As the ripples from New York State Attorney General Eric Schneiderman’s resignation after allegations of violence against women continue, Massachusetts Attorney General Maura Healey joins Dahlia Lithwick to discuss the role of State Attorneys General and how that’s changing under Trump. Attorney General Healey also talks about fighting—and winning against—the gun lobby in court.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
It's time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis's statements in the Paul Manafort criminal trial (amongst many, many other issues)! We begin, however, with a brief Andrew (well, mostly ABC and NBC) Was Wrong. After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons. What does it mean for the future of class action litigation? Listen and find out! After that, it's back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen's "follow the money" report. Phew! Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed. If you'd like to play along and show Andrew you're the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent 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
On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention. Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified. His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari. This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing. By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class. Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan was recused. To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Today’s episode welcomes back one of our favorite guests — and the show’s only five-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues. First, they break down Andrew Seidel’s recent success in convincing the New Jersey Supreme Court to strike down a grant program that spent taxpayer dollars rebuilding churches and saved the citizens of New Jersey more than a quarter of a billion dollars! Then, the gang does a deep dive into a pending law in Kansas that would permit adoption agencies within the state to discriminate on the basis of sexual orientation (or anything else that offended the organization's... wait for it... sincerely-held religious beliefs). Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #74 about the admissibility of evidence. Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was the recent guest masochist on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn." Check it out! Show Notes & Links
If you love Andrew Seidel, you might want to go back to his FOUR previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and most recently, Episode 131.
Well, it's another Rapid Response Friday, and we're here with everything you need to know about Yodel Mountain, including:
Breaking news regarding the wiretap of Michael Cohen's office several weeks before the search warrant issued and that the SDNY has at least one conversation between Cohen and Trump
Rudy Giuliani's rather bizarre appearance on Hannity, during which he admitted that President Trump is DD and paid Michael Cohen back for the $130,000 in hush money paid to Stormy Daniels -- directly contradicting the President's own earlier statement
Whether the repayment scheme alleged by Giuliani (a) makes sense and/or (b) constitutes money laundering
The "leaked questions" regarding Mueller's efforts to interview Trump
Trump's decision to replace Ty Cobb with Emmett Flood
The House Freedom Caucus's efforts to impeach Deputy Attorney General Rod Rosenstein; and, of course
Stormy Daniels's latest defamation lawsuit against President Trump
Our tip to journalists -- the question you want to ask is "What 'information' does Stormy Daniels have under Paragraph 2.1 of the Agreement?" Finally, we end with an all new Thomas (and next week's guest Andrew Seidel) Take The Bar Exam #74 that's not about real property, but is instead about the rules of evidence and whether a particular line of questioning is permissible. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn." Check it out! Show Notes & Links
On April 2, 2018, the Supreme Court decided Encino Motorcars v. Navarro, a case on its second trip to the high court regarding a dispute over the interpretation of the Fair Labor Standard Act’s overtime-pay requirements and whether it exempts service advisors at car dealerships. Congress enacted the Fair Labor Standards Act (FLSA) in 1938 to “protect all covered workers from substandard wages and oppressive working hours,” and it requires overtime pay for employees covered under the Act who work more than 40 hours in a given week. The FLSA exempts from this requirement, however, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers….” Hector Navarro and other service advisors filed suit against their employer Encino Motorcars, alleging that it violated the FLSA by failing to pay them overtime wages. Encino countered that as service advisors, Navarro and the other plaintiffs fell within the FLSA exemption. The district court ruled in favor of Encino, but the U.S. Court of Appeals for the Ninth Circuit reversed, relying upon a 2011 regulation issued by the Department of Labor (DOL) and indicating that service advisors were not covered by the exemption. The Supreme Court, however, thereafter vacated the judgment of the Ninth Circuit, determining that the regulation at issue was procedurally defective and remanded the case for the Ninth Circuit to reconsider without “placing controlling weight” on the DOL regulation. On remand, the Ninth Circuit, using the distributive canon of statutory interpretation, held that the FLSA exemption did not encompass service advisors. The Supreme Court again granted certiorari. By a vote of 5-4, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Thomas, the Court held that “service advisors are exempt from the overtime-pay requirement of the FLSA because they are ‘salesm[e]n...primarily engaged in...servicing automobiles.’ §213(b)(10)(A)." Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, which was joined by Justices Breyer, Sotomayor, and Kagan. To discuss the case, we have Tammy McCutchen, Principal at Littler Mendelson, PC.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Today's episode discusses the recent fines levied against Wells Fargo in connection with two specific acts of egregious fraud against consumers. Is it enough? Is it proof that Trump (and Mick Mulvaney) intend rigorous defense of consumers at the CFPB? Listen and find out! First, we delve into a grab bag of items, beginning with a heartfelt apology and Andrew Was Wrong regarding trans language. Next, we deal with a couple of wacky legal cases, before settling in on a bevy of new gun control laws passed in Maryland. Phew! Then, we move into a discussion of Trump v. Hawaii, which was argued before the Supreme Court last week. What's the latest on the Travel Ban? After that, our "C" segment breaks down everything Wells Fargo. Finally, we end with the answer to Thomas Takes the Bar Exam Question #73 about lessees, assignees, and joint and several liability. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances As this show comes out, Andrew was the guest masochist on Episode 141 of God Awful Movies; 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
We first discussed Trump's (then only proposed) Muslim ban way back in Episode #16, when the conventional wisdom was that it was so unthinkably awful it might lead the Republican Party to replace him at the top of the ticket. Ah, good times.
Since then, we've discussed the legality of the ban again (in Episode 39), the 9th Circuit's ruling on EO-1 (in Episode 43), and, most recently, the status of OA-2 in Episode 114. In this episode, we cite to the Government's reply brief before the Supreme Court.
This week Amicus takes you inside the chamber for a forensic discussion of the last, and possibly the most significant, oral arguments of this Supreme Court term. Dahlia Lithwick is joined by Josh Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center and former senior director for counterterrorism at the National Security Council.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
In the main segment, we discuss the intersection between the Paul Manafort criminal trial and the public's right to know about the Mueller investigation. Oh, and ... isn't there a bill pending to protect Mueller? We break down that, too. But we're not done! After that we delve into all things Michael Cohen, including his efforts to stay the California civil suit and his less-than-likely efforts to stay out of criminal trouble in New York. If you love Stormy Daniels -- and who doesn't? -- you won't want to miss it. Finally, we end with an all new Thomas Takes The Bar Exam #73 about landlord-tenant-friend relationships. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent 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
On April 16, 2018, the Supreme Court heard argument in WesternGeco, LLC v. ION Geophysical Corporation, a case that the Court again took up after having remanded it to the U.S. Court of Appeals for the Federal Circuit for reconsideration in light of the Supreme Court’s 2016 decision Halo Electronics, Inc. v. Pulse Electronics, Inc. In 2015, WesternGeco sued ION for patent infringement. The jury found in favor of WesternGeco, awarding it $93.4 million in lost profits and a reasonable royalty of $12.5 million. Because the jury also found that ION was “subjectively reckless” in its infringement, WesternGeco petitioned the court for additional damages available under applicable law for “willful” infringement, invoking the then-applicable two-part test set out in the Federal Circuit’s In re Seagate decision, which has both a subjective and an objective component. ION countered by arguing that neither component could be satisfied, and the district court agreed as to the objective component, concluding that ION’s positions had been reasonable and not objectively baseless--and therefore would not support a finding of willful infringement under Seagate. On appeal the Federal Circuit reversed the award of lost profits, concluding that WesternGeco was not entitled to lost profits resulting from foreign uses of its patented invention. As to the issue of enhanced damages for willful infringement, however, the Federal Circuit affirmed the judgment of the district court. WesternGeco then sought certiorari from the Supreme Court. After issuing its decision in Halo Electronics--which addressed the standard for enhanced damages--the Supreme Court granted the petition, vacated the Federal Circuit’s judgment, and remanded the case for reconsideration in light of the reasoning in Halo Electronics. The Federal Circuit in turn reinstated the part of its previous decision reversing the lost profits award, but otherwise remanded the case to the district court to consider whether the evidence at trial was sufficient to support the jury’s finding of subjective willfulness. If so, the Federal Circuit indicated, the district court must then exercise its discretion to determine whether enhanced damages were warranted. In the meantime, WesternGeco successfully petitioned the Supreme Court to grant certiorari on whether the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). That provision makes it an act of patent infringement to supply “components of a patented invention,” “from the United States,” knowing or intending that the components be combined “outside of the United States,” in a manner that “would infringe the patent if such combination occurred within the United States.” To discuss the case, we have Stephen Yelderman, Professor of Law at Notre Dame Law School.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
