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.
SCOTUScast - The Dutra Group v. Batterton – Post-Argument SCOTUScast
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.
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.
Opening Arguments - OA274: Arguing Before the Supreme Court (with Monica Miller)
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
- We first discussed the Bladensburg cross case in Episode 256.
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
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Fight for LGBTQ Protections Under the Civil Rights Act
Mark Joseph Stern guest hosts and digs into two cases in the Supreme Court this week. First, the court’s questioning if Title VII of the Civil Rights Act extends to LGBTQ protections. Then, the addition of the citizenship question on the 2020 census. Finally, Dahlia interviews Richard Rothestein, author of “The Color of Law”, about the history of residential segregation.
Podcast Production by Danielle Hewitt
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Opening Arguments - OA273: Sears, Steve Mnuchin & “The Producers”
Today's episode features a deep dive into a just-filed lawsuit by Sears against its CEO, Eddie Lampert, and certain directors, including Treasury Secretary Steven Mnuchin. The lawsuit alleges that Eddie & Steve managed to wreck not one but two long-standing American institutions. How? Why? And what does any of this have to do with one of the best comedies of all time, The Producers? Listen and find out!
We begin, however, with a very brief Andrew Was Wrong malapropism in which he confused a journalist with a philosopher. (There's a comedy setup in there somewhere.)
Then, it's time for the main segment, which breaks down the background on Mnuchin, especially how he teamed up with billionaire Eddie Lampert, and then how the two of them managed to turn less than a billion dollars into full ownership of both Kmart and Sears, each of which had eight-figure valuations at the time. And, as if that wasn't enough, you can find out how Lampert (allegedly) ripped off the public on Mnuchin's watch, all while enriching himself. Drain the Swamp! You'll also learn all about The Producers-style fraud. You can make more money with a flop than with a hit!
After all that, it's time for the glorious return of Thomas Takes the Bar Exam -- this time, featuring guest Monica Miller, who will be joining us for a full-length interview next episode. TTTBE question #123, however, is a dreaded real property question...will anyone be able to 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
- Click here to read the Sears lawsuit, and here to check out Mnuchin's Wikipedia page.
- This page contains a good explanation of Delaware corporate law regarding duty of loyalty.
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
Opening Arguments - OA272: Impeachment, Redactions, and Russia
Today's episode brings you a trio of stories about the changing political landscape in the wake of the release of the [REDACTED] Mueller report; namely (1) will the President be impeached (and if so, can the Senate block the impeachment), (2) will we see a full, unredacted version of the report, and (3) just how pro-Russia is this administration, anyway?
We begin with a question asked by listener Thomas S. as to whether Mitch McConnell can... well, Mitch McConnell any impeachment hearings. And while the answer may not surprise you, we think you'll want to know why.
Then, we move on to another listener question, this one about whether the Trump campaign actually did soften language in the GOP platform related to Russia. Was that story actually "debunked?" (No.) We debunk the debunking for your edification!
After that, it's time for a two-fer of embedded stories that bear on the question of redactions. We look briefly at McKeever v. Barr and evaluate whether that will prevent the ultimate release of the full Mueller Report as well as check in on developments in a FOIA case.
No #TTTBE this week!
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
- You can read the Lawfareblog article that inspired Thomas S.'s question on impeachment.
- This is the full text of the 2016 Republican platform.
- Click here to read the Byron York article in the Washington Examiner that we debunk; here to read the original Washington Post article by Josh Rogin; and here to read the Politifact transcript of the Trump interview.
- Finally, check out McKeever v. Barr.
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
Opening Arguments - OA271: Dis-Barred (?) – The Mueller Report
Today, we break down the just-released [REDACTED] Mueller report. The top-line analysis? This is much worse than we anticipated in Episode 264. This report may not be the end of the road for Trump -- but it almost certainly is the end of the road for Attorney General William Barr.
That's it! We spend nearly 90 minutes delving through the minutiae and correcting the egregious misquotations in Barr's now-laughable "summary" of the report.
Show Notes & Links
1. You can click here to read the full Mueller report, and here for the searchable PDF.
2. We first covered Barr's summary in Episode 264, and you can read his laughably dishonest letter again right here. Oh, and we followed up with Prof. Randall Eliason in Episode 265.
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
Amicus With Dahlia Lithwick | Law, justice, and the courts - Extra: Redactionist History
Dahlia Lithwick is joined by former department of Justice spokesperson Matt Miller and Fordham Law Professor Jed Shugerman for a read of the (redacted) Mueller report.
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Opening Arguments - OA270: Happy Tax Day!
Today's episode brings you a trio of timely stories that all revolve around taxes: the Michael Avenatti indictment (for 29 courts of tax fraud), proposed legislation that some are arguing hamstrings the IRS, and (of course) the status of Congress's efforts to get Trump's tax returns. We also learned about very cool free online tax filing (Free File)... albeit too late to help most of you. Sorry about that.
We begin with the lawyer who will never come on our show -- Michael Avenatti, who rose to fame on the back of the genius of Stormy Daniels, and whom we first debunked as a grifter just a few months later (way back in Episode 181!) Turns out he's been arrested for tax fraud. Who could have seen that coming? (Oh yeah, everyone.)
After that, it's time for a deep dive into HR 1957, the Taxpayer First Act of 2019. Is it really a Democratic-sponsored sellout to Turbotax, as some folks are saying? Listen and find out!
Then, it's time to revisit the question of Trump's taxes. Can Trump really stonewall indefinitely on his taxes? (No.) Does the law pave the way for Democrats to get his tax returns? (Yes.)
After all that, it's time for the answer to TTTBE #122 regarding the nonexistence of official documents. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
AppearancesNone! Andrew will be at the American Atheist convention in Cincinnati, Ohio this weekend, April 19-21. 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
- For 2020: Click here to access Free File.
- You can read Avenatti's indictment, and/or catch up on all his scumbaggery by re-listening to Episode 181.
- This is the text of H.R. 1957, this is the text of the Eighth Memoradum of Understanding between the IRS and Free File, and this is the text of 67 Fed. Red. 67247 which references the MOU.
- Here's an example of an alarmist op-ed in the Washington Post, and this is the initial article from ProPublica.
- We first outlined how to get Trump's tax returns back in Episode 226; that's still the right plan. We covered Rep. Neal's request in Episode 267. The applicable statute is 26 U.S.C. § 6013.
- You can read Consovoy's totally crazy crazypants letter 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
Amicus With Dahlia Lithwick | Law, justice, and the courts - Death Penalty Dust-Ups at the High Court
Dahlia Lithwick is joined by Harvard Law School Professor Carol Steiker, co-author of Courting Death: The Supreme Court and Capital Punishment to explore recent death penalty cases before the Supreme Court and why the 8th amendment has raised tensions among the justices.
This episode is brought to you by The Great Courses Plus. Get your free trial, plus 50% off your monthly plan at TheGreatCoursesPlus.com/Amicus.
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