On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.
In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction.
On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.
The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.
To discuss the case, we have Richard Peltz-Steele, Professor at University of Massachusetts School of Law.
SCOTUScast - Fourth Estate Public Benefit Corp. v. Wall-Street.com – Post-Argument SCOTUScast
On January 8, 2019, the Supreme Court heard argument in Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case considering whether a copyright owner may sue for infringement in federal court after merely applying for registration of the copyright, or whether the Registrar of Copyrights must first act on the application.
Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street was required to remove all Fourth Estate content from its website before cancelling its account. When Wall-Street cancelled its account but continued to display Fourth Estate articles, Fourth Estate filed suit for copyright infringement against Wall-Street and its owner in federal district court.
The defendants moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. Here, Fourth Estate alleged that it had filed applications with the Registrar, but did not indicate whether any application had been acted upon. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. Noting a circuit split on whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach), the Eleventh Circuit adhered to the registration approach.
The Supreme Court granted argument to address the circuit split regarding whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeals for the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have held.
To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.
Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street was required to remove all Fourth Estate content from its website before cancelling its account. When Wall-Street cancelled its account but continued to display Fourth Estate articles, Fourth Estate filed suit for copyright infringement against Wall-Street and its owner in federal district court.
The defendants moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. Here, Fourth Estate alleged that it had filed applications with the Registrar, but did not indicate whether any application had been acted upon. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. Noting a circuit split on whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach), the Eleventh Circuit adhered to the registration approach.
The Supreme Court granted argument to address the circuit split regarding whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeals for the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have held.
To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.
Opening Arguments - OA257.5 Michael Cohen Testifies, Part 2
Today's episode continues our breakdown of ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it that we started in Episode 257. What's next? Listen and find out!
We begin where we left off -- with Michael Cohen. Find out how Cohen's testimony (and documents) implicate our favorite legal genius, Stormy Daniels!
After that, it's time to check in on Roger Stone's former flunky, Andrew Miller, and his quixotic quest to undo the Mueller investigation. That effort was just slapped down by the Court of Appeals for the D.C. Circuit, and we've got the full opinion covered for you.
Then, it's time to check in on an odd development in the sentencing saga of Paul Manafort. What does the government's latest (redacted) filing portend? We're not entirely sure... but we want you to know what we know.
And then -- after all that! -- we end with a brand new Thomas Takes the Bar Exam Question #116 regarding a rather odd traffic accident. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
AppearancesAndrew was just a guest on HBO's Vice News! 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 & Links1. Here are the documents Michael Cohen brought to Congress. 2. Marcy Wheeler’s article: How Trump Suborns Perjury. 3. DC Circuit’s opinion in Andrew Miller’s In Re: Grand Jury appeal. 4. Court’s sua sponte order. 5. Government’s sentencing memo in Manafort’s DC trial. 6. Manafort’s response memo. 7. Government’s Supplemental heavily redacted memo.
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Don't forget the OA Facebook Community!
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And email us at openarguments@gmail.com
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Case Regarding the So-Called Emergency
Dahlia Lithwick is joined by conservative lawyer Stuart Gerson and finds common ground over the President’s declaration of a national emergency so he can build the wall. And Leah Litman helps us take a lawyerly look at Michael Cohen’s testimony before congress this week.
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Opening Arguments - OA257: Michael Cohen Testifies, Part 1
Today's episode breaks down ex-Trump fixer Michael Cohen's testimony before the House of Representatives and all the Yodel Mountain implications that stem from it. What's next? Listen and find out!
We begin, however, with an update on the American Legion v. American Humanist Association case where Andrew recently spoke at the AHA's #HonorThemAll rally.
After that, it's time to find out about Florida Rep. Matt Gaetz who attempted to intimidate Michael Cohen and... may have gotten into some legal trouble thanks to this show and it's listeners!
Then, we begin breaking down the Cohen testimony... but there's so much here to cover, we decided to keep going for yet another hour, and you'll get that tomorrow!
For the first time, we don't end with a brand new Thomas Takes the Bar Exam Question, but you'll get #116 tomorrow. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
AppearancesNone! 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 & Links1.18 U.S.C. § 1512 Tampering with a witness, victim, or an informant. (B) governs witness tampering 2. Gaetz timeline from The Washington Post 3. Florida Bar Rules of Professional Conduct Rule 4-8.4(d) "prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice." 4. Isaac Dovere at the Atlantic tweeting about Gaetz 5. Cohen is subject to 18 U.S.C. § 1001: Statements or entries generally (a)(2) "makes any materially false, fictitious, or fraudulent statement or representation; or" 6. 18 U.S.C. § 1622 Subornation of perjury 7. Marcy Wheeler’s article: How Trump Suborns Perjury 8. Here are the documents Michael Cohen brought to Congress 9. Kansas potential emoluments violation
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And email us at openarguments@gmail.com
SCOTUScast - United States v. Stitt and United States v. Sims – Post-Decision
On December 10, 2018, the Supreme Court decided the consolidated cases United States v. Stitt and United States v. Sims, both concerning the federal Armed Career Criminal Act (ACCA).
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. “Burglary” qualifies as a violent felony under ACCA, but the statute applies a “generic” understanding of burglary that may be narrower than some state burglary offenses. A prior state conviction does not qualify as burglary under ACCA if the elements of the state statute are broader than those of generic burglary, namely: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.
Here, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. The Supreme Court consolidated the cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.
The Supreme Court unanimously reversed the judgment of the Sixth Circuit in Stitt and vacated the judgment of the Eighth Circuit in Sims, remanding that case for additional proceedings relating to the breadth of Arkansas’ burglary statute. In an opinion delivered by Justice Breyer, the Court held that the term “burglary” in ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
To the discuss the case, we have Robert Leider, Associate Professor of Law at George Mason University Antonin Scalia Law School.
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. “Burglary” qualifies as a violent felony under ACCA, but the statute applies a “generic” understanding of burglary that may be narrower than some state burglary offenses. A prior state conviction does not qualify as burglary under ACCA if the elements of the state statute are broader than those of generic burglary, namely: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.
Here, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. The Supreme Court consolidated the cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.
The Supreme Court unanimously reversed the judgment of the Sixth Circuit in Stitt and vacated the judgment of the Eighth Circuit in Sims, remanding that case for additional proceedings relating to the breadth of Arkansas’ burglary statute. In an opinion delivered by Justice Breyer, the Court held that the term “burglary” in ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
To the discuss the case, we have Robert Leider, Associate Professor of Law at George Mason University Antonin Scalia Law School.
Opening Arguments - OA256: The Bladensburg Cross
Today's episode takes a deep dive into the Bladensburg Cross case currently pending before the Supreme Court with special guest Sarah Henry of the American Humanist Association. You'll learn that Andrew is going to speak at the AHA rally on Wednesday, February 27 right before oral arguments!
We bookend the interview with an Andrew Was Right segment about the recent Supreme Court ruling in Timbs v. Indiana first discussed back in Episode 234.
And on the back end, we briefly discuss Clarence Thomas's bizarre and dangerous concurrence in McKee v. Cosby. Did Justice Thomas really call for the reversal of New York Times v. Sullivan? (Hint: yes, yes he did.)
After all that, it's time for the answer to Thomas Takes The Bar Exam #115 about whether you can use facts contained in settlement negotiations. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
AppearancesAndrew was just a guest on Episode 87 of the So Here's My Story podcast; go check it out! 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
- Click here to check out the American Humanist Association.
- We first analyzed Timbs v. Indiana back in Episode 234.
- Click here to read Thomas's concurrence in McKee v. Cosby., and here to brush up on the classic New York Times v. Sullivan.
Support us on Patreon at: patreon.com/law
Follow us on Twitter: @Openargs
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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 - OA255: Wall of Emergency
Today's episode breaks down Trump's recent declaration of a state of national emergency as a pretext to build his big, dumb wall. What's being done about it? What can be done about it? Listen and find out!
We begin, however, with a trip up Yodel Mountain to observe one of its most bizarre members, Roger Stone, who recently posted a "notice of apology" after having uploaded a picture to Instagram of Judge Jackson with a reticule nearby. What does this mean for the gag order entered in his case? We tell all -- even before the court ruled!
Next, it's time for our main segment about the wall. Andrew breaks down exactly where the funding is going to come from, and details all the lawsuits to try and block it. We end the segment, of course, with a (pessimistic) prediction.
Then, it's time for even more yodeling. Is the Mueller investigation really coming to an end? If so, what's next? And what about
We end, as always, with a brand new Thomas Takes the Bar Exam Question #115 about offers to compromise. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
AppearancesAndrew was just a guest on Episode 87 of the So Here's My Story podcast; go check it out! 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 & Links1. Stone's notice of apology. 2. Stone's original partial gag order. 3. 18 U.S. Code § 1512: Tampering with a witness, victim, or an informant. 4. The Emergency Declaration. 5. The Presidential Border Security Victory Proclamation 6. Episode OA 243: BUILD THAT WALL!! where we first discussed states of emergency. 7. The Landowners lawsuit filed in DC, Sierra Club/ACLU lawsuit, and finally the California lawsuit filed by 16 states discussed in the show: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. 8. 31 U.S.C. § 9703 (TFF). 9. Department of the Treasury Forfeiture Fund. 10. 10 U.S. Code § 284 - Support for counterdrug activities and activities to counter transnational organized crime. 11. 10 U.S. Code § 2808 - Construction authority in the event of a declaration of war or national emergency - discussed in OA: 243 and "Military construction" defined in 10 U.S.C. § 2801(a). 12. Cummings report on Saudi Arabia. 13. Manafort sentencing discussed DC in OA 253: Religious Freedom and Domineque Ray 14. The transcript of Judge Jackson's findings on Manafort's lies 15. Manafort gets a 38 in the E.D.Va sentencing memo 16. Cohen to testify publicly before the House Oversight Committee on Feb. 27th.
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Don't forget the OA Facebook Community!
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And email us at openarguments@gmail.com
Opening Arguments - OA254: Mueller, She Wrote!
Today's episode features a long interview with AG, the spectacular co-host of the Mueller, She Wrote podcast. She helps break down everything in the news that's Yodel Mountain-worthy... and along the way, you'll learn what might be next, what we might be overplaying, and much, much more!
After the interview, it's time for the answer to Thomas (& AG) Take The Bar Exam #114, in which you always bet on bank!. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
Appearances
Somewhat coincidentally, Andrew was just a guest on S3E6 of the Mueller, She Wrote podcast; go check it out! Andrew was also a guest on Episode 87 of So Here's My Story. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
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 - Parsing the Shadow Docket
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Dahlia Lithwick is joined by Dean Risa Goluboff and Vice-Dean Leslie Kenrick of the University of Virginia School of Law. Together, they tackle issues of race in government, gender in the law, plus religion and reproductive rights in the court.
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