Category: 3-LawSometimeCommentary

Today's episode breaks down force majeure clauses in contracts and takes a look at what might happen in the next few weeks as the world prepares to deal with COVID-19 coronavirus. Along the way we also tackle the news of the week, including the baffling decision out of the DC Circuit not to require Don McGahn to testify. You won't want to miss this episode!

We begin, however, with some recurring Vice Presidential/line of succession questions and take a mini-deep-dive into the absolutely bonkers elections of 1796 and 1800 that produced the 12th Amendment, and what it says about vice-presidential qualifications.

After that, it's time for our main segment on coronavirus, which includes a deep dive into various cases where contracts have been broken due to "acts of god." Is a global pandemic an "act of god?" Listen, find out, and you'll soon be able to whip out four-part tests if your hotel tries to cancel your room due to coronavirus scares.

Then, it's time to pick apart the D.C. Circuit's 2-1 baffling opinion that the House Oversight Committee lacks standing to go to a court to enforce its subpoena over Don McGahn. This is technically an "Andrew Was Wrong," because Andrew did not imagine that any judges with functioning brain cells could have authored an opinion this bad. Find out what's next!

After all that, it's time for a brand new Thomas Takes the Bar Exam involving a tainted witness identification. And remember that you too can play along by sharing out this episode on social media and using the hashtag #T3BE.

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. For all your Vice Presidential qualification questions, check out the 12th Amendment!
2. Here's the D.C. Circuit's decision in McGahn, and we also referenced Raines v. Byrd, 521 U.S. 811 (1997) and, of course, Opening Arguments's good friend Richard Nixon in United States v. Nixon, 418 U.S. 683, 696-97 (1974).
3. Finally, you can read Josh Chafetz's law review article, "Executive Branch Contempt of Congress."

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On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional."
To discuss the cases, we have Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Today's episode brings you our first look at the efforts by Damien Riehl and Noah Rubin to copyright "every melody ever" as part of a way of reconceptualizing copyright law as it applies to music. SPOILER: We're going to have Riehl and Rubin on the show to discuss their work in more depth. We also discuss Chevron deference and a recent dissent by Clarence Thomas that's No Laughing Matter.

We begin with a deep dive into the Riehl and Rubin "Every Melody Ever" effort, which builds upon the music copyright episodes we've previously discussed in Episode 236 ("Stairway to the Supreme Court") and Episode 288 ("More on Led Zeppelin"). What exactly are Riehl and Rubin doing, and will it put an end to copyright lawsuits against musicians? Listen and find out!

After that, we check out a case (Baldwin v. U.S.) in which the Supreme Court refused to grant certiorari -- and the dissent filed by Clarence Thomas. That prompted a headline that got some chuckles last week -- "Clarence Thomas cites Thomas in overruling Thomas" -- and we learn that (of course) this turns out to be no laughing matter, but part of a concerted effort to roll back not only a 2005 Clarence Thomas opinion, National Cable & Telecommunications Ass'n v. Brand X Internet Svcs., 545 U.S. 967 (2005), but Chevron deference itself. Find out why even the howler monkey contingent wanted to take a pass on this case -- but not Clarence Thomas!

After all that, it's time for the answer to perhaps the easiest #T3BE ever -- or is it? (It is.) And remember, you can always play along with #T3BE by sharing out the show on social media!

Appearances

None! If you’d like to have either of us as a guest on your show, 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.
2. For (some of) the details on Riehl and Rubin's project, you can read the write-up in Vice.
3. Finally, you can check out Thomas's cert dissent in Baldwin v. U.S. here.

-Support us on Patreon at: patreon.com/law

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-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!

Kate and Melissa join forces with Lauren Moxley, creator of The Ginsburg Tapes, for an exploration of the Equal Rights Amendment.

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

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• 10/4 – Chicago

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Dahlia Lithwick asks the new president of the American Constitution Society, Russ Feingold, if it’s too late for progressives to respond to the conservative steamroller that is the Federalist Society. 

Slate Plus members have access to a bonus segment in which Slate’s Mark Joseph

Stern breaks down the headlines, cases, cert grants, and conundrums from the Supreme Court and federal appellate courts. To start your free two-week trial go to slate.com/amicusplus

Podcast production by Sara Burningham.

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Today's episode takes a deep dive into the just-filed briefs in the Trump v. Mazars litigation pending before the Supreme Court regarding the legitimacy of the House's subpoenas for Trump's tax returns. Is the law on the House's side? (Yes, yes it is.) Are we confident that the Supreme Court will rule the right way in a case this bad? (Maybe?) In any event, you'll want to listen!

Announcements

1. Don't forget our YouTube Live Q&A this Sunday, March 1, at 1:30 pm Eastern / 10:30 am Pacific!
2. You still have two days to register for Voter Protection Law School Boot Camp!

We begin with an Andrew Was Wrong(-ish) from our good friend Randall Eliason on the actual frequency of below-guidelines sentences in light of Roger Stone's downward variance.

Then it's time for a deep dive into Mazars v. Trump, where we look at the briefs filed by the parties and evaluate the arguments made by the Trump administration that the subpoenas issued by the House are invalid. How bad are these arguments? They're bad.

Then, it's time to tackle the recent defamation lawsuit filed by the Trump campaign against the New York Times regarding a March 2019 op-ed by Max Frankel, in which Mr. Frankel argued that the campaign didn't need to coordinate with Russia to benefit from foreign assistance. Does this pave the way for really good discovery? (No.)

After all that, it's time for a brand-new #T3BE involving a law prohibiting providing assistance to undocumented aliens. Can Thomas start a new winning streak? Listen and find out. And, of course, you can always play along on social media by using the hashtag #T3BE!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Remember to check out our YouTube Channel !
2. If you're thinking about Democratic Voter Protection Law School Bootcamp, check out the flyer and then apply online.
3. n the opening segment, Andrew references the U.S. Sentencing Commission (2018) report on sentences.
4. in Mazars v. Trump, check out the President's Jay Sekulow-penned brief as well as the just-filed response by the House of Representatives. You can also read the Franchise Tax Bd. v. Hyatt (2019) decision.
5. Finally, check out the Trump Campaign v. New York Times defamation lawsuit.

-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

-And finally, remember that you can email us at openarguments@gmail.com!

Brendan Nyhan is a political science professor at Dartmouth College who focuses on misinformation and so-called fake news. His views on how fake news affects election outcomes might surprise you. 

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Podcast production by Sara Burningham.

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Today's episode brings you some good news from the 11th Circuit Court of Appeals with respect to Florida's effort to restore the vote to felons who have completed their sentences -- and the Republicans' ongoing efforts to stop it. We also revisit the emoluments clause litigations pending in two jurisdictions as well as tackle a novel question from one of our listeners. You won't want to miss it!

We begin with a brief Andrew Was Wrong / Andrew Was Right segment regarding emoluments. Friend of the show Seth Barrett Tillman writes in to correct us on two procedural issues and also to venture an opinion that any future emoluments cases would have to be brought by both houses of Congress. Find out why Andrew disagrees and stands by his original recommendation in Episode 361 that Nancy Pelosi authorize a new vote by the full House of Representatives to re-file the case originally brought in Blumenthal v. Trump.

Then it's time for our main segment on the breaking decision out of the 11th Circuit striking down the Florida legislature's effort to gut Amendment 4 (which was meant to restore voting rights to ex-felons). Find out why the court ruled the way it did, what happens next, and why there may be cause for optimism in the Sunshine State!

After that, it's time for a fascinating, clever, but (sadly) wrong suggestion from a listener regarding a writ of mandamus and the current logjam in Congress.

We end, as always, with #T3BE, and Thomas's seven-question winning streak on the line regarding a contract and an unfortunate foreman who suffers an accident prior to starting his duties. Will Thomas prevail? Listen and find out! And don't forget to play along by sharing out the show on social media!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. In the opening segment, Andrew breaks down the Supreme Court case of Virginia House of Delegates v. Bethune-Hill (2019).
2. You'll want to read the 11th Circuit's opinion for yourself. We last discussed the Florida legislature's efforts to gut Amendment 4 back in Episode 266.

-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

-And finally, remember that you can email us at openarguments@gmail.com!

On Dec. 9, 2019, the U.S. Supreme Court heard argument in Thryv, Inc. v. Click-to-Call Technologies, LP, a case involving a dispute over certain appeal and time restrictions applicable to “inter partes review” (IPR) proceedings before the Patent Trial and Appeal Board (the Board) of the U.S. Patent and Trademark Office.
In 2013, Ingenio--a predecessor entity to petitioner Thryv, Inc.--initiated IPR proceedings to challenge the validity of a patent held by Click-to-Call Technologies, LP (CTC). CTC countered that the IPR was time-barred under the one-year limit of 35 U.S.C. § 315(b), because a complaint alleging infringement of that patent had been served on Ingenio back in 2001, well over one year before the IPR request. The Board rejected CTC’s argument, reasoning that the time bar did not apply because the complaint in question had been voluntarily dismissed, and was to be treated as if non-existent. Proceeding with IPR, the Board then ruled various claims of the disputed patent to be unpatentable.
After a complicated series of appellate proceedings that included a vacatur and remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit issued the en banc decision that formed the basis for Thryv’s certiorari petition in this case. Citing a recent determination it had made in a similar case, the court first decided that it had jurisdiction to review the IPR time-bar dispute. Title 35 U.S.C. § 314(d) provides that a decision whether to institute an IPR “shall be final and nonappealable,” but the court treated that bar as inapplicable to questions of timeliness as opposed to the merits. The Federal Circuit then held that the time bar of § 315(b) was triggered by service of any complaint, even one later dismissed without prejudice. Accordingly, the court vacated the Board’s decision and remanded with instructions to dismiss the IPR as time-barred: a victory for CTC. But the Supreme Court then granted Thryv’s certiorari petition to address anew the key jurisdictional issue: whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s time bar did not apply.
To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, the Rando Law Firm P.C.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Boston University School of Law put together an amazing live show! Leah, Melissa, and Jaime are joined by two fabulous BU law professors, Sarah Sherman-Stokes and Danielle Citron (MacArthur genius and Strict Scrutiny ninja). The group proclaims victory for gender parity and previews two cases (US v. Sineneng-Smith and Seila v. CFPB) before discussing Danielle's work on deep fakes and taking a question from the wonderful audience. This event was recorded live at WBUR CitySpace in Boston. Thanks to WBUR and BU for the very warm welcome!

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