Category: 3-LawSometimeCommentary

On November 26, 2018, the Supreme Court heard argument in Nieves v. Bartlett, a case considering the merit of retaliatory arrest claims in the presence of probable cause for arrest.
In 2014, Russell Bartlett was arrested by two police officers, Sergeant Nieves and Trooper Weight, during an outdoor party that was part of the annual “Arctic Man” festival held in Alaska’s Hoodoo Mountains. Bartlett, who appeared intoxicated, approached Trooper Weight, who had been speaking to a minor regarding suspected underage drinking, and loudly demanded that Weight stop. When Trooper Weight pushed Bartlett back to create space between the two men, Nieves, who had observed the contact, ran over and a struggle ensued. The officers subdued and arrested Bartlett, who was later released from detention without injury. Although the state ultimately declined to prosecute Bartlett on charges of disorderly conduct and resisting arrest, the prosecutor indicated his belief in the existence of probable cause for that arrest.
Bartlett filed suit against the officers in federal district court, claiming false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment to Sergeant Nieves and Trooper Weight on qualified immunity grounds, but the U.S. Court of Appeals reversed that judgment as to the retaliatory arrest claim and remanded the case. Under circuit precedent, the Court concluded, “an individual has a right to be free from retaliatory police action, even if probable cause existed for the action.” The Supreme Court granted the officers’ subsequent petition for certiorari, however, to address whether probable cause defeats a First Amendment retaliatory-arrest claim under the civil rights statute 42 U.S.C. § 1983.
To discuss the case, we have Lisa Soronen, Executive Director of the State and Local Legal Center.

Today's very special episode is our 250th!  To celebrate, we've assembled a compilation of some of our favorite moments over the past two and  half years.  If you've ever wanted to share the show to friends and family, this is the episode to do it.   In this episode, we explain:

1. What the show's all about
2. How liberal we are (or aren't)
3. Whether we talk about non-political stuff
4. How Trump changed the show, what "Yodel Mountain" is, what #ClearAsKushner is
5. How seriously we take ourselves

And much more!

Then, as always, it's time for the answer to Thomas Takes The Bar Exam #112, which involved an angry drunken... murder (?)  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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 & Links1. What’s the show about? It’s long-form investigative journalism into topics in the news that have a legal component to them from a left-leaning perspective. Shorter: If you like Rachel Maddow, you’ll like this show.

2. Things I’m most proud of: Stormy Daniels OA: 154 Hillary Clinton’s Damned Emails OA: 13 (36:35-38:16) Deep dives on abortion, on the Second Amendment, Abortion – OA: 27 and OA: 28 The Second Amendment  – OA: 21 and OA: 26 The 2000 Election and Bush v. Gore Eps. 2-5 OA: 02 -

3. How lefty are you guys? I mean, we definitely call out our own, like Jill Stein’s recounts. OA: 25 (24:38-29:50) Or Robert Reich OA: 59 (43:40-45:00) Or Occupy Democrats…

4 . So is it all politics? A.) Practical stuff like defining terms like spousal privilege OA: 99 (2:30-8:50) or … not advice on how to choose a lawyer OA: 12 (9:19-10:40) …every Tuesday we do deep dives into legal topics, often apolitical. PG&E in Episode OA: 241 B.) and the wacky and bizarre OA: 12: Sovereign Citizens (19:52-24:12) OA: 132: Earth Court (38:09-55:00)

5. So what changed? We elected a criminally insane game show host who’s looting the public treasury? Yodel Mountain OA: 45: (38:20-41:03) Clear as Kushner OA: 53 (57:00-57:33)

6. How seriously do you take yourself? Pretty clownhornin’ seriously! OA: 166 (32:10-40:47)and (1:30:55 to end – intro)

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

And email us at openarguments@gmail.com

 

Dahlia Lithwick is joined by Sharon McGowan, legal director of Lambda Legal, to discuss how they’re fighting the trans ban following SCOTUS decision to lift the injunctions on the policy going into action.  Also, Dahlia gets the latest on the Mueller investigation from Joyce White Vance, former US attorney in the Northern District of Alabama, including why Mueller didn’t charge Roger Stone with conspiracy.

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

Podcast production by Sara Burningham.

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Today's episode sounds the alarm as to whether our activist right-wing Supreme Court is ready to effectively overturn Roe v. Wade and essentially permit the entire state of Louisiana to all but ban the right to an abortion in that state.  We're NOT an alarmist podcast, but this is something you need to be watching.  We also follow up on the Trump Shutdown, answer a listener question regarding our discussion of the Hilton lawsuit from last episode, and (of course) take our weekly visit to Yodel Mountain, this time on the back of one Roger Stone.  Are these all just "process crimes?"  And what the hell does that mean, anyway?  Strap in and find out!

We begin, however, with a brief look at the end of the Trump Shutdown and what's likely to come next.

After that, we tackle some questions and misperceptions regarding our story of the lawsuit against Hilton hotels from Episode 248.

Then, it's time for the main segment, which takes a look at a pending Supreme Court motion and discusses what this means for the future of Roe v. Wade and the right to a legal abortion in this country.  Yes, it really is that significant.

Then, it's time for a trip to Yodel Mountain to discuss "process crimes" rapid-fire round of questions about Trump's shutdown.  Why is Congress still getting paid?  Who can sue, and why haven't they?  Find out the answers to these questions and more!

We end, as always, with a brand new Thomas Takes the Bar Exam Question #112 about murder most foul!  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. Ann Coulter was responsible for the shutdown and Trump's approval ratings take a hit. (Thomas Was Right) 2. A series of bipartisan proposals show support for ending shutdowns. 3. Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq. 4. Several years ago, Andrew wrote on reasonable religious accommodations at Disney when he was still working for The Man. 5. We discussed Planned Parenthood v. Casey in OA: Episode 27 and OA Episode: 28. 6. Whole Woman's Health v. Hellerstedt 136 S.Ct. 2292 (2016) 7. June Medical Services v. Gee, 905 F.3d 787 (5th Cir. 2018) 8. MOTION TO STAY filed by June. 9. Dershowitz – what the defenders are saying and why it’s Wrong . Followed by Seth Abramson’s Smackdown thread. 10. Stone Indictment 11. More on Randy Credico from his wiki entry and twitter. 12. Roger Stone will work the media 13. Concord Management & Consulting media discovery. 14. The joint motion in Roger Stone's case and the "voluminous and complex" evidence against him.

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 episode features a deep dive into a bunch of different issues around granting the writ of certiorari -- "cert" -- and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court.  Oh, and we also tackle a lawsuit that's being grossly misrepresented by the media.

We begin with a discussion of the unique procedure of "cert before judgment."  What is it, how rare is it, and... why is the Trump administration trying to deploy it with alarming frequency?  Listen and find out!

Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration's effort to... get cert before judgment (of course).

Our main segment looks at something Andrew has never seen before:  essentially, a four-justice dissent from a denial of certiorari.  Why is this weird?  Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist.

Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for "skipping work to go to church."  Find out why the reporting on this case has been totally irresponsible and what really happened.

After all that, it's time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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. "Cert before judgment" is governed by Supreme Court Rule 11.
2. We first discussed the census litigation back in Episode 232.  You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply.
3. Click here to read the "statement" regarding the denial of cert in Kennedy v. Bremerton School Dist.
4. Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog.
5. By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury's verdict.  Oh, and here's the EEOC's statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million).

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

And email us at openarguments@gmail.com

 

Today's episode tackles the recent Supreme Court orders in the Trump ban on transgender service members.  How did we get here and what's next?  Listen and find out.

We begin, however, with a brief Andrew Was Wrong segment regarding the history and modern politics of the State of the Union.

After that, it's time for the main segment, which dives deeply into the history of trans service in the U.S. military, including a discussion of what it means to bring a case pursuant to the equal protection clause and what the future likely holds.

Then, it's time for a rapid-fire round of questions about Trump's shutdown.  Why is Congress still getting paid?  Who can sue, and why haven't they?  Find out the answers to these questions and more!

We end, as always, with a brand new Thomas Takes the Bar Exam Question #111 regarding the delivery of water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Thomas was just the guest host on Episode 179 of God Awful Movies.  Give it a listen!  And 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. The must read Advocate Article interviewing long-standing friend of the show Alice Ashton. 2. 2016 Open Service Directive: Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members" 3. 2017 Trump Memorandum rescinding the Open Service Directive 4. 2018 Mattis Policy: Military Service by Transgender Individuals 5. Mattis “Study”: Dept of Defense Report and Recommendations on  Military Service by Transgender Persons 6. We last discussed Hively v. Ivy Tech (7th Cir.) and Zarda v. Altitude Express (2nd Cir.) in Episode 152 7. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) 8. FLSA lawsuit regarding the Shutdown 9. Federal Judiciary extended to February 1st 10. 13 U.S.C. § 1350 - Criminal penalty

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 episode features a deep dive into the latest developments in the lawsuit brought by parents of the victims in the Sandy Hook Massacre against Alex Jones and Infowars for repeatedly portraying the school shooting as a hoax.

We begin, however, with a question regarding our views of the 2016 Presidential Election from a Trump supporter who's hate-funding us.  Hey, we're good to our word!

After that, it's time to dig in to the defamation lawsuit against Alex Jones.  We tackle the minutiae -- standing, jurisdiction, statute of limitations -- and the big issues as well.  If you want to know where defamation law is headed in this era of "fake news," well, this is the show for you!

Then, it's time for a quick visit to Yodel Mountain to check in on Rudy Giuliani and Michael Cohen.  Because of course it is.

Finally, it's time for the answer to Thomas Takes The Bar Exam #110, which involved a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast.  Give it a listen!  And 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. NYT articles on using third-party votes to hack elections. The Secret Social Media Experiment in Alabama Senate Race Imitated Russian Tactics and how the Democrats Faked Online Push to Outlaw Alcohol in Alabama Race. 2. Politico story on the Justice Democrats plans to mount primaries against incumbent Democrats it deems too moderate with the apparent backing of Alexandria Ocasio-Cortez. 3: NYT on Alex Jones and Sandy Hook 4. Media Matters 7 minute, 13 second compilation on Alex Jones about Sandy Hook. 5. Media Matters timeline of Jones promoting conspiracy theories about Sandy Hook. 6. Yodel Mountain: Rudy Giuliani is not helping! 7. WSJ on Cohen and poll-rigging and Cohen's response on the story: "As for the @WSJ article on poll rigging, what I did was at the direction of and for the sole benefit of @realDonaldTrump @POTUS. I truly regret my blind loyalty to a man who doesn’t deserve it." 8. The GLORIOUS "Women for Cohen" Twitter account: Because some things on twitter make you ask, "Why?".

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

And email us at openarguments@gmail.com

 

UPDATE: On the evening Friday January 18th, after production of this episode of Amicus had wrapped, special counsel spokesman Peter Carr issued the following statement: "BuzzFeed’s description of specific statements to the Special Counsel’s Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s Congressional testimony are not accurate.” Ben Smith, editor-in-chief of Buzzfeed News says the publication stands by its reporting.

Dahlia Lithwick is joined by Asha Rangappa, a former FBI special agent specializing in counterintelligence investigations and now a senior lecturer at Yale University’s Jackson Institute for Global Affairs. Together, they unpack the counterintelligence angle of the Mueller probe.

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

Podcast production by Sara Burningham.

This episode is brought to you by the following advertisers:

Simplisafe, start protecting your home today at simplisafe.com/AMICUS.

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Today's episode covers the William Barr confirmation hearings before the Senate Judiciary Committee to become the next Attorney General, as well as the ongoing legal battles regarding Trump’s shutdown of the government.

We begin with Barr, who’s proven to be a complex individual.  How did he fare in his testimony before the Senate?  Are there reasons for optimism? Is his notorious memorandum (which we covered in Episode 237) not really that bad?  The answers… are all over the map, and will certainly surprise you.

Then, we discuss the ongoing shutdown, which looks to prove Andrew Wrong by not ending tomorrow.  What are the legal implications?  How are they going to be resolved?  Is there any hope, either politically or legally?  Listen and find out!

Finally, it's time for Thomas Takes The Bar Exam #110 which involves a dentist being sued for malpractice and product liability.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast.  Give it a listen!  And 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. Kamala Harris' statements regarding her opposition to Barr's nomination.2. Former Justice Department official of the George H.W. Bush administration Zachary Terwiliger and the speculation that he will once again be Barr's deputy. 3. Barr’s concerning views on executive power and reasons he has drawn so much criticism. 4. We discuss our past Episode OA 237: Lowering the Barr (Memo) 5. Jonathan Turley, GWU Law professor and gadfly, arguing about Barr 7. Jack Goldsmith, HLS professor, has written a response.  “A Qualified Defense of the Barr Memo: Part I” 8. The 1995 OLC memo: Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges 9. 28 U.S.C. § 458: Relative of Justice or Judge Ineligible to Appointment10. Marist polling data on the Shutdown 11. NTEU v. Mulvaney 12. Barr's written testimony

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

And email us at openarguments@gmail.com

 

On November 27, 2018, the Supreme Court heard argument in 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, can be equitably tolled.
Troy Lambert bought a dietary supplement that claimed to be an aphrodisiac containing sexual performance-enhancing herbs. He thereafter brought a class action in federal district court against the drug’s manufacturer, Nutraceutical Corp., 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.
On March 2, 10 days after the class had been decertified, Lambert informed the court that he intended to file a motion for reconsideration. The district court instructed him to file the motion within 10 days, which was 20 days in total from the original class desertification. Lambert moved for reconsideration on March 12 with further evidence to support his full refund damages model. The district court denied his motion in June. Fourteen days later, Lambert filed a petition under Federal Rule of Civil Procedure 23(f) for permission to appeal the district court’s orders granting decertification and denying reconsideration to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit conditionally granted the petition but instructed the parties to address whether it was timely.
Under Rule 23(f), a petition for permission to appeal must be filed with the circuit clerk “within 14 days” after the order “granting or denying class-action certification” was entered. Although Lambert’s petition came within 14 days of denial of his motion for reconsideration, it was filed months after the actual order granting decertification. The Ninth Circuit held that Lambert’s petition was nevertheless timely. Rule 23(f) is not jurisdictional, the court determined, and its deadline should equitably tolled by a timely motion for reconsideration such as Lambert’s. Reaching the merits, the Ninth Circuit then reversed and remanded, holding that the district court had abused its discretion in decertifying the class.
The U.S. Supreme Court, however, granted certiorari to address whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f)—and can excuse a party’s failure to file timely within the 14-day deadline, in conflict with the decisions of 7 other Circuit Courts of Appeals.
To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.