Category: 3-LawSometimeCommentary

Today's episode breaks down everything you need to know about the pending Trump v. Deutsche Bank lawsuit over the pending Congressional subpoenas for Donald Trump's (and Don Jr.'s, and Eric's, and Ivanka's, and the Trump Organization's) financial records. Why is Trump suing Deutsche Bank, and what's going to happen? Find out why Andrew is still optimistic!

We begin, however, with the breaking news that Trump has pardoned Conrad Black. Who is he? Should this be a scandal? (Yes.) Will it be? (No.) And is Conrad Black a gigantic racist? (Guess.)

Then, it's time for the main segment about Trump v. Deutsche Bank. We talk about the unique legal standard in the Second Circuit that gives the Trump legal team a legitimate thread by which to argue for their injunction preventing Deutsche Bank from disclosing Trump's financial records to the House Committee.

Then, it's time to answer a listener question from Rob Bate about conspiracy, obstruction, and the Mueller Report.

After all that, it's time for a brand-new Thomas Takes The Bar Exam #126 involving whether shooting a would-be assailant who has broken off her attack is homicide, and if so, what kind.

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. Here’s a link to Conrad Black’s disgusting “Who Was Really At Fault In Charlottesville?” essay.
2. Check out the Wikipedia entry on Michael McFaul.
3. And his testimony to the House Intelligence Committee.
4. Here are the Trump v. Deutsche Bank documents -The Complaint -Trump’s Motion for a Preliminary Injunction -Deutsche Bank’s statement -The House Committee’s Opposition -Trump’s reply memorandum
5. We cited Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2010) for the proposition that the 2nd Circuit recognizes an alternative test.
6. And, of course, credit for the fabulous “Deutsche Wanna Loan?” goes to our friends at Mueller, She Wrote

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Today's episode features a long-form interview with one of our favorite recurring guests, Andrew Seidel of the Freedom From Religion Foundation. He's on to discuss his just-released book, The Founding Myth: Why Christian Nationalism is Un-American.

Because Andrew, Andrew, and Thomas could easily talk for a full hour (and then some)... why, that's exactly what they do. We hold Andrew Seidel's feet to the fire on the threat that Christian Nationalism poses to the U.S. judicial system, including an in-depth discussion of the future of the Establishment Clause. And if you haven't heard of "Project Blitz," you will after this interview. You don't want to miss it!

After all that, it's time for the answer to Thomas (& Andrew) Take the Bar Exam Question #125 on the admissibility of prior bad acts evidence. Can the prosecutor introduce evidence of the "Ol' Switcheroo" on cross-examination? Listen and find out!

On February 26, 2019, the Supreme Court decided Nutraceutical Corp. v. Lambert, a case considering whether Federal Rule of Civil Procedure 23(f), which imposes a 14-day deadline for appealing from a grant or denial of class-action certification, is subject to equitable tolling.
Troy Lambert filed a class action lawsuit against Nutraceutical Corp., a drug manufacturer, alleging violations of U.S. Food and Drug Administration requirements and various California consumer protection statutes. The district court initially certified the class action, but following reassignment of the case to a new judge and discovery raising concerns about Lambert’s classwide damages model, Nutraceutical moved to decertify the class and the district court granted the motion on February 20, 2015. Under Rule 23(f), Lambert had fourteen days from the date the motion was granted to seek permission in the Court of Appeals to appeal the order.
Lambert indicated on March 2 that he intended to file a motion for reconsideration, but did not do so until March 12, 2015, which fell within a deadline set by the district court but beyond 14-day window specified in Rule 23(f). The district court denied Lambert’s motion, and only then did he seek permission in the U.S. Court of Appeals for the Ninth Circuit to appeal the class decertification. Nutraceutical objected that Lambert’s petition was untimely under Rule 23(f). The Court disagreed, reasoning that Rule 23(f) was non-jurisdictional and the deadline could therefore be equitably tolled given Lambert’s general diligence in following the district court’s instructions. Reaching the merits, the Ninth Circuit then reversed the decertification order on the grounds that the district court had abused its discretion. Nutraceutical successfully petitioned for certiorari.
In an opinion written by Justice Sotomayor, the Supreme Court unanimously reversed the judgment of the Ninth Circuit and remanded the case, holding the Rule 23(f) is not subject to equitable tolling.
To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.

Judges are at the center of every conversation on Amicus, but never as guests on the show. Until today. Dahlia Lithwick has a wide-ranging and illuminating conversation with Robert Lasnik, Senior United States District Judge of the United States District Court for the Western District of Washington. Judge Lasnik answers questions about how cases are selected, where the judiciary has fallen short in response to #metoo, whether justices should hit back against criticism or maintain a lofty silence, and why Bob Dylan looms large in his courtroom  (more details in this 2011 LA Times article).

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Today's episode breaks down everything you need to know about what's going to happen with the House Judiciary Committee's vote to recommend holding Bill Barr in contempt of Congress. Is this all going to go nowhere in a Trump-dominated executive and a right-wing judiciary? Find out why Andrew's optimistic, and why he calls the underlying dynamic the coming Republican Civil War! All that and we revisit the Republican Andrew called the "key to the apex of Yodel Mountain" over a year ago!

We begin, however, with a big MISSION ACCOMPLISHED banner: you did it! Opening Arguments listeners opened up bar complaints with the Florida Bar about Congressman and nasty little troll Matt Gaetz, and now he faces a state bar disciplinary proceeding.

He's not the only one, either; we got breaking news today that Paulie Manafort has indeed been disbarred by the District of Columbia!

During the main segment, we break down (1) the contempt recommendation by the House Judiciary committee and exactly what is going to happen next; (2) what the House's "inherent sanctions" powers are, and whether they can really sic the Sergeant-at-Arms on Bill Barr (hint: yes!); (3) assertions of executive privilege; and (4) the Republican Senate Intelligence Committee's subpoena of Donald Trump Jr. Is Richard Burr (R-NC) the next In Rod We Trust? Listen and find out... and brace yourself for the coming Republican Civil War!

After all that, it's time for a Thomas Takes the Bar Exam featuring special guest Andrew Seidel. Together, the two sit in for an evidence question about the admissibility of prior bad acts. Brush up on your "Ol' Switcheroo" law and play along with us for #TTTBE!

Today's episode features an in-depth analysis of Hodes & Nauser v. Schmidt, a recent decision out of the Kansas Supreme Court holding that -- whatever the U.S. Supreme Court does -- the Kansas state constitution protects a woman's right to choose. Join us to understand how this decision is important not only for Kansans but for all of us as we deal with the challenges created by the increasingly Trump-ified federal bench.

We begin, however, with a brief update as to the status of the Jeffrey Epstein plea deal that's been questioned by a recent ruling in Florida. We first covered this story in Episode 259.

After that, it's time for fan-favorite "Are You A Cop?" combined with a listener question about whether (and how much) "corporations are people, my friend."

Then, it's time for the main breakdown of Hodes & Nauser v. Schmidt, with brief stopovers in Alabama (to discuss Bill 314), a prediction on the future of Roe v. Wade before this Supreme Court, and a full breakdown of the Kansas opinion and why it matters.

After all that, it's time for yet another listener question, this time about the dissent in Hodes, what it means, and why the court spent so much time talking about the police power of the state, John Locke, and natural law. Confused? You won't be, after listening to this segment.

And as if that wasn't enough, after all that, it's time for the answer to TTTBE #124 about Decomposing Snail Soda(TM) ("It's Maddeningly Addictive"). Find out if Thomas got this question right!

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Today's episode covers everything you need to know about Bill Barr's testimony before the Senate Judiciary committee (and his refusal to testify before the House). Has he perjured himself? (Yes.) Is there a reasonable defense of Barr? (No.) What's next? Listen and find out!

Also, don't forget to show up for our monthly LIVE Q&A on our YouTube channel this Sunday, May 5th at 6 pm Eastern / 3 pm Pacific!

We begin today's show, however, with a few Andrew Was Wrongs and one Andrew Was Right. Wrong? Andrew used "fulcrum" when he should have used "center of gravity," and it led to this amazing listener graphic explaining the difference. Also, Andrew relied upon a mislabeled graph in a complaint in Episode 273; technically, that's someone else who was wrong first, but hey.

But Andrew was definitely RIGHT about the RNC platform, and now we have even more evidence to confirm it -- this time in the form of the testimony of J.D. Gordon to Mueller's team of investigators. And we break that down for you (because of course we do!).

Then, it's time to delve into everything we know about Bill Barr's perjure-tastic trip before the U.S. Senate Judiciary Committee. Find out why Andrew thinks Barr isn't going to last, and why he definitely committed perjury. Oh, and figure out what Rule 6(e) is -- and why Barr is lying about that, too.

After all that, it's time for a brand-new Thomas Takes the Bar Exam #124... this time about Decomposing Snail Cola. Decomposing Snail Cola: It's the Only One With Decomposing Snails!

On March 18, 2019, the Supreme Court heard argument in Virginia House of Delegates v. Bethune-Hill, a case considering racial gerrymandering claims in the the redistricting of Virginia House of Delegates districts.
In 2011, the Virginia House of Delegates redrew the 100 Virginia House of Delegates districts. Under the plan, each district was required to have 80,000 residents. Under the 2001 plan, there were twelve districts with a majority black voting age population (BVAP). These districts did not meet the 80,000 resident requirement for the 2011 plan, which meant that “any new plan required moving significant numbers of new voters into these districts in order to comply with the principle one person, one vote.” Title 52 U.S.C. § 10304--section 5 of the Voting Rights Act (VRA)--required that any new plan not “diminish the number of districts in which minority groups can ‘elect their preferred candidates of choice.’” To ensure that at least twelve districts remained, the House of Delegates proposed that the twelve majority-minority districts were required to have a minimum 55% BVAP in the 2011 plan. The bill was passed and signed into law.
In 2014, registered voters in the twelve majority-minority districts filed suit against the Virginia State Board of Elections, claiming racial gerrymandering in violation of the Fourteenth Amendment. In 2015 the three-judge district court ruled that race was not a predominant factor in the construction of 11 of the 12 challenged districts, but did predominate in one district, (District 75), though in that situation strict scrutiny was satisfied. In 2017, the U.S. Supreme Court affirmed the district court’s judgment with respect to District 75 but vacated the judgment as to the other 11 districts and remanded the case, concluding that the district court had relied on a flawed standard when assessing whether race predominated.
On remand, the three-judge district court concluded that race predominated in the drawing of all 11 districts and that none satisfied strict scrutiny. The Virginia House of Delegates appealed to the Supreme Court for further review, raising various concerns regarding the district court’s predominance and strict scrutiny analyses, as well evidentiary issues. For their part the appellees sought dismissal of the appeal for lack of jurisdiction, and the Court directed the parties to address whether the House of Delegates lacked standing to bring this appeal.
To the discuss the case, we have Scott Keller, Partner at Baker Botts.

On March 25, 2019, the Supreme Court heard argument in The Dutra Group v. Batterton, a case considering whether punitive damages may be awarded in a general maritime action for unseaworthiness.
Christopher Batterton was a deckhand on a ship owned by the Dutra Group. In the course of Batterton's work, a hatch cover that covered a compartment storing pressurized air blew open and crushed Batterton’s left hand. The hatch cover allegedly blew because of the ship's lack of a mechanism for exhausting over-pressurized air. Batterton was permanently disabled because of the injury. He brought suit against Dutra Group in federal district court in California, seeking (among other things) punitive damages for unseaworthiness.
Dutra Group moved to dismiss the claim for punitive damages, arguing that although the U.S. Court of Appeals for the Ninth Circuit had allowed such damages in its 1987 decision Evich v. Morris, that precedent had been implicitly overruled by the Supreme Court's 1990 decision in Miles v. Apex Marine Corp, which held that the parent of a deceased seaman could not recover loss of society damages in a general maritime action. The district court denied the motion and the Ninth Circuit affirmed, concluding that punitive damages differed materially from loss of society damages, and that, under the Jones Act, Evich remained good law: punitive damages are awardable to seamen for their own injuries in general maritime unseaworthiness actions.
That ruling, however, put the Ninth Circuit in direct conflict with a contrary ruling by the U.S. Court of Appeals for the Fifth Circuit on the same issue, and the Supreme Court subsequently granted certiorari to address whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.
To the discuss the case, we have Daryl Joseffer, Senior Vice President and Chief Counsel for Appellate Litigation at the U.S. Chamber Litigation Center.

Today's episode features an in-depth interview with Monica Miller, counsel for the American Humanist Association and (we think!) the second-youngest person ever to argue before the Supreme Court! Just last month, Monica argued the AHA's position in Maryland-National Capital Park and Planning Commission v. American Humanist Association before the Supreme Court, and we get to learn all sort of amazing behind-the-scenes information about the case.

We spend the full hour with Monica Miller and learn how the AHA came to take this case, the roller-coaster-highs-and-lows of prevailing in the Fourth Circuit only to see it get taken up by a very conservative SCOTUS, and you get Monica's prediction as to how she thinks the Court might rule... as well as which members of the Court's conservative bloc were receptive to her arguments. Along the way, you'll also learn exactly how Monica got ready for her big day!

After that, it's time for the answer to T(&M)TTBE #123, the dreaded real property question involving the subsequent sale of property, the doctrine of merger, and... well, let's just say this was a hard one! Did anyone get it right? You'll just have to 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. We first discussed the Bladensburg cross case in Episode 256.

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