As next week marks the opening of the 2017 term at the high court, Dahlia Lithwick speaks with David Cole, legal director of the American Civil Liberties Union, about some of the cases in this upcoming term, including Trump's travel ban, a civil rights case of gay couples versus those of religious dissenters and more.
Cole also discusses how citizen activism is more alive than he's seen is his lifetime, something he illustrates in his new book, now out in paperback, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law.
Today's episode hits on some timely news stories, including Trump's latest kerfuffle with the NFL. In the pre-show, we talk a little bit about the Graham-Cassidy Bill, which is hopefully defunct by the time you hear this. But can Trump save it via Executive Order? (No.) Then, we return for a lengthy "Andrews Were Wrong!" segment in which we issue a correction from Episode 107, explain the difference between Ronnie Lott and Leon Lett, and also tackle friend of the show Andrew Seidel's recent article regarding whether churches will likely receive FEMA relief in the wake of the Trinity Lutheran decision. In the main segment, Andrew looks at the Supreme Court's recent order in Tharpe v. Warden and explains the significance in light of our prior discussion of jury deliberations. Before you listen to "Yodel Mountain," you'll want to go back and listen to Episode 57 and Episode 58, in which we go into detail on Donald Trump's rocky relationship with the NFL. Then, we answer whether Donald Trump violated federal law by threatening NFL players who refuse to stand for the national anthem & some other questions. You'll find out which senators oppose "State-Sponsored Patriotism" and the answer WILL surprise you! Finally, we end with a new Thomas Takes the Bar Exam Question #43 about whether a "Letter of Intent" is binding in a business sale. (Oooh, right in Andrew's professional wheelhouse!) 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 After being bombarded by 10,000 Twitter trolls, the guys are going to lay low for a little bit. Show Notes & Links
We discussed the first GOP effort to repeal the AHCA back in Episode 80, and you can read about the changes to that bill (largely, to the slush fund) in this Bloomberg article.
We first discussed whether churches will receive FEMA funds for disaster relief in Episode 102; Andrew Seidel respectfully disagreed with that conclusion in a recent article; we continue to think he's too optimistic in light of the Trinity Lutheran decision.
We discussed Pena-Rodriguez v. Colorado as a "landmark case" way back in Episode 56.
We're really proud of the episodes we did on the USFL v. NFL lawsuit back in Episode 57 and Episode 58, in which we go into detail as to exactly why Trump hates the NFL (and so much more)!
The relevant statute at issue with Trump threatening the NFL is 18 U.S.C. § 227.
Today's super-sized show -- at long last! -- discusses season 1 of the Serial podcast. Even if you haven't heard Serial, we think you'll enjoy this application of the principles of reasonable doubt. We begin with a discussion of the recent settlement between Evergreen College and Bret Weinstein. Why does Andrew say this means the college valued Weinstein's alleged $3.8 million lawsuit at zero? In the main segment, Andrew goes through some of the issues behind the Serial and Undisclosed podcasts related to the Adnan Syed case. Next, Andrew does a mini-deep dive on patent law by looking at a strange recent deal between Allergan and the Saint Regis Mohawk Tribe. What in the world do these two entities have in common? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #42 regarding authentication 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 a guest on Episode 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links
Andrew quoted extensively from State v. Earp, 319 Md. 156, 170-172 (1990) on witness coaching.
The two relevant sections from the U.S. Code relating to inter partes review are 35 USC § 102 (“no prior art”) and 35 USC § 103 (“non-obvious”).
This IP website has a brief discussion of the Oil States v. Greene's Energy Group case in which the Supreme Court will consider whether the inter partes review process is constitutional.
In this episode, we discuss a number of political stories making the rounds. First, "Yodel Mountain" returns with a look at the recent CNN story showing that the FBI obtained a FISA court warrant for Paul Manafort. Does this mean Trump's complaints about Obama "wiretapping" his campaign are true? Listen and find out! In the main segment, Andrew walks us through the recent ruling dismissing out the class action claims against the Democratic National Committee ostensibly by Bernie Sanders supporters. Find out what's really going on! Next, we answer a listener question from Patrick Hager about whether Congress can really overrule the Supreme Court. Learn civics with us! Finally, we end with a new Thomas Takes the Bar Exam Question #42 about whether an expert witness can authenticate crucial pieces of evidence. 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 Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links
Today's show discusses everyone's favorite non-issue: whether bigots who bake cakes for a living can discriminate against gays. We begin with a lightning round of questions taken from the Opening Arguments Facebook Community, which you should definitely join! In the main segment, we break down Masterpiece Cakeshop v. Colorado Civil Rights Commission, which is currently pending before the U.S. Supreme Court. Next, we explain the recent pronouncement by Donald Trump regarding enforcement of the Magnitsky Act. Are we scaling Yodel Mountain? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #41 regarding direct and circumstantial evidence in the context of a murder investigation and a shoeprint left at the scene. 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
When the Supreme Court term opens next month, perhaps no issue will be more urgent – and more complicated – than voting rights. One of the first cases the justices will hear is Gill v. Whitford, a challenge to the 2011 redrawing of district lines in Wisconsin. While the Court has struck down racially-motivated gerrymanders in the past, no election map has ever been rejected as a purely partisan gerrymander. And recent developments have some court watchers concerned that Justice Anthony Kennedy may still not be ready to do that. Our guest this episode is Richard Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, and curator of the must-read Election Law Blog.
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.
On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature. -- The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement. By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. -- To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.
Our jam-packed "breaking news" episode covers some of the biggest stories trending at the moment, including the Equifax breach. First, Closed Arguments returns by tackling a proposal from friend of the show Eli Bosnick, who asks -- in light of Trump's repeal of DACA -- whether we can't just marry off the 800,000 program participants. We can't; listen and find out why. In the main segment, Andrew walks us through the Equifax data breach, the pending class-action lawsuits, and all of the key legal issues. He even weighs in on the "chat bot" that some are saying will file your suit for you! Next, Breakin' Down the Law continues with everything you wanted to know about the Supreme Court's recent gerrymandering decision. Finally, we end with a new (and possibly too-easy!) Thomas Takes the Bar Exam Question #41 about the admissibility of footprint and shoe evidence. 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. Have us on your show! Show Notes & Links
We previously discussed political gerrymandering (including the "Wisconsin case") in episode 54, and racial gerrymandering and Cooper v. Harris in episode 72.
On January 9, 2017, the Supreme Court decided White v. Pauly, a petition involving a denial of qualified immunity to law enforcement officers in a civil rights dispute. In October 2011, officers Kevin Truesdale and Michael Mariscal went to the home of Daniel and Samuel Pauly to investigate a complaint made by several drivers that Daniel had been driving erratically that evening. The officers entered the Pauly property while a third officer, Ray White, remained near the highway in case Daniel returned there. Truesdale and Mariscal did not find Daniel’s truck, but they did notice lights on in one of two houses on the property. Upon approaching the building covertly they spotted two men moving around inside, and then requested that Officer White join them. When the Paulys became aware that strangers were present outside there was a verbal confrontation; according to the officers, the officers self-identified as police and threatened to enter the house if the brothers did not come out. It appears however, that neither Pauly heard the self-identification. Just as White was arriving the brothers warned that they had firearms. Upon hearing the warning, White took cover behind a stone wall fifty feet from the house. Daniel then fired two shotgun blasts out the back door and when Samuel pointed a handgun out the window in White’s direction, Mariscal fired at him but missed. Several seconds later White also fired and hit Samuel, killing him. Samuel Pauly’s estate and Daniel Pauly sued the officers under 42 U.S.C. § 1983, alleging an excessive use of force in violation of the Fourth Amendment. The district court denied qualified immunity to the officers and a divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. The majority reasoned that, taking the plaintiffs’ version of the facts as true, a reasonable person in the position of Officers Mariscal and Truesdale should have understood that their conduct might cause the Paulys to use deadly force in defense of their home. As to Officer White, the majority concluded that while he did not participate in much of the lead up to the shootout, a reasonable officer in his position would have believed a verbal warning was required given that the stone wall afforded him secure cover. -- The Supreme Court granted the officers’ petition for certiorari, vacated the judgment of the Tenth Circuit, and remanded the case. Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” On the record described by the Tenth Circuit, the Supreme Court held, Officer White did not violate clearly established law. But because the parties disputed whether White actually arrived on the scene several minutes before the shooting started and should have known that the other officers had not properly identified themselves, the Court left this potential alternative ground for affirmance--as well as whether Truesdale and Mariscal were entitled to qualified immunity in light of the Supreme Court’s ruling--for further consideration by the Tenth Circuit on remand. Justice Ginsburg issued a concurring opinion. -- To discuss the case, we have Josh Skinner, Of Counsel with Fanning, Harper, Martinson, Brandt & Kutchin, P.C.
