Category: 3-LawSometimeCommentary

Today's episode explains exactly what happened with the story you probably saw about how Led Zeppelin "got a new hearing" in their lawsuit with the estate of Randy California. What's going on? Listen and find out! We also break down the latest ethical wrangling over Yale law professor Amy Chua and Brett Kavanaugh. Is it as bad as everyone says?

We begin with the tale of "Tiger Mom" Amy Chua, the Yale law professor who wrote a stirring defense of Brett Kavanaugh as a "mentor to women" after Kavanaugh had offered Chua's daughter a plum clerkship. Did that pot get sweetened when Kavanaugh was confirmed to the Supreme Court? (Hint: yes.) We break down all of the ethics & more in this segment.

Then, it's time to revisit the lawsuit brought by the estate of Randy California against Led Zeppelin alleging that Led Zep stole the iconic riff for "Stairway to Heaven" from California's band, Spirit. If you haven't listened to Episode 236, go give that a listen right now, and then come back to find out what's new.

Then, it's time for another Andrew Was Wrong segment -- this time, involving the actual penalty for refusing to answer or giving false answers on the Census.

After all that, it's time for the answer to Thomas Takes the Bar Exam #130 about the constitutional propriety of collecting sales tax from a private individual who will then turn around and sell the objects to the state. Did Thomas get it right? There's only one way to know for sure!

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. Click here to read Chua's original Wall Street Journal op-ed, "Kavanaugh Is A Mentor to Women."
2. After that broke, Elie Mystal criticized Chua in an Above the Law article, to which Sophia Chua-Rubenfeld tweeted that she "[w]on't be applying to SCOTUS." Mystal also teamed up with The Guardian to unearth more revelations regarding Chua, Kavanaugh, and how his clerks always "look like models."
3. Of course, it was Mystal who broke the news that Sophia Chua-Rubenfeld was chosen as a Kavanaugh SCOTUS clerk.
4. We covered Zeppelin in Episode 236.
5. The false answers statute is 13 U.S.C. § 221.

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-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

Today's Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel's latest request that Donald Trump should fire Kellyanne Conway for "flagrant" serial violations of the Hatch Act. What does all that mean? Listen and find out!

We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.)

Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent's petition for limited remand, the White House's assertion of executive privilege, and then what's next from the Democratic House.

After all that, it's time to climb Yodel Mountain. Learn exactly who Lt. Gen. Michael Flynn hired once he fired Covington & Burlington Coat Factory, and what that (probably) means. And then, it's time to learn allllll about the Hatch Act, and why a loyal Trump supporter thinks it means it's time to fire Kellyanne Conway.

Then, it's time for Thomas Takes the Bar Exam. This time, Thomas tackles a tricky question about a government agency that hires a private collector to purchase antiques. Can the state charge sales tax? 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 last discussed the census in Episode 286. 2. Click here to read the NYIC petition for limited remand. 3. This is HR 430, which is the full House vote to allow the Judiciary Committee to sue to enforce the McGahn and Barr subpoenas. 4. And here is the roll call vote. 5. The Hatch Act is 5 U.S.C. § 7323. 6. The Hatch Act was upheld in United States Civil Service Comm’n et al. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, et al., 413 U.S. 548 (1973). 7. Finally, click here to read the OSC Conway letter.

-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

-And finally, remember that you can email us at openarguments@gmail.com!

Today's episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller -- the architect of the REDMAP -- that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York.

First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year -- but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops.

Then it's time to delve into the strange files of Thomas Hofeller, the architect of REDMAP -- you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping "Non-Hispanic Whites?" Of course you do!

We break down exactly how this development may affect Dep't of Commerce v. New York, which has already been briefed and argued before the Supreme Court, and the interesting strategy that the respondents used to make SCOTUS aware of what Hofeller was up to.

After all that, it's time for the answer to Thomas (and the Entire Puzzle in a Thunderstorm Crew) Takes the Bar Exam #129 involving comparative negligence, joint and several liability, and intra-family liability in connection with a car accident. Did you get it right? Remember you can play along every Friday by sharing our show on social media using the hashtag #TTTBE.

Appearances

Andrew was just a guest on Episode 98 of the Skepticrat breaking down everyone's second-favorite Democratic 2020 Presidential contenders; you won't want to miss it! 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. We first covered the citizenship question on Episode 232
2. You can access the briefs filed in Department of Commerce v. New York: Here
3. This is the letter filed by respondents and copied to the Supreme Court setting forth the new evidence relating to Hofeller.
4. And, in the interests of balance, here's the response filed by the government.
5. And finally, here's the ruling and scheduling order from Judge Furman in the District Court case (No. 18-2921) setting forth the time to brief and seek discovery regarding potential sanctions on the government witnesses.

-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

-And finally, remember that you can email us at openarguments@gmail.com!

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. 

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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

1. We first discussed Trump's tariffs on China in episode 162
2. Trump's statement on Mexican tariffs is here
3. The prior authority relied upon by Trump is the IEEPA, 50 U.S.C. § 1702
4. Click here to read a CNBC piece on the likelihood of a trade war.
5. You can read Vol I. and Vol. II of the Mueller in searchable PDF.
6. Here's the evidence C&B was fired.
7. Here are the DNC rules and you can check out "Bernie Sanders's" failed lawsuit here.

-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

-And finally, remember that you can email us at openarguments@gmail.com!

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.

Show Notes & Links

1. Check out ERISA, 29 U.S.C. §§ 1001 et seq.
2. You can also read the text and a breakdown of the key provisions of the PPA, which passed the Senate 93-5.
3. For a sad laugh, check out the PBGC's own scant "Who the hell is Gordon Hartogensis?" page. The first person to break this story was Politico's Ian Kullgren, who wrote this article.
4. We first covered the Sears/Lampert/Mnuchin story back in Episode 273, and you can read the Warren/Ocasio-Cortez letter here.

-Support us on Patreon at:  patreon.com/law

-Follow us on Twitter:  @Openargs

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-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us 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

1. For the correct take on milkshaking, check out Serious Inquiries Only Episode 194 with Eli Bosnick.
2. 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.
3. These are the four orders the Supreme Court granted in gerrymandering cases: A. HOUSEHOLDER, LARRY, ET AL. V. A. PHILIP RANDOLPH INST., ET AL. B. CHABOT, STEVE, ET AL. V. A. PHILIP RANDOLPH INST., ET AL C. MICHIGAN SENATE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. D. CHATFIELD, LEE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL.
4. Click here to read the Supreme Court’s Opinion in Box v. Planned Parenthood
5. Click here for the peer-reviewed research showing that Sanger was not a eugenicist; and here for the article showing she wasn’t a racist.
6. This is a transcript of Robert Mueller’s testimony and this is the 2000 OLC Memo.

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

-And finally, remember that you can email us at openarguments@gmail.com!

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.

Show Notes & Links

1. We first discussed the rise of state-level constitutional protections to the right to choose back in Episode 276. and analyzed Georgia HB 481 and Alabama HB 314 in Episode 280.
2. You can read HUD proposed rule FR-6152 (currently RIN 2506-AC53) for yourself.