Category: 3-LawSometimeCommentary

Today's breaking news episode contains your guide to the hotly-debated Supreme Court decision in Nielsen v. Preap, regarding how and whether aliens can be detained without due process.  What does it all mean?  Listen and find out!

We begin, however, with a brief update on the Congressional Investigations we discussed in Episode 259 with the news that Hope Hicks will cooperate.  Listen to our past episode if you don't realize how huge this is.

Then, we move on to some news regarding a recent order handed down by Judge Kollar-Kotelly in the District Court for the District of Columbia with respect to the trans ban.  We dive into the unique procedural issues giving rise to this order and tamp down on your enthusiasm that this may put the trans ban in jeopardy.

Then, it's time for our main segment breaking down Nielsen v. Preap. We tell you exactly what this decision means along with the reasons why the Court reached the result it did.

But that's not all!  After that, we have our weekly trip to Yodel Mountain with two items:  (1) an Andrew Was Right about the source of the National Enquirer's acquisition of compromising material about Jeff Bezos; and (2) a follow-up on the New York indictment of Paul Manafort.

And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #119 involving long-term contracts for the sale of wheat.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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. First discussed trans ban back in Episode OA: 247 2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick. 3. Here is a link to Directive-Type Memorandum (DTM) 19-004. 4. Pre Show: Hicks to cooperate. This is HUGE! 5. 1/4 – DC Cir. Reversed and vacated the injunction. 6. 1/22 – Supreme Court lifted the stays in two of those cases. We covered it the next day on Episode OA: 247. 7. Next day, on 3/8, the government filed a notice and this is the Plaintiffs’ response. 8. Here is the link DC Circuit's Opinions issued 3/8 9. Judge Kollar-Kotelly’s 3/19 Order 10. 3/20 Gov’ts Motion to Clarify 11. Nielsen v. Preap is linked Here 12. 8 U.S.C. § 1226(a) vs. (c) – 1952 13. Demore v. Kim, 538 US 510 - Supreme Court 2003 14. Wall Street Journal article on Becker/Bezos 15. CHN article on the problems with New York’s double jeopardy.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

On March 4, 2019, the Supreme Court decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case involving a split among the Courts of Appeals regarding when a copyright owner may initiate a suit for infringement in federal court.
Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street.com was required to remove all Fourth Estate content from its website before cancelling its account. Wall-Street cancelled its account but continued to display Fourth Estate articles, and Fourth Estate filed suit for copyright infringement against Wall-Street.com and its owner in federal district court. At the time Fourth Estate filed suit, it had submitted applications with the Registrar of Copyrights, but the Registrar had not yet acted upon them.
Wall-Street.com moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but noted a split among the federal courts of appeals on the issue: whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach).
Granting certiorari, the Supreme Court unanimously affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Ginsburg, the Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.”
To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.

On February 20, 2019, the Supreme Court decided Timbs v. Indiana, a case involving the incorporation of the Eighth Amendment’s excessive fines clause against the States.
Following his arrest en route to a controlled drug purchase after having previously purchased about $400 worth of heroin from undercover police officers, Tyson Timbs pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to a year of home detention and several years of probation, plus roughly $1,200 in police costs and related fees. In addition, the State of Indiana sought forfeiture of Timbs’ Land Rover, which he had purchased using $42,000 of his late father’s life insurance proceeds. Indiana claimed that it could seize the car because it had been driven to buy and transport heroin, even though the car was worth more than four times the maximum fine permitted for Timbs’ drug conviction. The Supreme Court of Indiana upheld the forfeiture against an Eighth Amendment challenge on the grounds that the U.S. Supreme Court had never incorporated that amendment’s “excessive fines” clause against the states. The United States Supreme Court granted certiorari to consider the issue.
By a vote of 9-0, the Supreme Court vacated the judgment of the Supreme Court of Indiana and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that the Fourteenth Amendment incorporates the Eighth Amendment’s excessive fines clause against the States. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Gorsuch filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment.
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.

Today's episode is inspired by the 56th anniversary of Gideon v. Wainwright, one of the most famous and celebrated landmark Supreme Court cases that guarantees indigent defendants the right to a court-appointed lawyer.  Is it under attack from our right-wing Supreme Court?  (You bet it is.)

We begin with a quick update on the recent district court opinion in California v. Ross and what that means for the 2020 Census.

Then, it's time for an Andrew Was Right segment a update on the New York appellate court's ruling in the Summer Zervos lawsuit.  As it turns out, Donald Trump does have to respond to Summer Zervos's lawsuit -- just like Bill Clinton had to respond to Paula Jones's.

Then it's time for a terrifying deep dive into Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.  What's the case about, and why is Thomas using it as a vehicle to try and overturn one of the most basic and fundamental rights criminal defendants enjoy today?  Listen and (sadly) find out.

After all that, it's time for a fun listener question about footballer Wayne Rooney and public obscenity laws.

Then, it's time for the answer to Thomas Takes The Bar Exam #118.  Did Thomas get a dreaded real property question correct??  Listen and find out!  And, as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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 recent district court opinion in California v. Ross.
2. Check out the New York appellate court's ruling in the Summer Zervos lawsuit.
3. If you have the stomach for it, read Clarence Thomas's dissent in the Supreme Court's recent decision in Garza v. Idaho.
4. In the question-and-answer section, we discussed this statute, Rooney's arrest record, and Cohen v. California.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

Dahlia Lithwick pans back this week to assess what’s holding and what’s buckling in terms of norms and institutions, two years and change into the Trump presidency. She’s joined by Ian Bassin of Protect Democracy, a new kind of litigation shop looking at global trends toward authoritarianism and trying to resist those trends in the United States.

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Dahlia Lithwick pans back this week to assess what’s holding and what’s buckling in terms of norms and institutions, two years and change into the Trump presidency. She’s joined by Ian Bassin of Protect Democracy, a new kind of litigation shop looking at global trends toward authoritarianism and trying to resist those trends in the United States.

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Today's extra-long episode contains your guide to all of the developments involving Paul Manafort over the past week.  What does it all mean and what can we expect next?  Listen and find out!

We begin, however, with a brief update on Episode 247 now that the Department of Defense has issued a Directive-Type Memorandum (DTM 19-004) implementing the ban on transgender service in the military.  With the help of some friends of the show, we break down the most pressing issues on the near horizon.

Then, it's time for All Things Manafort (TM), which sneakily includes a deep dive into exactly how the U.S. Federal Sentencing Guidelines came into effect, when they were mandatory, how they became advisory, and what the hell happened in the Eastern District of Virginia.

But that's not all!  After that, we have a discussion on when sentences should run consecutively versus concurrently, and how that interacts with Judge Amy Berman Jackson's sentencing decision in Manafort's DC case.

AND we also have breaking news regarding new state charges brought against Manafort as soon as both federal sentences were handed down.

And if that's not enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #118 that's a dreaded real property question.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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. First discussed trans ban back in Episode OA: 247
2. We were assisted by Alice Ashton – trans Arabic linguist who contributed to the Advocate article located here and by Deirdre Anne Hendrick.
3. Here is a link to Directive-Type Memorandum (DTM) 19-004.
4. This is the Feb. 22, 2018 Mattis directive.
5. Here are the DSM-5 guidelines on gender dysphoria
6. We first discussed the Sentencing Guidelines in Episode OA: 162.
7. The accompanying statute is 18 U.S.C. §3553.
8. For a primer on “variances” versus downward departures, check out the Sentencing Commission guidelines.
9. Judge Ellis transcript can be found here.
10. Concurrent/consecutive is governed by 18 U.S.C. § 3554.
11. Manafort’s NY State indictment involves Residential Mortgage Fraud 1st degree (4 counts) under Penal Law § 187.25 and Falsifying Business Records 1st Degree (8 counts) under §175.10.
12. We discussed Gamble v. U.S. in Episode Episode OA: 215.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

On January 9, 2019, the Supreme Court heard argument in Franchise Tax Board of California v. Hyatt, a case considering whether one state may, without its consent, be sued by a private citizen in another state’s courts.
In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.
California sought review in the U.S. Supreme Court, urging it to overrule the 1979 decision Nevada v. Hall, which held that one state’s courts could adjudicate a private citizen’s lawsuit against another state without the second state’s consent. The Supreme Court granted certiorari but split 4-4 on the issue, which resulted in a technical affirmance of the Nevada Supreme Court’s exercise of jurisdiction. Reaching the merits, the Court held by a vote of 6-2 that the U.S. Constitution did not permit Nevada to apply a rule of Nevada law that awarded damages against California greater than it could award against Nevada in similar circumstances.
On remand, the Nevada Supreme Court reissued its vacated opinion except as to the damages portion and applied the statutory damages caps for FTB’s benefit. FTB again petitioned for certiorari, however, and the U.S. Supreme Court agreed to revisit the issue on which it had previously split 4-4: whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.
To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.

Today's episode is inspired by a law student listener question about a recent Thomas Takes The Bar Exam hypothetical, and takes a deep dive into the wonderful and wacky world of res ipsa loquitur.   What does that even mean?  You'll have to listen and find out!

We begin with a brief Andrew Was Wrong segment about Donald Trump and drone use, followed up by an Andrew Was Right segment about multiple states suing to block the implementation of Trump's HHS regulations relating to Title X that we discussed in Episode 258.

Then it's time for that deep dive into res ipsa loquitur that you didn't know you wanted until now!

After all that, it's time for some Bonus Tuesday Yodeling, in which we check in on Roger Stone's "Motion to Clarify" that was denied by Judge Jackson and an update on the House Republicans' hilariously misguided efforts to try and discredit Michael Cohen by pointing out that he sure seems to like to lie on behalf of his client.  You won't want to miss it!

Then, it's time for the answer to Thomas Takes The Bar Exam #117.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesNone!  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 a link to the Daily Beast article about Trump and drone strikes we teased in the opening segment.
2. We've uploaded both Title X complaints:  the one filed by California as well as the multistate complaint.
3. More on Title X:  click here for the actual law (42 U.S.C. § 300 et seq.); click here for the accompanying regulations (42 C.F.R. Part 59), and click here to read the new final rule promulgated by HHS regarding Title X.  And, of course, you can click here to read Rep. Cummings's letter regarding the rule.
4. This is Rep. Jordan's "own goal" letter.
5. Finally, here's Judge Jackson's Order regarding Roger Stone.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

Don't forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

On November 27, 2018, the Supreme Court heard argument in Carpenter v. Murphy, a case considering the 1866 territorial boundaries of the Creek Nations and Indian country jurisdiction.
In 1999, Patrick Murphy, a member of the Muscogee (Creek) Nation confessed to the killing of George Jacobs. The State of Oklahoma charged him with murder and he was convicted in state court, receiving the death penalty. In 2004, Murphy sought post-conviction relief in federal district court, arguing that the Oklahoma state courts had lacked jurisdiction because the federal Major Crimes Act requires that a member of an Indian Nation alleged to have committed murder in Indian territory be tried in federal court. The Oklahoma Court of Criminal Appeals rejected this argument, concluding Murphy had not shown that the site of the murder fell within Indian territory.
Murphy thereafter sought habeas relief in federal district court, again raising his jurisdictional challenge (among other claims). The district court rejected his argument, but granted a certificate of appealability on the issue. On appeal, the U.S. Court of Appeals for the Tenth Circuit ruled in Murphy’s favor. Noting the parties’ agreement that the murder occurred within the Creek Reservation if Congress had not disestablished it or diminished its borders, the Court--invoking the Supreme Court’s 1984 decision Solem v. Bartlett--concluded that Congress had not done so. As a result, the Oklahoma courts lacked jurisdiction to charge and try Murphy for murder. Chief Judge Tymkovich, concurring in the denial of Oklahoma’s motion for rehearing en banc, however, suggested the case would benefit from Supreme Court review. He noted, among other things, that “the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement.”
The Supreme Court subsequently granted certiorari to consider whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).
To discuss the case, we have Troy Eid, Shareholder at Greenberg Traurig.