Month: June 2019

Today's episode -- #OpposeJustinWalker -- tells you everything you need to know about Donald Trump's latest nominee for a lifetime appointment to the federal bench (and Andrew's former debate opponent) Justin Walker. You already know he's a lifelong member of the Federalist Society. Why is it specifically worth opposing him? Listen and find out!

First, though, the guys break down the Supreme Court's 7-2 ruling in U.S. v. Gamble, affirming the "dual sovereignty" doctrine and finally putting the last nail in the coffin of a crazy lefty conspiracy theory we debunked way back in Episode 215. And, as a bonus (?), we find out why Clarence Thomas's concurrence is "the most horrifying thing in print in the past 50 years." Seriously!

After that breakdown, it's time to analyze the background and writings of Justin Walker. We learn that he has virtually no litigation experience and that he's a right-wing ideologue; you probably expected that. But you'll also learn that his two major contributions to academic jurisprudence are (1) arguing that transparency in government is a bad, possibly unconstitutional thing; and (2) arguing that the FBI Director has a moral obligation to be the President's lackey. We are not making any of this up.

Then, it's time for Thomas Takes The Bar Exam and a question on the propriety of a introducing a particular fact into evidence as the predicate for a cross-examination question. Is it hearsay? Is it impeachment? Is it just hunky-dory? Listen and find out!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. We discussed the American Legion v. AHA Bladensburg cross case in OA Episodes 256 (with Sarah Henry of the AHA) and Episode 274 with Monica Miller. Monica IS coming back on the show! 2. Click here to read Gamble v. U.S. which we first discussed in OA 215. 3. Andrew debated Justin Walker in Episode 224. 4. This is his announcement. 5. You can read Walker’s CV here. 6. Of Justin Walker’s law review articles, click here to read “Chilled Chambers" and here to read “FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military”. 7. By the way, this is the link to the FBI investigating Deutsche Bank in connection with Jared Kushner. 8. Finally, this is Walker’s National Review article.

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On April 29, 2019, the Supreme Court decided Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.
In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Gary Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed their complaint for lack of subject-matter jurisdiction.
On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception,” and immunity therefore applied.
The Supreme Court unanimously reversed the judgement of the Eleventh Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Kagan, the Court held that the TVA’s sue-and-be-sued clause, which waives sovereign immunity, is not subject to a discretionary-function exception. Rather, on remand the court below should consider whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, immunity does not apply. If it is governmental, immunity may apply--but only if prohibiting the kind of suit in question is necessary to avoid grave interference with the governmental function at issue.
To discuss the case, we have Richard Peltz-Steele, Professor at the University of Massachusetts School of Law.