Category: 3-LawSometimeCommentary

Today, Liz and Andrew visit the strange world of James O'Keefe and his agitprop outfit, Project Veritas. Along the way we'll learn about a bunch of cases, the law of prior restraint, and much, much more!

Notes Project Veritas $22 million https://projects.propublica.org/nonprofits/organizations/272894856

Federal Docket O'Keefe v. Twitter https://www.courtlistener.com/docket/59899639/okeefe-iii-v-twitter-inc/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

NY Appellate docs - O’Keefe v. Twitter https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=OihBJQsmc7aFb4qIIdOKeA==

Liz ATL on O’Keefe-CNN https://abovethelaw.com/2021/04/project-veritas-gonna-sue-twitter-for-defamatory-section-230-censorship-and-first-amendment-assault-or-something/

Project Veritas Docket (00813) https://www.courtlistener.com/docket/61377333/parties/in-re-search-warrant-dated-november-5-2021/

Project Veritas Board of Directors https://www.projectveritas.com/news/statement-from-the-project-veritas-board-of-directors/

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The U.S. Supreme Court appears ready to clarify when and under what circumstances federal labor law preempts state tort claims for strike-related misconduct. On January 10, it heard oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local No. 174, a case involving the intentional destruction of an employer’s property.

The employer, Glacier Northwest, manufactures ready-mix concrete. Ready-mix concrete hardens quickly and must be poured on the same day it’s mixed. In August 2017, a union representing Glacier’s employees called a sudden strike. The union allegedly timed the strike so that concrete would be left to harden in Glacier’s trucks. Predictably, the concrete was ruined, and Glacier sued the union for damages. But state courts rejected the suit. They held that the suit was preempted by the National Labor Relations Act (NLRA) because (a) the union’s conduct was arguably protected by federal law, and (b) the conduct fell outside an existing exception for intentional-tort claims because it involved no violence or “outrageous conduct.”

The central issue for the Court is whether the NLRA preempts intentional tort claims except when they’re accompanied by violence or outrageous conduct. The union argues that the state courts got it right: violence or outrageous conduct is necessary. Glacier, on the other hand, argues that violence or outrageous conduct has never been required. In fact, the Supreme Court itself has long recognized that intentional property destruction is unprotected and falls outside the NLRA’s preemptive reach.

Regardless of who wins that argument, the resulting decision will likely clarify the scope of NLRA preemption. And potentially, it will offer guidance on the bounds of acceptable strike-related conduct.

Join Alex MacDonald to stay informed on one of the most important cases currently before the Supreme Court.

Featuring:
Alex MacDonald, Director, Future of Work and Labor Law, Instacart

People love to talk about the Constitution - that’s why we have a podcast. Sometimes, however, the conventional wisdom is quite unwise, leading to deeply unfortunate national narratives.  Today we address questions such as whether the Constitution was foisted upon an unwitting nation, with the proceedings kept secret for decades.  This is perhaps an old question, but in the news recently, we read of state public school curricula wherein objection is raised to the notion that the Declaration and Constitution are “remarkable.”  So it matters that we understand all these questions - and their answers.  We offer some.  Oh, and speaking of “in the news,” Moore v. Harper is back in the headlines, with questions of whether it will be rendered moot hanging in the air, to the alarm of many.  Professor Amar has a nuanced take on that.

On December 7, 2022, the U.S. Supreme Court heard oral argument in Moore v. Harper.

Following the most recent census, North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections.

Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself.

Join us to break down the oral argument for this case!

Featuring:

Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute

Today, Liz and Andrew tackle some listener feedback, resume their discussion of the crime-fraud exception, and end with perhaps Ken Paxton's craziest lawsuit (and that's saying a lot)!

Notes Federalist Papers No. 68 https://avalon.law.yale.edu/18th_century/fed68.asp

Crime/fraud NYT story https://www.nytimes.com/2023/02/14/us/politics/trump-lawyer-classified-documents-investigation.html

Liz ATL of Paxton’s ethics and counter-investigation https://abovethelaw.com/2022/05/tx-ag-ken-paxton-launches-bogus-investigation-of-state-bar-still-winds-up-with-ethics-lawsuit/

Texas v. Garland https://storage.courtlistener.com/recap/gov.uscourts.txnd.373284/gov.uscourts.txnd.373284.4.0_1.pdf

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Today is one of those shows you'll want to share around. EVERYONE is talking about the bombshell revelations from Fox News, but only Liz and Andrew can help you understand how we got here and what it all means!

Notes Original Dominion-Fox Complaint https://www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint

Dominion lawsuit against OAN https://s3.documentcloud.org/documents/21039565/dominion-oan-complaint.pdf

Dominion Motion for Summary Judgment (MSJ) https://int.nyt.com/data/documenttools/redacted-documents-in-dominion-fox-news-case/dca5e3880422426f/full.pdf

DE State docket https://courtconnect.courts.delaware.gov/cc/cconnect/ck_public_qry_doct.cp_dktrpt_docket_report?case_id=N21C-03-257&begin_date=&end_date=#dockets

Fox Corp MSJ https://deadline.com/wp-content/uploads/2023/02/Redacted-Public-Version-Fox-Corp-Opening-MSJ-Brief.pdf

Fox News MSJ https://deadline.com/wp-content/uploads/2023/02/Redacted-Public-Version-FNN-Opening-MSJ-Brief.pdf

Fox News anti-SLAPP counterclaim https://deadline.com/wp-content/uploads/2023/02/PUBLIC-VERSION-FNNs-First-Amended-Counterclaim-Accepted.pdf

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Danielle Citron, author of The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, joins Leah and Melissa to preview two  Supreme Court cases that ask whether online platforms should be held liable for user-uploaded content. Plus, more drip-drip-drip from the investigation of the Dobbs  leak.

• Read The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age (use promo code STRICT10 for 10% off!)
• Read The Onion's incredible amicus brief

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We're live at Washington University School of Law in St. Louis! After a check-in with our most faithful corrector, Prof. Ron Levin, we take a deep dive into the two upcoming cases about the legality of President Biden's student loan forgiveness plan. Will explains his theory of why the challengers should lose because they lack standing—but also predicts that the Court is unlikely to agree. 

Today is a Rapid Response Friday, and Liz and Andrew break down all the developments with the two grand juries convened by Jack Smith to investigate Donald Trump's various crimes. Oh, and we also analyze the released portions of the Fulton County grand jury report which reveals a bit more than you might think!

We've also learned that a bunch of Trump lawyers have been subpoenaed to testify or otherwise the subject of grand jury questions, and you may be wondering how that's possible, and we walk you through when privilege is.. not privilege!

Notes Unredacted portions of Fulton County SPGJ Report https://s3.documentcloud.org/documents/23683158/2022-ex-000024-ex-parte-order-of-the-judge-5.pdf

FRE 501 https://www.law.cornell.edu/rules/fre/rule_501

Bobb says she’s not a lawyer in documents case https://www.salon.com/2022/10/03/attorney-lawyers-up--and-says-shes-willing-to-cooperate-with-doj-in-mar-a-lago-case-report/

 NYT Epshteyn story https://www.nytimes.com/2023/02/14/us/politics/trump-lawyer-classified-documents-investigation.html

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In today's episode, Andrew and Liz briefly discuss the breaking news that Mike Pence intends to assert the "speech or debate clause" as a reason to protect insurrectionists, delve into Ken Paxton's latest settlement, and update you on the World's Dumbest Supreme Court litigants!

Notes Paxton settlement https://www.documentcloud.org/documents/23607998-211027_mtn-to-abate Whistleblower Petition https://thetexan.news/wp-content/uploads/2021/03/Paxton-Whistleblower-Lawsuit-Documents-Through-Feb.-9-Filing.pdf

Appellate court decision https://cases.justia.com/texas/third-court-of-appeals/2021-03-21-00161-cv.pdf?ts=1634818950

Paxton bar complaint https://drive.google.com/file/d/1D8OH23E-E4hD7Bgn0cY_zEQxdqFtF8u5/view Webster dismissal https://www.texasattorneygeneral.gov/sites/default/files/images/executive-management/SBOT%20v.%20BW%20Letter%20Ruling.pdf

Raland J. Brunson cert petition https://www.supremecourt.gov/DocketPDF/22/22-380/243739/20221027152243533_20221027-152110-95757954-00007015.pdf

Petition for Rehearing https://www.supremecourt.gov/DocketPDF/22/22-380/253190/20230126114616761_rehearing%2022-380.pdf

Supreme Court Rule 44 https://www.law.cornell.edu/rules/supct/rule_44

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