On April 23, 2020, in a 9-0 decision, the Supreme Court decided Romag Fasteners Inc. v. Fossil Inc., holding that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a precondition to an award of profits.
The decision, which vacated and remanded the opinion below from the Federal Circuit, was written by Justice Gorsuch on April 23, 2020. Justice Alito filed a concurring opinion, in which Justices Breyer and Kagan joined. Justice Sotomayor filed an opinion concurring in the judgment.
To discuss the case, we have Adam Mossoff, Professor of Law at Antonin Scalia Law School, George Mason University.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
SCOTUScast - Monasky v. Taglieri – Post-Decision SCOTUScast
On Feb. 25, 2020, in a vote of 9-0 the U.S. Supreme Court decided Monasky v. Taglieri, holding that a child’s habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents.
The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence. The courts of that country can then resolve any underlying custody disputes.
The opinion was given by Justice Ginsburg. Justice Thomas joined as to Parts I, III and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Alito filed an opinion concurring in part and concurring in the judgment.
To discuss the case, we have Margaret Ryznar, Professor of Law, Indiana University Robert H. McKinney School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence. The courts of that country can then resolve any underlying custody disputes.
The opinion was given by Justice Ginsburg. Justice Thomas joined as to Parts I, III and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Alito filed an opinion concurring in part and concurring in the judgment.
To discuss the case, we have Margaret Ryznar, Professor of Law, Indiana University Robert H. McKinney School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
SCOTUScast - County of Maui, Hawai’i v. Hawai’i Wildlife Fund – Post-Decision SCOTUScast
On April 23, 2020, in a 6-3 decision, the Supreme Court decided County of Maui, Hawai’i v. Hawai’i Wildlife Fund and vacated and remanded the case. The Court held that the Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.
Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.
The 6-3 opinion was given by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.
To discuss the case, we have Glenn Roper, attorney at the Pacific Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Under the federal Clean Water Act (CWA), someone seeking to discharge a pollutant from a “point source,” such as a pipe or well, into navigable water must first obtain a permit via the National Pollutant Discharge Elimination System program (NPDES). The County of Maui, Hawai’i (the County), owns and operates four wells at a wastewater treatment plant that processes several million gallons of sewage per day. Treated wastewater from the plant is injected into groundwater via these wells, and some ultimately enter the Pacific Ocean via submarine seeps.
The 6-3 opinion was given by Justice Breyer on April 23, 2020. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined. Justice Alito filed a dissenting opinion.
To discuss the case, we have Glenn Roper, attorney at the Pacific Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Strict Scrutiny - Happy Hour!
We'll be hosting a happy hour to thank our glow subscribers!
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
- 6/12 – NYC
- 10/4 – Chicago
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
Opening Arguments - OA383: Trump’s Taxes & The CARES Act (Or: Why Your Vote Matters)
Today's episode checks back in with the status of the consolidated cases pending before the Supreme Court regarding Trump's tax returns. As it turns out, this overlaps pretty strongly with the show's "B" segment about the potential for abuse in the CARES Act.
We begin with a colossal "Andrew Was Wrong" -- in which Andrew optimistically predicted we'd see Trump's tax returns in 2019. That... turned out not to be the case. So what are the odds that we'll see Trump's taxes before the November elections? Listen and find out!
After that, it's time for another semi-deep-dive, and this time we're checking back in with the just-passed CARES Act as Andrew talks about a provision we missed the first time around that has the potential to... well, you'll just have to listen and find out!
Then, it's time for the answer to #T3BE 176 involving burning a copy of the IRS Code. Is it illegal? If so, why?
Patreon Bonuses
If you missed our live Q&A, you can check out the audio here!
Appearances
Andrew was just a guest on Episode 121 of the Skepticrat, talking about the abuse of the Paycheck Protection Program and other crazy legal stories in the news. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.
Show Notes & Links
- Click here to read the letter sent by Liz Warren & other Democratic Senators to Deutsche Bank.
- Our comprehensive overview of the CARES Act was in Episode 372, and you can read the final CARES Act here.
- The Sunshine Act is 5 U.S.C. § 552b.
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-Remember to check out our YouTube Channel for Opening Arguments: The Briefs and other specials!
-And finally, remember that you can email us at openarguments@gmail.com!
SCOTUScast - Barton v. Barr – Post-Decision SCOTUScast
On April 23, 2020, in a 5-4 decision, the Supreme Court decided Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”.
The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.
Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.
In a 5-4 vote, the Supreme Court affirmed, holding that eligibility for cancellation of removal of a lawful permanent resident who commits a serious crime during the initial seven years of residence need not be one of the offenses of removal.
The opinion was written by Justice Kavanaugh on April 23, 2020. Justice Sotomayor filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Kagan joined.
To discuss the case, we have Amy Moore, Professor of Law at Belmont University College of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuously for 7 years. Under the stop-time rule, the requisite continuous residence terminates once the alien commits any of a certain number of offenses that render the alien inadmissible to (or removable from) the United States under federal law. Thus, committing a listed offense may cause an alien to fall short of the continuous 7-year residence requirement and thereby become ineligible for cancellation of removal.
Andre Martello Barton, after receiving lawful permanent resident status, was convicted in 1996 on three counts of aggravated assault, one count of criminal damage to property, and one count of firearm possession during commission of a felony, all in violation of state law. In 2007 and 2008, he was also convicted of several state law drug offenses. The federal government then initiated proceedings to remove Barton based on his various convictions. He conceded removability on the basis of his controlled substance and gun possession offenses but applied for cancellation of removal based on continuous residence. The government argued that Barton’s 1996 convictions triggered the stop-time rule, thereby disqualifying him for cancellation of removal. The Immigration Judge ruled in favor of the government and the Board of Immigration Appeals affirmed. Barton then petitioned for relief from the U.S. Court of Appeals for the Eleventh Circuit, which rejected his argument that the stop-time rule only applies to aliens seeking admission to the United States, and therefore denied his petition.
In a 5-4 vote, the Supreme Court affirmed, holding that eligibility for cancellation of removal of a lawful permanent resident who commits a serious crime during the initial seven years of residence need not be one of the offenses of removal.
The opinion was written by Justice Kavanaugh on April 23, 2020. Justice Sotomayor filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Kagan joined.
To discuss the case, we have Amy Moore, Professor of Law at Belmont University College of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Strict Scrutiny - Stay Frustrated
Kate and Melissa are joined by special guest Emily Bazelon to talk about her New York Times Magazine article, “How Will Trump’s Supreme Court Remake America?” Plus, we've got opinions that offer some hints to what future cases might me on the justices' minds.
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
- 6/12 – NYC
- 10/4 – Chicago
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
Opening Arguments - OA382: Bernie Sanders Was Right! (The DNC & Payday Lenders)
Today's episode takes two deep dives -- first, into New York's cancellation of its Democratic Presidential Primary, and second, into the Paycheck Protection Program (PPP) and efforts by scumbag payday lenders to take your tax dollars despite being parasites.
We begin with a thorough examination of the DNC's Delegate Selection Rules and the Call For Convention Rules and figure out whether Bernie Sanders can get to 25% -- and why that matters. Learn why Andrew Yang's lawsuit omits what Andrew thinks is the best argument -- Rule 11.C -- and exactly how it comes into play in terms of the candidates' delegate count. We end with some optimism and a bold prediction by Andrew about the Biden campaign!
After that, it's time for a deep dive into a provision of the CARES Act that we didn't cover back in Episode 372, namely, the Paycheck Protection Program. How does it operate? And how are payday lenders operating on two fronts to try and take advantage of it? Listen and find out!
Then, it's time for an all-new #T3BE about a libertarian tax protestor who sets fire to the Internal Revenue Code inside a government building. (We can't make this stuff up.)
Patreon Bonuses
Our next LIVE Q&A is scheduled for Friday, May 1, at 8 pm Eastern / 5 pm Pacific, and you can post and vote on which questions you want to see answered! And don’t forget that we’ve released Law’d Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast!
Appearances
Andrew was just a guest on Episode 121 of the Skepticrat, talking about the abuse of the Paycheck Protection Program and other crazy legal stories in the news. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.
Show Notes & Links
- Click here to read Andrew Yang's lawsuit against the DNC; here for the Delegate Selection Rules; and here for the Call For Convention Rules.
- This is the April 17, 2020 AP article suggesting that Biden may let Sanders keep his statewide delegates.
- Latest news regarding payday lenders: this April 29, 2020 New York Times article suggesting the fix was in at Trump's CFPB, and former CFPB member Jonathan Lanning's blockbuster 17-page email documenting the corruption.
- Here's the list of SBA Section 7(a) lenders, and this is the relevant regulation, 13 CFR § 120.110(b).
-Support us on Patreon at: patreon.com/law
-Follow us on Twitter: @Openargs
-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!
-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki
-Remember to check out our YouTube Channel for Opening Arguments: The Briefs and other specials!
-And finally, remember that you can email us at openarguments@gmail.com!
SCOTUScast - Thryv, Inc. v. Click-To-Call Technologies, LP – Post-Decision SCOTUScast
On April 20, 2020, the Supreme Court released its decision in Thryv, Inc. v. Click-To-Call Technologies, LP holding that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.”
To discuss the case we have Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
To discuss the case we have Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
SCOTUScast - Ramos v. Louisiana – Post-Decision SCOTUScast
On October 7, 2019, the Supreme Court heard oral arguments in Ramos v. Louisiana.
In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.
In a vote of 6-3, the court reversed. Justice Gorsuch delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor and Kavanaugh joined; an opinion with respect to Parts II–B, 4–B–2, and 5, in which Justices Ginsburg, Breyer and Sotomayor joined; and an opinion with respect to Part 4–A, in which Justices Ginsburg and Breyer joined. Justice Sotomayor filed an opinion concurring as to all but Part 4–A. Justice Kavanaugh filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts joined, and in which Justice Kagan joined as to all but Part III–D.
To discuss the case, we have John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP.
In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ argument. The U.S. Supreme Court subsequently granted certiorari to consider whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict (in criminal cases) against the states.
In a vote of 6-3, the court reversed. Justice Gorsuch delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor and Kavanaugh joined; an opinion with respect to Parts II–B, 4–B–2, and 5, in which Justices Ginsburg, Breyer and Sotomayor joined; and an opinion with respect to Part 4–A, in which Justices Ginsburg and Breyer joined. Justice Sotomayor filed an opinion concurring as to all but Part 4–A. Justice Kavanaugh filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts joined, and in which Justice Kagan joined as to all but Part III–D.
To discuss the case, we have John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP.