When Justice Clarence Thomas wrote a 20 page concurrence to the Indiana abortion law case last week, Adam Cohen’s phone started blowing up. In making an argument linking abortion rights to eugenics, Justice Thomas repeatedly cited Cohen’s book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck Adam Cohen joins Dahlia Lithwick to explore the history of eugenics in the U.S. and to examine Justice Thomas’ motives and logic for bringing the argument into the abortion debate.
Today's instant-breaking episode takes a look at the significance of Lt. Gen. Michael Flynn's decision to fire his lawyers, Andrew's buddies over at Covington & Burling. Oh, and we also take a semi-deep-dive into President Trump's decision to impose tariffs on "all goods" imported from Mexico. What does it all mean? Listen and find out!
We begin, however, with a slight preview of next week's show, which will break down the impending tariffs on goods imported from Mexico. How is this like (or unlike) Trump's decision to impose steel tariffs on China? You'll have to listen and find out!
Then, it's time for the main segment in which we learn that Lt. Gen. Michael Flynn has fired his lawyers at Covington & Burling? What does that mean? Only time will tell.
For the "C" segment, we break down the upcoming DNC debate, who's qualified, and what legal remedies some of the "loser" candidates might have.
After all that, it's time for #TTTBE involving torts, contributory negligence, and joint and several liability.
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
We first discussed Trump's tariffs on China in episode 162
Today's episode is a tragedy in three acts, bringing together three seemingly-unrelated stories: (1) understanding the looming crisis at the Pension Benefits ordonuarantee Corporation; (2) figuring out who Gordon Hartogensis is and why he's about to gain control over potentially hundreds of billions of dollars in assets; and finally, (3) putting together all the pieces to see how President Trump has acted to protect his crony, Treasury Secretary Steven Mnuchin, from potential criminal and civil liability in connection with his management of Sears. Strap in; it's going to be a bumpy ride!
We begin in Act I, in which the guys break down the Employee Retirement Income Security Act of 1974 (ERISA), its creation, the Pension Benefits Guaranty Corporation (PBGC), and the developments over the last 45 years that have pushed the PBGC to the brink of collapse.
Act II, then, takes over with the recently-appointed International Man of Mystery, Gordon Hartogensis, to lead the PBGC. Who is this guy, and what has he done to inspire confidence that he can right the ship? Listen and find out!
Act III weaves these stories together with the ongoing civil lawsuit by Sears against Steven Mnuchin and his buddy Eddie Lampert, who are alleged to have looted Sears's assets, driving it into bankruptcy. You'll never guess who bought those assets in bankruptcy... or, perhaps you'll instantly guess who did.
After all that, it's time for the answer to Thomas Takes the Bar Exam #128 involving a crazy fast-food heist involving an imaginary sniper and the drive-thru lane. Did you get it right??
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.
Today's episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out!
We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week's show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It's always worse than you think.)
Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It's always worse than you think.)
After all that, we're not even halfway done! Our main segment breaks down the Supreme Court's brief, two-page per curiam order in Box v. Planned Parenthood... and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton-level falsehoods. You'll be angry, but you won't want to miss it.
Then, it's time to Yodel! We carefully break down Robert Mueller's statement regarding his investigation and what it means for the future. In so doing, we also analyze Mueller's claims regarding the now-infamous 2000 OLC memo as to whether a sitting president can be indicted.
After all that, it's time for an all-new Thomas Takes The Bar Exam #128 involving a crazy criminal effort to steal money from a fast-food drive-through by pretending to have a sniper... look, you'll just have to listen and play along, okay?!?
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
For the correct take on milkshaking, check out Serious Inquiries Only Episode 194 with Eli Bosnick.
We first covered the alleged looting of Sears by Eddie Lampert and Steve Mnuchin in Episode 273 and that was picked up by our friends Elizabeth Warren and AOC.
On April 23, 2019, just one week after argument, the Supreme Court decided Emulex Corp. v. Varjabedian, a case involving a circuit split regarding Section 14(e) of the Securities Exchange Act of 1934 and whether it supports an inferred private right of action based on negligence or scienter. Emulex Corp. is a computer component seller that entered into a merger agreement with Avago Technologies Wireless Manufacturing. In the merger agreement, Avago offered to pay $8 per share, which reflected a premium of 26.4% on the price of Emulex stock the day before the merger was announced. Emulex filed with the Commission a public recommendation statement supporting the tender offer, recommending that Emulex shareholders tender their shares and noting that that Emulex shareholders would receive a premium on their stock. The statement also included a summary of a “fairness opinion” generated by Goldman Sachs, indicating its view that the tender offer was fair to shareholders. Omitted from the recommendation statement, however, was a one-page premium analysis by Goldman indicating that the takeover premium offered by Avago was actually below average, though within the normal range for mergers involving similar companies. The merger went forward, but thereafter Gary Varjabedian and other Emulex shareholders collectively brought suit against Emulex under Section 14(e) of the Securities Exchange Act, alleging that omission of the premium analysis page rendered the recommendation statement materially misleading. Emulex moved to dismiss, arguing that the facts alleged by plaintiffs did not sufficiently support the scienter required under Section 14(e). The district court agreed and ruled for Emulex but the U.S. Court of Appeals for the Ninth Circuit reversed. Although five other federal circuit courts of appeals had interpreted Section 14(e) to require scienter, the Ninth Circuit reasoned that the better reading of the provision in light of its legislative history required merely a showing negligence and not scienter. The Supreme Court granted certiorari to address whether Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer. During oral argument, however, the Justices questioned whether certiorari had properly been granted, as the courts below had not thoroughly considered whether Section 14(e) authorizes a private right of action at all. Indeed, just over one week after oral argument, the Supreme Court issued a per curiam opinion dismissing the writ of certiorari as improvidently granted. To discuss the case, we have Cory Andrews, Senior Litigation Counsel at the Washington Legal Foundation.
On January 8, 2019, the Supreme Court decided Henry Schein Inc. v. Archer and White Sales Inc., a case involving the “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator. Archer and White Sales is a dental distributor that entered into a business agreement with Pelton and Crane, a dental equipment manufacturer. Henry Schein, Inc. is the successor-in-interest to Pelton and Crane. The business relationship grew tense, and White Sales sued Henry Schein, alleging violations of federal and state antitrust law, seeking monetary and injunctive relief. The contract provided for arbitration of any dispute, except for certain actions seeking injunctive relief. Schein asked the court to refer the matter to arbitration, but Archer and White contended that the matter was not arbitrable because it sought injunctive relief. Schein argued that an arbitrator should decide that question. The district court sided with Archer and White, finding the basis for Schein’s arbitration request to be “wholly groundless.” Schein appealed to the U.S. Court of Appeals for the Fifth Circuit, which affirmed the judgment of the district court. The Supreme Court granted certiorari, unanimously vacating the judgment of the Fifth Circuit and remanding the case. In an opinion delivered by Justice Kavanaugh, the Supreme Court rejected the “wholly groundless” exception to the general rule that courts must enforce arbitration contracts according to their terms. Such an exception, the Court held, is inconsistent with the Federal Arbitration Act and the Court’s own precedent.
On April 24, 2019, the Supreme Court decided Lamps Plus, Inc. v. Varela, a case considering whether an ambiguous agreement, in this case an employment contract, can provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. In 2016, a hacking scheme revealed the tax information of about 1,300 employees of Lamps Plus, Inc. Frank Varela, one of the employees affected by this hack, brought a class action suit in federal district court against the company. Lamps Plus responded by seeking to compel individual arbitration, relying on the terms of Varela’s employment contract. The district court rejected Lamps Plus’ request, instead authorizing arbitration on a classwide basis and dismissing Varela’s claims. The U.S. Court of Appeals for the Ninth Circuit affirmed that judgment, determining that the Supreme Court’s 2010 decision in Stolt-Nielsen v. AnimalFeeds Int’l Corp--that a court may not compel classwide arbitration when an agreement is silent on the availability of such arbitration--did not control here because Varela’s employment agreement was ambiguous rather than silent regarding arbitration. The Supreme Court granted certiorari, and by a vote of 5-4 reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the Supreme Court held that under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. The Chief Justice’s majority opinion was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, joined by Justices Breyer and Sotomayor. Both Justices Breyer and Sotomayor filed dissenting opinions. Justice Kagan filed a dissenting opinion, in which joined Justices Ginsburg and Breyer, and in which Justice Sotomayor joined as to Part II.
Lost in the (justifiable) concern over Secretary of Housing and Urban Development Ben Carson's apparent lack of understanding of REOs, OREO, and just about anything pertinent to his job is a recently-proposed HUD rule that would deliberately reverse an Obama-era regulation requiring nondiscrimination in the provision of services to the homeless based on gender identity. Is it as bad as you think? (Yes.)
First, however, we begin with an Andrew Was Wrong and a bit more discussion on abortion, including the difference between Plan B and the oral abortifacient RU-486, and the difference between a zygote and a blastocyst.
After that, it's time for our deep dive into Secretary Carson's laughable testimony... and the real issue hiding beneath the surface, which involves crafting a religious exception to the Equality Rule of 2016.
Then, it's time to debut Optimist Prime(TM) vs. Negatron(TM) on impeachment. Find out why Andrew thinks the tide is turning and Thomas... doesn't. Where do you wind up? Listen and find out!
Then, it's time for the answer to an all-new Thomas Takes the Bar Exam #127 -- a dreaded real property question about a man who tries to convey his property to an overseas nephew before dying. Can Thomas get it right?? 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.
A swathe of draconian abortion laws have been passed by states around the country in the past few weeks, but Alabama outdid them all. Legislators there are clearly hoping Justice Kavanagh will nullify Roe v Wade with a stroke of a pen, but there are quite a few other factors at play here and this week Dahlia Lithwick is joined by just the right women to explore those factors. Professor of Law Melissa Murray of NYU discusses the history and significance of Roe, and CNN legal analyst Joan Biskupic, who also authored the new book “The Chief, the Life and Turbulent times of Chief Justice John Roberts”, joins Dahlia to dissect Roberts’ record and reservations when it comes to reproductive rights.
Today's episode breaks down Judge Mehta's recent order in the Trump v. Mazars litigation, which is parallel to the Deutsche Bank lawsuit we discussed on last week's show. Why is this ruling significant, how does it accelerate the House's efforts to uncover crucial financial documents, and what does this mean for the future of the Trump Presidency? Listen and find out!
We begin, however, with a look at some late-breaking news from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, who have requested information from Treasury Secretary Steven Mnuchin related to his tenure at Sears (that we discussed in Episode 273) and whether that conduct continued during his time working for the Trump administration.
Then, it's time for the main segment, in which we discuss Judge Mehta's order, what it means for the future of the Trump investigations (and for future presidential administrations!), as well as deal with skeptical questions about the potential timeframe. Learn how the Congressional Democrats maneuvered to get this case fast-tracked so as to avoid endless delays -- and listen to Andrew's possibly-surprising prediction about what he thinks the Supreme Court won't do to protect Trump!
After all that, it's time for a brand new Thomas Takes the Bar Exam #127... and yes, it's another dreaded real property question. Worse, it's a hard one -- in which the question gives you the answer but asks for the best reason why. Find out what happens when someone conveys property and dies while the gift recipient is overseas serving in the military. And if you'd like to play along with #TTTBE, just share out this episode on social media for a chance to be next week's winner!
4. This is the New York Times story about the Deutsche Bank whistleblower; and for an in-depth discussion of SARs reports, check out Carla McCadden in Episode 174.
5. This is the report that some lenders have already provided documents to the House, and we discussed the Wells Fargo penalties in Episode 146 and 169.
Today's episode takes an in-depth look at the recent abortion bans passed in Georgia and Alabama, breaking down exactly what these laws say (and don't say!) to help you sort through the panic from the actual news. It's not always a pleasant trip, but it's a journey worth taking to figure out exactly what's at stake.
We begin, however, with a listener question about abortion -- and specifically, about whether the federal government can preemptively prevent the states from doing the kinds of things we talked about back in Episode 276. Find out why Andrew thinks the conservative Supreme Court isn't likely to uphold the constitutionality of a federal law prohibiting states from recognizing abortion rights.
After that, it's time for a deep dive in to the very confusing Georgia statute , HB 481. Exactly what does this bill do (and not do), and how scared should you be? Listen and find out.
And if that's not enough, we also walk you through the more straightforward (but still terrifying) Alabama statute, HB 314. Is it true that the bill fails to exempt rape victims? (Yes.) Is there anything to mitigate how awful this bill is? (Sort of.)
After all that, it's time to find out the answer to TTTBE #126 about a man who shoots a would-be assailant three times, including once after the assailant is lying on the ground and whimpering. What kind of crime could this be? 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
We first discussed the rise of state-level constitutional protections to the right to choose back in Episode 276.
