Category: 3-LawSometimeCommentary

In part one of this two-part episode, we tackle every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency. So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s … Continue reading OA23: Trump Presidency Legal Q and A, Part 1 →

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On November 7, 2016, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated “longevity pay” for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed, and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- The question now before the Supreme Court is whether the FVRA precondition in 5 U.S.C. 3345(b)(1), on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, which requires that a person who is nominated to fill a vacant office subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials like Solomon, who assume acting responsibilities under subsections (a)(2) and (a)(3). -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

On November 9, 2016, the Supreme Court heard oral argument in Lynch v. Morales-Santana. Morales-Santana’s father was born in Puerto Rico but acquired U.S. citizenship in 1917 under the Jones Act of Puerto Rico. Morales-Santana was born in 1962 in the Dominican Republic to his father and Dominican mother, who were unmarried at the time. In 1970, upon his parents’ marriage, he was statutorily “legitimated” and was admitted to the U.S. as a lawful permanent resident in 1976. -- The Immigration and Nationality Act of 1952, which was in effect at the time of Morales-Santana’s birth, limits the ability of an unwed citizen father to confer citizenship on his child born abroad, where the child’s mother is not a citizen at the time of the child’s birth, more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same. -- In 2000, Morales-Santana was placed in removal proceedings after having been convicted of various felonies. An immigration judge denied his application for withholding of removal on the basis of derivative citizenship obtained through his father. He filed a motion to reopen in 2010, based on a violation of equal protection and newly obtained evidence relating to his father, but the Board of Immigration Appeals denied the motion. The U.S. Court of Appeals for the Second Circuit reversed the Board’s decision, however, and concluded that Morales-Santana was a citizen as of birth. The Attorney General of the United States then obtained a grant of certiorari from the Supreme Court. -- The two questions now before the Supreme Court are: (1) whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. -- To discuss the case, we have Elina Treyger, who is Assistant Professor of Law at the George Mason University Antonin Scalia Law School.

In the days leading up to Election Day, conservative legal scholar Orin Kerr explained why he would be crossing the aisle to vote for a Democrat. On this episode, he tells us why the prospect of a President Trump frightened him so much, and what we can expect in the way of checks and balances on executive power for the next four years.

We also speak with Garrett Epps, who wrote in The Atlantic this week that Trump is “a figure out of authoritarian politics, not the American tradition.” Epps observes that Trump has expressed contempt for nearly every article in the Bill of Rights, and deserves to be taken at his word.

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Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here. Podcast production by Tony Field.

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PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs In this week’s episode, we tackle the legal and philosophical issues underlying libertarianism.  We take on such issues as :  what is “property,” why is it a right, and is it cognizable as a side-constraint against government action?   At the end of the day, … Continue reading OA22: Libertarianism is Bad and You Should Feel Bad →

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On November 1, 2016, the Supreme Court heard oral argument in 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 after applying a multi-factor test that the breach did not warrant dismissal here. -- The question now before the Supreme Court is 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. -- To discuss the case, we have Cory Andrews, who is senior litigation counsel at the Washington Legal Foundation.

On October 11, 2016, the Supreme Court heard oral argument in Pena-Rodriguez v. Colorado. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. Two jurors later informed Pena-Rodriguez’s counsel that another juror made racially-biased statements about Pena-Rodriguez and an alibi witness during jury deliberations. The trial court authorized counsel to contact the two jurors for their affidavits detailing what the allegedly biased juror had said. Pena-Rodriguez moved for a new trial after learning from the affidavits that the juror had suggested Pena-Rodriguez was guilty because he was Hispanic (and this juror considered Hispanic males to be sexually aggressive toward females). According to the affidavits, the juror also deemed the alibi witness not credible because, among other things, that witness was “an illegal.” The trial court denied the motion and a divided Supreme Court of Colorado ultimately affirmed, applying Colorado Rule of Evidence 606(b)--which prohibits juror testimony on any matter occurring during the jury deliberations--and finding that none of the exceptions to the rule applied. In the dissenters’ view, however, Rule 606(b) should have yielded to “the defendant’s constitutional right to an impartial jury.” -- The question now before the U.S. Supreme Court is whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. -- To discuss the case, we have John C. Richter, who is Partner at King & Spalding.

On October 5, 2016, the Supreme Court heard oral argument in 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, 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 now before the Supreme Court is 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. -- To discuss the case, we have Mark D. Janis, the Robert A. Lucas Chair of Law and Director of the Center for Intellectual Property Research, Maurer School of Law, Indiana University.

On October 5, 2016, the Supreme Court heard oral argument in Salman v. United States. Bassam Yacoub Salman was convicted in a jury trial of conspiracy to commit securities fraud, as well as several counts of actual securities fraud. The government’s theory was that Salman, whose brother-in-law Mounir Kara (along with Mounir’s older brother Maher Kara) worked for Citigroup, had coordinated with Mounir in an insider trading scheme that, over the course of just a few years, grew a $396,000 brokerage account controlled by Salman into one worth more than $2 million. -- Salman moved for a new trial, arguing that there was no evidence he knew that the tipper had disclosed confidential information in exchange for a personal benefit. The district court denied the motion. Salman made a similar argument to the U.S. Court of Appeals for the Ninth Circuit on appeal, urging the Court to adopt the then-recently established standard set out by the Second Circuit in United States v. Newman. Under Newman, the government must present sufficient evidence that the accused knew the “inside” information he received had been disclosed in breach of a fiduciary duty. Invoking its precedent in Dirks v. SEC, the Ninth Circuit rejected Salman’s challenge, holding that the close familial relationship between Salman and the Karas was sufficient to sustain Salman’s convictions. -- The question now before the Supreme Court is whether the personal benefit to the insider that is necessary to establish insider trading under Dirks requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in Newman, or whether it is enough that the insider and the tippee shared a close familial relationship, as the Ninth Circuit held here. -- To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.

PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs By listener request, we are bringing you this special “deep dive” episode into the history and jurisprudence underlying the Second Amendment.  This episode was originally broadcast on Atheistically Speaking earlier in 2016. Just in time for the election, we tackle a thorny political issue: … Continue reading OA21: Second Amendment Masterclass, Part 1 →

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