In the fourth part of this special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen and Professor Carol Anderson, Charles Howard Candler Professor of African American Studies at Emory University and author of One Person, No Vote: How Voter Suppression is Destroying Our Democracy.
Together, they try to sort through the rhetoric and the reality of “stolen” elections.
Rick Hasen’s new book Election Meltdownforms the basis for this special series of Amicus.
In the fourth part of this special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen and Professor Carol Anderson, Charles Howard Candler Professor of African American Studies at Emory University and author of One Person, No Vote: How Voter Suppression is Destroying Our Democracy.
Together, they try to sort through the rhetoric and the reality of “stolen” elections.
Rick Hasen’s new book Election Meltdownforms the basis for this special series of Amicus.
Today's episode covers the "Tuesday Afternoon Massacre," in which Donald Trump's tweets prompted his sycophantic Attorney General, William Barr, to overrule career prosecutors and file a "Supplemental and Amended Sentencing Memorandum" reversing the government's position from literally the day before in order to urge leniency on convicted criminal Roger Stone.
We begin, however, with a less-than-exhaustive (but exhausting) recitation of the various ways Trump has abused his power -- and yes, committed crimes -- in the mere eight days since he was acquitted during impeachment. From firing Lt. Col. Vindman to placing Barr in charge of all future "political investigations," Trump is consolidating his now-seemingly limitless power to run the U.S. government as his private fiefdom, with no consequences whatsoever.
Then it's time for our main segment, where we explain just how corrupt the "Supplemental and Amended Sentencing Memorandum" really is. Along the way, we explain Pre-Sentencing Reports (PSRs), the Federal Sentencing Guidelines, and much, much more!
After all that, it's time for a brand-new #T3BE that starts off as a question about hearsay before the curveball takes us down the question of witness impeachment. How will Thomas do? There's only one way to find out! And remember that you can play along -- just share out this episode on social media using the hashtag #T3BE and we’ll pick a winner!
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.
On Dec 11, 2019 the Supreme Court decided Peter v. NantKwest Inc., a case considering whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees. When a patent applicant is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained) review in the U.S. Court of Appeals for the Federal Circuit--or the applicant may file a more expansive challenge in federal district court. The latter option is authorized by 35 U.S.C. § 145, but the statute also provides that “[a]ll the expenses of the proceedings shall be paid by the applicant.” Here, NantKwest challenged an adverse PTAB decision in federal district court, but lost. After the judgment was affirmed by the Federal Circuit, the PTO sought reimbursement of its expenses from NantKwest, including nearly $80,000 in attorneys’ fees. The district court denied recovery based on the “American Rule” that parties in federal court typically bear their own fees unless otherwise directed by Congress. A divided en banc panel of the Federal Circuit ultimately affirmed the district court. This decision, however, was in tension with the U.S. Court of Appeals for the Fourth Circuit’s construction of similar language in the Lanham Act. By a vote of 9-0, the Supreme Court affirmed the judgment of the Federal Circuit. Justice Sotomayor, writing for a unanimous Court, held that the plain text of §145 did not provide the requisite “specific and explicit” indication that Congress had intended to depart from “the American Rule’s presumption against fee shifting.” Accordingly, the PTO could not recover attorneys’ fees from NantKwest under §145. To discuss the case, we have Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.* As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
*Please note that Mr. Rando is co-Counsel on an Amicus brief filed on behalf of the Association of Amicus Counsel in this case.
On Dec. 11, 2019, the U.S. Supreme Court heard argument in Monasky v. Taglieri, a case involving the standard of appellate review applicable to determinations of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, as well as the conditions under which habitual residence is established for an infant. The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed to another country in violation of that parent’s custodial rights can petition in federal or state court for the return of the child to the child’s country of habitual residence. The courts of that country can then resolve any underlying custody disputes. Petitioner Michelle Monasky, an American, gave birth to her daughter A.M.T. in Italy. Monasky’s husband Domenico Taglieri, who is the father, is Italian. Alleging that Taglieri had become physically abusive, Monasky took the newborn A.M.T. to a domestic abuse shelter in Italy, and several weeks later both left for Ohio. Taglieri obtained an ex parte ruling from an Italian court terminating Monasky’s parental rights and then petitioned in federal district court in Ohio for A.M.T.’s return under the Hague Convention. The district court granted the petition, and the U.S. Court of Appeals for the Sixth Circuit and the U.S. Supreme Court denied Monasky’s petition for a stay. She then returned A.M.T. to Italy. On appeal, a divided Sixth Circuit, sitting en banc, affirmed the district court’s ruling on the merits. In doing so, the Sixth Circuit treated the question of habitual residence as ultimately one of fact to be reviewed on appeal for clear error only. Arguing that the Sixth Circuit’s approach was in tension with that of several other federal circuit courts of appeals, Monasky petitioned for certiorari. The Supreme Court granted the petition to consider whether (1) a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo rather than for clear error; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention. To discuss the case, we have Margaret Ryznar, Associate Professor of Law, Indiana University Robert H. McKinney School of Law. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Today's EXTRA LONG episode breaks down the recent ratification of the Equal Rights Amendment (ERA) by the State of Virginia. Since that's the 38th state (more than 3/4ths of the states), and the ERA also passed the Senate and the House of Representatives by more than 2/3 margin... does that mean that the ERA is now part of the Constitution? Listen and find out!
We begin by diving right in to the ERA, starting with a lengthy deep dive into the history of the Amendment dating back to the early 1970s... which might make you nostalgic for the Republicans of old.
Then, we talk about the complicated issues underlying the passage of the ERA, including the strange case of the 27th Amendment which lay dormant for two centuries before getting ratified by 3/4ths of the states in 1992. And if the 27th Amendment can lay dormant for more than 200 years, why can't the ERA? Well... we'll tell you some of the reasons why (and why not).
After that, it's time to break down the Houston Astros cheating scandal, where we talk about our listeners' favorite topic: baseball law! Even if you're not a fan of baseball, we think you'll enjoy our breakdown.
And after all that, it's time for the answer to #T3BE 165 involving jury instructions. Can Thomas keep his winning streak going?? There's only one way to 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.
In the third part of this special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen to unpack the bag of dirty tricks that may be deployed in 2020’s election, and to examine the debris of the Iowa caucus debacle to find clues to what’s coming.
Rick Hasen’s new book Election Meltdownforms the basis for this special series of Amicus.
In the third part of this special five-part series of Amicus, Dahlia Lithwick is joined by election law professor Rick Hasen to unpack the bag of dirty tricks that may be deployed in 2020’s election, and to examine the debris of the Iowa caucus debacle to find clues to what’s coming.
Rick Hasen’s new book Election Meltdownforms the basis for this special series of Amicus.
Today's episode takes place in the aftermath of the Trump impeachment sham. We take a minute to heap praise on Sen. Mitt Romney, who had the courage of his convictions, before delving into the obvious fact that this president is now empowered to seek revenge on his enemies, starting with the State of New York. Can he really prevent New Yorkers from using Global Entry?
Before that, we have to cover the latest in faux outrage, in which America's Dumbest Congressman (TM), Matt Gaetz, teams up with Charlie Kirk (and others) to ... insist that Speaker Nancy Pelosi had no right to rip up her copy of Trump's State of the Union address. Can that possibly be the law? (No.)
Then, it's time to settle in for a nice, long deep dive into New York's Green Light Law, and how that led a Trump lackey to try and retaliate by asserting that New Yorkers will no longer be eligible for the Global Entry program at airports. Is it really possible that Trump's Department of Homeland Security will carry out this threat? Do we have a legal recourse? Listen and find out!
After all that, it's time for a brand-new #T3BE on the preservation of objections for appeal. Can Thomas continue his winning streak? Would you do any better? If so, just share out this episode on social media using the hashtag #T3BE and we'll pick a winner!
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
The operative law that Speaker Pelosi definitely didn't violate -- but President Trump has -- is 18 U.S.C. § 2071.
On Dec. 4, 2019, the U.S. Supreme Court heard argument in Intel Corp. Investment Policy Committee v. Sulyma, a case asking what degree of knowledge of a possible violation is necessary to trigger the three-year statute of limitations provided in the Employee Retirement Income Security Act (ERISA). Respondent Christopher Sulyma worked for Intel Corporation from 2010-12, and during that time participated in retirement plans governed by ERISA. In 2015, Sulyma brought suit against Intel’s investment policy committee under various provisions of ERISA, alleging that the committee had invested imprudently and failed to make certain disclosures. Intel moved to dismiss the complaint based on ERISA’s statute of limitations, which provides that actions like Sulyma’s may not be commenced more than “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.” The district court found that Sulyma had actual knowledge of the alleged violations more than three years before bringing suit, and dismissed the case. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Sulyma’s constructive knowledge of the alleged violations did not rise to the level of “actual knowledge” necessary to trigger the statute of limitations. It was not sufficient, the Court determined, that the relevant facts were available to the Sulyma; he had actually to be aware of those facts. The Ninth Circuit’s reasoning on the meaning of “actual knowledge” conflicted with that of the U.S. Court of Appeals for the Sixth Circuit, however, and the Supreme Court subsequently granted certiorari to consider whether the ERISA limitations provision bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information. To discuss the cases, we have Matthew S. Rozen, Associate Attorney at Gibson Dunn As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
