Category: 3-LawSometimeCommentary

On June 12, 2017, the Supreme Court decided Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. -- The question before the Supreme Court was whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. -- By a vote of 8-0, the Court reversed the decision of the Ninth Circuit and remanded the case. In an opinion by Justice Ginsburg, the Court held that Federal courts of appeals lack jurisdiction under 28 U. S. C. §1291 to review an order denying class certification (or, as in this case, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. Justice Ginsburg’s majority opinion was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in the judgment, in which the Chief Justice and Justice Alito joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Theodore H. Frank, who is Senior Attorney and Director of the Center for Class Action Fairness at the Competitive Enterprise Institute.

In today's episode, we discuss the recent controversy over Donald Trump, Jr.'s contact with Russian officials during the 2016 election. We begin, however, with a follow-up from Dave (and others) who asked us about doxxing. In our main segment, the guys break the law of conspiracy to discuss whether Donald Trump Jr.'s conduct is potentially criminal.  (Spoiler:  Yes.) Next, fan favorite segment "Are You A Cop?" returns with a question about taxation without representation. Finally, we end with an all-new Thomas Takes the Bar Exam Question #32 about Section 1983 claims and acting under "color of law."  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017!  Get your tickets now! Show Notes & Links

1. You can read Sarah Jeong's excellent article, "Stop Diluting the Defintion of Dox," here.
2. This is 18 U.S. Code § 371, the federal conspiracy statute.
3. And here is a link to the Cockrum, Comer & Schoenberg complaint.

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On June 5, 2017, the Supreme Court decided Advocate Health Care Network v. Stapleton, which is consolidated with Saint Peter’s Healthcare System v. Kaplan, and Dignity Health v. Rollins. The Employee Retirement Income Security Act of 1974 (ERISA) requires that employee retirement plans contain certain safeguards, but exempts “church plan[s]” from these requirements. Under 29 U.S.C. 1002(33)(A), the term “church plan” means “a plan established and maintained… by a church or by a convention or association of churches which is exempt from tax….” After a controversy involving an Internal Revenue Service determination that the church plan exemption did not encompass pension plans established and maintained by two orders of Catholic sisters for the employees of their hospitals, Congress amended the statute to add subsection (C), which provides: “A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches.” -- Plaintiffs in this case are a group of employees who work for church-affiliated non-profits. Plaintiffs sued the non-profits, alleging that their retirement plans are subject to ERISA and that by failing to adhere to ERISA’s requirements the non-profits have breached their respective fiduciary duties. Defendants moved for summary judgment, but the district court denied the motions because it determined that a plan established and maintained by a church-affiliated organization was not a church plan within the meaning of the statutory language. The U.S. Court of Appeals for the Seventh Circuit affirmed. -- By a vote of 8-0, the Court reversed the judgment of the Seventh Circuit. In an opinion by Justice Kagan, the Court held that under ERISA, a defined-benefit pension plan maintained by a principal-purpose organization -- one controlled by or associated with a church for the administration or funding of a plan for the church's employees -- qualifies as a "church plan," regardless of who established it. All members joined her opinion except for Justice Gorsuch, who took no part in the consideration or decision of the case. Justice Sotomayor filed a concurring opinion. -- To discuss the case, we have Eric Baxter who is Senior Counsel at The Becket Fund for Religious Liberty.

For today's show, we dive deeper into the Supreme Court's recent decision in Trinity Lutheran v. Comer with guest lawyer Andrew Seidel from the Freedom From Religion Foundation. First, however, we answer a question from Patron Christopher Arguin regarding cross-examination that was inspired by TTTBE #30. In the main segment, Andrew and Andrew continue to discuss church-state separation and the First Amendment. Next, our friend Seth Barrett Tillman provides us with an update on the CREW v. Trump lawsuit regarding emoluments. Finally, we end with the answer to Thomas Take the Bar Exam Question #31 regarding the Statute of Frauds.  Listen and find out if Thomas's improbable one-question winning streak will continue -- and don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances None!  But this is your last chance to join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017!  Get your tickets now! Show Notes & Links

1. We first spoke with Andrew Seidel regarding Trinity Lutheran during Episode 82.
2. Here is a link to the Trinity Lutheran v. Comer decision.
3. We first discussed Trinity Lutheran during our three-part "You Be The Supreme Court" series; part 1 (Episode 14) is available here, part 2 is available here, and part 3 is available here.
4. This is the letter that the Missouri Attorney General sent indicating that, post-election, Missouri would change its policy.
5. Finally, please check out Andrew Seidel's great work at the Freedom From Religion Foundation.

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In today's episode, we discuss the recent controversy over CNN's handling of a Redditor who posted a Trump meme online.  Is this really "blackmail" by CNN? We begin, however, with a follow-up from Patron Joerg regarding UK laws on personal jurisdiction/long-arm and defamation.  Could Maajid Nawaz (whose potential lawsuit we discussed in Episode #83) really file against the SPLC in the UK after all? In our main segment, the guys break down CNN's conduct and see if it qualifies as blackmail, extortion, conspiracy to deprive an individual of his Constitutional rights, or any other criminal behavior. Next, by great popular demand, we tackle Bob Murray's lawsuit against John Oliver in connection with his report on "Last Week Tonight."  You won't be surprised by our evaluation of the merits, but you will enjoy reading the Complaint! Finally, we end with an all-new Thomas Takes the Bar Exam Question #31 about the Statute of Frauds.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017!  Get your tickets now! Show Notes & Links

1. Here is a link to the 2013 UK Defamation Act.
2. This is the 2010 SPEECH Act,  28 U.S.C. § 4102.
3. And here is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist.".
4. This is 18 U.S.C. § 873, the federal blackmail statute.
5. Here is a link to an informative Washington Post article about the CNN/HanAssholeSolo debacle.
6. And here is a link to the Ben Shapiro opinion piece in the National Review.
7. This is a link to the lawsuit filed by Murray against Oliver, which is a delightful read.
8. This link contains the original Oliver segment about Murray, which is definitely worth watching.

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In this special holiday episode, Andrew and Thomas talk about fireworks law across the U.S.  Where can you go for a cherry-bombin' good time?  Listen and find out! First, however, we take a look at Maajid Nawaz's threatened lawsuit against the SPLC.  In the main segment, Andrew and Thomas figure out the best place to set off bottle rockets.  And after that, Andrew tackles another question from the patron-only Q&A mailbag. Finally, we end with the answer to Thomas (and Andrew Seidel) Take the Bar Exam Question #30 regarding cross-examination.  Will Thomas and the practicing lawyer get it wrong?   Listen and find out, and don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances Andrew was a guest on Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes.  Check it out! Show Notes & Links

1. This is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist."

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

For today's show, we break down the Supreme Court's recent decision in Trinity Lutheran v. Comer with guest lawyer Andrew Seidel from the Freedom From Religion Foundation. We begin, however, with a parenting question from Garrett Thomas Fox in our Super-Secret Patron-Only Q&A thread that didn't get answered on our patron-only special. In our main segment, Andrew Seidel helps explain what went wrong in the Trinity Lutheran case that Andrew confidently predicted would go 6-3 the other way. After that, we tackle the Supreme Court's recent decision staying the judgment in the 4th and 9th Circuits, which in turn had enjoined the enforcement of Executive Order 13780.  What does all of this mean?  Listen and find out! Finally, we end with a brand new Thomas Takes the Bar Exam question #30 about cross-examination, in which our guest Andrew Seidel plays along!  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances Andrew was a guest on Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes.  Check it out! Show Notes & Links

1. Here is a link to the Trinity Lutheran v. Comer decision.
2. We first discussed Trinity Lutheran during our three-part "You Be The Supreme Court" series; part 1 (Episode 14) is available here, part 2 is available here, and part 3 is available here.
3. This is the letter that the Missouri Attorney General sent indicating that, post-election, Missouri would change its policy.
4. Here is a link to the Supreme Court's decision allowing most of EO 13780 to go into effect.
5. Finally, please check out Andrew Seidel's great work at the Freedom From Religion Foundation.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download

On June 19, 2017, the Supreme Court decided Matal v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal, the U.S. Court of Appeals for the Federal Circuit, ultimately held en banc that the Disparagement Clause violated the First Amendment on its face. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Federal Circuit. In an opinion by Justice Alito, the Court held that the Disparagement Clause of the Lanham Act violates the First Amendment's Free Speech Clause. Parts I, II, and III-A of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas joined except for Part II. Parts III-B, III-C, and IV of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Thomas and Breyer. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Michael R. Huston, who is Associate Attorney at Gibson Dunn & Crutcher LLP.

On June 19, 2017, the Supreme Court decided Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of North Carolina and remanded the case. In an opinion by Justice Kennedy, the Court held that the North Carolina statute, which makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment, in which the Chief Justice and Justice Thomas joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Law at the Cato Institute.

The Supreme Court’s 2016 term may not have contained the usual number of blockbuster cases, but it did have its fair share of drama. Between the stonewalling of Merrick Garland, the filibustered confirmation of Neil Gorsuch, rumors about Anthony Kennedy’s possible retirement, and in the background, the White House offensive against the federal judiciary, court-watchers had no shortage of things to keep them up at night.

And so this week on Amicus, we pour a couple of our favorite court-watchers a big cup of coffee and plop some microphones down at Slate’s annual “Breakfast Table.” Mark Joseph Stern and Pamela Karlan join us to discuss what we learned about the justices this term and what we can expect from them in the fall.   

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

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 Tony Field. 

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