and they don't get released early from a life sentence.
So it seems that the celebrity in this case, the
power of celebrity made a real difference.
Speaker 3 (05:18):
I wonder if this would have happened if you hadn't
had that Netflix documentary that sort of introduced a whole
new generation to the Menendez brothers in a sympathetic way.
Speaker 2 (05:32):
I agree the power of streaming, the power of celebrity.
I think the Menendez brothers became a cause celeb and
as a result, they got some benefits from it. They
got all this worldwide attention, They had the best lawyers
possible for them, and they were able to convince the
district attorney to side with them to get a resentencing.
And then that district attorney lost the election, but the
(05:53):
judge went ahead with it anyways, And now it's up
to the pearle board and the governor, and I think
they will be let out early. I don't think there
are any risk of reoffending any violent crime. I think
they did give reform behind prison walls. But on the
other hand, how many other people in their situation get
this benefit, get sentence to life in prison and they
get out early because they were good prisoners, not many,
(06:17):
but this case was treated differently because of the celebrity involved,
because of the notoriety, and that's the issue I have.
I just don't think they were treated like everyone else.
Speaker 3 (06:26):
But in their second trial, the judge limited the testimony
about the allegations of abuse, and it's possible the jury
would have come out with a verdict of manslaughter instead
of murder if the abuse allegations had gotten a full hearing.
Speaker 2 (06:42):
Well, that was a judge's determination at the time, and
the crimes were not overturned on appeal. I mean, the
proper venue if you think that the judge made a
bad decision is to appeal it. But the appellate courts
did not agree, thought that they got a fair trial.
And as far as being led out, the real reason
why they're being led out of at least according to
the pres was because of their good behavior behind bars.
Speaker 3 (07:03):
The DA Hawkman had complained over and over that they
hadn't taken responsibility for the crimes, but both brothers made
these remarkable statements accepting full responsibility for the murders.
Speaker 1 (07:17):
Lyle said that all the choices.
Speaker 3 (07:18):
He made were his own, including quote the choice to reload,
returned to the den and run up to my mother
and shoot her in the head, and he apologized for
making a mockery of the criminal legal system by lying.
Does that seem like the kind of apology that the
LADA was looking for?
Speaker 2 (07:35):
It does, and that's something that I thought has been underreported.
I'm glad you brought it up, Jin, because Hawkman had
asked for a real apology, said enough of this abuse.
Excuse take responsibility for your actions. Stop saying that you
had to kill your parents because they would have killed
you first.
Speaker 7 (07:51):
That was a lie all along.
Speaker 2 (07:53):
And I do believe with their statements that they went
a long way towards meeting Hawkman request, and that's why
I think that they will be released earlier. I do
think that this was as close to a full fledged
apology acknowledgment of guilt that we have ever seen from them.
It was something different than before, and I think that's
(08:14):
going to lead to their early release.
Speaker 3 (08:16):
The judge called the crime shocking. He said he was
also shocked by the number of Corrections officials who wrote
letters on behalf of the brothers, and that seemed to
be an important part of his decision.
Speaker 2 (08:28):
It was something that corrections officials and family members all
sided with them, and I do think the celebrity part
of it has something to do with it. The Netflix
shows the movement behind them. Yeah, I think that did
persuade people. But you know, I do think also there's
really little doubt that they are different people today than
they were back then. They were real, spoiled, selfish kids
(08:49):
who acted in a brutal, horrific way. I mean the
fact that the mother, who did not engage in sexual
abuse but may have helped cover it up. She was
crawling away after being shot by a shotgun, and then
the brothers went outside to reload to continue to come
in and shoot her ten times in putting in the face.
There was so much blood that the cops thought this
(09:11):
was a mafia hit, and yet they lied about everything.
They went on a spending spree. Only after spending seven
hundred thousand dollars in quick turn did they attract the
attention of law enforcement and then were eventually arrested. But
they got away with it for a while. They got
what they wanted, and I thought they deserved their sentence.
But you know, they are reformed and if the system
(09:34):
lets them out early. I don't think they will reoffend.
Speaker 3 (09:36):
But a risk assessment by the Parole Board found there
was a moderate risk of them committing a crime if released,
although the judge said that the legal presumption is in
favor of resentencing unless there was an unreasonable risk that
they would commit a so called super strike crime such
(09:57):
as rape or murder.
Speaker 2 (09:59):
That was actually eyes when I saw that moderate risk,
I don't think they will reoffend me. There's so many
eyeballs on these guys. They're going to go on the
speaking circuit, They're going to go to reality shows. I mean,
I think it's unfair because they're going to be treated
in a way that others are not. They're going to
get super celebrity and make a lot of money off this,
and no one should profit off their infamy.
Speaker 3 (10:19):
There are several tracks that would allow them to be released.
Parole from the parole Board or clemency from the governor
seem the most likely. I mean, to get parole, they
have to take responsibility for their crimes and show they're
unlikely to reoffend, which is basically what the judge considered.
Speaker 2 (10:41):
I do think that the two tracks will lead to
their early release.
Speaker 7 (10:45):
Whether it's the.
Speaker 2 (10:46):
Governor Newsom track of the clemency Board and then signed
by the Governor or the Parole Board, which is what
the judge just tantioned. So either way, I think they're
headed towards the release.
Speaker 3 (10:57):
Their first Parole Board hearing is set for June thirteenth.
Speaker 1 (11:01):
And if the Parole Board does.
Speaker 3 (11:03):
Deny parole, it has to do so for a period
of three, five, seven, ten or fifteen years, So it
could deny parole and then say, well, come back in
three years.
Speaker 2 (11:15):
I would think that would be probably the best case
scenario for those who want, I Meananda's brothers to stay
behind bars. I do not envision them remaining behind bars
that much longer, so three years maybe the outer limit.
Speaker 3 (11:26):
There's also a Habeas Corpus petition they file back in
twenty twenty three, seeking a new trial.
Speaker 2 (11:34):
That was always the most unlikely thing to happen. Of
the three real choice. They had the resented thing, they
had the clemency, and then they had the Habeast, but
the Habeasts was sort of a dead end.
Speaker 7 (11:42):
The other two.
Speaker 2 (11:43):
Though, for Fruit and I think that that's going to
lead to their early release.
Speaker 3 (11:48):
The Habeas Corpus petition was based on two new pieces
of evidence. Did that new evidence play any part in
Judge Jesseic's decision.
Speaker 2 (11:58):
I think it did because the judge took everything into account.
It was more than the good behavior. It was the
fact that there was evidence that the sexual abuse from
Jose did occur. Not conclusive evidence, but we had a
letter that one of the Menanda's brothers wrote to a
cousin that mentioned it. There was also the Menudo boy
band member who said that Jose engaged in sexual abuse
(12:18):
with him. So yeah, there is evidence.
Speaker 3 (12:20):
So they have several hurdles ahead of them. Even if
the parole board finds them eligible for parole, there's still
going to be a ninety day review period during which
the governor could block their release.
Speaker 1 (12:31):
So more to come. Thanks so much, Dave.
Speaker 3 (12:33):
That's Dave Arenberg, former Palm Beach County State Attorney. I'm
June Grosso and you're listening to Bloomberg. The rid of
habeas corpus is a bedrock American legal right embedded in
the Constitution. Yet White House Deputy Chief of Staff Stephen
Miller said the administration has been actively looking at suspending
habeas corpus unilaterally.
Speaker 8 (12:55):
Well, the Constitution is clear, and that, of course is
the supreme law of the land that the privilege of
the writ of habeas corpus can be suspended in a
time of invasion. So it would say that's an option
we're actively looking at. Look, a lot of it depends
on whether the course do the right thing or not.
Speaker 3 (13:12):
Habeas corpus has only been suspended four times in our
nation's history, essentially in times of war or insurrection. My
guest is an expert in constitutional law. Jonathan Adler, a
professor at Case Western Reserve Law School, tell us about
the history of the writ of habeas corpus.
Speaker 7 (13:30):
So, the writ of.
Speaker 6 (13:31):
Habeas corpus traces its way back to the Magna Carta. Literally,
habeas corpus is a declaration that you have the body.
The idea is that you're challenging the alleged unlawful detention
of someone by the government. The writ of habeas corpus
has been recognized going back to the seventeenth century as
a way of challenging in England, at least the king's
(13:53):
right to incarcerate people, and in the United States, the
rit of habeas corpus is a way to challenge either
a conviction or the government's detention of an individual on
the grounds that it is not consistent with law. So
in the case of a conviction, we see rits of
habeas corpus filed by people who have been convicted of crimes,
often people who have been sentenced to the capital punishment,
(14:13):
challenging the regularity or the lawfulness of the proceedings through
which they are convicted, and then through a habeas corpus
can be filed in cases where, for example, someone is
alleging that the basis upon which they have been detained
or arrested is unlawful. So we've seen this with alleged
enemy combatants, and we're seeing it now with individuals who
are alleged to be unlawfully present in the country or
(14:33):
potentially subject to deportation.
Speaker 3 (14:35):
The section of the US Constitution that includes the suspension
of habeas corpus grants its powers to Congress and not
the President.
Speaker 6 (14:46):
Well, that is the way we've generally interpreted what we
call the suspension clause. So Article one, section nine, which
is a portion of the Constitution that identifies limits on
Congress's power, has a clause that we refer to as
the suspension clause reads, the privilege of the writ of
habeas corpus shall not be suspended unless when in cases
of rebellion or invasion, the public safety may require it.
(15:09):
And given that it is in Article one, Section nine,
it has always been interpreted as placing a limitation on
Congress's ability to suspend the writ of habeas corpus, and
that interpretation goes all the way back to eighteen oh seven.
Is the first time Supreme Court, in an opinion by
Chief Justice Martial, indicated the understanding this is Congress's authority
to decide that habeas corpus can be suspended, and historically,
(15:33):
with one exception, when the writ of habeas corpus has
been suspended, it has either been suspended by Congress or
Congress has delegated to the President the authority to suspend
the writ in specified circumstances.
Speaker 3 (15:44):
That interpretation of habeas corpus has been affirmed in Supreme
Court opinions in modern times.
Speaker 7 (15:54):
Yes so.
Speaker 6 (15:54):
For example, in the case of Homdi, which was a
case involving an individual and American citizen who was allegedly
captured in Afghanistan as a writer with the Taliban. He
was brought to the United States, and he filed oposition
for writ of habeas corpus. The question was whether or
not he could be detained in the United States without
being subject to trial, and if one goes through the
opinions in that case, While justices disagreed on a lot
(16:17):
of questions about what sort of process mister Hamdi was
entitled to and what other constitutional protections he deserved, all
of the opinions operated on the premise that if the
writ of habeas corpus was to be suspended, it had
to be done so pursuant to an Act of Congress
subsequent to that in a case called Boomagen also involving
alleged enemy combatant from the majority opinion of the Supreme
(16:39):
Court in that case made clear that this is a
check on executive power. That the writ of habeas corpus
often in this sort of context serves as a check
on executive power, and it obviously could not serve that
function if the executive branch could unilaterally just decide to
suspend it.
Speaker 3 (16:54):
So, if the Trump administration actually did decide to suspend
habeas corpus unilaterally, would that definitely constitute a constitutional crisis.
Speaker 6 (17:05):
Well, two things first, I think when one looks at
Miller's comments, I think he was perhaps being very careful.
He said they were looking at the option of the
privilege of the Writ of habeas corpus being suspended. He
did not say whether the executive branch was going to
try and do that unilaterally, or whether they were going
to ask Congress to do it. My own view is
they can look at it all they want, because if
they do look at it, they'll realize that they do
(17:27):
not have the authority to do it unilaterally. The one
time the executive branch did suspend the Writ of habeas
corpus unilaterally was during the Civil War when President Lincoln
suspended the writ in Baltimore out of a concern that
rail lines to the nation's capital would be severed or
blocked and that would lead to the fall of Washington,
d c. To Confederate forces. And even that in such
(17:50):
an extreme circumstance, when the nation was in civil war,
when there were hostile troops threatening the nation's capital, even
that was recognized as an extreme action. It's one that
Congress later ratified, but most people accept was not consistent
with the constitution structure. So if the administration were to
try to suspend the Writ of abeas Corpus, not particularly
(18:11):
doubtful that courts would conclude that that was unlawful, that
the administration lacks that authority, and I think they would
primarily do so on the grounds that it's just not
something the executive branch can do within US territory during
peace time. That there's no question that the executive branch
does not have that sort of unilateral authority. The more
interesting thought experiment would be what if the administration could
(18:35):
convince Congress to suspend the Writ. And as I noted before,
the language of the suspension clause refers to the reasons
why the Writ could be suspended. It says that it
shall not be suspended unless when in cases of rebellion
or invasion. And so hypothetically, if the administration were to
convince Congress that illegal immigration is such that it constitutes
(18:58):
an invasion and Congress words spend the Writ, there is
an interesting question about whether or not that judgment by
Congress would be subject to judicial review. I think the
prevailing wisdom is that whether or not Article one, Section
nine requirements have been met would be a non justiciable
political question. But that's really just a thought experiment, because
that would require Congress passing legislation to suspend the WRIT,
(19:22):
and it's pretty clear with the margins in Congress right
now that's not something that is even remotely likely.
Speaker 3 (19:27):
The grounds that they refer to for suspending the WRIT
are the same grounds basically that they referred to for
invoking the Alien Enemies Act, and at least four federal
judges have found that America isn't facing an invasion by
undocumented migrants. The Supreme Court hasn't weighed in yet on
(19:48):
whether the administration can deport people under the Alien Enemies Act,
but for a second time on Friday, the Justices said
the detainees have to be given due process, a chance
to challenge their deportations by a rid of habeas corpus.
Speaker 6 (20:04):
So the Trump administration is being required to allow the
individuals attained to file petitions for Brits of abeas corpus,
and I expect that would continue. In the background here,
there is this long standing notion that certain questions relating
to national security, perhaps even some relating to the border,
are what we refer to as political questions, questions that
are resolved by the political branches not by courts, And
(20:27):
in so far as these questions touch on that, the
role that courts have played is to make sure that
the legislature and the executive branch each perform their respective functions,
but to not second guess their determination. So, if Congress
were to conclude that waves of the illegal immigration are
at least potentially in an invasion for purposes of the
suspension clause, you know, I suspect courts would allow that
(20:51):
to stand, not because they would be saying Congress is correct,
but because they would be saying, the courts don't get
to second guess that. Now, having said all that, I
don't think there is any question as a historical matter
that illegal immigration, even at far higher rates than we
see now, would not constitute an invasion for purposes of
(21:11):
that clause. The language of the suspension clause is invoking
the idea that there are certain situations, such as rebellion
or an invasion by an invading army, that create a
situation in which, in effect, the courts are not open.
So the idea has been that if martial law, for example,
is declared, that effectively tells the courts to stop operations,
(21:32):
the writ of habeas corpus when it is suspended by
the legislature. That's typically because it's not safe or possible
for the courts to engage in their normal functioning. That
is the sort of invasion that Article one, section nine contemplates,
not higher numbers of people crossing the border than perhaps
Congress might like. So I don't think there's any question
that as a textual matter or as a historical matter,
(21:54):
that the clause would not be satisfied. But there is
this question about whether or not it's something that courts
can properly issue a decision on, as opposed to leaving
it to the interplay between the executive and the legislature.
Speaker 3 (22:06):
Did you hear a subtle threat to judges in Miller's comments?
He said, these radical rogue judges are at war with
the executive branch and the legislative branch, and the administration's
decision on whether to suspend habeas corpus depends a lot
on whether the courts do the right thing or not.
Speaker 6 (22:27):
Yeah, so, I mean, you know, Steve Miller's not a lawyer,
but he is someone that often speaks about legal issues
for the administration and often says things that aren't quite right.
As a legal matter, but I think do echo the
message that the administration wants to send, particularly to its base.
I think in this sort of context, there is this
(22:49):
implicit threat, or this very adversarial posture to the Court's
suggestion that of courts don't cooperate, or if the courts
obstruct the administration's agenda, the administration will look forward to
push back in an extreme way, and this certainly could
be one of them. I'm not entirely sure this is
an effective strategy for the administration. I mean, certainly, I
(23:11):
can't imagine lawyers who work in the administration making these
sorts of comments publicly, certainly not the lawyers that have
to themselves appear in court. And it's not clear to
me that these sorts of comments are helpful, and I
doubt they do much to change the way judges evaluate
these sorts of claims. In fact, in some cases, they
might even undermine the administration's position insofar as they suggest
(23:34):
the administration is not dotting its size and crossing its
peace on legal question.
Speaker 3 (23:38):
And after Friday seven to two decision where the Supreme
Court blocked the administration from using the Alien Enemies Act
to summarily deport alleged gang members being held in a
Texas facility. It seems like seven justices are going to
insist that the detainees have the chance to file habeas
(23:59):
corpus petitions. Thanks so much, Jonathan. That's Professor Jonathan Adler
of Case Western Reserve Law School. I'm June Grosso and
you're listening to Bloomberg.
Speaker 2 (24:17):
Today.
Speaker 3 (24:17):
I'm going to be sharing with you the best ever
vanilla cake recipe. It's nice and light and fluffy, it's
golden on the outside. It may be the best vanilla
cake recipe, but another baker says it's her recipe. Australian
influencer and baking guru Brooke Bellamy has millions of followers
(24:38):
on TikTok and her first cookbook was a best seller,
but her recipes for caramel slice and baklava went from
sweet to sour after another celebrity chef, Naji Mahashi, accused
Bellamy of copying those.
Speaker 1 (24:53):
Recipes from her, and then yet another.
Speaker 3 (24:56):
Celebrity chef accused her of copying the vanilla cake cake recipe.
Bellamy denied the accusations, saying she created the recipes over
many years, but the fallout. The media coverage and the
online trolling have been so intense that Bellamy went into
hiding and Mahasha even tried to turn down the vitriol
(25:18):
in an Instagram post.
Speaker 9 (25:20):
Please stop the trolling now. I know I've made serious allegations,
but this does not justify the personal attacks that I've
seen online against Brook Bellamy.
Speaker 3 (25:35):
My guest is intellectual property litigator Terrence Ross, a partner
Katin Yuchen Rosenman Terry. Let's start with the legal basics.
Can you copyright a recipe?
Speaker 7 (25:46):
So June? In theory, it is possible to copyright cookbook
or even a few individual recipes. It's very hard to do.
It's considered one of the trickiest theories of the law,
and a little bit of protection you do get if
you're capable of getting a copyright is called thin protection
by copyright lawyers, which essentially means that you've got to
put the book on a xerox machine and copy it
(26:09):
word for word for there to be infringement. The problem
here is that copyright doesn't allow protection of ideas, and
a recipe how to bake a cake is simply an
idea and embedded in that idea, are some scientific principles
that are just required, and you're not allowed to copyright
scientific principles either. And it's got to be the certain
amount of the ingredients to get the right flavor, it's
(26:29):
got to be a certain temperature being baked in the oven,
and those aren't copyrightable. And so it is a very
challenging thing to assert copyright in a recipe or cookbook.
And about the only parts that can be copyrighted or
sort of the expression of the recipe so style the
wording describing what this cake is going to turn out
to be, what this cookie tastes like, as opposed to
(26:50):
the actual recipe.
Speaker 3 (26:51):
So tell us about this recipe dispute, which has really
gotten a lot of play, not only in Australia but internationally.
Speaker 7 (26:58):
So it's an interesting copyright dispute that came up in Australia.
There's a very famous ticktock baking influencer in Australia name
of brook Bellamy, and she has over three million followers
and is famous for posting TikTok videos of how you
bake you know, tasty treats. She actually runs a chain
(27:20):
of bakeries in Australia. And has achieved quite a bit
of notoriety down Under, but also expanding outside of Australia.
And so last October she came out with her first
cookbook and it was called Bake with Brookie, and that's
in partant names after her big good stores, which are
called Brookies bake Houses. But this book, because of her
(27:42):
fame as an influencer in the baking circles, was an
instant success. It sold over one hundred thousand copies in
less than six months, growth sales around four million dollars
and was the second best selling book for the Australian
Christmas season last year, so very very successful and just
a couple of days before the Australian Book Industry Awards,
(28:05):
which is a big deal in publishing circles in Australia,
and her book Baked with Brookie was in competition for
Best Cookbook with a couple other famous long time baking experts,
and one of them, Naji Mahashi, posted online that she
thought two of the recipes in Bake with Brookie were
plagiarized from her own cookbook and laid out the arguments
(28:26):
as to why, and this caused quite a stir and
then to make things worse, Sally McKenny, famous American baking
cook with a number of cookbooks of her own out
sort of piled on and said that she thought that
the vanilla cake recipe in Bake with Brookie had been
taken from one of her books. And when you compare
the recipes side by side, there is almost an identity
(28:50):
of ingredients and amounts and cooking temperatures. But in the
case of Sally mckenny's vanilla cake, she does something sort
of unusual. She uses buttermilk and Brooke Bellamy in Bake
with Brookie, her recipe for vanilla cake also used buttermilk,
which struck selling Kenny's odd so she brought this out
and it was sort of that point. The oven midst
(29:10):
were off, Folks were chiming in and trolling Brooke Bellamy
onlines to the point where she had to shut down
her ig account. The press was pamped outside her house
so she couldn't leave the house. She did not attend
the awards ceremony for the book Industry. Now. The only
time she's left her house since this happened last week
of April was to go visit her lawyers, and she
(29:31):
was followed the entire way.
Speaker 3 (29:33):
Did Nagi Mahashi file a lawsuit against her.
Speaker 7 (29:36):
So there is not actually a copyright infringement lawsuit filed yet.
Naji Mahashi has taken it to her lawyers, who have
reached out to the lawyers for the publishing house to
publish Bake with Brookie the Penguin Random House Group, and
the two sides have exchanged letters apparently making accusations and
denying accusations, and Brooke Bellamy one of the few postings
(29:58):
she's done is a complete deny aisle in an explanation
that much of the recipe business, both in baked goods
and dinners, lunches and things, all that is derivative to
start with, and you build on the same foundation, and
therefore she does not believe that she did anything just
reputable dishonest alone unlawful.
Speaker 3 (30:17):
But if the recipe can't be copyrighted, what are the
allegations or causes of action you could even bring.
Speaker 7 (30:25):
So it's not that recipes can't be copyrighted. In theory,
they can be copyrighted, it's just very hard to do that.
And to the extent that you have copyright protection, it
almost has to be an exact duplicate of the recipe
to constitute copyright infringement. A lot of what's going on
here is moral posturing. There is this background noise that
(30:45):
is being created that somehow Brooke Bellamy is not being honest,
is stealing other people's works. Won't say being a fraud,
but you know that's the implication that people want to draw.
In a very competitive industry in which people are fighting
for book sales and the June this is not something
that's new. The problem is that the law is so
weak in the area it almost invites plagiarism, if not
(31:07):
copyright infringement. If you take the very first US American cookbook,
very famous book called American Cookery by Amelia Simmons, who
was apparently a domestic servant in a household in Connecticut
in the early Republic, and she published this herself, she
paid for it in seventeen ninety six, and it was
unique because it used exclusively American ingredients, it used American
(31:31):
cooking language, and put forward a lot of very famous
but duil that time, sub rosa American recipes. So this
was the first cookbook to have pumpkin pie in it.
It was the first cookbook to suggest cranberried sauce with turkey.
It was the first cookbook to use the word cookie,
and it sold more copies than any other book in
the Early Republic other than the Bible. The problem was,
(31:54):
as Miss Simmons said in her second edition, so she
wasn't making any money off of it. People were freely
being it and distributing it very widely. The main reason
she came out with secondition was to correct errors that
the publisher had made that were pretty big errors regarding
types of ingredients to be used in the mounts and
temperatures to be cooked bad. But I mean, historians have
called this book the second tech Question of Independence because
(32:14):
he said to Americans, we no longer had to follow
British cooking traditions, baking traditions. We have everything we need
here to be Americans, even in our domestic household, and
was very influential with women. And yet there was massive
plagiarism for fifty years, to the extent where people were
starting to substitute out her name, so she wasn't even
getting credit. He flashed forward in time and he come
to nineteen eighty four, and you have this famous case
between Richard Only and Richard Nelson. Richard Only had written
(32:38):
a number of French recipe books in English, very influential
in bringing French cooking to America. And Richard Nelson came
out with a new book on American French recipes I
think it was called, and Richard Only said, wait, a Mesican,
I count thirty nine recipes that you took out of
my book. And he actually filed a lawsuit, and the
defendant agreed to the entry of an order stipulating that
(32:58):
there had been infringement, So it wasn't aggressively litigated. He
just wanted to get rid of the lawsuit and entered
into a stipulated order. But there're a case where copyright
lawsuit was actually thought of. It flashed forward in time
to twenty twenty one in the UK and the publishing
house Bloomsbury with drew what was a really enthusiastically expect
that new book on Singaporean recipes by Elizabeth Hey and
(33:22):
another Singaporean chef, Sharon. We had a last year that
most of the recipes were taken from an older book
by her, and the publishing house withdrew the work they'd
already printed some seventeen thousand copies and were ready to
go to market, and just the mere suggestion that there
had been copyright infringement caused them to withdraw the work
and not publish it. In effect. So we have this
(33:43):
long history of disputes over recipes and cookbooks despite this
whole legalarity being sort of a gray area as to
whether or not there is protection, there's not protection, what's protected?
How much do you have to take to get protection?
How much do you need to take the order to
be able to bring an infringement lawsuit? But they keep
coming up, you know, every decade or so, and now
(34:04):
this dispute would refell me. It's just another example of
that down under this time. But the substantive law of
copyright is the same under Australian US UK law when
it comes to cookbooks and recipes, and so it's just
interesting to see this flare up from time to time
across the different continents.
Speaker 3 (34:21):
So if Naji Mahashi came to you and said I
want to sue take my case.
Speaker 1 (34:25):
What would you do?
Speaker 2 (34:26):
You know?
Speaker 7 (34:27):
I think I would say that your chances of getting
ultimately a verdict for damages in a copyright infringement lawsuit
would not be good. However, Australia does have one feature,
and it's a copyright law that the United States law
does not have. It's this notion of moral rights. When
you use somebody else's work in this way, you have
(34:48):
to give them credit or you've committed a separate, unlawful action,
which is at least remediable by an injunction requiring that
credit be given where credit is due. And so there
is that option, But my advice would be to go
about it exactly the way Naja Mahashi's listeners are going
about it. You bring up the issue with the publishing
house and you say, look, we think there's a problem here,
(35:09):
and see what they say, and then if they deny it,
you have a basis to take that to the court
of public opinion. Is being done here and see what happened.
Because after a lot of what's going on here has
to do with competition within the cookbook field, and there's
this general perception that you should not be plagarizing other
people's recipes. But if you choose to do so, you
(35:30):
ask permission and give credit. And I cannot tell you,
June how many potential copyright cases I've been able to
avoid on behalf of my clients simply by telling them, look,
say you're sorry, and give full credit, because at the
end of the day, that's often what it's all about.
They just want to be recognized as this was their creation,
(35:52):
this was their work, and especially in this field of
cookbooks recipes, permissions are often granted to allow someone to
use another person and recipe. You just have to ask
and then give credit. And I think that's the big
lesson to be learned here with respect to copyright law
in the context of potbooks and recipes, because.
Speaker 1 (36:09):
It seems like the damage has already been done here.
I mean, she's hiding in her house.
Speaker 7 (36:13):
I think this is probably an enormous financial hit. Certainly
it's bound to affect sales of her book Bake with Brookie.
She's taken down her social media and when you have
a large portion of your persona wrapped up as an
online influencer in the social media forms, to have that
(36:35):
simply disappear, it's not just personally hurtful to you, it's
financially damaging.
Speaker 3 (36:40):
And the repercussions for Bellamy seem to be continuing. Thanks
so much, Terry. That's Terrence Ross of Catain Euchen Rosenman,
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:09):
I just know that on a daylight today that redemption
is possible.
Speaker 3 (00:15):
Nearly thirty years after there were sentenced to life in
prison without the possibility of parole for the cold blooded
murders of their parents, a remarkable turn for Eric and
Lyle Menendez. They now have a chance of getting out
of prison. Family members have supported the brothers throughout the years,
and they were in court to testify for them at
(00:37):
a re sentencing hearing on Tuesday.
Speaker 4 (00:39):
They are truly deeply sorry for what they did, and
they are profoundly remorseful. They are filled with remorse over
what they did, and through that they have become pretty
remarkable with people.
Speaker 5 (00:53):
This is something my grandmother, Joan has fought for or
for thirty five years. I really wish she was here today,
but I'm really excited to give her the news.
Speaker 3 (01:07):
The new LA District Attorney Nathan Hafckman had attempted to
block the resentencing at every turn, arguing repeatedly that Eric
and Lyle had not taken complete responsibility for their crimes
and didn't show true remorse in.
Speaker 1 (01:22):
Order to be truly rehabilitated.
Speaker 6 (01:24):
You have to acknowledge the full breath of your criminal conduct,
your cover up, and your life.
Speaker 3 (01:30):
But Lyle told the judge, I take full responsibility. I
killed my parents. I offer no excuse and I don't
blame my parents. Eric said, I have profound sorrow for
the tragedy I created. I took the lives of my
mom and dad. My actions were criminal, cruel, and cowardly.
(01:50):
After their statements, Judge Michael Jessic reduced their sentences from
life in prison without parole to fifty years to life,
making them immediately eligible for parole. But there's still a
long road ahead that goes through the parole board and
the governor. My guest is Dave Ahrenberg, former Palm Beach
(02:11):
County State Attorney and managing partner.
Speaker 1 (02:14):
At Dave Ehrenberg Law.
Speaker 3 (02:16):
Dave, let's talk about what this resentencing hearing was and
what it wasn't. It wasn't about re litigating the murders,
but it was about whether the brothers have been rehabilitated.
Speaker 2 (02:29):
This hearing was surely for the judge to decide whether
or not the Menendez brothers can be resentenced, and he
heard testimony from family members and decided that in the
interest of justice, that Menanda's brothers would be resentenced under
the rules of the time, which permitted someone who committed
(02:51):
such a horrific offense who's under the age of twenty
six to be eligible for parole. At the time, they
were sentenced to life in prison without parole. But now
they're changing it to with pearol and now the Menendez
brothers can go before the parole board.
Speaker 7 (03:05):
To let him out.
Speaker 3 (03:06):
Early Nathan Hawkman, the LA District Attorney, opposed to resentencing
and attempted to block it in every way he could.
Speaker 1 (03:15):
Why was he so opposed to it?
Speaker 2 (03:18):
He ran on a law and ordered platform and he
got elected to be tougher on crime as opposed to
the predecessor, Gassone, who was seen as one of those
Soro's reform prosecutors. So this is in line with Takman's
brand to be tough on crime. And he represented what
I considered like pres the silent majority, not the celebrities
(03:38):
who came out and masked to support the Menendez brothers,
but people who said, I remember this horrific crime and
they were sentence a life in prison to get life
in prison and that didn't mean thirty five years in prison.
Speaker 3 (03:51):
The testimony was from family members about how they have
rehabilitated themselves in prison.
Speaker 2 (04:00):
Members were the biggest supporters of an early release. Now
all the family members but seemingly one who passed away,
wanted them out early. But the district attorney does not
represent the victims, does not represent the family members. They
represent the people. That's why it's usually the people versus
Menendez or the state versus Menendez. And in this case,
(04:21):
the decision of the district attorney was that it is
in the interest of the people of California that the
Menendez brothers stay behind bars.
Speaker 3 (04:30):
They've been described as model prisoners who helped other prisoners
by setting up programs. Were they ever accused of violence
or other infractions.
Speaker 2 (04:42):
Well, there was a report that showed that they did
have contraband inside the prison, which was cell phone and
potential drugs. That's part of a report. And whether or
not that means they have not been reformed. Well, when
it comes to violence, they clearly did not to commit
anything like that in prison. They were different people behind bars.
(05:04):
They helped others, But yet there are a lot of
people who find God behind bars. And they help others
and they don't get released early from a life sentence.
So it seems that the celebrity in this case, the
power of celebrity made a real difference.
Speaker 3 (05:18):
I wonder if this would have happened if you hadn't
had that Netflix documentary that sort of introduced a whole
new generation to the Menendez brothers in a sympathetic way.
Speaker 2 (05:32):
I agree the power of streaming, the power of celebrity.
I think the Menendez brothers became a cause celeb and
as a result, they got some benefits from it. They
got all this worldwide attention, They had the best lawyers
possible for them, and they were able to convince the
district attorney to side with them to get a resentencing.
And then that district attorney lost the election, but the
(05:53):
judge went ahead with it anyways, And now it's up
to the pearle board and the governor, and I think
they will be let out early. I don't think there
are any risk of reoffending any violent crime. I think
they did give reform behind prison walls. But on the
other hand, how many other people in their situation get
this benefit, get sentence to life in prison and they
get out early because they were good prisoners, not many,
(06:17):
but this case was treated differently because of the celebrity involved,
because of the notoriety, and that's the issue I have.
I just don't think they were treated like everyone else.
Speaker 3 (06:26):
But in their second trial, the judge limited the testimony
about the allegations of abuse, and it's possible the jury
would have come out with a verdict of manslaughter instead
of murder if the abuse allegations had gotten a full hearing.
Speaker 2 (06:42):
Well, that was a judge's determination at the time, and
the crimes were not overturned on appeal. I mean, the
proper venue if you think that the judge made a
bad decision is to appeal it. But the appellate courts
did not agree, thought that they got a fair trial.
And as far as being led out, the real reason
why they're being led out of at least according to
the pres was because of their good behavior behind bars.
Speaker 3 (07:03):
The DA Hawkman had complained over and over that they
hadn't taken responsibility for the crimes, but both brothers made
these remarkable statements accepting full responsibility for the murders.
Speaker 1 (07:17):
Lyle said that all the choices.
Speaker 3 (07:18):
He made were his own, including quote the choice to reload,
returned to the den and run up to my mother
and shoot her in the head, and he apologized for
making a mockery of the criminal legal system by lying.
Does that seem like the kind of apology that the
LADA was looking for?
Speaker 2 (07:35):
It does, and that's something that I thought has been underreported.
I'm glad you brought it up, Jin, because Hawkman had
asked for a real apology, said enough of this abuse.
Excuse take responsibility for your actions. Stop saying that you
had to kill your parents because they would have killed
you first.
Speaker 7 (07:51):
That was a lie all along.
Speaker 2 (07:53):
And I do believe with their statements that they went
a long way towards meeting Hawkman request, and that's why
I think that they will be released earlier. I do
think that this was as close to a full fledged
apology acknowledgment of guilt that we have ever seen from them.
It was something different than before, and I think that's
(08:14):
going to lead to their early release.
Speaker 3 (08:16):
The judge called the crime shocking. He said he was
also shocked by the number of Corrections officials who wrote
letters on behalf of the brothers, and that seemed to
be an important part of his decision.
Speaker 2 (08:28):
It was something that corrections officials and family members all
sided with them, and I do think the celebrity part
of it has something to do with it. The Netflix
shows the movement behind them. Yeah, I think that did
persuade people. But you know, I do think also there's
really little doubt that they are different people today than
they were back then. They were real, spoiled, selfish kids
(08:49):
who acted in a brutal, horrific way. I mean the
fact that the mother, who did not engage in sexual
abuse but may have helped cover it up. She was
crawling away after being shot by a shotgun, and then
the brothers went outside to reload to continue to come
in and shoot her ten times in putting in the face.
There was so much blood that the cops thought this
(09:11):
was a mafia hit, and yet they lied about everything.
They went on a spending spree. Only after spending seven
hundred thousand dollars in quick turn did they attract the
attention of law enforcement and then were eventually arrested. But
they got away with it for a while. They got
what they wanted, and I thought they deserved their sentence.
But you know, they are reformed and if the system
(09:34):
lets them out early. I don't think they will reoffend.
Speaker 3 (09:36):
But a risk assessment by the Parole Board found there
was a moderate risk of them committing a crime if released,
although the judge said that the legal presumption is in
favor of resentencing unless there was an unreasonable risk that
they would commit a so called super strike crime such
(09:57):
as rape or murder.
Speaker 2 (09:59):
That was actually eyes when I saw that moderate risk,
I don't think they will reoffend me. There's so many
eyeballs on these guys. They're going to go on the
speaking circuit, They're going to go to reality shows. I mean,
I think it's unfair because they're going to be treated
in a way that others are not. They're going to
get super celebrity and make a lot of money off this,
and no one should profit off their infamy.
Speaker 3 (10:19):
There are several tracks that would allow them to be released.
Parole from the parole Board or clemency from the governor
seem the most likely. I mean, to get parole, they
have to take responsibility for their crimes and show they're
unlikely to reoffend, which is basically what the judge considered.
Speaker 2 (10:41):
I do think that the two tracks will lead to
their early release.
Speaker 7 (10:45):
Whether it's the.
Speaker 2 (10:46):
Governor Newsom track of the clemency Board and then signed
by the Governor or the Parole Board, which is what
the judge just tantioned. So either way, I think they're
headed towards the release.
Speaker 3 (10:57):
Their first Parole Board hearing is set for June thirteenth.
Speaker 1 (11:01):
And if the Parole Board does.
Speaker 3 (11:03):
Deny parole, it has to do so for a period
of three, five, seven, ten or fifteen years, So it
could deny parole and then say, well, come back in
three years.
Speaker 2 (11:15):
I would think that would be probably the best case
scenario for those who want, I Meananda's brothers to stay
behind bars. I do not envision them remaining behind bars
that much longer, so three years maybe the outer limit.
Speaker 3 (11:26):
There's also a Habeas Corpus petition they file back in
twenty twenty three, seeking a new trial.
Speaker 2 (11:34):
That was always the most unlikely thing to happen. Of
the three real choice. They had the resented thing, they
had the clemency, and then they had the Habeast, but
the Habeasts was sort of a dead end.
Speaker 7 (11:42):
The other two.
Speaker 2 (11:43):
Though, for Fruit and I think that that's going to
lead to their early release.
Speaker 3 (11:48):
The Habeas Corpus petition was based on two new pieces
of evidence. Did that new evidence play any part in
Judge Jesseic's decision.
Speaker 2 (11:58):
I think it did because the judge took everything into account.
It was more than the good behavior. It was the
fact that there was evidence that the sexual abuse from
Jose did occur. Not conclusive evidence, but we had a
letter that one of the Menanda's brothers wrote to a
cousin that mentioned it. There was also the Menudo boy
band member who said that Jose engaged in sexual abuse
(12:18):
with him. So yeah, there is evidence.
Speaker 3 (12:20):
So they have several hurdles ahead of them. Even if
the parole board finds them eligible for parole, there's still
going to be a ninety day review period during which
the governor could block their release.
Speaker 1 (12:31):
So more to come. Thanks so much, Dave.
Speaker 3 (12:33):
That's Dave Arenberg, former Palm Beach County State Attorney. I'm
June Grosso and you're listening to Bloomberg. The rid of
habeas corpus is a bedrock American legal right embedded in
the Constitution. Yet White House Deputy Chief of Staff Stephen
Miller said the administration has been actively looking at suspending
habeas corpus unilaterally.
Speaker 8 (12:55):
Well, the Constitution is clear, and that, of course is
the supreme law of the land that the privilege of
the writ of habeas corpus can be suspended in a
time of invasion. So it would say that's an option
we're actively looking at. Look, a lot of it depends
on whether the course do the right thing or not.
Speaker 3 (13:12):
Habeas corpus has only been suspended four times in our
nation's history, essentially in times of war or insurrection. My
guest is an expert in constitutional law. Jonathan Adler, a
professor at Case Western Reserve Law School, tell us about
the history of the writ of habeas corpus.
Speaker 7 (13:30):
So, the writ of.
Speaker 6 (13:31):
Habeas corpus traces its way back to the Magna Carta. Literally,
habeas corpus is a declaration that you have the body.
The idea is that you're challenging the alleged unlawful detention
of someone by the government. The writ of habeas corpus
has been recognized going back to the seventeenth century as
a way of challenging in England, at least the king's
(13:53):
right to incarcerate people, and in the United States, the
rit of habeas corpus is a way to challenge either
a conviction or the government's detention of an individual on
the grounds that it is not consistent with law. So
in the case of a conviction, we see rits of
habeas corpus filed by people who have been convicted of crimes,
often people who have been sentenced to the capital punishment,
(14:13):
challenging the regularity or the lawfulness of the proceedings through
which they are convicted, and then through a habeas corpus
can be filed in cases where, for example, someone is
alleging that the basis upon which they have been detained
or arrested is unlawful. So we've seen this with alleged
enemy combatants, and we're seeing it now with individuals who
are alleged to be unlawfully present in the country or
(14:33):
potentially subject to deportation.
Speaker 3 (14:35):
The section of the US Constitution that includes the suspension
of habeas corpus grants its powers to Congress and not
the President.
Speaker 6 (14:46):
Well, that is the way we've generally interpreted what we
call the suspension clause. So Article one, section nine, which
is a portion of the Constitution that identifies limits on
Congress's power, has a clause that we refer to as
the suspension clause reads, the privilege of the writ of
habeas corpus shall not be suspended unless when in cases
of rebellion or invasion, the public safety may require it.
(15:09):
And given that it is in Article one, Section nine,
it has always been interpreted as placing a limitation on
Congress's ability to suspend the writ of habeas corpus, and
that interpretation goes all the way back to eighteen oh seven.
Is the first time Supreme Court, in an opinion by
Chief Justice Martial, indicated the understanding this is Congress's authority
to decide that habeas corpus can be suspended, and historically,
(15:33):
with one exception, when the writ of habeas corpus has
been suspended, it has either been suspended by Congress or
Congress has delegated to the President the authority to suspend
the writ in specified circumstances.
Speaker 3 (15:44):
That interpretation of habeas corpus has been affirmed in Supreme
Court opinions in modern times.
Speaker 7 (15:54):
Yes so.
Speaker 6 (15:54):
For example, in the case of Homdi, which was a
case involving an individual and American citizen who was allegedly
captured in Afghanistan as a writer with the Taliban. He
was brought to the United States, and he filed oposition
for writ of habeas corpus. The question was whether or
not he could be detained in the United States without
being subject to trial, and if one goes through the
opinions in that case, While justices disagreed on a lot
(16:17):
of questions about what sort of process mister Hamdi was
entitled to and what other constitutional protections he deserved, all
of the opinions operated on the premise that if the
writ of habeas corpus was to be suspended, it had
to be done so pursuant to an Act of Congress
subsequent to that in a case called Boomagen also involving
alleged enemy combatant from the majority opinion of the Supreme
(16:39):
Court in that case made clear that this is a
check on executive power. That the writ of habeas corpus
often in this sort of context serves as a check
on executive power, and it obviously could not serve that
function if the executive branch could unilaterally just decide to
suspend it.
Speaker 3 (16:54):
So, if the Trump administration actually did decide to suspend
habeas corpus unilaterally, would that definitely constitute a constitutional crisis.
Speaker 6 (17:05):
Well, two things first, I think when one looks at
Miller's comments, I think he was perhaps being very careful.
He said they were looking at the option of the
privilege of the Writ of habeas corpus being suspended. He
did not say whether the executive branch was going to
try and do that unilaterally, or whether they were going
to ask Congress to do it. My own view is
they can look at it all they want, because if
they do look at it, they'll realize that they do
(17:27):
not have the authority to do it unilaterally. The one
time the executive branch did suspend the Writ of habeas
corpus unilaterally was during the Civil War when President Lincoln
suspended the writ in Baltimore out of a concern that
rail lines to the nation's capital would be severed or
blocked and that would lead to the fall of Washington,
d c. To Confederate forces. And even that in such
(17:50):
an extreme circumstance, when the nation was in civil war,
when there were hostile troops threatening the nation's capital, even
that was recognized as an extreme action. It's one that
Congress later ratified, but most people accept was not consistent
with the constitution structure. So if the administration were to
try to suspend the Writ of abeas Corpus, not particularly
(18:11):
doubtful that courts would conclude that that was unlawful, that
the administration lacks that authority, and I think they would
primarily do so on the grounds that it's just not
something the executive branch can do within US territory during
peace time. That there's no question that the executive branch
does not have that sort of unilateral authority. The more
interesting thought experiment would be what if the administration could
(18:35):
convince Congress to suspend the Writ. And as I noted before,
the language of the suspension clause refers to the reasons
why the Writ could be suspended. It says that it
shall not be suspended unless when in cases of rebellion
or invasion. And so hypothetically, if the administration were to
convince Congress that illegal immigration is such that it constitutes
(18:58):
an invasion and Congress words spend the Writ, there is
an interesting question about whether or not that judgment by
Congress would be subject to judicial review. I think the
prevailing wisdom is that whether or not Article one, Section
nine requirements have been met would be a non justiciable
political question. But that's really just a thought experiment, because
that would require Congress passing legislation to suspend the WRIT,
(19:22):
and it's pretty clear with the margins in Congress right
now that's not something that is even remotely likely.
Speaker 3 (19:27):
The grounds that they refer to for suspending the WRIT
are the same grounds basically that they referred to for
invoking the Alien Enemies Act, and at least four federal
judges have found that America isn't facing an invasion by
undocumented migrants. The Supreme Court hasn't weighed in yet on
(19:48):
whether the administration can deport people under the Alien Enemies Act,
but for a second time on Friday, the Justices said
the detainees have to be given due process, a chance
to challenge their deportations by a rid of habeas corpus.
Speaker 6 (20:04):
So the Trump administration is being required to allow the
individuals attained to file petitions for Brits of abeas corpus,
and I expect that would continue. In the background here,
there is this long standing notion that certain questions relating
to national security, perhaps even some relating to the border,
are what we refer to as political questions, questions that
are resolved by the political branches not by courts, And
(20:27):
in so far as these questions touch on that, the
role that courts have played is to make sure that
the legislature and the executive branch each perform their respective functions,
but to not second guess their determination. So, if Congress
were to conclude that waves of the illegal immigration are
at least potentially in an invasion for purposes of the
suspension clause, you know, I suspect courts would allow that
(20:51):
to stand, not because they would be saying Congress is correct,
but because they would be saying, the courts don't get
to second guess that. Now, having said all that, I
don't think there is any question as a historical matter
that illegal immigration, even at far higher rates than we
see now, would not constitute an invasion for purposes of
(21:11):
that clause. The language of the suspension clause is invoking
the idea that there are certain situations, such as rebellion
or an invasion by an invading army, that create a
situation in which, in effect, the courts are not open.
So the idea has been that if martial law, for example,
is declared, that effectively tells the courts to stop operations,
(21:32):
the writ of habeas corpus when it is suspended by
the legislature. That's typically because it's not safe or possible
for the courts to engage in their normal functioning. That
is the sort of invasion that Article one, section nine contemplates,
not higher numbers of people crossing the border than perhaps
Congress might like. So I don't think there's any question
that as a textual matter or as a historical matter,
(21:54):
that the clause would not be satisfied. But there is
this question about whether or not it's something that courts
can properly issue a decision on, as opposed to leaving
it to the interplay between the executive and the legislature.
Speaker 3 (22:06):
Did you hear a subtle threat to judges in Miller's comments?
He said, these radical rogue judges are at war with
the executive branch and the legislative branch, and the administration's
decision on whether to suspend habeas corpus depends a lot
on whether the courts do the right thing or not.
Speaker 6 (22:27):
Yeah, so, I mean, you know, Steve Miller's not a lawyer,
but he is someone that often speaks about legal issues
for the administration and often says things that aren't quite right.
As a legal matter, but I think do echo the
message that the administration wants to send, particularly to its base.
I think in this sort of context, there is this
(22:49):
implicit threat, or this very adversarial posture to the Court's
suggestion that of courts don't cooperate, or if the courts
obstruct the administration's agenda, the administration will look forward to
push back in an extreme way, and this certainly could
be one of them. I'm not entirely sure this is
an effective strategy for the administration. I mean, certainly, I
(23:11):
can't imagine lawyers who work in the administration making these
sorts of comments publicly, certainly not the lawyers that have
to themselves appear in court. And it's not clear to
me that these sorts of comments are helpful, and I
doubt they do much to change the way judges evaluate
these sorts of claims. In fact, in some cases, they
might even undermine the administration's position insofar as they suggest
(23:34):
the administration is not dotting its size and crossing its
peace on legal question.
Speaker 3 (23:38):
And after Friday seven to two decision where the Supreme
Court blocked the administration from using the Alien Enemies Act
to summarily deport alleged gang members being held in a
Texas facility. It seems like seven justices are going to
insist that the detainees have the chance to file habeas
(23:59):
corpus petitions. Thanks so much, Jonathan. That's Professor Jonathan Adler
of Case Western Reserve Law School. I'm June Grosso and
you're listening to Bloomberg.
Speaker 2 (24:17):
Today.
Speaker 3 (24:17):
I'm going to be sharing with you the best ever
vanilla cake recipe. It's nice and light and fluffy, it's
golden on the outside. It may be the best vanilla
cake recipe, but another baker says it's her recipe. Australian
influencer and baking guru Brooke Bellamy has millions of followers
(24:38):
on TikTok and her first cookbook was a best seller,
but her recipes for caramel slice and baklava went from
sweet to sour after another celebrity chef, Naji Mahashi, accused
Bellamy of copying those.
Speaker 1 (24:53):
Recipes from her, and then yet another.
Speaker 3 (24:56):
Celebrity chef accused her of copying the vanilla cake cake recipe.
Bellamy denied the accusations, saying she created the recipes over
many years, but the fallout. The media coverage and the
online trolling have been so intense that Bellamy went into
hiding and Mahasha even tried to turn down the vitriol
(25:18):
in an Instagram post.
Speaker 9 (25:20):
Please stop the trolling now. I know I've made serious allegations,
but this does not justify the personal attacks that I've
seen online against Brook Bellamy.
Speaker 3 (25:35):
My guest is intellectual property litigator Terrence Ross, a partner
Katin Yuchen Rosenman Terry. Let's start with the legal basics.
Can you copyright a recipe?
Speaker 7 (25:46):
So June? In theory, it is possible to copyright cookbook
or even a few individual recipes. It's very hard to do.
It's considered one of the trickiest theories of the law,
and a little bit of protection you do get if
you're capable of getting a copyright is called thin protection
by copyright lawyers, which essentially means that you've got to
put the book on a xerox machine and copy it
(26:09):
word for word for there to be infringement. The problem
here is that copyright doesn't allow protection of ideas, and
a recipe how to bake a cake is simply an
idea and embedded in that idea, are some scientific principles
that are just required, and you're not allowed to copyright
scientific principles either. And it's got to be the certain
amount of the ingredients to get the right flavor, it's
(26:29):
got to be a certain temperature being baked in the oven,
and those aren't copyrightable. And so it is a very
challenging thing to assert copyright in a recipe or cookbook.
And about the only parts that can be copyrighted or
sort of the expression of the recipe so style the
wording describing what this cake is going to turn out
to be, what this cookie tastes like, as opposed to
(26:50):
the actual recipe.
Speaker 3 (26:51):
So tell us about this recipe dispute, which has really
gotten a lot of play, not only in Australia but internationally.
Speaker 7 (26:58):
So it's an interesting copyright dispute that came up in Australia.
There's a very famous ticktock baking influencer in Australia name
of brook Bellamy, and she has over three million followers
and is famous for posting TikTok videos of how you
bake you know, tasty treats. She actually runs a chain
(27:20):
of bakeries in Australia. And has achieved quite a bit
of notoriety down Under, but also expanding outside of Australia.
And so last October she came out with her first
cookbook and it was called Bake with Brookie, and that's
in partant names after her big good stores, which are
called Brookies bake Houses. But this book, because of her
(27:42):
fame as an influencer in the baking circles, was an
instant success. It sold over one hundred thousand copies in
less than six months, growth sales around four million dollars
and was the second best selling book for the Australian
Christmas season last year, so very very successful and just
a couple of days before the Australian Book Industry Awards,
(28:05):
which is a big deal in publishing circles in Australia,
and her book Baked with Brookie was in competition for
Best Cookbook with a couple other famous long time baking experts,
and one of them, Naji Mahashi, posted online that she
thought two of the recipes in Bake with Brookie were
plagiarized from her own cookbook and laid out the arguments
(28:26):
as to why, and this caused quite a stir and
then to make things worse, Sally McKenny, famous American baking
cook with a number of cookbooks of her own out
sort of piled on and said that she thought that
the vanilla cake recipe in Bake with Brookie had been
taken from one of her books. And when you compare
the recipes side by side, there is almost an identity
(28:50):
of ingredients and amounts and cooking temperatures. But in the
case of Sally mckenny's vanilla cake, she does something sort
of unusual. She uses buttermilk and Brooke Bellamy in Bake
with Brookie, her recipe for vanilla cake also used buttermilk,
which struck selling Kenny's odd so she brought this out
and it was sort of that point. The oven midst
(29:10):
were off, Folks were chiming in and trolling Brooke Bellamy
onlines to the point where she had to shut down
her ig account. The press was pamped outside her house
so she couldn't leave the house. She did not attend
the awards ceremony for the book Industry. Now. The only
time she's left her house since this happened last week
of April was to go visit her lawyers, and she
(29:31):
was followed the entire way.
Speaker 3 (29:33):
Did Nagi Mahashi file a lawsuit against her.
Speaker 7 (29:36):
So there is not actually a copyright infringement lawsuit filed yet.
Naji Mahashi has taken it to her lawyers, who have
reached out to the lawyers for the publishing house to
publish Bake with Brookie the Penguin Random House Group, and
the two sides have exchanged letters apparently making accusations and
denying accusations, and Brooke Bellamy one of the few postings
(29:58):
she's done is a complete deny aisle in an explanation
that much of the recipe business, both in baked goods
and dinners, lunches and things, all that is derivative to
start with, and you build on the same foundation, and
therefore she does not believe that she did anything just
reputable dishonest alone unlawful.
Speaker 3 (30:17):
But if the recipe can't be copyrighted, what are the
allegations or causes of action you could even bring.
Speaker 7 (30:25):
So it's not that recipes can't be copyrighted. In theory,
they can be copyrighted, it's just very hard to do that.
And to the extent that you have copyright protection, it
almost has to be an exact duplicate of the recipe
to constitute copyright infringement. A lot of what's going on
here is moral posturing. There is this background noise that
(30:45):
is being created that somehow Brooke Bellamy is not being honest,
is stealing other people's works. Won't say being a fraud,
but you know that's the implication that people want to draw.
In a very competitive industry in which people are fighting
for book sales and the June this is not something
that's new. The problem is that the law is so
weak in the area it almost invites plagiarism, if not
(31:07):
copyright infringement. If you take the very first US American cookbook,
very famous book called American Cookery by Amelia Simmons, who
was apparently a domestic servant in a household in Connecticut
in the early Republic, and she published this herself, she
paid for it in seventeen ninety six, and it was
unique because it used exclusively American ingredients, it used American
(31:31):
cooking language, and put forward a lot of very famous
but duil that time, sub rosa American recipes. So this
was the first cookbook to have pumpkin pie in it.
It was the first cookbook to suggest cranberried sauce with turkey.
It was the first cookbook to use the word cookie,
and it sold more copies than any other book in
the Early Republic other than the Bible. The problem was,
(31:54):
as Miss Simmons said in her second edition, so she
wasn't making any money off of it. People were freely
being it and distributing it very widely. The main reason
she came out with secondition was to correct errors that
the publisher had made that were pretty big errors regarding
types of ingredients to be used in the mounts and
temperatures to be cooked bad. But I mean, historians have
called this book the second tech Question of Independence because
(32:14):
he said to Americans, we no longer had to follow
British cooking traditions, baking traditions. We have everything we need
here to be Americans, even in our domestic household, and
was very influential with women. And yet there was massive
plagiarism for fifty years, to the extent where people were
starting to substitute out her name, so she wasn't even
getting credit. He flashed forward in time and he come
to nineteen eighty four, and you have this famous case
between Richard Only and Richard Nelson. Richard Only had written
(32:38):
a number of French recipe books in English, very influential
in bringing French cooking to America. And Richard Nelson came
out with a new book on American French recipes I
think it was called, and Richard Only said, wait, a Mesican,
I count thirty nine recipes that you took out of
my book. And he actually filed a lawsuit, and the
defendant agreed to the entry of an order stipulating that
(32:58):
there had been infringement, So it wasn't aggressively litigated. He
just wanted to get rid of the lawsuit and entered
into a stipulated order. But there're a case where copyright
lawsuit was actually thought of. It flashed forward in time
to twenty twenty one in the UK and the publishing
house Bloomsbury with drew what was a really enthusiastically expect
that new book on Singaporean recipes by Elizabeth Hey and
(33:22):
another Singaporean chef, Sharon. We had a last year that
most of the recipes were taken from an older book
by her, and the publishing house withdrew the work they'd
already printed some seventeen thousand copies and were ready to
go to market, and just the mere suggestion that there
had been copyright infringement caused them to withdraw the work
and not publish it. In effect. So we have this
(33:43):
long history of disputes over recipes and cookbooks despite this
whole legalarity being sort of a gray area as to
whether or not there is protection, there's not protection, what's protected?
How much do you have to take to get protection?
How much do you need to take the order to
be able to bring an infringement lawsuit? But they keep
coming up, you know, every decade or so, and now
(34:04):
this dispute would refell me. It's just another example of
that down under this time. But the substantive law of
copyright is the same under Australian US UK law when
it comes to cookbooks and recipes, and so it's just
interesting to see this flare up from time to time
across the different continents.
Speaker 3 (34:21):
So if Naji Mahashi came to you and said I
want to sue take my case.
Speaker 1 (34:25):
What would you do?
Speaker 2 (34:26):
You know?
Speaker 7 (34:27):
I think I would say that your chances of getting
ultimately a verdict for damages in a copyright infringement lawsuit
would not be good. However, Australia does have one feature,
and it's a copyright law that the United States law
does not have. It's this notion of moral rights. When
you use somebody else's work in this way, you have
(34:48):
to give them credit or you've committed a separate, unlawful action,
which is at least remediable by an injunction requiring that
credit be given where credit is due. And so there
is that option, But my advice would be to go
about it exactly the way Naja Mahashi's listeners are going
about it. You bring up the issue with the publishing
house and you say, look, we think there's a problem here,
(35:09):
and see what they say, and then if they deny it,
you have a basis to take that to the court
of public opinion. Is being done here and see what happened.
Because after a lot of what's going on here has
to do with competition within the cookbook field, and there's
this general perception that you should not be plagarizing other
people's recipes. But if you choose to do so, you
(35:30):
ask permission and give credit. And I cannot tell you,
June how many potential copyright cases I've been able to
avoid on behalf of my clients simply by telling them, look,
say you're sorry, and give full credit, because at the
end of the day, that's often what it's all about.
They just want to be recognized as this was their creation,
(35:52):
this was their work, and especially in this field of
cookbooks recipes, permissions are often granted to allow someone to
use another person and recipe. You just have to ask
and then give credit. And I think that's the big
lesson to be learned here with respect to copyright law
in the context of potbooks and recipes, because.
Speaker 1 (36:09):
It seems like the damage has already been done here.
I mean, she's hiding in her house.
Speaker 7 (36:13):
I think this is probably an enormous financial hit. Certainly
it's bound to affect sales of her book Bake with Brookie.
She's taken down her social media and when you have
a large portion of your persona wrapped up as an
online influencer in the social media forms, to have that
(36:35):
simply disappear, it's not just personally hurtful to you, it's
financially damaging.
Speaker 3 (36:40):
And the repercussions for Bellamy seem to be continuing. Thanks
so much, Terry. That's Terrence Ross of Catain Euchen Rosenman,
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