Category: 3-LawSometimeCommentary

Dahlia Lithwick is joined by Rebecca Sandefur, who turns a sociologist’s eye to civil justice. Civil justice problems can lead to bankruptcy, homelessness, illness, family separation and poverty, but Sandefur says what makes it to the courts is just the “tip of the civil justice iceberg”. 

Learn more about your ad choices. Visit megaphone.fm/adchoices

On June 17, 2019, the Supreme Court decided Gamble v. United States, a case challenging the validity of the "separate sovereigns" exception to the Double Jeopardy Clause of the U.S. Constitution’s Fifth Amendment.
In 2015 Terance Gamble, who had previously been convicted of second-degree robbery in Alabama state court, pleaded guilty in state court to possessing a firearm in violation of Alabama’s law against firearm possession by anyone convicted of a “crime of violence.” Federal prosecutors thereafter relied on the same facts to charge Gamble with violating the federal statute that forbids convicted felons to possess a firearm. Gamble moved to dismiss the federal charge, arguing that the Double Jeopardy Clause precluded a second conviction for essentially the same offense. The district court and the U.S. Court of Appeals for the Eleventh Circuit rejected Gamble’s argument due to the “dual sovereignty” or “separate sovereigns” doctrine, which holds that two offenses are not the same for Double Jeopardy purposes when pursued by separate (here, state and federal) sovereigns. The Supreme Court granted certiorari to determine whether the separate sovereigns doctrine should be overturned.
By a vote of 7-2, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Alito delivered the opinion of the Court, declining to overturn the dual sovereignty doctrine. His majority opinion was joined by Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Dissenting opinions were filed by Justice Gorsuch and Justice Ginsburg.
To discuss the case, we have Clark Neily, Vice President for Criminal Justice at the Cato Institute.

On June 24, 2019, the Supreme Court decided Dutra Group v. Batterton, a case addressing whether a plaintiff may recover punitive damages on a claim of unseaworthiness.
Christopher Batterton was injured while working on a vessel owned and operated by the Dutra Group. Batterton claimed the vessel was unseaworthy due to a missing safety feature and sued Dutra in federal district court for, among other things, punitive damages. Dutra argued that punitive damages are not available on claims for unseaworthiness, but the district court and the U.S. Court of Appeals for the Ninth Circuit rejected Dutra’s argument. Because that ruling underscored a division among the circuit courts of appeals on the issue, the Supreme Court granted certiorari to resolve the split.
By a vote of 6-3, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Justice Alito delivered the opinion of the Court, holding that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.
To discuss the case, we have Don Haycraft, Counsel at Liskow & Lewis.

Today's episode combines some very, very good news regarding young trans advocate Gavin Grimm... to some rather less good news regarding a proposed rule at the Department of Labor... to some truly bizarre news and a plea for sanity given the ever-changing circumstances surrounding Jeffrey Epstein.

We begin with what looks like the close of a saga that began more than five years ago, when a Virginia public school board -- at the instigation of bigots in the larger community -- forced Gavin Grimm into "separate but hardly equal" accomodations in his high school. Today, at least, it looks like Grimm has finally won, as we break down a truly monumental decision from the Eastern District of Columbia.

Then, it's time to look at proposed rulemaking from the Department of Labor that would modify one of the most important Executive Orders of all time: EO 11246, in which Lyndon Johnson required government contractors not to discriminate in their hiring practices. What does Trump propose to do to this EO? Listen and find out... and maybe someday you'll worship at the Church of Chick-Fil-A. (Seriously!)

After that, it's time to check in with the conspiracy theories that abound in the world of Jeffrey Epstein. Is there really a sinister motive to think that someone had Epstein killed? Will documents continue to come out that will shed light on what really happened? (Yes.)

We end, as always, with a brand new #T3BE... and yes, it's another dreaded real property question. If you sell property you don't own, and later come to own it, have you merely foolishly squandered your tomato juice? Listen and find out!

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. Click here to read the Gavin Grimm opinion, and here to read Title IX, 20 U.S.C. § 1681.
2. YOU SHOULD READ THE PROPOSED DOL RULE AND COMMENT HERE.
3. You can also read the latest Washington Post story suggesting that Epstein's suicide may have not been.
4. We've uploaded ALL the Epstein docs! You can check out the legal documents: Part 1, Part 2, Part 3, Part 5, Part 6, Part 7, Part 8, Part 10, Part 11, Part 12, and Part 13.
5. Wait, where are Parts 4 and 9? Oh, they're over here!

-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 June 26, 2019, the Supreme Court decided Tennessee Wine & Spirits Retailers Association v. Thomas, a case considering whether Tennessee’s two-year durational residency requirement for obtaining a retail liquor license is constitutional.
In 2016, companies Total Wine and Affluere Investments, Inc. applied for licenses to own and operate liquor stores in Tennessee. Although state law imposed a two-year durational residency requirement that the entities did not meet, the Tennessee Alcoholic Beverage Commission (TABC) had obtained an opinion from the state attorney general that the requirement operated as a discriminatory trade restraint in violation of the U.S. Constitution’s Commerce Clause. TABC, therefore, recommended approval of the licenses, but trade association Tennessee Wine and Spirits Retailers Association (Association)--composed of in-state liquor retailers--threatened to sue TABC if the licenses were granted. TABC, therefore, sought declaratory relief on the validity of the durational residency requirement, and the case was removed to federal district court.
The district court held the requirement unconstitutional, the state declined to appeal, and the licenses issued. The Association, however, pursued its objections before the U.S. Court of Appeals for the Sixth Circuit, which ultimately affirmed the district court--though a dissenting judge argued that the Constitution’s Twenty-first Amendment granted states broad authority to regulate the in-state distribution of alcohol, and would have upheld the residency requirement. The Supreme Court subsequently granted certiorari to reconcile its Twenty-first Amendment and dormant Commerce Clause precedents.
By a vote of 7-2, the Supreme Court affirmed the judgment of the Sixth Circuit. Justice Alito delivered the opinion of the Court, holding that Tennessee’s two-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and is not saved by the Twenty-first Amendment. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch dissented, joined by Justice Thomas.
To discuss the case, we have Michael Bindas, Senior Attorney at the Institute for Justice.

Please enjoy the audio from our live show at the People's Improv Theater in New York City, New York!

In addition to #T3BE, we have a deep dive on gun control and the recent Remington cert petition. Then, we have a lot of fun and we have nearly an hour of Q&A! Enjoy.. and come out and see us next time!

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

None!

-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!

Today's pre-LIVE SHOW episode breaks down exactly what happened with the recent news story regarding Chelsea Manning being held in contempt of court. What's going on? Listen and find out! Oh, and we also revisit Katy Perry, discuss how Thomas Was Right! regarding John Cage, and take a brief visit to Yodel Mountain. You won't want to miss it!

We begin with a couple of updates to the Katy Perry lawsuit we discussed last episode. First, as it turns out, Thomas was prescient in thinking that someone might have copied John Cage's famous 4'33" composition of silence and been sued over it. Does this mean Andrew Was Wrong? There's only one way to know for sure. But that's not all! We've also got a full discussion of the damages awarded to Flame, which gives you some insight into the profits of the song industry.

Then, it's time for the main segment breaking down the recent court order regarding Chelsea Manning. If the grand jury has already issued its indictment of Julian Assange, how can she be kept in contempt? And what does this have to do with (almost) friend of the show G. Zachary Terwilliger? Listen and find out!

After that, it's time for a brief trip to Yodel Mountain to discuss the recent filing by the Department of Justice in the Trump/Mazars lawsuit. Does this mean Bill Barr is corrupt? Yes, yes it does.

And finally, it's time for #T3BE, this time involving a multi-structure contract in which one party simply gives up and goes home 1/3 of the way through. How does that person get paid? Can Thomas continue his improbable one-question winning streak??

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. Click here to read the Billboard article about the 2002 Mike Batt/John Cage settlement, and here to read the Katy Perry jury verdict on damages. And don’t forget that you can refresh your recollection by reading all the Katy Perry pleadings, including (a) the lawsuit; (b) the jury verdict; (c) the proposed jury instructions; and (d) the proposed damages instructions.
2. We first discussed Chelsea Manning and Julian Assange in Episode 269, and you can read all of the pleadings we discuss on the show including (a) the March 6, 2018 initial (1-count) grand jury indictment of Assange; (b) the May 23, 2019 superseding indictment (18 counts); (c) the G. Zachary Terwilliger application for an order compelling Manning to testify; (d) the Court's order requiring Manning to testify; (e) Manning's motion to quash; (f) the Court's denial of Manning's motion to quash and imposition of sanctions; and (g) the recent denial of Manning's motion for reconsideration. (Phew!)
3. Assange has been charged under 18 U.S.C. § 793, which we last discussed way back in Andrew's Favorite Episode, #13, "Hillary Clinton's Damned Emails," which was so jammed-packed with information it had its own separate blog post!
4. We discussed the Trump-Mazars lawsuit in detail in Episode 281, and you can read the DOJ's amicus brief embedded here.

-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!

Today's episode checks in on the record-setting $5 billion settlement that Facebook reached with the Federal Trade Commission for, among other things, violating a prior consent order by enabling developers like Cambridge Analytica to access your data without your permission. Is this a good deal for American consumers? It's complicated. Oh, and you also get more music law with Katy Perry, and so much more!

We begin with an update on the Senate's last-ditch push to nominate more than a dozen new Trump nominees for lifetime appointments on the federal bench. And yes, despite widespread opposition, despite minimal credentials in many cases, and despite all of them having disqualifying right-wing ideologies... all were confirmed before the Senate decided to take a break. (Sorry for the bad news.)

Then, it's time for the deep dive into the Facebook-FTC settlement, which does indeed impose the single largest penalty ever for a consumer protection violation. Learn why the Democratic minority at the FTC thought it wasn't enough, and along the way you'll learn a lot about the FTC.

After that, it's time to revisit music law, this time with a jury verdict that Katy Perry violated the copyright of Christian rapper Flame. Andrew gives you the law, and Thomas gives you the music -- you won't want to miss this segment!

Then -- as if that wasn't enough -- it's time for the answer to a brand-new #T3BE involving beer, the Constitution, and the notions of justiciability and ripeness. It's not quite as good as having a beer, but it's still a good segment!

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. Don’t forget that there are just 2 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone!
2. Click here to read the FTC-Facebook settlement; click here for the Slaughter dissent; and here for the Chopra dissent.
3. And then don't forget all the Katy Perry pleadings, including (a) the lawsuit; (b) the jury verdict; (c) the proposed jury instructions; and (d) the proposed damages instructions.

-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!

Each week, Sean Carroll hosts conversations with some of the most interesting thinkers in the world. From neuroscientists and engineers to authors and television producers, Sean and his guests talk about the biggest ideas in science, philosophy, culture and more. Start listening now at:  http://wondery.fm/MindscapeAB

Dahlia Lithwick is joined by Michele Goodwin, Chancellor’s Professor of Law at the University of California, Irvine, for a wide reaching conversation about race and gender and the stories America tells itself so it can sleep at night. Starting with Trump’s tweets about Baltimore, Professor Goodwin offers an expert survey of centuries of racist and sexist narratives in the legal system and the country at large. This week’s show also features excerpts from a live discussion Dahlia moderated at the 92 St Y with Heidi Shreck (What the Constitution Means to Me) and Professor Laurence Tribe (Harvard Law School).

Podcast production by Sara Burningham

Slate’s Amicus on Facebook https://www.facebook.com/amicuspodcast/

Learn more about your ad choices. Visit megaphone.fm/adchoices