Category: 3-LawSometimeCommentary

Today's episode takes a deep dive into the potential criminal liability for Pacific Gas & Electric (PG&E) in connection with the 2018 California Wildfires and the c-hook that just might be the linchpin to the whole thing.  Are people going to prison?  Listen and find out!

We begin by celebrating a brand-new holiday:  Oversight Day, with the inauguration of Nancy Pelosi as Speaker of the House.  We talk about funding, job postings, and how they all relate to Yodel Mountain.

After that it's time to get deep -- and we mean deep -- into PG&E's latest court filing, what it has to do with a 2010 explosion and a 2016 order, and what really caused the California Camp Fire.  Along the way you'll learn about obstruction of justice (again!), the Natural Gas Pipeline Safety Act (really!), and how a corporation can have an "abandoned and malignant heart."

Then we end with an all new Thomas Takes The Bar Exam #108 about interstate car collectors-slash-thieves.   As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry!

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. Your Oversight Day goodies include (a) this fabulous Savannah Guthrie interview with Speaker Pelosi; (b) this equally fabulous Twitter chain from Paul Krugman; (c) the House operations budget for 2019; (d) the Axios story on Republicans seeking to hire investigative counsel; and (e) the screenshot of the jobs posting.
2. PG&E filings include (a) the PGE Superseding indictment; (b) the jury verdict; (c) the Sentencing and probationary conditions entered by the court; (d) the Court's Nov. 27, 2018 written questions about the wildfires; (e) the Court's supplemental order seeking an amicus from the California Attorney General's office; (f) the answers filed by PGE - PGE Answers, the US Attorneys' Office, and the California AG; and finally, the PGE written Report - Exhibit A that contains the information discussed on the show.

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Today's special, hangover-free New Years' episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism.  Strap in; it's been an interesting year!

We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22.  Is there a robust theory of property rights that serves as a side-constraint on government action?  You'll have to listen and find out!  (Hint:  no.)

After that, Andrew further explains the "Are You A Cop?"-style segment from Episode 238 regarding whether Brett Kavanaugh "voted with the liberals" in an abortion case.  (Hint:  no.)  You'll figure out all you need to know about the Supreme Court's denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood... as well as getting a deep dive into Clarence Thomas's dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a!

After all that, it's time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation.  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. Check out Matt & Mattingly's Ice Cream Social podcast!
2. We first discussed libertarianism back in Episode 22.
3. You can click here to read Clarence Thomas's blistering (and inaccurate) dissent from the Court's denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show.

Support us on Patreon at:  patreon.com/law

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Don't forget the OA Facebook Community!

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And email us at openarguments@gmail.com

 

Today's episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh.  How do we fill more than an hour's worth of time on one page?  Why is this ruling really, really bad for everyone??  Listen and find out!

We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen's phone was in Prague in the summer of 2016, and (2) the ethics review of "Acting" Attorney General Matthew Whitaker concerning the Mueller probe.

After that, it's time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump's response, and what this means for civil litigation generally (and this case in particular).  You won't want to miss it!

Then we end with an all new Thomas Takes The Bar Exam #107 on defamation.  As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry!

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 the Whitaker ethics review letter, and here to read the Steele dossier.
2. We last discussed the Emoluments litigation in Episode 226.
3. You can check out all of these documents:  the Fourth Circuit's order, the motion to stay, and the opposition filed by Frosh.
4. Trump's argument is based on 28 USC § 1292(b) and relies on Fernandez-Roque v. Smith, 671 F.2d 426 (11th Cir. 1982).

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

And email us at openarguments@gmail.com

 

Before news of Justice Ruth Bader Ginsburg’s lung surgery broke, Dahlia Lithwick sat down for a revealing conversation with the screenwriter Daniel Stiepelman about the RBG biopic he penned, On The Basis of Sex. Stiepelman also happens to be Justice Ginsburg’s nephew, and this episode offers an insider’s view of the most well-known, but not always fully understood, justice on the court.

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.

Learn more about your ad choices. Visit megaphone.fm/adchoices

Today's Rapid Response episode takes a look at the just-released Law'd Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation.  Are the argument(s) raised in the memo any good?  What does this mean for the future of the Mueller investigation?  Listen and find out!

We begin, however, with a brief foray into everyone's favorite show topic:  BASEBALL LAW!  Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up.

After that, it's time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI.  Along the way, we'll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy.

Then, we delve deeply into the Barr memo, taking apart the legal "arguments" and featuring a guest appearance from one Antonin Scalia!

Then, it's time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase.  What happened?  Did he go off the rails?

After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury... it's complicated, but you won't want to miss it!  And, as always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry!

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 Matt & Mattingly's Ice Cream Social podcast!
2. Baseball law:  Here's the press release from MLB.
3. We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff'd, 526 U.S. 398 (1999).
4. Don't forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it.
5. ...And here's our good buddy Antonin Scalia smacking down the logic used therein.
6. You can check out the government's sentencing memorandum in Michael Flynn's case as well as the memo filed by Covington & Burling on Flynn's behalf.

Support us on Patreon at:  patreon.com/law

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Today's deep-dive Tuesday tackles a long-running lawsuit by the estate of Randy California -- the founder, lead singer, and guitarist for the band Spirit -- alleging that Led Zeppelin stole the iconic riff for "Stairway to Heaven" from Spirit's 1968 song "Taurus."  With assistance from Thomas on guitar, we tackle all of the fun issues that are currently pending before the 9th Circuit... and possibly headed to the Supreme Court!

We begin, however, with two follow-up questions that got cut from Friday's blockbuster show regarding the American Media, Inc. plea agreement:  (1) Could David Pecker still be indicted? and the big one:  (2) Can Donald Trump pardon a corporation?  The answer... may surprise you!

After that, it's time for a deep dive into the law regarding musical copyright and an exploration of the similarities and differences between "Taurus" and "Stairway to Heaven."  Where do Andrew and Thomas come out?  You'll have to listen to find out!

After that, it's time for the answer to Thomas Takes The Bar Exam #105 regarding a bank and a car dealership attempting to modify a contract.  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. We discussed the AMI deal in Episode 235.
2. You can check out Spirit's "Taurus" by clicking here.
3. Click here to read the original (and awesome!) Randy California v. Led Zeppelin complaint; you can also read (1) the jury verdict by the trial court; (2) the brief filed by Taurus in the 9th Circuit; (3) the opposition brief filed by Led Zeppelin; (4) the 9th Circuit's ruling; (5) the petition for rehearing en banc filed by Led Zeppelin; (6) the opposition to that motion for rehearing en banc; and (7) the just-filed reply brief by Led Zeppelin (filed 12-10-08).  Phew!
4. Finally, click here for a mashup of "My Sweet Lord" (George Harrison) and "He's So Fine" (The Chiffons).

Support us on Patreon at:  patreon.com/law

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And email us at openarguments@gmail.com

 

On December 4, 2018, the Supreme Court heard argument in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case arose out of a dispute over the validity of a patent covering a product used to reduce the likelihood of chemotherapy-induced nausea and vomiting. At issue in this case is whether agreements entered into by Helsinn more than one year prior to filing for patent protection put the invention “on sale” and thus would invalidate the patent. Although the meaning of “on sale” in the Patent Act was long believed to be settled, the 2011 America Invents Act (AIA) made changes to the statutory provisions that include the “on sale” bar. The question for the Supreme Court is whether these changes to the statute change the previous understanding of the term “on sale.”
In April 2001, Helsinn entered into two agreements with MGI Pharma. Although these agreements were announced in a press release, specific information about the products, like dosing formulations, were omitted. In 2003, Helsinn filed a provisional patent application covering the product. Three patents arose from this provisional patent application prior to the enactment of the AIA; however, one patent was subject to the new provisions of the AIA.
In 2011, Teva sought FDA approval to make a generic version of the patented product. Helsinn sued Teva for patent infringement based on this ANDA filing. Teva argued that the patent was invalid because Helsinn’s agreements with MGI put the product “on sale” before the relevant date. The district court rejected Teva’s argument, concluding that the AIA had changed the meaning of “on sale” to require the invention be made public by the sale. Because the dosing information was not provided in the press release regarding the agreements, the district court concluded the agreements did not make the invention public and there was no “on sale” bar.
The Federal Circuit reversed, holding that inventions are made available to the public whenever there is a commercial offer for sale and that the sale is public even when the details of the invention are not disclosed to the public by the sale. Thus, the “on sale” bar applied to Helsinn’s patent.
The U.S. Supreme Court then granted certiorari to address whether under the AIA, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.
To the discuss the case, we have Kristen Osenga, Professor of Law at University of Richmond School of Law.

Today's Rapid Response episode takes a look at three breaking stories related to the White House:  (1) the recent ruling requiring Stormy Daniels to pay Trump's attorneys' fees; (2) the sentencing of Trump's former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. -- parent company to the National Enquirer -- to cooperate with the Special Counsel's Office.

We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius.  (Hint:  she is.)  But what does it mean that a court just ordered her to pay Trump nearly $300,000 -- and why could it have been much, much worse?  Listen and find out.

After that, we check out Trump's ex-"fixer" and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison.

Then it's time for a fascinating look into a non-prosecution agreement reached between the Special Counsel's Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed.

Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract.  As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry!

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. Here's the merits ruling defamation we referenced during the show; you can also check out Trump's motion for attorneys' fees, Avenatti's (rather weak) opposition brief, and the court's ruling directing Stormy to pay almost $300,000.
2. And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit.
3. You know you want to read the press release regarding Michael Cohen's sentence; after that, you can check out the sentencing memoranda filed by the SCO's office ("good cop") as well as the brief filed by the SDNY ("bad cop").
4. Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations.
5. Oh, and just for fun, here's Jose Canseco's audition to be Trump's Chief of Staff.  #YesWeCanseco

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On November 28, 2018, the Supreme Court heard argument in Timbs v. Indiana, a case involving the Eighth Amendment’s excessive fines clause, the Fourteenth Amendment, and the concept of “incorporation” against the states.
In May 2013, Tyson Timbs was apprehended en route to a controlled drug purchase, having previously purchased about $400 worth of heroin from undercover police officers. He ultimately pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to six years of imprisonment (with five suspended to probation). Timbs also had to pay roughly $1,200 in police costs and related fees. The State of Indiana then sought forfeiture of Timbs’ Land Rover, which he had used $42,000 of his late father’s life insurance proceeds to purchase, but had driven to buy and transport heroin. Lower courts ordered the vehicle released to Timbs, concluding that forfeiture of the Land Rover would impose an excessive fine in violation of the U.S. Constitution’s Eighth Amendment. The Supreme Court of Indiana, however, reinstated the forfeiture on the grounds that the U.S. Supreme Court had never incorporated the excessive fine clause against the states via the Fourteenth Amendment.
The U.S. Supreme Court thereafter granted certiorari to address that issue: whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.