Category: 3-LawSometimeCommentary

Today's classic, deep-dive Tuesday takes an in-depth look at two critical issues in the news:  first, the recent effort by the Republican governor and state legislature in Florida to undo the broadly popular Constitutional Amendment passed during the 2018 midterms to restore voting rights to felons who have completed their sentences, and second, the Supreme Court's next assault on the "administrative state," this time, by likely ending the doctrine of Auer deference.

We begin with an update about pending oral arguments before the Supreme Court, as well as a notice that this episode was bumped from last Tuesday to make way for our emergency Barr Summary episode.

Then, it's time for a deep-dive into Florida, the process of citizen-driven ballot initiatives, and exactly what the state legislature intends to do to undermine the will of the public.

After that, it's time for yet another deep dive, this time into Kisor v. Schulkin, which is currently pending before the Supreme Court, in which the petitioners have asked the Court to flat-out overrule yet another well-established conservative doctrine simply on the grounds that the Federalist Society doesn't like it.

Then, as always, it's time for the answer to Thomas Takes The Bar Exam #120 regarding a light touch on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing this same subject (but with respect to Utah).  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 pre-show, we discuss gerrymandering, which we last talked about in depth in Episode 251.
2. We mentioned the Washington Post story about the DC City council overturning the $15/hr minimum wage initiative.
3. This is the text of PCB CRJ 19-03, the Florida bill under consideration.  And here, by the way, is the link to Andrew Gillum's voter registration initiative, Bring It Home Florida.
4. We've never talked about Auer deference before, but we have discussed Chevron deference at great length, most recently in Episode 136.
5. You can click here to read Auer v. Robbins, that 9-0 liberal decision authored by noted socialist Antonin Scalia.
6. Finally, click here to read the underlying CAFC-Opinion in Kisor v. Schulkin.

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Dahlia Lithwick and Mark Joseph Stern unpack the arguments in the North Carolina and Maryland gerrymander cases heard by the Supreme Court this week, and Aaron Belkin of advocacy group Pack the Courts tells us why packing the courts is becoming a serious topic in the Democratic presidential race.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

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Today's breaking news episode contains a long interview with everyone's favorite former prosecutor, Randall Eliason, who helps answer some nagging questions about what we do know about the Mueller Report (alongside all the things we don't).

We begin, however, with a brief Andrew Was Right (about the Barr Summary and the news cycle!) and Wrong (about the specifics of the Assange indictment).

Then, it's time for our main segment with Professor Eliason; you won't want to miss it!

And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #120 involving touching a very sensitive woman on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing Utah referendums, and Episode 188 of God Awful Movies (reviewing "Dead Man Rising").  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/

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 email us at openarguments@gmail.com

 

On March 19, 2019, the Supreme Court decided Washington State Department of Licensing v. Cougar Den, Inc., a case involving the 1855 Treaty between the United States and the Yakama Nation of Indians, and whether the “right to travel” granted within the treaty preempts the state’s fuel tax on the importation of fuel.
Cougar Den, Inc. is a wholesale fuel importer that is owned by a member of the Yakama Nation. Cougar Den imports fuel from Oregon via Washington public highways to the Yakama Reservation where it is sold to Yakama-owned gas stations within the reservation. In 2013, the Washington State Department of Licensing, because Cougar Den imports the gas by using Washington public highways, assessed the importer $3.6 million in taxes, penalties, and licensing fees. Cougar Den appealed to the Washington Superior Court, claiming that the 1855 Treaty between the United States and the Yakama Nation preempts this tax, since it reserves, among other things, the “right, in common with citizens of the United States, to travel upon all public highways.” The Washington Superior Court held that the tax was preempted by the Treaty, and the Washington Supreme Court affirmed that judgment on appeal.
Washington then petitioned the U.S. Supreme Court for certiorari, arguing that the 1855 treaty does not forbid the State from imposing a state-wide tax on all fuel importers who transport fuel via ground transportation, including those members of the Yakama Nation. The Supreme Court granted certiorari to consider whether the 1855 treaty preempts this importation tax on members of the Yakama Nation.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Supreme Court of Washington, but without a majority opinion. Justice Breyer, joined by Justices Sotomayor and Kagan, concluded for a plurality that “the ‘right to travel’ provision of the 1855 Treaty between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation.” Justices Gorsuch and Ginsburg filed an opinion concurring in the judgment--thereby providing the necessary additional votes to affirm the lower court--but on a different rationale. Unchallenged factual findings as to the Yakamas’ understanding of the 1855 treaty terms, they reasoned, indicate that the treaty “does not permit encumbrances on the ability of tribal members to bring their goods to and from market.” Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. Justice Kavanaugh also filed a dissenting opinion, which was joined by Justice Thomas.
To discuss the case, we have Tom Gede, Principal at Morgan Lewis.

On March 4, 2019, the Supreme Court decided Rimini Street Inc v. Oracle USA Inc., a case involving the scope of a federal district court’s ability to award “full costs” to a party in a copyright dispute according to 28 U. S. C. §§ 1821 and 1920.
Oracle sued Rimini Street for copyright infringement in federal district court and won a multimillion dollar jury award. After judgment, the District Court ordered Rimini Street to pay Oracle $12.8 million for litigation expenses such as expert witnesses, e-discovery, and jury consulting. On appeal the U.S. Court of Appeals for the NInth Circuit rejected Rimini’s challenge to this award of costs. Although some of the expenses did not fit within the categories of costs authorized by the general federal statute applicable to such awards--28 U. S. C. §§ 1821 and 1920--the Ninth Circuit relied on language in the Copyright Act at 17 U. S. C. § 505, which gives federal district courts discretion to award “full costs” to a party in copyright litigation.
The Supreme Court thereafter granted certiorari to resolve a split among the federal circuit courts of appeals on this issue: whether the term “full costs” in § 505 authorizes awards of expenses other than those costs identified in §§ 1821 and 1920.
In an unanimous decision, delivered by Justice Kavanaugh, the Court held that a federal district court’s discretion to award “full costs” to a party in copyright litigation pursuant to 17 U. S. C. §505 is limited to the six categories specified in the general costs statute codified at 28 U. S. C. §§1821 and 1920.
To discuss the case, we have James Heilpern, Law and Linguistics Fellow at BYU Law.

Today's emergency, late-breaking episode breaks down the Barr Summary of the Mueller Report and gives you some advance warning that the narrative on the Mueller report is about to shift very quickly in the opposite direction.  Get ahead of the story by listening today!

Due to the length of the breakdown, we don't have our regular segments today, but we do have (as always), the answer to Thomas Takes The Bar Exam #119 regarding contracts for the sale of wheat.  Can Thomas keep his streak alive?  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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. This is the Barr Summary of the Mueller Report. 2. Ken Dilanian's tweet. 3. Glenn Greenwald's tweet. 4. We discussed disaggregation of the investigations in Episode OA: 259. 5. Confirms the Senate Intelligence Committee report we talked about in Episode OA: 190. 6. Russian Lawyer Natalia Veselnitskaya’s OPEN SDNY criminal trial as of 1/8/2019 for obstruction of justice. 7. Mueller’s NFL report is here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

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 email us at openarguments@gmail.com

 

Today's breaking news episode contains your guide to the hotly-debated Supreme Court decision in Nielsen v. Preap, regarding how and whether aliens can be detained without due process.  What does it all mean?  Listen and find out!

We begin, however, with a brief update on the Congressional Investigations we discussed in Episode 259 with the news that Hope Hicks will cooperate.  Listen to our past episode if you don't realize how huge this is.

Then, we move on to some news regarding a recent order handed down by Judge Kollar-Kotelly in the District Court for the District of Columbia with respect to the trans ban.  We dive into the unique procedural issues giving rise to this order and tamp down on your enthusiasm that this may put the trans ban in jeopardy.

Then, it's time for our main segment breaking down Nielsen v. Preap. We tell you exactly what this decision means along with the reasons why the Court reached the result it did.

But that's not all!  After that, we have our weekly trip to Yodel Mountain with two items:  (1) an Andrew Was Right about the source of the National Enquirer's acquisition of compromising material about Jeff Bezos; and (2) a follow-up on the New York indictment of Paul Manafort.

And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #119 involving long-term contracts for the sale of wheat.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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. First discussed trans ban back in Episode OA: 247 2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick. 3. Here is a link to Directive-Type Memorandum (DTM) 19-004. 4. Pre Show: Hicks to cooperate. This is HUGE! 5. 1/4 – DC Cir. Reversed and vacated the injunction. 6. 1/22 – Supreme Court lifted the stays in two of those cases. We covered it the next day on Episode OA: 247. 7. Next day, on 3/8, the government filed a notice and this is the Plaintiffs’ response. 8. Here is the link DC Circuit's Opinions issued 3/8 9. Judge Kollar-Kotelly’s 3/19 Order 10. 3/20 Gov’ts Motion to Clarify 11. Nielsen v. Preap is linked Here 12. 8 U.S.C. § 1226(a) vs. (c) – 1952 13. Demore v. Kim, 538 US 510 - Supreme Court 2003 14. Wall Street Journal article on Becker/Bezos 15. CHN article on the problems with New York’s double jeopardy.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

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 email us at openarguments@gmail.com

 

On March 4, 2019, the Supreme Court decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case involving a split among the Courts of Appeals regarding when a copyright owner may initiate a suit for infringement in federal court.
Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street.com was required to remove all Fourth Estate content from its website before cancelling its account. Wall-Street cancelled its account but continued to display Fourth Estate articles, and Fourth Estate filed suit for copyright infringement against Wall-Street.com and its owner in federal district court. At the time Fourth Estate filed suit, it had submitted applications with the Registrar of Copyrights, but the Registrar had not yet acted upon them.
Wall-Street.com moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but noted a split among the federal courts of appeals on the issue: whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach).
Granting certiorari, the Supreme Court unanimously affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Ginsburg, the Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.”
To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.

On February 20, 2019, the Supreme Court decided Timbs v. Indiana, a case involving the incorporation of the Eighth Amendment’s excessive fines clause against the States.
Following his arrest en route to a controlled drug purchase after having previously purchased about $400 worth of heroin from undercover police officers, Tyson Timbs pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to a year of home detention and several years of probation, plus roughly $1,200 in police costs and related fees. In addition, the State of Indiana sought forfeiture of Timbs’ Land Rover, which he had purchased using $42,000 of his late father’s life insurance proceeds. Indiana claimed that it could seize the car because it had been driven to buy and transport heroin, even though the car was worth more than four times the maximum fine permitted for Timbs’ drug conviction. The Supreme Court of Indiana upheld the forfeiture against an Eighth Amendment challenge on the grounds that the U.S. Supreme Court had never incorporated that amendment’s “excessive fines” clause against the states. The United States Supreme Court granted certiorari to consider the issue.
By a vote of 9-0, the Supreme Court vacated the judgment of the Supreme Court of Indiana and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that the Fourteenth Amendment incorporates the Eighth Amendment’s excessive fines clause against the States. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Gorsuch filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment.
To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.

Today's episode is inspired by the 56th anniversary of Gideon v. Wainwright, one of the most famous and celebrated landmark Supreme Court cases that guarantees indigent defendants the right to a court-appointed lawyer.  Is it under attack from our right-wing Supreme Court?  (You bet it is.)

We begin with a quick update on the recent district court opinion in California v. Ross and what that means for the 2020 Census.

Then, it's time for an Andrew Was Right segment a update on the New York appellate court's ruling in the Summer Zervos lawsuit.  As it turns out, Donald Trump does have to respond to Summer Zervos's lawsuit -- just like Bill Clinton had to respond to Paula Jones's.

Then it's time for a terrifying deep dive into Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.  What's the case about, and why is Thomas using it as a vehicle to try and overturn one of the most basic and fundamental rights criminal defendants enjoy today?  Listen and (sadly) find out.

After all that, it's time for a fun listener question about footballer Wayne Rooney and public obscenity laws.

Then, it's time for the answer to Thomas Takes The Bar Exam #118.  Did Thomas get a dreaded real property question correct??  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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 recent district court opinion in California v. Ross.
2. Check out the New York appellate court's ruling in the Summer Zervos lawsuit.
3. If you have the stomach for it, read Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.
4. In the question-and-answer section, we discussed this statute, Rooney's arrest record, and Cohen v. California.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

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 email us at openarguments@gmail.com