Category: 3-LawSometimeCommentary

On January 18, 2017, the Supreme Court heard oral arguments in Lee 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 to the U.S. Court of Appeals for the Federal Circuit, a panel of judges determined that the Office officials were within their rights to refuse the application. The Federal Circuit then reviewed the case en banc and found that the Disparagement Clause violated the First Amendment and that the Office should not have refused the application. -- The question before the Supreme Court is whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. -- To discuss the case, we have Megan L. Brown, who is Partner at Wiley Rein LLP.

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In today's episode, we take a look at the law of contracts, and particularly in the context of the recent lawsuit involving former Speaker of the House Denny Hastert. We begin, however, with a related question from patron Michael, who asks whether the Scientologists can really enforce that billion-year contract to join to Sea Org.  (This answer will not surprise you.) That leads into our main segment, where we look at the strange and tragic lawsuit being brought against Hastert by a victim of his past sexual assault.  Hastert agreed to pay the victim $3.5 million for his silence, and then stopped paying after he came under federal investigation.  Recently, Hastert counter-sued to recover the hush money previously paid, and we break down all the intricacies of contract law to try and figure out who's likely to get what. After our main segment, we tackle another listener question; this time, about whether employers can fire you for smoking marijuana in the privacy of your own home if you live in a state like Colorado that's legalized marijuana use. Finally, we end with a brand new Thomas Takes the Bar Exam question #10 which is another very, very hard question.  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)! Show Notes & Links

1. This Chicago Tribune article sets forth the facts of the Hastert case.
2. And this Tribune article contains the actual text of Haster's counterclaim that we discuss during the show.
3. On Thursday, Andrew was a guest on The Scathing Atheist podcast episode #208.
4. That same day (he's a busy guy!), Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto podcast.

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On December 6, 2016, the Supreme Court decided State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages. -- Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded (as the district court had)--after applying a multi-factor test--that the breach did not warrant dismissal here. -- The question before the Supreme Court was what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion by Justice Kennedy, the Court unanimously held that a seal violation does not mandate dismissal of a relator's complaint under the False Claims Act and that whether to dismiss is a matter left to the discretion of the district court. In this case, the Supreme Court added, the district court did not abuse its discretion in declining to dismiss the relator’s complaint. -- To discuss the case, we have Lawrence Ebner, who is the Founder of Capital Appellate Advocacy.

On December 6, 2016, the Supreme Court decided Samsung Electronics Co. v. Apple. In April 2011, Apple sued Samsung Electronics, alleging that Samsung’s smartphones infringed on Apple’s trade dress as well as various design patents for the iPhone. A jury awarded Apple nearly $1 billion in damages under Section 289 of the Patent Act, and the trial court upheld most of the award against Samsung’s post-trial challenges. On appeal, the U.S. Court of Appeals for the Federal Circuit rejected Samsung’s argument that the district court erred by allowing the jury to award damages based on Samsung’s profits off of its phones in their entirety, rather than just the portion of profits attributable to the smartphone components covered under the design patents. -- The question before the Supreme Court was whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court unanimously held that in the case of a multicomponent product, the relevant article of manufacture for arriving at a damages award under Section 289 need not be the end product sold to the consumer but may be only a component of that product. Whether the relevant article of manufacture in this particular case should be the entire smartphone or merely a component thereof is an issue the Court left open for resolution on remand. -- To discuss the case, we have Trevor Copeland, a Shareholder at Brinks Gilson & Lione, and Art Gollwitzer, a Partner at Michael Best & Friedrich LLP.

In today's episode, we examine one of the favorite policy recommendations of President Trump's Secretary of Education, Betsy DeVos:  the school voucher.  What is it?  Is it constitutional?  Listen and find out! We begin, however, with a Breakin' Down the Law segment where Andrew looks at a popular Twitter account's explanation of the odd fact that Donald Trump filed his re-election papers four years early.  Is there some nefarious purpose to him having done so, or is this innocuous?  We break down the law so you'll be armed with the information you need to navigate these kinds of claims. In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment's Establishment Clause. After our main segment, we turn to a question from ex-Mormon about the infamous "Mormon Extermination Order," an executive order (No. 44) signed by Missouri Gov. Lilburn Boggs in 1838.  This dovetails with a two-hour discussion of the Order between Andrew and host Bryce Blankenagel during episode 47 of the "Naked Mormonism" podcast, which you should definitely check out by clicking here. Finally, we end with the answer to Thomas Takes the Bar Exam question #9 about joint tenancy.  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)! Show Notes & Links

1. The "Resisterhood" tweets are here.
2. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
3. This is the original, hand-written text of Missouri Executive Order 44 (the "Mormon Extermination Order").
4. The main page for the "Naked Mormonism" podcast is here; and Andrew was on Epsiode 47, which you can download here.

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In an elaborately choreographed prime-time ceremony this week, President Trump tapped Judge Neil Gorsuch for the Supreme Court seat that has been vacant for almost a year. We sit down with the Constitutional Accountability Center’s Elizabeth Wydra to examine Judge Gorsuch’s judicial record, whether he really is “Scalia 2.0,” and the difficult choices confronting Senate Democrats in the wake of this nomination. 

We also consider the ramifications of reports that some U.S. Customs and Border Protection agents are defying federal court orders around Trump’s new travel restrictions. Slate staffers Mark Joseph Stern and Leon Neyfakh tell us what they learned from constitutional law scholars about the possibility of a standoff between two branches of the federal government. (Read our Slate piece on the subject here.)

Finally, we zero in on one of the many lawsuits filed this week against Trump’s executive order. Aziz v. Trump centers on a pair of young men who were en route to join their father in Michigan when the order was issued, and wound up being deported to Ethiopia upon their arrival at Dulles International Airport. We’re joined by the Legal Aid Justice Center’s Simon Sandoval-Moshenberg, one of the lawyers representing the plaintiffs in the case.

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In today's episode, we take a look at President Trump's Supreme Court nominee, Neil Gorsuch.  The main segment was recorded before the announcement and reflects our guess (correctly!) that he would be the nominee, so you'll hear some speculative language. We begin, however, with a question from David Durman who wants to know if a citizen can bring a private civil suit against President Trump while he's in office.  The answer may surprise you! During our main segment, we also discuss Gorsuch's originalism and some of the opinions and dissents he issued while serving on the U.S. Court of Appeals for the 10th Circuit.  Oh, and he also wrote a snottly little editorial for the right-wing mag National Review. After our main segment, "Closed Arguments" returns with a question about Jared Kushner and the anti-nepotism law.  Is Trump violating the law?  The answer will probably not surprise you. Finally, we end with a brand new Thomas Takes the Bar Exam question #9 which is the single hardest question so far, in that it involves real property.  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)! Show Notes & Links

1. This is a link to the Washington Post article referenced by David.
2.  If you read only one thing from the show notes, it should be this sarcastic, nasty little article Gorsuch wrote for the National Review before he joined the bench.
3. Then, if you have the stomach for it, check out Gorsuch's opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), in which he openly muses in the text of the opinion about repealing Chevron deference.  Still think he's not an activist judge?
4. This is the anti-nepotism law, 5 U.S.C. §3110.

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Today's episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban. We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause.  Is that lawsuit likely to prevail?  What could it accomplish?  Listen and find out. In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the "Muslim Ban").  We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU's lawsuit. After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an "activist" decision. Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner's duties regarding trespassers who accidentally fall into the landowner's murder lake.  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)! Show Notes & Links

1. The CREW lawsuit is here.
2. We reference two decisions on the "political question" doctrine:  Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993).
3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
4. The authorizing statute (the "1952 Law") is 8 USC §1182(f).
5. The "1965  Law" is 8 USC §1152(a).
6. In light of those two provisions, we think you can spot the errors in David Bier's op-ed in the New York Times.
7. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents.

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Today's episode is part two of our two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA's tipping rules interact with Title VII of the Civil Rights Act of 1964.  Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities?  Listen and find out! After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed "right to travel" in the Constitution.  Answering this doozy takes us back into the weird and wonderful world of "sovereign citizens" -- you won't want to miss it! Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers.  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)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Please laugh at -- but DO NOT FILE! -- this suggested "brief" by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense.  (You can't.)
7. And here's another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution.  (You don't.)

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Today's episode is part one of a two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew explains why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a listener correction regarding the FLSA and tipped employees.  As it turns out, Andrew mis-spoke on a prior episode and employers must ensure that an employee's total compensation (including tips) meets the federal minimum wage. After our main segment on the FLSA, the much-beloved "Are You A Cop?" segment returns with a myth about President Trump revoking the commutation of Chelsea Manning's prison sentence. Finally, we end with the answer to Thomas Takes the Bar Exam question #7 about hearsay.  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)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Finally, here's the New York Times story about President Obama commuting Chelsea Manning's sentence.

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