On May 14, 2018, the Supreme Court decided Murphy v. NCAA, a case involving a conflict between state-authorized sports gambling and a federal statute: the Professional and Amateur Sports Protection Act of 1992 (PASPA).
PASPA prohibits state-sanctioned gambling with respect to amateur and professional sporting events. Among other things, the statute allows sports leagues whose events are the subject of betting schemes to bring an action to enjoin any gambling. PASPA did except certain states from its prohibitions, including New Jersey--but only if New Jersey established its sports gambling scheme within one year of PASPA’s enactment. New Jersey did not do so, and in fact prohibited sports gambling until a 2011 referendum amended the state constitution to allow it.
Thereafter, New Jersey enacted the 2012 Sports Wagering Act, which created a government-regulated sports betting scheme. Invoking PASPA, five sports leagues sued to enjoin the 2012 law. New Jersey countered that PASPA was unconstitutional under the federal anti-commandeering doctrine. The District Court deemed PASPA constitutional and enjoined implementation of the wagering law. The U.S. Court of Appeals for the Third Circuit affirmed, and the U.S. Supreme Court denied certiorari.
In 2014, New Jersey enacted a new gambling law which repealed certain restrictions on “the placements and acceptance of wagers” on sporting events so long as those events did not involve New Jersey collegiate teams (or other in-state collegiate sporting events). New Jersey contended that this law was admissible under PASPA because it did not actively authorize sports-betting. Once again sports leagues sued to enjoin the law as a violation of PASPA, and prevailed in federal district court. The Third Circuit, sitting en banc, again affirmed, holding that PASPA did not commandeer New Jersey in a way that ran afoul of the federal Constitution. The Supreme Court granted certiorari to address whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of the states.
By a vote of 6-3, the Supreme Court reversed the judgment of the Third Circuit. In an opinion delivered by Justice Alito, the Court held that the provisions of PAPSA that prohibit state authorization and licensing of sports gambling schemes violate the Constitution’s anticommandeering rule, and cannot be severed from the remainder of the statute, which collapses as a result.
Justice Alito’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Kagan, and Gorsuch. Justice Breyer joined to all except as to Part VI-B. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined, and in which Justice Breyer joined in part.
To discuss the case, we have Elbert Lin, Partner at Hunton & Williams, LLP.
Opening Arguments - OA181: Michael Avenatti is Never Going To Come On Our Show (#NotAllLawyers)
Today's episode takes a deep dive into allegations of attorney misconduct. We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who's currently outfoxing the bad guys at every turn, Michael Avenatti. After that, we discuss the Supreme Court's recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and "crisis pregnancy center" anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in. So... why did the Supreme Court just vacate that opinion? It (potentially) has to do with attorney misconduct. Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s. (Really!) Then, we examine the biggest example of attorney misconduct at the moment -- Donald Trump's ever-fluctuating team of lawyers defending the indefensible. Specifically, we take a look at the recently-leaked Dowd memorandum and its central claim that the President cannot obstruct justice with otherwise-legal behavior. (That's false.) Finally, we end the answer to Thomas Takes The Bar Exam #79 regarding the conveyance of property to a church with conditions attached. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances If you can't get enough of our analysis of the Masterpiece Cakeshop opinion, you can get even more on Episode 142 of Serious Inquiries Only (with more Andrew Seidel) and Episode 277 of The Scathing Atheist (with way more profanity). 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
- This is the investigative piece on the Eagan Avenatti bankruptcy published by the Los Angeles Times.
- We last discussed Garza v. Hargan on Episode 165. You can read the Supreme Court's opinion (now captioned Azar v. Garza) here. And if you want to read United States v. Munsingwear, Inc., 304 U.S. 36 (1950), you can do that too!
- Finally, if you can stomach it, here's a link to the Dowd memo.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Religious Belief, Sincerely Held
An epic Amicus this week, with a thorough analysis of Masterpiece Cakeshop v Colorado Civil Rights Commission with Slate’s Mark Joseph Stern. What does is tell us about Justice Anthony Kennedy’s plans, and can it tell us anything about the travel ban case?
Then Dahlia Lithwick speaks with one of her heroes, the Rev. William Barber, about how progressives ceded the language of faith, morality, and the Constitution—and how they are reclaiming it.
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.
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Opening Arguments - OA180: Masterpiece Cakeshop
Join us for an early Rapid Response Friday, in which we break down the Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. But that's not all! We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action. We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort's criminal trial. Is Paulie M going to jail? Did he engage in illegal witness tampering? Did he back up his encrypted WhatsApp messages on an unencrypted iCloud? Listen and find out! We also delve into Manafort's response to the press's motion to unseal the Mueller investigation documents first discussed in Episode 168. And, as long as we're yodeling, we might as well catch up on what's going on in the Summer Zervos lawsuit first discussed in Episode 176. After that, it's time to figure out exactly what's going on in Masterpiece Cakeshop. Is this a narrow decision? Is it a win for anti-LGBTQ forces? Is it a nothing-burger? Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #79 about the real property conveyance to a church. Yes, it's more 13th-Century Saxony law! And if you'd like to play along , 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! Recent Appearances Andrew and Andrew continued to talk Masterpiece Cakeshop on Serious Inquiries Only, and Andrew was a guest talking the same thing on Episode 177 of The Scathing Atheist. Show Notes & Links
- Here's the government's motion to revoke Paul Manafort's pretrial release. Witness tampering is a crime under 18 U.S.C. § 1512.
- We first discussed the press's motion to unseal the Mueller investigation documents in Episode 168, and the Summer Zervos lawsuit back in Episode 176.
- We've uploaded Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission so you can read it for yourself.
- If you love Andrew Seidel, you might want to go back to his FIVE previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, Episode 131, and most recently, Episode 171.
- Finally, please consider supporting the Freedom From Religion Foundation.
Opening Arguments - OA179: Abortion and Plea Bargaining
Today's episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners. You won't want to miss it! We begin with an in-depth examination of the so-called "gag rule" just proposed by Trump's Department of Health and Human Services. Is it really a gag rule? (Yes.) After that, we look into the Supreme Court's recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394. Is this a bad sign? (Yes.) After that, we return to the subject of plea bargaining that's been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court's discussion of the issue in Schmidt v. Iowa. Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! 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
- For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq.
- Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect. You can read the cert petition here.
- If you're feeling good about Schmidt v. Iowa and need to be reminded that "actual innocence" is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993).
SCOTUScast - Jesner v. Arab Bank, PLC – Post-Decision SCOTUScast
On April 24, 2018, the Supreme Court decided Jesner v. Arab Bank, PLC, a case considering whether corporations may be sued under the Alien Tort Statute (ATS).
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel I”) which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability. The U.S. Supreme Court later affirmed the judgment in Kiobel (“Kiobel II”) but on a different basis: the presumption against extraterritorial application of statutes.
In Jesner, the Second Circuit, invoking its precedent in Kiobel I--and finding nothing to the contrary in the Supreme Court’s Kiobel II decision--affirmed the district court’s dismissal of Plaintiffs’ ATS claims on the grounds that the ATS does not apply to alleged international law violations by a corporation. This sharpened a split among the circuit courts of appeals on the issue, and the Supreme Court granted certiorari to resolve the dispute.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion delivered by Justice Kennedy, the Court held that foreign corporations may not be defendants in suits brought under the Alien Tort Statute.
Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-B-I, and II-C, joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch--and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, joined by the Chief Justice and Justice Thomas. Justice Thomas filed a concurring opinion. Justices Alito and Gorsuch also filed opinions concurring in part and concurring in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.
Between 2004 and 2010, survivors of several terrorist attacks in the Middle East (or family members or estate representatives of the victims) filed lawsuits in federal district court in New York against Arab Bank, PLC, an international bank headquartered in Jordan. Plaintiffs alleged that Arab Bank had financed and facilitated the attacks in question, and they sought redress under, among other laws, the Alien Tort Statute (ATS). The district court ultimately dismissed those ATS claims based on the 2010 decision of the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel I”) which concluded that ATS claims could not be brought against corporations, because the law of nations did not recognize corporate liability. The U.S. Supreme Court later affirmed the judgment in Kiobel (“Kiobel II”) but on a different basis: the presumption against extraterritorial application of statutes.
In Jesner, the Second Circuit, invoking its precedent in Kiobel I--and finding nothing to the contrary in the Supreme Court’s Kiobel II decision--affirmed the district court’s dismissal of Plaintiffs’ ATS claims on the grounds that the ATS does not apply to alleged international law violations by a corporation. This sharpened a split among the circuit courts of appeals on the issue, and the Supreme Court granted certiorari to resolve the dispute.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion delivered by Justice Kennedy, the Court held that foreign corporations may not be defendants in suits brought under the Alien Tort Statute.
Justice Kennedy delivered the opinion of the Court with respect to Parts I, II-B-I, and II-C, joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch--and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, joined by the Chief Justice and Justice Thomas. Justice Thomas filed a concurring opinion. Justices Alito and Gorsuch also filed opinions concurring in part and concurring in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan.
To discuss the case, we have Eugene Kontorovich, Professor of Law at Northwestern School of Law.
Opening Arguments - OA178: Trump and the NFL
Join us for yet another Rapid Response Friday, in which we continue to evaluate claims on the left challenging the legality of the NFL's policy regarding the national anthem, as well as discuss two items that are also of interest to Donald Trump. We begin with a listener question we didn't get to during our Q&A regarding the similarities and differences between the John Edwards affair and the Stormy Daniels affair. Is this the kind of thing that should give Trump comfort? (Hint: no.) Oh, and you might also learn something about an "Allen charge" if you follow us all the way down all our rabbit trails! After that, we break down the "state action doctrine" while considering some liberal arguments making the rounds ostensibly challenging the legality or constitutionality of the NFL's new rules. Andrew still isn't buying it! Then, we trek back to Yodel Mountain to discuss the recent developments in Michael Cohen's case in the Southern District of New York. Was Andrew... wrong? Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. It's more interesting than it sounds, we promise! 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
- In the pre-show, we (don't) discuss, among other things, the Trump administration's breaking decisions on steel tariffs; for analysis, we refer you to our coverage of this issue back in Episode 162.
- This is the text of the 6-count John Edwards indictment, and we also quoted from the coverage of the acquittal by ABC News.
- We covered the "Paid Patriotism in the NFL" report in Episode 108; you can also read that report directly by clicking here. Oh, and this is the Mike Florio PFT article, if you want to read more about how the NFL is in Jerry Jones's pocket.
- If you like semi-old-timey Supreme Court decisions, you should definitely read Marsh v. Alabama, 326 U.S. 501 (1946) about First Amendment rights in a company town. Once you've gotten through that, you can tackle Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) on the entanglement doctrine.
- This is the Ben Sachs Vox article we discussed.
- Your guide to Yodel Mountain includes this awesome NYT flowchart as well as this solid narrative article in Politico.
- Finally, this is the full text of Avenatti's withdrawal of his pro hac vice motion.
SCOTUScast - Wilson v. Sellers – Post-Decision SCOTUScast
On April 17, 2018, the Supreme Court decided Wilson v. Sellers, a case involving the standard federal courts should use to analyze a state appellate court’s summary denial of habeas relief when applying federal habeas law.
In 1996, Marion Wilson was convicted of murder and sentenced to death, and both his conviction and sentence were confirmed on direct appeal. Wilson then sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in investigating mitigation evidence for purposes of sentencing. The superior court denied habeas relief, concluding that any new evidence was cumulative of evidence presented at triall as well as inadmissible, and likely would not have changed the outcome. In a one-sentence order the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal. Wilson then filed a habeas petition in federal district court, which also denied relief. Even assuming Wilson’s counsel had been deficient, the court deferred to the state habeas court’s conclusion that these deficiencies did not ultimately cause prejudice to Wilson. On appeal a divided U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that--rather than “looking through” the Georgia Supreme Court’s summary denial to the reasoning of the lower state habeas court--the district court should have considered what reasons “could have supported” the state supreme court’s summary decision. The U.S. Supreme Court granted certiorari to resolve the resulting split among the circuit courts of appeals on whether federal habeas law employs a “look through” presumption.
By a vote of 6-3, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court held that a federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning; the state may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below.
Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, which was joined by Justices Thomas and Alito.
To discuss the case, we have Lee Rudofsky, Solicitor General for the State of Arkansas.
In 1996, Marion Wilson was convicted of murder and sentenced to death, and both his conviction and sentence were confirmed on direct appeal. Wilson then sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in investigating mitigation evidence for purposes of sentencing. The superior court denied habeas relief, concluding that any new evidence was cumulative of evidence presented at triall as well as inadmissible, and likely would not have changed the outcome. In a one-sentence order the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal. Wilson then filed a habeas petition in federal district court, which also denied relief. Even assuming Wilson’s counsel had been deficient, the court deferred to the state habeas court’s conclusion that these deficiencies did not ultimately cause prejudice to Wilson. On appeal a divided U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that--rather than “looking through” the Georgia Supreme Court’s summary denial to the reasoning of the lower state habeas court--the district court should have considered what reasons “could have supported” the state supreme court’s summary decision. The U.S. Supreme Court granted certiorari to resolve the resulting split among the circuit courts of appeals on whether federal habeas law employs a “look through” presumption.
By a vote of 6-3, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court held that a federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning; the state may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below.
Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, which was joined by Justices Thomas and Alito.
To discuss the case, we have Lee Rudofsky, Solicitor General for the State of Arkansas.
Opening Arguments - OA177: Neil Gorsuch’s Epic Decision & the NFL (feat. Chris Kristofco)
Today's episode takes a deep dive into the recent Supreme Court decision in Epic Systems Corp. v. Lewis, a Gorsuch opinion that is exactly what we told you to expect back when he was nominated to the Court. Oh, and we also tackle the latest policy issued by the NFL with our four-time guest, Chris Kristofco. And that's where we begin: with a detailed breakdown of the legal implications of the NFL's just-announced policy prohibiting on-field peaceful protests during the national anthem. You won't want to miss it! During the main segment, we break down the Supreme Court's 5-4 decision upholding the use of mandatory arbitration clauses that waive the right to class action lawsuits in take-it-or-leave-it contracts of adhesion. But -- because this is a Gorsuch opinion -- you won't be surprised to learn that it's so very much worse than you thought. After that, we move into a listener comment on plea bargaining that foreshadows an upcoming episode.... Finally, we end with the answer to Thomas Takes the Bar Exam Question #77 about the constitutional requirements (if any) to a 12-person jury and/or a unanimous one. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on the Dumb All Over Podcast, episode 70. Go check it out! Show Notes & Links
- If you liked Chris and want to hear more, you can check out his excellent sportsball podcast, Titletown Sound Off, or you can check out his previous appearances on the show: Episode 6 (on the NFL), Episode 32 (on Phil Ivey's gambling), and Episode 68 (on Aaron Hernandez).
- Also, our guest Chris Kluwe predicted something like this back in Episode 115.
- Click here to read the Supreme Court's opinion in Epic Systems Corp. v. Lewis. If you want to check out the data cited in Ginsburg's dissent; that's here.
Amicus With Dahlia Lithwick | Law, justice, and the courts - The Impeachment Question
While President Trump demands an investigation into the investigators investigating the investigation, the clamour to impeach grows ever more fervent in some quarters. Dahlia Lithwick explores the legal and constitutional questions surrounding impeachment with constitutional scholar and Harvard Law Professor Laurence Tribe, co-author of To End a Presidency - The Power of Impeachment
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.
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