Amicus presents a preview of Slow Burn, an eight-episode miniseries about Watergate.
People called her crazy, and to be fair she must have seemed crazy. But she was onto something. How Martha Mitchell, the celebrity wife of one of Nixon’s closest henchmen, tried to blow the whistle on Watergate—and ended up ruining her life.
Today's episode takes two deep dives into complicated legal issues in the news. First, we tackle the FCC's recent "Order Restoring Internet Freedom," which is being characterized as ending Net Neutrality. Is that true? The answer... probably won't surprise you, actually. Then, Andrew and Thomas discuss general principles of antitrust law with an eye towards the recent news that the Trump Department of Justice has sued to block the AT&T/Time Warner merger. Finally, we close with the answer to Thomas Takes the Bar Exam Question #51 involving class action lawsuits in Tenntucky. 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 is going to be on the Wednesday broadcast of the David Pakman show; give it a listen! Show Notes & Links
The main citations we relied upon in the show were 15 U.S.C. § 1 (The Sherman Antitrust Act of 1890); 15 U.S.C. § 18 (The Clayton Antitrust Act of 1914), and 15 U.S.C. § 45 (the FTC Act of 1914).
On November 1, 2017, the Supreme Court heard argument in Artis v. District of Columbia, a case involving a dispute over the meaning of tolling as the term is used in the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d). In April 2009, Stephanie Artis, a temporary employee for DC’s Department of Health (DOH), filed a claim with the U.S. Equal Employment Opportunity Commission (EEOC) alleging discrimination by her supervisor, Gerard Brown. Artis followed the charge with a series of grievances challenging notices of proposed infractions against her and alleging other violations of employee rights by Brown. The DOH terminated her employment in November 2010, and she lodged a final grievance in January 2011, alleging the termination was unlawful retaliation. Artis filed suit against DC in federal district court in December 2011. She asserted a federal claim of unlawful termination in violation of Title VII of the Civil Rights Act of 1964, along with various other claims arising under DC statutes and the common law. In June 2014, the district court granted DC judgment on the pleadings and dismissed Artis’ sole federal claim under Title VII. Given the facial deficiency of that claim, the district court found no basis for exercising supplemental jurisdiction over Artis’ remaining non-federal claims. Fifty-nine days later Artis refiled those remaining claims in DC Superior Court. DC responded with a motion for dismissal on the grounds that the claims were time-barred based on the relevant statutes of limitations plus 28 U.S.C. § 1367(d) of the federal supplemental jurisdiction statute. The Superior Court agreed, concluding that § 1367(d) does not suspend state statutes of limitations at the time of an unsuccessful federal filing, but rather creates a thirty-day period for a claimant to file actions over which the U.S. District Court lacked jurisdiction. The language of 1367(d) provides that statutes of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” On appeal to the DC Court of Appeals, Artis argued that there were nearly two years remaining on the statute of limitations when she filed her suit in the federal district court, and under the language of 1367(d) she had that period (plus thirty days) to file her claims in the Superior Court after her case was dismissed. DC countered that “tolled” should merely mean that a thirty-day “grace period” applies if the limitations period for the non-federal claims expires (as it would have in Artis’ case) while the federal claim is pending in federal court. The DC Court of Appeals found DC’s “grace period” reading more persuasive. As Artis had failed to refile her remaining claims within that grace period following dismissal, the Court of Appeals deemed them time-barred and affirmed the judgment of the Superior Court. The U.S. Supreme Court granted certiorari to address the dueling interpretations of § 1367(d): whether that provision suspends the limitations period for a non-federal claim while the claim is pending and for 30 days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile. To discuss the case, we have Misha Tseytlin, Solicitor General of Wisconsin.
As the high court continues through its unprecedented session, Dahlia speaks with Adam Liptak who covers the Supreme Court for the New York Times and knows the ins and outs of the Masterpiece Cakeshop case. And he gives his insight on what a jaw-dropping brief from the Solicitor General's office means for relations between the Court and the Trump administration. Plus, a look into how the Supreme Court Justices seem to be the last grown-ups left in Washington.
Today's episode is the Happiest Episode Ever (TM)! First, the guys discuss "the real meaning of Thanksgiving," cribbing from a blog post Andrew wrote for his old firm back in 2013. In the main segment, Andrew and Thomas break down a pending case before the U.S. District Court for the District of Columbia regarding Donald Trump's tweets and the Freedom of Information Act, as well as an update on the status of Trump's "Sanctuary Cities" executive order first discussed on OA 65. Then, Thomas answers a delightful listener question about what he likes. The answer WILL surprise you! Finally, we end with an all-new Thomas Takes the Bar Exam Question #51 about justiciability and standing. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing 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 a return guest on the How-To Heretic Podcast; give it a listen! Show Notes & Links
On October 30, 2017, the Supreme Court heard argument in Wilson v. Sellers, a case regarding the standard of review federal courts should apply to a final state court denial of habeas relief. In 1996, Marion Wilson, Jr. was sentenced to death after being found guilty of a series of violent crimes culminating in the murder of Donovan Parks. At sentencing Wilson’s counsel argued that Wilson was not the triggerman and offered evidence of his troubled childhood; in response the state prosecutor highlighted Wilson’s criminal history and gang activity. Wilson’s conviction and sentence were affirmed on direct appeal. Wilson sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in his investigation of mitigation evidence during the trial phase of the murder trial. He offered lay testimony about his childhood and expert testimony regarding his judgment skills. The superior court denied habeas relief, concluding that the lay testimony was cumulative of other evidence offered at trial as well as inadmissible, and that the expert testimony would not have changed the outcome of the trial. 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 sought habeas relief in federal district court. The district court denied relief, but granted a certificate of appealability on the issue of the effectiveness of Wilson’s trial counsel at sentencing. A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the denial of habeas relief. Treating the Georgia Supreme Court’s summary refusal to grant a certificate of probable cause to appeal as the final state court decision on the merits, the Eleventh Circuit applied the test outlined by the U.S. Supreme Court in the 2011 case Harrington v. Richter, asking whether there was any reasonable basis for the Georgia Supreme Court to deny relief. The panel answered that question in the affirmative. Wilson obtained rehearing en banc before the full Eleventh Circuit, however, arguing that under the 1991 decision of the U.S. Supreme Court in Ylst v. Nunnemaker, the panel should instead have looked “through” the Georgia Supreme Court’s ruling back to “the last reasoned decision” by the state courts. By a vote of 6-5 the Eleventh Circuit disagreed, holding that federal courts need not “look through” a summary decision on the merits to review the reasoning of the lower state court. The Supreme Court subsequently granted certiorari to address whether its decision in Harrington v. Richter abrogates the presumption set forth in Ylst v. Nunnemaker that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision. To discuss the case, we have Lee Rudofsky, Solicitor General of Arkansas.
In this fun, pre-Thanksgiving episode, we delve into a number of interesting topics. We begin with the popular (if much maligned by Thomas) card game "Cards Against Humanity" and their pitch to "save America." Are you surprised that it turns into a deep dive about eminent domain? (You shouldn't be.) After that, Andrew answers a listener question about whether, in fact, there are "magic words" in the law. How does this relate to the infamous lawyer dog? Listen and find out! Next, the guys discuss Trump's secret war on the judiciary, beginning with a judge less qualified than Thomas and most OA listeners. It's depressing! It's true! It's... depressing. The episode closes with the answer to Thomas Takes the Bar Exam Question #50 involving hot rods, cruisin', and assault with a deadly car hood. 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 a return guest on Episode 7 of the How-To Heretic Podcast; give it a listen! Show Notes & Links
Today's episode is, unfortunately, all about Alabama Senate candidate Roy Moore. First, the guys discuss the unintentionally hilarious litigation hold letter filed by Moore's attorney. After that, Andrew and Thomas break down Alabama's election laws and discuss a variety of proposals being circulated for replacing Moore on the ballot. Next, the guys end with a discussion of whether the Senate can expel Moore from its ranks in the event that he wins. Finally, we end with an all-new "West Side Story"-themed Thomas Takes the Bar Exam Question #50. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing 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! Have us on your show! Show Notes & Links
Today's episode takes a deep dive into social contract theory, and in particular, one of the most influential works of modern philosophy, John Rawls's A Theory of Justice, with guest philosopher Aaron Rabi, host of the terrific podcast Embrace The Void. After the discussion, we end with the answer to Thomas Takes the Bar Exam Question #49. 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 None! Have us on your show! Show Notes & Links
In the wake of another American mass shooting, Dahlia speaks with Adam Skaggs, Chief counsel at the Giffords Law Center to Prevent Gun Violence about the Second Amendment. And as this week marks the one year anniversary of Donald Trump’s election to office, Becca Heller, co-founder of the International Refugee Assistance Project, joins to talk about how her job changed after the election.
