Category: 3-LawSometimeCommentary

Today's episode takes a deep dive into H.R. 965, which (quite sensibly) permits proxy voting in the House of Representatives in light of the COVID-19 crisis, and the lawsuit filed by various Republican lawmakers to try and stop it. Good news! The lawsuit has no chance of success thanks to... litigation prompted by Donald Trump.

We begin, however, with an update on the DOJ probe into insider trading allegations against four Senators that allegedly -- either on their own behalf or via another party -- sold off stock prior to the public pronouncements about COVID-19 that tanked the stock market. Who got off? Who's left under the microscope? Is there anything nefarious here? We break it all down for you!

After that it's time to delve into the recent legislation and accompanying (nonsense) lawsuit by Republicans challenging the House's simple resolution, H.R. 965 (and the implementing legislation, H.R. 967). Find out how the whole thing is going to be precluded thanks to the D.C. Circuit's recent ruling in Blumenthal v. Trump, which was of course hailed as a victory for the President at the time.

Then, it's time to check back in with #T3BE involving potential negligence for a factory that failed to install sprinklers. Can Thomas pull this one out? Listen and find out!

Patreon Bonuses

If you missed our Live Q&A #32, the audio is now up for all Patrons! Also remember that Patrons can give their input on the OA Amicus Brief!

Appearances

None! If you’d like to have either of us as a guest on your show, event, or in front of your group (virtually!), please drop us an email at openarguments@gmail.com.

Show Notes & Links

1. DOJ probe links: (a) here's the NPR link to the story; and (b) here's the GovTrack link to the fact that Marco Rubio still doesn't do his damn job.
2. On remote voting, check out (a) H.R. 965 (and the implementing legislation, H.R. 967; (b) the D.C. Circuit's recent ruling in Blumenthal v. Trump; (c) our discussion of that case in Episode 361; (d) the Congressional Research Service article we discussed; and (e) United States v. Ballin, 144 U.S. 1 (1892).

-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

-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!

We chose not to release our regularly scheduled episode today in light of the nationwide protests. #BlackLivesMatter

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

Today's emergency episode breaks down everything you need to know about the death of George Floyd and the charges filed against Officer Derek Chauvin in Minnesota.

Patreon Bonuses

We’ve got an all-new Live Q&A scheduled for Sunday, May 31 at 7 pm Eastern / 4 pm Pacific, and Patrons can click here to suggest questions and vote on the ones they want answered. Also remember that Patrons can give their input on the OA Amicus Brief!

Appearances

Andrew was just a guest on the latest episode of The Daily Beans. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Please do check out how to partner with Black Lives Matter.

-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

-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!

This SCOTUScast addresses the January 22 Supreme Court argument in Espinoza v. Montana Department of Revenue. The question, in this case, is whether it violates the Free Exercise Clause for a state supreme court to invalidate a school choice program, merely because that program includes religious options, pursuant to that state’s Blaine Amendment. The Institute for Justice represents the Plaintiffs in the case.

To discuss the case, we have Erica Smith, Senior Attorney at the Institute for Justice.

Today's episode breaks down the latest temper tantrum and accompanying executive order by our game show host president attacking social media platforms for having the temerity to engage in fact-checking. You're going to be hearing a lot about "Section 230" -- so we're here to tell you exactly what that means, what Trump is trying to do, and why it matters.

We begin, however, with a pretty straightforward Andrew Was Right now that Tulsi Gabbard has voluntarily dismissed her defamation lawsuit against Hillary Clinton that we covered back in Episode 354 ("A Russian Asset Sues What?").

Then it's time for our deep dive into CompuServe, Prodigy, section 230 of the Telecommunications Decency Act of 1996, 47 U.S.C. § 230 -- which ended internet porn forever -- and what all of that has to do with Trump's latest tantrum over being fact-checked on Twitter. You won't want to miss it!

After that, it's time for an update on the amicus brief we're filing in the Flynn case. We tell you what Flynn's best case is, and walk through how it does and does not inform Judge Sullivan's discretion under Rule 48(a).

And then, of course, we end with an all-new Thomas Takes the Bar Exam involving a fire at one warehouse spreading to another. If you want to play along, just share out this episode on social media using the hashtag #T3BE and we might pick you as next week's winner!

Patreon Bonuses

We've got an all-new Live Q&A scheduled for Sunday, May 31 at 7 pm Eastern / 4 pm Pacific, and Patrons can click here to suggest questions and vote on the ones they want answered. Also remember that Patrons can give their input on the OA Amicus Brief!

Appearances

Andrew was just a guest on the latest episode of The Daily Beans. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Tulsi links: (a) click here for the news that Tulsi Gabbard has voluntarily dismissed her lawsuit; (b) here to read the original defamation lawsuit against Hillary Clinton; (c) the

On April 20, 2020, the Supreme Court, by a vote of 7-2, held that owners of polluted land within designated Superfund sites are “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Dozens of Montana landowners sued Atlantic Richfield for trespass and nuisance over its dumping of tons of heavy metals, arsenic, and lead on their properties—pollution which led EPA to designate a 300 square mile area as a Superfund site. In addition to compensation, the landowners sought remediation damages to pay for a cleanup beyond that previously ordered by EPA. Chief Justice John Roberts, writing for the majority, concluded that the landowners’ case cannot proceed until they first obtain EPA approval for their cleanup plan. That narrow holding sidestepped the thornier issue, whether CERCLA preempts the landowners’ state common law claims. Justices Gorsuch and Thomas dissented, arguing that the majority’s interpretation is inconsistent with the statute’s text, undermines federalism and property rights, and tees up difficult constitutional questions.
To discuss the case, we have Jonathan Wood, Senior Attorney at the Pacific Legal Foundation.
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 back AG of the Mueller She Wrote and Daily Beans podcasts to help delve in to all the craziness that is #Obamagate. And, as a bonus, we also discuss the five Inspectors General fired by Trump and what they were investigating. You won't want to miss this special episode!

As it turns out, #Obamagate is nonsense. Who knew?

After the hour-long interview, it's time to revisit #T3BE, in which Thomas decided the issue was hearsay, not spousal privilege. Did he get the answer correct? Listen and find out!

Patreon Bonuses

Patrons can give their input on the OA Amicus Brief!

Appearances

Andrew was just a guest host on Episode 123 of the Skepticrat, discussing some of these same issues. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Check out this story on Steve Linick, the AG investigating Mike Pompeo.

-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

-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 Leah recap the other big argument from the May sitting they didn’t get a chance to last time -- the faithless (or is it Hamiltonian? Or defecting? Or mavericky?) electors cases. They also discuss some findings about the Court’s telephonic arguments and the BIG (aka not so big) opinions the Court has recently released.

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

On May 18, 2020, the Supreme Court held by a vote of 8-0 that Plaintiffs in a suit against a foreign state for personal injury or death caused by acts of terrorism under 28 U. S. C. § 1605A(c) may seek punitive damages for pre-enactment conduct.
Following the 1998 al Qaeda bombing of American embassies in Kenya and Tanzania, victims and their families brought suit against the Republic of Sudan, alleging that it had assisted al Qaeda in carrying out the attacks. In doing so, plaintiffs invoked a terrorism exception to the Foreign Sovereign Immunities Act (FSIA)--but there was uncertainty as to whether, even in the absence of an immunity bar, Congress had provided a federal cause of action for claimants such as plaintiffs. In 2008, however, Congress amended FSIA to provide an express cause of action and directed that claims such as plaintiffs’ be treated “as if ” they had been originally filed under the new cause of action. Congress also made punitive damages available under the new cause of action and authorized the filing of new claims that arose out of the same incident as earlier claims. Plaintiffs amended their complaint accordingly and, following a bench trial, obtained a multi-billion dollar damages award, including more than $4 billion in punitive damages.
Sudan challenged the punitive damages award on appeal, arguing that Congress had not expressly authorized punitive damages based on conduct that predated its 2008 legislation. The U.S. Court of Appeals for the Second Circuit agreed, but the Supreme Court subsequently granted certiorari to consider whether, consistent with its decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), FSIA applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
By a vote of 8-0, the case was vacated and remanded, in an opinion by Justice Gorsuch on May 18, 2020. Justice Kavanaugh took no part in the consideration or decision of this case.
To discuss the case, we have Roger Alford, Professor of Law at the University of Notre Dame

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

A big show for the long weekend. First, Dahlia Lithwick is joined by Leah Litman of the University of Michigan Law School to discuss oral arguments in the Trump financial records cases, and to get granular with the question of who gets interrupted most in oral arguments over the phone. (Guess what? It’s gendered.)

Next, a big picture conversation about the rule of law and global justice before, during, and after COVID-19, with David Miliband of the International Rescue Committee. 

In the Slate Plus segment, Mark Joseph Stern takes us through arguments in the faithless electors case, the big religious freedom case that most people missed, and why you shouldn’t read too much into the Supreme Court’s latest order regarding the Mueller Report.  Sign up for Slate Plus now to listen and support our show.

Podcast production by Sara Burningham.

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