Category: 3-LawSometimeCommentary

On Nov. 25, 2020, the U.S. Supreme Court issued a summary opinion in Thompson v. Hebdon, a case involving campaign-finance law. Specifically at issue was whether Alaska’s political contribution limits are consistent with this Court’s First Amendment precedents.
Currently, Alaska’s law imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party.
The 9th Circuit U.S. Court of Appeals upheld the limits, ruling that they were drawn narrowly to prevent quid pro quo corruption or the appearance of such corruption.
The Supreme Court, in an per curiam opinion, granted the petition of cert, vacated the decision below and remanded the case back for the 9th Circuit to revisit. Justice Ginsburg filed a statement.
To discuss the case, we have Derek Muller, Professor of Law at Pepperdine University Caruso School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Today's episode begins with a discussion of the recent dismissal of charges by the Department of Justice against Concord Management & Consulting, LLC (and Concord Catering) with prejudice. Is this another example of Attorney General Bill Barr's meddling? We explain that it... probably... isn't. Probably.

After that, it's time for the first part of a double-length episode in which we tackle your questions about the coronavirus and the law. First up are all the questions involving elections, including whether and how Trump can suspend or eliminate the election, and what would happen if he did. If you've always wanted Vermont Senator Pat Leahy to be President, well, this is the episode for you!

No #T3BE this week as we jam-pack 2.5 hours of content for your self-quarantining listening pleasure!

Patreon Bonuses

If you’re at the $2 level or above, we have an amazing new Law’d Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Cucker Carlson!

Appearances

None! 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

1. On Concord Management: you can check out the 2019 Motion alleging that Concord was abusing the discovery process as well as the 3/16/20 motion to dismiss.
2. As an overview to states of emergency, we began with Ex parte Milligan (1866).
3. On primaries: Check out the Ohio Supreme Court's denial of the writ of mandamus to hold the March 16 primary, as well as the lawsuit filed by the Ohio Democratic Party. Oh, and if you want to be depressed, read Nixon v. Herndon, 273 U.S. 536 (1927).
4. Election statutes: 2 U.S.C. §§ 1, 7 (“Time of Election”) and 3 U.S.C. §§ 1 et seq. And of course, don't forget Bush v. Gore, 531 U.S. 98 (2000), which we broke down way back in Episodes 3, 4, and 5 of the show!
5. Presidential succession is governed, inter alia, by the 20th Amendment and the Presidential Succession Act, 3 U.S.C. § 19, and the Speaker of the House is required by Art. I, Section 2 of the Constitution and implemented by the House Rules.
6. Pat Leahy as President was first proposed by journalist Ian Millhiser.

-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!

Today's episode features two deep dives: first, we have an interview with David Williamson of the Central Florida Freethought Community to discuss their successful (!) five-year lawsuit to permit humanist, atheist & non-clergy invocations before the Brevard County council meetings. Find out how this case developed and learn some strategies for successful grass-roots activism even in the age of Trump!

We also take one more deep dive into the amazing Spirit/Led Zeppelin lawsuit, this time taking a look at the recent en banc decision by the full 9th Circuit that reverses the earlier panel opinion (and is a win for Led Zep). The 9th Circuit has some interesting things to say about the "inverse ratio" rule that really brings out discussion from the past two weeks (see episodes 365 and 367). We know you'll enjoy it!

After that, it's time for the answer to #T3BE 170, which matched Thomas up against the dreaded REAL PROPERTY QUESTION. Can he slay the beast? Listen and find out!

Patreon Bonuses

If you're a patron at any level, you can ask a coronavirus question to be answered on the next two episodes, and if you're at the $2 level or above, we have an amazing new Law'd Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed!

Appearances

None! 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

1. Check out the Central Florida Freethought Community
2. We first took a "Stairway to the Supreme Court (?)" back in Episode 236 and then did a follow-up in Episode 288. Of course, we also covered Riehl and Rubin’s project in Episode 365 (“Every Melody Ever, Part 1”) and interviewed Riehl and Rubin themselves in Episode 367.
3. Finally, you can read the recent en banc decision by the full 9th Circuit for yourself.

-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!

On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal.
Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and mitigation or impose the particular sentence in a death penalty case. Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court.
To discuss the case, we are joined by Oramel H. (O.H.) Skinner, Solicitor General for Arizona.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Dahlia Lithwick is joined by Professor Michele Goodwin, Chancellor’s Professor of Law and Director of the Center for Biotechnology and Global Health Policy at the University of California Irvine School of Law. Professor Goodwin unpacks the oral arguments in this term’s big reproductive health case, June Medical Services, and delves into the history of racism and civil-rights trampling in the name of public health. 

For plus members, Mark Joseph Stern joins Dahlia with what to expect from a SCOTUS closed to the public, the Obamacare case, and which record was met at the Supreme Court this week. 

Podcast production by Sara Burningham.

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Today's episode continues our discussion from Episode 366 on the political, criminal, and civil legal issues surrounding coronavirus and COVID-19 in the United States, including whether the CDC has the authority to waive the fees associated with testing for the virus (they do!) and how this is going to affect civil society (badly). You won't want to miss it -- and you'll be stuck inside your house anyway, so you'll have all the time in the world to listen!

We begin, however, with some nuance regarding An Andrew Was Right, the line of Presidential succession, the 12th and 22nd Amendments, and whether Barack Obama can be Joe Biden's Vice-President. Learn that... apparently there's an argument that he could?

After that, it's time for the main segment, which covers COVID-19 and the coronavirus, specifically (a) Rep. Katie Porter's amazing cross-examination of the CDC Director and the legal authority; (b) lawsuits against con artists like Jim Bakker and Alex Jones; (c) Congress's response; (d) more on private lawsuits and the specific example of SXSW; and (e) a really interesting question about jury duty and the future of jury trials.

After all that, it's time for a dreaded REAL PROPERTY #T3BE. Can you get it right? Just share out this episode on social media, include the hashtag #T3BE, your guess, and your reasons therefor and we will shower the winner with... well, you know.

Appearances

Andrew was just a guest speaker at Houston OASIS, and we’ll be working to bring you the audio of his speech from that event. 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

1. In the "A" segment on Presidential succession, we referenced this law review article from Peabody & Gant.
2. Check out the video of Katie Porter's blistering cross-examination of the CDC Director as well as the text of 42 CFR § 71.30.
3. And, of course, you'll want to listen to our original coverage back in Episode 366.

-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!

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.
The central issue before the Supreme Court was whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law.
By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications.... Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan.
To discuss the case, we have Peter Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Today's episode is a continuation of Part 1, in which we discuss Damien Riehl and Noah Rubin's "All the Music" project and the history and future of music copyright. We've got a special treat for you in that Damien and Noah are both on the show to answer our (tough!) questions. You won't want to miss this fun discussion!

We begin, however, with a listener question/comment about attending law school and balancing costs, risks, and budgets that many of our listeners will undoubtedly find timely.

Then it's time to bring on Damien Riehl and Noah Rubin for a fascinating deep dive into the mechanics, the law, and the public policy behind their "All the Music" project. Where should our sympathies lie? What changes to copyright law would better benefit music creators? How do Riehl and Rubin see the fundamental issues in music copyright? You won't want to miss this!

After the interview, it's time for the answer to #T3BE 169 involving a tainted witness identification and the permissibility of eliciting testimony in court. Can Thomas start a new winning streak?? Listen and find out!

Appearances

Andrew was just a guest speaker at Houston OASIS, and we'll be working to bring you the audio of his speech from that event. 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

1. Our basics on music and copyright were covered in Episode 236 and then with a follow-up in Episode 288. Of course, we also covered Riehl and Rubin's project in Episode 365 ("Every Melody Ever, Part 1").
2. For (some of) the details on Riehl and Rubin’s project, check out Riehl's fascinating TEDx talk.

-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!

On March 4, 2020, the Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.
To discuss the case, we have Steven Aden, Chief Legal Officer & General Counsel at Americans United for Life
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique.
To discuss the case, we have Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.