Category: 3-LawSometimeCommentary

On January 14, 2021 the Supreme Court decided City of Chicago, Illinois v. Fulton. The question presented was whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition. The debtors believe that a different provision of the code, obligated the city to return the cars as soon as they filed for bankruptcy relief. The bankruptcy court agreed, and later, the 7th Circuit affirmed that ruling. By a vote of 8-0, the Supreme Court vacated and remanded. Writing for the Court, Samuel Alito indicated that “the mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code.”
Justice Alito’s opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Sotomayor filed a concurring opinion.
Ralph Brubaker, Carl L. Vacketta Professor of Law at University of Illinois’s College of Law, joins us today to discuss this ruling.

On January 14, 2021 the Supreme Court decided City of Chicago, Illinois v. Fulton. The question presented was whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition. The debtors believe that a different provision of the code, obligated the city to return the cars as soon as they filed for bankruptcy relief. The bankruptcy court agreed, and later, the 7th Circuit affirmed that ruling. By a vote of 8-0, the Supreme Court vacated and remanded. Writing for the Court, Samuel Alito indicated that “the mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code.”
Justice Alito’s opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Sotomayor filed a concurring opinion.
Ralph Brubaker, Carl L. Vacketta Professor of Law at University of Illinois’s College of Law, joins us today to discuss this ruling.

Leah, Melissa, and Kate recap the January sitting and the inauguration festivities. They also extend a few invites to join the pod -- so listen in!

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• 10/4 – Chicago

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Dahlia Lithwick is joined by Daniel Goldman, who spearheaded the first round of impeachment hearings in the House in December 2019 as the senior adviser and director of investigations for the U.S. House of Representatives Permanent Select Committee on Intelligence. They examine what impeachment last time can teach us about impeachment this time, and why we’ve got to stop thinking like lawyers when it comes to the Senate trial.

In our Slate Plus segment, Mark Joseph Stern joins Dahlia to discuss the attempted sub-coup at the Justice Department, the first Biden-era sightings of the long tail of Trump’s judicial appointments, and the conservative legal establishment’s choice to embrace Trumpists after Jan. 6. 

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Podcast production by Sara Burningham.

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Dahlia Lithwick is joined by Daniel Goldman, who spearheaded the first round of impeachment hearings in the House in December 2019 as the senior adviser and director of investigations for the U.S. House of Representatives Permanent Select Committee on Intelligence. They examine what impeachment last time can teach us about impeachment this time, and why we’ve got to stop thinking like lawyers when it comes to the Senate trial.

In our Slate Plus segment, Mark Joseph Stern joins Dahlia to discuss the attempted sub-coup at the Justice Department, the first Biden-era sightings of the long tail of Trump’s judicial appointments, and the conservative legal establishment’s choice to embrace Trumpists after Jan. 6. 

Sign up for Slate Plus now to listen and support our show.

Podcast production by Sara Burningham.

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We're very proud of this show, in which you can sit down your Uncle Frank who's repeating the kind of nonsense Rand Paul spouted this weekend -- that "all the court cases just dismissed Trump's lawsuits on standing and never evaluated the evidence" -- and show that it is an out-and-out lie. It's not true. And we think even Uncle Frank will have to reluctantly concede that by the end of the episode.

Links:

1. This is the terrible Gateway Pundit article by Joe Hoft whose claims we thoroughly debunk. Please don't click on it. Please do feel free to click on the polling averages at 538 or Gallup which show that the "wildly popular" President Trump averaged a 41% approval rating.
2. This is the main spreadsheet Hoft relies on for his "81 cases."

Cases (from the spreadsheet):

1. Trump v. Boockvar, 20-00966 (W.D. Pa.): You can check out the CLOSED DOCKET with 574 entries, and then read the 138-page opinion clearly addressing the merits of Trump's voting arguments.
2. Trump v. Way, 3:20-cv-10753-MAS-ZNQ (D.N.J.): Check out the CLOSED DOCKET.
3. In re Canvassing Observation No. 7003 (Penn. Ct. Common Pleas.) -- here's the state court ruling on sneezing;
4. In re Canvassing Observation, No. 1094 CD 2020 (Penn. Comm. Ct.) -- and yes, that's the same case on appeal -- and here's the only Trump win;
5. Trump v. Boockvar, 20-02078 (M.D.Pa.): This is the 11/21 opinion addressing the merits of Trump's efforts to throw out the entire state's vote.
6. In re Canvass of Absentee and Mail-in Ballots (Pa. state consolidated cases): Here's the ruling from the Pennsylvania Supreme Court that "no fraud or irregularity has been alleged."
7. Trump v. Boockvar, 20-3371 (3d Cir); here's the docket showing that this appeal was closed on Nov. 27, 2020; and also
8. Here's the Order dismissing out other shenanigans. The case is closed!
9. Trump v. Biden, No. 2020CV007092 (Wis. Super. Ct.) -- this was Trump's challenge to the recount in Milwaukee and Madison; and here's the proof that the docket was closed.
10. Trump v. Biden, No. 2020AP2038 (Wis.) -- you can read the Wisconsin Supreme Court's 82-page consolidated appeal addressing the merits of Trump's voter fraud claims.
11. Trump v. Toulouse Oliver, No. 20-01289 (N.M.) -- you can read Trump's motion to dismiss his own First Amended Complaint.
12. Trump v. Boockvar - you can read Trump's cert petition in the Pennsylvania consolidated cases, and view the Supreme Court's summary rejection of Trump's motion to expedite.
13. Finally, Trump v. Biden -- you can also read Trump's cert petition in the Wisconsin case, and the Supreme Court's similar summary denial of Trump's motion to expedite.
14. And that's it!

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Continuing our discussion of the various disasters that might have befallen America around the election, this time we explore the period after the election and before the Electoral College, and then as Congress prepared to meet and certify the vote. The toxic mixture of the Greeley precedent and Faithless Electors was rendered a veritable Chernobyl by a 2020 Supreme Court decision that Akhil finds, shall we say, imperfect. Life imitates art ("The West Wing," again)? Actually, it's more frightening than that.

Andrew went through the ENTIRE list of 143 people pardoned by Trump in his final act as president, and he's got the full breakdown for us! He also answers some questions on a lot of people's minds - Can pardons be revoked? And could Trump have 'secret pardoned' himself? Listen and find out!

Links: Legal Eagle Can Pardons Be Revoked or Rescinded?, 1937 Fordham article The Pardoning Power, Rose's notes on the Constitution 1904, Trump's Pardons, 44 US Code § 2201, 44 U.S. Code § 2203

Leah, Melissa, and Kate are joined by Julie Cohen, Betsy West and Talleah Bridges McMahon, the team behind the new documentary, My Name Is Pauli Murray.  The film premieres at the Sundance Film Festival this week.

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

Follow us on Instagram, Threads, and Bluesky

On On January 19, 2021, the U.S. Supreme Court heard oral arguments in Federal Communications Commission v. Prometheus Radio Project. The question before the Court was whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.
Ms. Jane E. Mago, Consultant in Media Policy and Law and former General Counsel of the FCC, Hon. Michael O'Rielly, Visiting Fellow at the Hudson Institute and former Commissioner of the FCC, Mr. Christopher J. Wright, Partner at Harris, Wiltshire & Grannis and former General Counsel of the FCC, and Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies, join us today to discuss this case's oral argument.