Category: 3-LawSometimeCommentary

Part 1 of 2.

OA 1229 - What happens when a government worker does you wrong? How is it different to prosecute and sue them? When does qualified immunity come in to play?

We discuss the steps involved in prosecuting and suing someone for a simple battery, and how that differs for a regular person versus a state actor. We cover how and when defenses can be raised, federal and state sovereign immunity, suing in official versus personal capacity, the difference between absolute and qualified immunities, and the ways this will apply differently to criminal prosecution versus civil litigation.

• Siegell v Herricks Union Free School District, 7 AD3d 607 [2d Dept 2004] (Elements of civil battery in NY)

• N.Y. Penal Law § 120 (NY criminal “battery”)

• Fla. Stat. § 776.032 (Florida self-defense as an affirmative defense and immunity)

• Ohio Rev. Code § 2901.05 (Ohio self-defense as a standard defense)

• N.Y. Penal Law § 35 (NY justification defenses)

• Roger Fairfax, The Grand Jury’s Role in the Prosecution of Unjustified Police Killings - Challenges and Solutions, 52 Harvard Civil Rights-Civil Liberties Law Review 397 (2017).

• Michael Gentithes, Harvesting the Grand Jury’s “Lay Expertise” in Officer-Involved Shootings, U. Ill. L. Rev. 989 (2025).

• In re Neagle, 135 U.S. 1 (1890)

• Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity, 439 Okla. L. Rev. 58 (2005).

• 28 U.S.C. § 2680(h)

• Miles McCann, State Sovereign Immunity, National Association of Attorneys General (Nov. 11, 2017)

• State Sovereign Immunity - Generally, Interstate Commission for Juveniles, https://www.juvenilecompact.org/bench-book/chapter-6-1

• Ex Parte Young, 209 U.S. 123 (1908)

• Scheuer v. Rhodes, 416 U.S. 232 (1974)

• Moor v. County of Alameda, 411 U.S. 693 (1973)

• O’Shea v Littleton, 414 U.S. 488 (1974)

• Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harvard L. Rev. 1456 (2023).

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First, Leah and Melissa explain the legal battles around the ICE occupation in Minnesota and what might come after the killings of Renee Good and Alex Pretti. Then, Leah, Kate, and Melissa run through the latest legal news, including Jack Smith’s testimony before the House Judiciary Committee, before diving into this week’s blockbuster oral argument, Trump v. Cook, on whether Trump has the power to fire Lisa Cook from the Federal Reserve Board. They also cover the week’s other oral arguments, including a Second Amendment case where Sam Alito came out as woke…for guns. Finally, with apologies to the Fifth Circuit, a new nominee for America’s worst circuit court. Preorder Melissa’s new book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader, out May 12, 2026. 

Favorite things:

• Melissa: Valentino Was the Last of Fashion’s Old Guard, Robin Givhan (NYT); The Supreme Court Just Held an Anti-Trans Hatefest, Elie Mystal (The Nation)
• Kate: The Purged, Franklin Foer (The Atlantic); There’s Much More at Stake in the Fed Case Than Interest Rates, Lev Menand (NYT); God of the Woods, Liz Moore; Broken Country, Clare Leslie Hall
• Leah: Lindsey Halligan being a shitty lawyer; Mark Carney at the World Economic Forum;  Stand With Minnesota; Your Friendly Neighborhood Resistance, Kerry Howley (New York Magazine)

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 3/6/26 – San Francisco
• 3/7/26 – Los Angeles

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The evidence is mounting that ICE is not only unbothered by moral boundaries, but immigration and customs enforcement agents acting on behalf of President Trump believe they are not constrained by constitutional red lines, either. According to a super-secret internal memo flagged in a whistleblower complaint this week, the Fourth Amendment simply doesn’t apply to ICE. That sense of impunity is also clear in a growing chamber of horrors from their enforcement operations; from masked agents taking a child in a blue bunny hat, to the shooting of Renee Good. Worryingly, this sweeping concept of immunity is kind of true—though maybe not for the reason you think. This week on Amicus, Dahlia Lithwick talks with Alex Reinert, the Max Freund Professor of Litigation & Advocacy at Cardozo School of Law. He is also the director of the Center for Rights and Justice and Co-Director of the Floersheimer Center for Constitutional Democracy. Alex explains the origins of qualified immunity—a legal theory that allows law enforcement officers to be free from consequences for their actions—why ICE’s lawlessness is not a new phenomenon (even if it is a phenomenon in hyperdrive under Trump), and what we can do about the obvious problem of maximal impunity for the people who have the most power to inflict harm.

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OA1228 - On this week's Rapid Response Friday: we take on all of your legal questions about this whole Greenland thing--including how a 1916 diplomatic treaty with Denmark also enabled some of Jeffrey Epstein’s worst crimes. Also discussed: what it took to finally force Lindsay Halligan to stop telling everyone that she was the U.S. Attorney for the Eastern District of Virginia, and how a Minnesota judge designed her unique order to protect Minneapolis protesters and observers from ICE’s lawless violence. Finally, in today’s footnote: is it enough that McDonald’s can promise that their most elusive sandwich is “100% pork”? We dig into a recent lawsuit over the McRib to see if there is any meat on the bone.

1. The US-Denmark Defense of Greenland Agreement (1951)

2. “How Congress Can Preserve NATO and Greenland: Using 22 USC 1928f to Protect the Peace,” Alberto J. Mora,  Just Security (1/16/2026)

3. Judge Novak’s order officially striking Lindsay Halligan’s appearance from the record and requiring that she stop “masquerading” as the U.S. Attorney for the Eastern District of Virginia (1/20/2026)

4. Tincher v. Noem docket

5. Judge Menendez’s preliminary injunction in Tincher v. Noem (1/16/2026)

6. Complaint in Lynch et al v. McDonald’s, Eastern District of Illinois (12/25/2025)

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With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we  revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization." 

In this member-exclusive episode, co-hosts Dahlia Lithwick and Mark Joseph Stern discuss the Supreme Court’s fact-free foray into Trump v. Cook, a case that economists warn could crater the economy. President Donald Trump spent the first weeks of his second stint in the White House firing a lot of people from government agencies. For the most part, the High Court’s conservative justices let it slide, in line with their general “he’s the President, let him do it” posture. But Federal Reserve governor Lisa Cook was different. In August, Trump fired off a post on Truth Social, then sacked Cook a few days later, leaving a huge question mark hanging over the independence of the Fed.  Turns out, that’s a very big deal for anyone who wants to avoid hyperinflation and economic disaster. During Wednesday’s arguments, it was clear that even Trump’s hand-picked justices felt as though they would like to avoid such catastrophes. What ensued was more about feelings, fear, and frustration than law, but that may be the best we can hope for. 

This episode is member-exclusive. Listen to it now by subscribing to Slate Plus. By joining, not only will you unlock weekly bonus episodes of Amicus—you’ll also access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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E20 - Detention Watch Network executive director Silky Shah has been organizing against ICE on the ground to fight throughout the agency’s entire 23-year existence. We are excited to welcome her and her unique perspective to Opening Arguments to discuss both the urgency and the hope of our current moment, the challenges faced by organizers and advocates, what lawyers can (and can’t) do in the face of a lawless system, and imagining life after ICE.

You can also watch this episode on YouTube!

1. Unbuild Walls: Why Immigrant Justice Needs Abolition, Silky Shah (2024) 

2. “Congress Has Made ICE the Largest Law Enforcement Agency In The Country,” Silky Shah, Truthout (1/20/2025)

3. Detention Watch Network website

4. Donate directly to support Detention Watch Network

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It’s five years of Akhil and Andy on Amarica’s Constitution, and our friends are lining up to talk about it.  In typical fashion, it’s not just testimonials but reflections.  And we do a clip episode, but this time it’s not the justices, or the oral advocates, or the pundits, on the hot seat:  it’s us.  We look back at two episodes per year, playing our sometimes correct, sometimes wildly wrong predictions, and our sometimes prescient, sometimes widely ignored so-called insights.  It’s been quite a ride, and quite a recap - so much so that this part one of at least two.  And still, after five years, CLE credit remains available for lawyers and judges from podcast.njsba.com.

Melissa, Leah, and Kate kick off by discussing the functional suspension of the Constitution in Minneapolis and Trump’s targeting of Federal Reserve Chair Jerome Powell. Then they dissect the arguments in a pair of cases that came before the Court last week about whether state laws barring trans girls and women from their schools’ sports teams violate the Constitution or Title IX. Finally, they break down new opinions from SCOTUS involving criminal law, the Fourth Amendment, and mail-in ballots.

Favorite things:

• Kate: You’ve heard about who ICE is recruiting. The truth is far worse. I’m the proof., Laura Jedeed (Slate); Remarkably Bright Creatures, Shelby Van Pelt; God of the Woods, Liz Moore; Ulysses at the Public Theater
• Leah: They Were Ordinary Germans. We Are Ordinary Americans., Shalom Auslander (NYT); What to know about the Insurrection Act, Steve Vladeck & Allison Gill (One First); Can Trump Actually Use the Insurrection Act? Steve Vladeck and Jennifer Rubin (The Contrarian)
• Melissa: Nuremberg; Ammel vs. Sinema; This guy

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 3/6/26 – San Francisco
• 3/7/26 – Los Angeles

Learn more: http://crooked.com/events

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

Follow us on Instagram, Threads, and Bluesky

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OA1227 - Come play the worst ever round of the Connections game and figure out what on earth Tuskegee Alabama, the CDC, Southern Denmark University, and the West African country of Guinea-Bissau all have in common, as RFK Jr. continues his campaign of “just asking questions” that we already have the answer to.

• Black men untreated in Tuskegee syphilis study. Heller, J. (July 25, 1972; republished May 10, 2017). Associated Press.

• The untreated syphilis study at Tuskegee timeline. Centers for Disease Control. (September 4, 2024).

• 45 CFR 46 Protection of Human Subjects. (Department of Health and Human Services regulations to implement the National Research Act and create Institutional Review Board policies).

• Hepatitis B. World Health Organization (July 23, 2025).

• Should the U.S. model its vaccine policy on Denmark’s? Experts say we’re nothing alike. Godoy, M. (December 26, 2025). NPR.

• RFK Jr. overhauls childhood vaccine schedule to resemble Denmark’s in unprecedented move. Lovelace Jr., B., Edwards, E., Fattah, M., & Bendix, A. (January 5, 2026). NBC News.

• What is actually the emerging evidence about non-specific vaccine effects in randomized trials from the Bandim Health Project? Støvring, H., Ekstrøm, C.T., Schneider, J.W., & Strøm, C. (2025). Vaccine, 68, 1-4.

• Notice of award of a single source unsolicited grant to fund University of Southern Denmark (SDU). Department of Health and Human Services. (December 15, 2025).

• U.S. plan for $1.6m hepatitis B vaccine study in Africa called ‘highly unethical’. Schreiber, M. & Lay, K. (December 19, 2025). The Guardian.

• CDC awards $1.6 million for hepatitis B vaccine study by controversial Danish researchers. Szabo, L. (December 18, 2025). Center for Infectious Disease Research and Policy.

• CDC funds controversial hepatitis B vaccine trial in African newborns. Offord, C. (December 18, 2025). Science Insider.

• Research ethics and compliance support. Southern Denmark University.

Further reading:

• Qiao, H. (2018). A brief introduction to institutional review boards in the United States. Pediatric Investigation, 2, 46-51.

• U.S. Department of Health and Human Services. International compilation of human research standards. https://www.hhs.gov/ohrp/international/compilation-human-research-standards/index.html

• University of North Carolina. Nuremberg Code. https://research.unc.edu/human-research-ethics/resources/ccm3_019064/

• Torrance, R.J., Mormina, M., Sayeed, S., Kessel, A., Yoon, C.H., & Cislaghi, B. (2024). Is the U.N. receiving ethical approval for its research with human participants? Journal of Medical Ethics, 51, 1-4.

• Barchi, F. & Little, M.T. (2016). National ethics guidance in Sub-Saharan Africa on the collection and use of human biological specimens: A systematic review. BMC Medical Ethics, 17, 1-25.

• Salhia, B. & Olaiya, V. (2020). Historical perspectives on ethical and regulatory aspects of human participants research: Implications for oncology clinical trials in Africa. JCO Global Oncology, 6, 959-965.

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