Month: June 2018

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Opening Arguments - OA179: Abortion and Plea Bargaining

Today's episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners.  You won't want to miss it! We begin with an in-depth examination of the so-called "gag rule" just proposed by Trump's Department of Health and Human Services.  Is it really a gag rule?  (Yes.) After that, we look into the Supreme Court's recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394.  Is this a bad sign?  (Yes.) After that, we return to the subject of plea bargaining that's been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court's discussion of the issue in  Schmidt v. Iowa. Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent 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. For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq.
  2. Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect.  You can read the cert petition here.
  3. If you're feeling good about Schmidt v. Iowa and need to be reminded that "actual innocence" is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993).
Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openarguments@gmail.com  
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The Gist - Shots Fired, but Not Really

On The Gist, no matter how well the economy goes, pundits can always tell a scary story.

What do we get wrong about Darwinism? Evolutionary ornithologist Richard O. Prum says the theory was distorted by Victorian prudes. He explains why a closer look at bird sex shows us what’s really going on with adaptation and natural selection. Prum’s book is The Evolution of Beauty.

In the Spiel, yes, “unindictable” would mean the president could commit any crime he wants, even the colorful ones. But let’s not get carried away.

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SCOTUScast - Jesner v. Arab Bank, PLC – Post-Decision SCOTUScast

On April 24, 2018, the Supreme Court decided Jesner v. Arab Bank, PLC, a case considering whether corporations may be sued under the Alien Tort Statute (ATS).
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel I”) which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability. The U.S. Supreme Court later affirmed the judgment in Kiobel (“Kiobel II”) but on a different basis: the presumption against extraterritorial application of statutes.
In Jesner, the Second Circuit, invoking its precedent in Kiobel I--and finding nothing to the contrary in the Supreme Court’s Kiobel II decision--affirmed the district court’s dismissal of Plaintiffs’ ATS claims on the grounds that the ATS does not apply to alleged international law violations by a corporation. This sharpened a split among the circuit courts of appeals on the issue, and the Supreme Court granted certiorari to resolve the dispute.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion delivered by Justice Kennedy, the Court held that foreign corporations may not be defendants in suits brought under the Alien Tort Statute.
Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-B-I, and II-C, joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch--and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, joined by the Chief Justice and Justice Thomas. Justice Thomas filed a concurring opinion. Justices Alito and Gorsuch also filed opinions concurring in part and concurring in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.
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Start the Week - Arundhati Roy on castes and outcasts

Booker Prize-winning novelist Arundhati Roy's latest book weaves together the lives of the misfits and outcasts from India's bustling streets. Roy is famous as an advocate for the most vulnerable and dehumanised in Indian society. She tells Andrew Marr how her main character Anjum builds a small paradise for the dispossessed in a graveyard in Delhi.

Ivan Mishukov walked out of his Moscow flat aged four and spent two years living on the city streets, where he found a home among a pack of wild dogs. Playwright Hattie Naylor used this true and extraordinary story as the basis for a play and now a film, Lek and the Dogs. She explores how the human world failed to look after the child, but how his kindness won the trust and protection of street dogs.

Damian Le Bas grew up surrounded by Gypsy history from his great grandmother. He sets out on the road to discover Travellers' stopping places and to understand how the romanticised stories of the past were replaced by the critical, outcast image of present-day Gypsies.

The columnist and Conservative Peer Daniel Finkelstein appears to be the ultimate establishment insider. But his parents were refugees who were forced to move across Europe because of antisemitism. He believes their desire for rootedness and belonging underlines his own politics.

Producer: Katy Hickman

Picture: Arundhati Roy (credit Mayank Austen Soofi).

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Start the Week - Arundhati Roy on castes and outcasts

Booker Prize-winning novelist Arundhati Roy's latest book weaves together the lives of the misfits and outcasts from India's bustling streets. Roy is famous as an advocate for the most vulnerable and dehumanised in Indian society. She tells Andrew Marr how her main character Anjum builds a small paradise for the dispossessed in a graveyard in Delhi.

Ivan Mishukov walked out of his Moscow flat aged four and spent two years living on the city streets, where he found a home among a pack of wild dogs. Playwright Hattie Naylor used this true and extraordinary story as the basis for a play and now a film, Lek and the Dogs. She explores how the human world failed to look after the child, but how his kindness won the trust and protection of street dogs.

Damian Le Bas grew up surrounded by Gypsy history from his great grandmother. He sets out on the road to discover Travellers' stopping places and to understand how the romanticised stories of the past were replaced by the critical, outcast image of present-day Gypsies.

The columnist and Conservative Peer Daniel Finkelstein appears to be the ultimate establishment insider. But his parents were refugees who were forced to move across Europe because of antisemitism. He believes their desire for rootedness and belonging underlines his own politics.

Producer: Katy Hickman

Picture: Arundhati Roy (credit Mayank Austen Soofi).

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More or Less: Behind the Stats - Counting Rough Sleepers

How do you count the number of people sleeping rough? According to the latest official figures around 4700 people were sleeping in the streets in the autumn of 2017. And that got us thinking. These statistics aren?t just downloaded from some big database in the sky. They need ? like any statistic ? to be collected and calculated. So how is it done?

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The NewsWorthy - Presidential Pardon, Skip Chemo & Apple’s ‘Digital Health’ – Monday, June 4th, 2018

All the news to know for Monday, June 4th, 2018!

Today, we're talking about claims President Trump could pardon himself if he wanted, a surprise speech at the graduation ceremony in Parkland, Florida and good news from a large breast cancer study.

Plus: Apple's expected announcements today and an 'electric nose' for your smartphone.

All that and much more in less than 10 minutes.

Award-winning broadcast journalist and former TV news reporter Erica Mandy breaks it all down for you. 

For links to all the stories referenced in today's episode, visit https://www.theNewsWorthy.com and click Episodes.